Speech by his Excellency, Judge Claude Jorda, President of the International Criminal tribunal for the former Yugoslavia, to the UN General Assembly.

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PRESIDENT

(Exclusively for the use of the media. Not an official document)

Speech by his Excellency, Judge Claude Jorda, President of the International
Criminal tribunal for the former Yugoslavia, to the UN General Assembly

Mr. President, Excellencies, Ladies, Gentlemen,

Like my predecessors before me, I am very sensitive to the honour you do me by presenting me with this opportunity to address you. This is a symbolic moment for me and, above all, one which I feel is decisive for the future of our institution.

I see it as a symbolic moment because it is almost one year to the day that I was elected President of the Tribunal by my peers and thereby invested with new responsibilities. These responsibilities bring me before your Assembly today in order to report on what we have accomplished over the last year.

This is a decisive moment for the future of the Tribunal especially given the major political upheavals the Balkans have recently witnessed. Last February, the people of Croatia chose a new government and so demonstrated their resolve to break with the years of war they have just endured. A few weeks back, the people of the Federal Republic of Yugoslavia, in turn, elected a new President and thereby brought an end to the reign of Mr. Milo{evi} who, as you know, has been indicted by the Tribunal for crimes against humanity and war crimes for over a year. Most recently, the Federal Republic of Yugoslavia reassumed the seat it previously held within this Assembly and once again took up its place within the Community of Nations, a development from which we can all take satisfaction.

As a result, we may hope in all legitimacy that the Balkan States - each one henceforth a full member of the United Nations - will fully respect their international commitments and co-operate closely in the accomplishment of our mission even if for now consolidating democracy is their priority. Furthermore, our hopes of prosecuting the high-ranking political and military officials indicted by the Tribunal have never been so high.

Yet, at this moment, great as our hopes and ambitions may be, equally great is the concern that we may not be able to realise them with the necessary expedition. Everybody knows that a lasting return to peace in the Balkans – jeopardised by exacerbated nationalism which remains a safe fallback - is dependent on the swift fulfilment of our mission. Likewise, everyone realises that the credibility of international justice depends to a great extent on the accomplishment of our mission - a credibility which, now more than ever, must be affirmed at this juncture when States are due to ratify the treaty instituting the future International Criminal Court.

Allow me to share with you three major issues of concern arising out of the operations of the Tribunal which run throughout the annual report distributed to you almost a month ago.

First issue of concern:

Although the Tribunal is now operating at maximum capacity, it is faced with an unprecedented workload occasioning an ever-mounting judicial backlog. The Tribunal must complete the reforms it has undertaken this year.

The Tribunal is operating at maximum capacity.

In addition to the investigations which she conducted in Bosnia and Herzegovina and Croatia, the Prosecutor, Mrs. Carla Del Ponte, also opened many investigations into the crimes perpetrated in Kosovo. With the assistance of several teams of experts made available to the Tribunal by the Member States, her Office has interviewed over 3,000 witnesses and carried out several thousand exhumations.

Moreover, in a single year the Trial Chambers have rendered three highly significant judgments in cases which were particularly lengthy and complex. In order to do so, the Chambers had to analyse several hundred witness statements and several thousand documents. At the same time, they rendered dozens of decisions in fields such as the protection of State secrets and the responsibility of the political leaders - fields which, as you can appreciate, are particularly sensitive and whose broad significance recent events constantly bring to our minds. As I stand before you now, the Tribunal’s Trial Chambers are sitting in continuous session in order to deal with 13 cases simultaneously, nine of which are at the pre-trial stage and four of which are at trial.

The Appeals Chamber, which also hears appeals against decisions rendered by the Rwanda Tribunal, passed down three judgments on the merits and rendered over 15 interlocutory appeals. Its case-law has seen major developments and has been consolidated on the essential points of humanitarian law and international criminal procedure.

The Tribunal’s judicial backlog continues to grow.

Despite its considerable activity, the Tribunal’s workload continues to grow.

Several figures paint a particularly telling picture. Sixty-five persons are currently indicted by the Tribunal of whom 38 have been arrested and are now in detention in The Hague. According to our calculations and assuming that all the accused will have been apprehended, their trials will not be completed before the year 2007 unless changes are instituted within the Tribunal!

This figure is all the more disquieting because it does not take into account the activity of the Appeals Chamber which may soon be inundated by the increasing number of cases it will have to hear over the years. Nor does it take into consideration the Prosecutor’s estimates.

By May of last year already, the Prosecutor had announced her intention to open a further 36 investigations into 150 suspects and thus bring the total number of accused to over 200. As a result and on the basis of our estimates, should there be no reform of the penal policy, the rules of procedure and the organisation of the Tribunal then our mission will be accomplished only in 2016, that is more than 15 years from today.

I cannot accept this situation and not undertake the necessary reforms. I cannot agree to the detainees being deprived of their freedom for several years without knowing their fate.

The Tribunal must complete its reforms.

It is absolutely imperative that we complete the reforms upon which we embarked almost a year ago if we wish to accomplish our mission as quickly as possible.

Might I recall that we began by implementing the recommendations of the Expert Group mandated by the Secretary-General of the United Nations. These recommendations provided us with a new and external perspective on several aspects of the trials, notably the role of the defence and the place of the accused, and the operations of the Tribunal.

We are already implementing these recommendations.

We then began to reflect in more general terms on the reforms to implement to ensure that all the accused who have already been, or will be, detained are tried within a reasonable time-frame. We are well aware that to do so, it is not enough to increase the Tribunal’s material and human resources. First and foremost, we must thoroughly rethink our structures and operational methods whilst bearing in mind that the proposed changes must be sufficiently flexible so as to be easily adaptable to the Tribunal’s future needs inevitably dictated by the indictments and arrests to come.

Consequently, we considered several solutions and analysed their respective advantages and disadvantages. For instance, we considered the possibility of holding some trials away from the Tribunal, that is, trials by the Member States including those in the Balkans. This solution has merit: it would bring the Tribunal closer to the local population and contribute to national reconciliation. However, in addition to the fact that this approach would not promote the development of unified international criminal justice, we also believe that it would be premature. We therefore opted for a two-fold solution which should expedite the proceedings without disrupting the current system or, of course, infringing upon the accused’s fundamental rights. Firstly, this solution involves expediting the pre-trial phase: more responsibility for which would be conferred upon qualified legal officers thus enabling the Judges to devote all their time to actually trying the cases. It also looks to increase the Tribunal’s trial capacity by creating a pool of ad litem judges from the Member States who would be called upon to rule in specific cases when so required.

Such proposals which call for an amendment to the Tribunal’s Statute are presently under review by the Security Council which seems to have considered them in a favourable light. I would like to thank the Member States of the Organization warmly for this.

However, bearing in mind that this two-fold solution will be fully effective only if other internal reforms are made as well, we are moving in new directions which do not require you to provide any additional resources. We must find more effective rules for administering and presenting evidence while also bolstering the judge’s powers of control over the conduct of the proceedings for the purposes of expediting the accused’s trials with, of course, due regard for the demands of fairness. Moreover, for us to reach our goal, the three organs of the Tribunal must work more closely in order to accomplish its mandate. I shall return to this issue later.

Should these reforms be adopted, our limited mandate would be accomplished much sooner. If all the accused are arrested, we should finish our work around 2007 rather than in 2016, that is nine years earlier.

Second issue of concern:

Despite its limited mandate, the Tribunal seems to be here to stay for some while.

The Tribunal was given a limited mandate.

As an ad hoc institution, the Tribunal accomplishes the goal assigned to it by Security Council resolution 827, that is, to restoring a peace of reconciliation in the Balkans by trying those guilty of crimes.

As such, the Tribunal is not called on to outlast the fulfilment of its mission. I would even say that it must reach its goal within the shortest possible time. At stake is not only the right of the accused to be tried without undue delay but also the reliability of the testimony. With time, testimony becomes too vague to be used as a basis for reaching a judgement. Might I recall in this regard that it is now almost 10 years since the commission of the crimes whose perpetrators we are trying. However, above all and more fundamentally, at issue is the credibility of international justice. If we do not act rapidly, voices calling for reconciliation tailored to the circumstances, and thus fragile, rather than for the demanding and sometimes painful exercise of justice will gradually make themselves heard. Only justice can guarantee long-lasting peace.

The Tribunal appears to be here to stay for some while.

Paradoxically, the Tribunal seems more to be evolving into an institution which expects its expansion to continue over time rather than remaining one which is temporary. The figures which I previously gave you clearly bear witness to this. Might I repeat that were we merely to continue operating at the current rate it would take at least 15 years to fulfil our mandate. The Tribunal’s personnel and budget, both continually growing, also attest to this. Almost a thousand people are now employed at the Tribunal and its annual budget has risen to over 100 million dollars.

All the Tribunal’s organs must strive in concert to fulfil its mandate.

How can we change this way of thinking? My colleagues and I are fully aware that our mission has an end and that we do not have unlimited means to achieve it.

We must of course rationalise the way we work but we must also make better use of the resources you give to us. As I said a moment ago, this means reforming the operations and even the structures of the Tribunal. In a few weeks, I will also propose further measures to my colleagues, the Prosecutor and the Registrar, which will allow the Tribunal’s three organs to set together their longer-term judicial priorities and to co-operate more closely in meeting them as rapidly as possible.

Third and final issue of concern:

The Tribunal is both independent of and dependent on the States of the International Community.

This point is all the more crucial since we are frequently criticised for failing to be impartial and independent vis-à-vis the States whose nationals we are trying.

The Tribunal is independent.

It may be superfluous to recall here that the Statute provides the judges with all the guarantees of independence and impartiality that the exercise of their functions requires. The Statute also recognises the Prosecutor’s power to determine unfettered the penal policy she intends to pursue.

These are fundamental principles upon which the credibility of the Tribunal hangs in the eyes of the Balkan peoples. We cannot claim to render them justice or to contribute to the restoration of the peace in the former Yugoslavia unless we provide them with all the necessary assurances of neutrality.

The Tribunal is dependent upon the States of the International Community.

Nevertheless, implementing the guarantees of independence and impartiality depends above all on the application of and respect for the legal decisions by the people on whom they are binding. We do not have our own police force to enforce our decisions. In other words, we are without the "secular arm" which all court systems possess. This demonstrates how entirely dependent we are on your support in arresting the war criminals and gathering evidence.

In this regard, I have noted that the position of the Tribunal has greatly improved over the last year. Thirty-eight indictees are presently in detention in The Hague, 13 of whom were arrested during the year under consideration. The Prosecutor has also received a significant quantity of evidence which has enabled her to make significant progress in her investigations.

This success is first the result of the increased co-operation by all States which, via international organisations, and more specifically SFOR and KFOR, are co-operating closely with the Tribunal. It also stems from the co-operation provided to us by the States in the Balkans, notably the entities of the Republic of Bosnia and Herzegovina and, more recently, the Republic of Croatia.

All States must co-operate more with the Tribunal.

This progress must not however make us forget that the highest ranking political and military officials indicted by the Tribunal remain at large. It is precisely these accused, major military leaders and high-ranking government officials, who must first and foremost answer for their acts before an International Tribunal which is the guarantor of the peace and security of mankind. In actual fact, they, more than any others, endanger the international public order of which we are one of the guarantors.

Like my predecessors, I will appeal to the Member States, and more particularly to the States created out of the former Yugoslavia, to ensure that all the accused in their territories are arrested and brought before the Tribunal. As I stated at the outset, the advent of democratic forces in Croatia and the Federal Republic of Yugoslavia is admittedly cause for hope. As such, I am pleased that a Tribunal liaison office in Belgrade will reopen. I am also delighted that the Outreach programme for the Balkans will be able to take advantage of this opening. However, until these States have met all their international obligations, which may I remind you derive from the United Nations Charter, they cannot claim to have reassumed fully their place within the Community of Nations.

I shall conclude by recalling that History has taught us that so long as the duty of rendering justice has not been truly discharged, the spectre of war can re-emerge, sometimes even several generations later. We are all now accountable to these generations for the success of our undertaking. Our success is especially important since that of the future International Criminal Court is to a great extent dependent upon it. We must not let slip through our fingers this unique and historic opportunity to demonstrate that the court which you have established can contribute to restoring a just and lasting peace in the regions battered by conflict.

Today, as always, the Tribunal knows that its voice is heard. On behalf of all its members, I wish to express all my gratitude for your constant support.

Thank you for your attention.

 

 

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International Criminal Tribunal for the former Yugoslavia
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