General Assembly Session 57 meeting 36

The President

May I take it that the Assembly takes note of the ninth annual report of the International Tribunal for the Former Yugoslavia?

The President

I now call on Mr. Claude Jorda, President of the International Tribunal for the Former Yugoslavia.

Mr. Jorda (President of the International Tribunal for the Former Yugoslavia)

It is a great honour for me to address this Assembly once again as I present the ninth annual report of the International Criminal Tribunal for the former Yugoslavia, over which I have the honour to preside.

Allow me first, on behalf of all my colleagues and of the Tribunal as a whole, to express my profound gratitude for the support the Assembly has always afforded our institution. When I had the honour of presenting the eighth annual report of the International Tribunal to the Assembly last year, I shared in particular my concerns regarding the need to adapt the achievement of the International Tribunal's mission to the political changes in the former Yugoslavia. In fact, I shared some thoughts on the future priorities of the judicial institution over which I preside, describing in particular the need to direct the Tribunal's activity more towards the prosecution of crimes which constitute the most serious breaches of international public order, and setting out new ways in which to promote the trial of certain cases by courts in the States of the former Yugoslavia.

This process of reflection, initiated in 2000-2001, has since brought about a vast movement of reform, the foundations and main characteristics of which I will attempt to present at a later stage. For the moment, I will just say that 2001-2002 will have been marked not only by the effective implementation of the structural changes adopted in 2000 but also, and more particularly, by the setting out of a plan of action identifying the future directions of the International Tribunal.

The drafting of the plan of action is one outcome of an overall process of reflection, undertaken by the Tribunal in early 2000, on its judicial status and the means by which to accomplish its mission in the shortest possible time. I take the liberty of recalling that, in January 2000, the Tribunal began a large-scale reform of its structure and operation resulting, inter alia, in the adoption on 30 November 2000 of resolution 1329 (2000), by which the Security Council approved the creation of a pool of ad litem judges and the appointment of two additional judges to the Appeals Chamber. The aim of these reforms was to implement practical and flexible solutions that would allow the judges to deal with a considerable increase in their workload and thus respond more effectively to the needs of the accused and the expectations of the victims.

Today, I will attempt to present a summary of the Tribunal's activity and the main aspects of this plan of action. To begin, I would recall that the Tribunal is seeing a considerable increase in its activity at this time. I would also emphasize that, despite the increase in its activity, the Tribunal cannot try on its own all those accused of war crimes and crimes against humanity. At any rate, it must be said that, were it to do so, it could not honour its commitments to the Security Council. We therefore had to implement an appropriate and realistic strategy at The Hague that would allow those presumed responsible for crimes constituting the most serious breaches of international public order in the former Yugoslavia to be prosecuted as a priority. Finally, I will describe the effective implementation of the programme, which is far from being accomplished.

First, let me address the commitments and concrete measures undertaken. The Tribunal is today functioning at full capacity. It is honouring the commitments it made to the Security Council and is currently holding six simultaneous trials daily, as opposed to three in previous years. There is a total of 25 judges at the Tribunal. In 2001-2002, nine ad litem judges were appointed by the Secretary-General and served alongside the permanent judges. Consequently, as was to be expected, the number of trials has increased significantly. This increased activity has led to a significant rise in the number of decisions rendered. In fact, in the past year, the Trial Chambers examined over 20 cases and rendered five judgements on the merits.

In November 2001, pursuant to the resolution to which I referred earlier, two additional judges from the International Criminal Tribunal for Rwanda joined the Appeals Chamber of the Tribunal for the former Yugoslavia. I recall that the Appeals Chamber serves both Tribunals. It pronounced 20 or so interlocutory decisions, two appeals on the merits and ruled on two review applications. I would add that the structure and working methods of the Appeals Chamber were subject to reforms. Moreover, we established an international bar for defence counsel and to amend the Code of Professional Ethics. I anticipate greater efficiency of the Tribunal's functioning to result from improved training for defence counsel, a stricter Code and, ultimately, better participation of defence counsel in the Tribunal's effectiveness and efficiency.

At the same time, now is not the moment for self-satisfaction. This report should not conceal the difficulties encountered, particularly concerning the length of trials. The rate at which the Tribunal tries its accused is still too slow. Need I remind the Assembly that, as matters stand, some of the accused will not be tried within the next two years, a period which will only increase if no effective measure is taken to expedite proceedings?

The Tribunal must therefore continue striving to ensure further improvements in our current judiciary processes. We judges must deepen, improve and discuss them. In that respect, a new working group will submit its conclusions to me in the next few weeks.

This being so, the reforms undertaken will not on their own suffice for the Tribunal to honour its commitments to the Security Council, including an end to investigations in 2004, the end of trial proceedings by 2008-2010 and the end of appeals proceedings in a final four-year mandate.

I wish now to discuss the Tribunal's future directions, which I set out to the Security Council and about which the General Assembly should be informed.

A series of steps have been initiated by the Prosecutor, who is present in the Hall and whom I commend, and by the Registrar. The three organs of the Tribunal work hand in hand in exercising this entirely new form of international justice. In January 2002, we gave these issues some thought and decided to move towards a possible referral process of certain cases to the national courts of the States of the former Yugoslavia. The Prosecutor, the Registrar and I drafted a report on the judicial status of the International Criminal Tribunal for the former Yugoslavia and the prospects for referring certain cases to national courts. This reflection also benefited from a certain number of meetings, in particular with a group of experts mandated by the High Representative for Bosnia and Herzegovina, and from visits and meetings with all involved parties in Sarajevo and in the two entities of Bosnia and Herzegovina, the Federation and the Republika Srpska. I discussed all this at the plenary meeting of a Security Council in July 2002, and the Council has been giving this information its consideration.

This strategy comprises two main aspects: realigning Tribunal activity on the trial of the highest-ranking military, paramilitary and civilian leaders responsible for war crimes and crimes against humanity; and refering certain cases of lesser importance to the national courts. In July 2002, having reviewed the ongoing investigations, the Prosecutor of the Tribunal considered that a certain number of intermediary or lower-level accused could, in fact, be tried by the courts of Bosnia and Herzegovina.

On 23 July, Ms. Del Ponte and I had the honour of presenting the aforesaid directions to the Security Council. I wished to ascertain, on behalf of the judges of the Tribunal, that we were, in fact, duly mandated by the Statute before undertaking all the measures necessary to implement the referral process. Following this discussion, the President of the Security Council issued a statement on behalf of the Council endorsing

"the report's broad strategy for the transfer of cases involving intermediary and lower-level accused to competent national jurisdictions as... the best way of allowing the ICTY to achieve its current objective of completing all trial activities at first instance by 2008". (S/PRST/2002/21)

The Security Council also

"invites States and relevant international and regional organizations to contribute as appropriate to the strengthening of national judicial systems of the States of the former Yugoslavia in order to facilitate the implementation of this policy". (ibid)

The essential question remains as to how the reform may be effectively implemented.

It bears emphasizing that this goal does not depend solely upon the work of the International Tribunal. Since the strategy seeks, among other things, to refer a number of cases to the domestic courts, it involves a large number of players, and not only the Judges and the Prosecutor. I will try to explain. These players are, first of all, of course, the International Tribunal, followed by those officials responsible at the national level, and finally, the international community itself, which you are and which you represent.

First of all, the International Tribunal: What must it do in order to meet the objectives set by the Security Council, in agreement with the Tribunal itself? Several approaches have already been undertaken in just a few weeks. The Judges, first of all, are empowered to create provisions allowing for the referral of certain cases to the national courts. And this is why I appeared before the Security Council.

From a constitutional standpoint, does our statute make it possible for us to refer a certain number of cases? The answer is yes. And so, we the Judges, in consultation with the Prosecutor, went ahead and modified our own rules of procedure and evidence, making it possible for this referral process to be carried out. So, from that standpoint, the Tribunal is ready.

I also met with the presiding Judges of the three Trial Chambers and began to examine with each of them the cases which could be referred to national courts, if need be.

And, lastly, the Prosecutor continued her evaluation of investigations that have been ongoing since the beginning of the year in order to determine how many individuals should be tried by the International Tribunal and how many by the national courts. I will, of course, specify which ones.

In the final analysis, the referral of certain cases -- and you, representatives of the Assembly, will agree with me -- will be possible only if the national courts have all of the resources required for trying war criminals. When I talk about resources, I am not talking about financial resources; I am also talking about legal resources. Furthermore, we must be sure that if we refer cases to the national courts, we must do so knowing that the mission entrusted to us by the Security Council will not give flea market value -- forgive me for using that crude expression -- to our cases if we are not absolutely convinced that those accused will be judged by the international standards to which we in this forum are all committed, and no one more so than you yourselves, Member States of the Assembly.

Now who are the other involved players in this strategy? It is the competent authorities on the national level.

I wish to remind you -- and this is the opinion of the Prosecutor as well -- that only courts in Bosnia and Herzegovina should for the time being be involved in the referral of cases. That said, while we were in Bosnia and Herzegovina, Madam del Ponte and I myself observed that, despite the return to peace and the gradual re-establishment of democratic institutions in that country, the local courts were faced with substantial structural difficulties. Moreover, it will take several years before the far-reaching efforts undertaken by the Office of the High Representative to reform the State's judicial system can be completed.

In order to enable the Tribunal to implement its programme at the earliest possible opportunity -- by which I mean, to commence the referral of certain cases by 2003 -- an interim solution has been identified. This solution consists of establishing a chamber with special jurisdiction to try serious violations of international humanitarian law within a national court already in place, in this instance, the State Court of Bosnia and Herzegovina. In other words, at the time of putting a State or national court into place, there would be a special section or chamber dealing with war crimes. In order to guarantee the impartiality and independence of that chamber, it would be provisionally -- and I do emphasize provisionally --- composed of international judges who would assist the local judges. This solution has many advantages. For one thing, it has the advantage of avoiding the inconveniences of referring our cases to jurisdictions that are unable or unwilling to try these cases, whether it be the Croat-Muslim Federation or the Republika Srpska. This is our current view. I say this outright.

It goes without saying that, in order to set the specialized chamber in place, concerted action is required on the part of all the competent authorities in Bosnia and Herzegovina. They are the High Representative for Bosnia and Herzegovina, who must already bear the heavy responsibility of fighting organized crime and stabilizing the country's economy; the local judicial authorities, who are the primary players; and also the international community, whose financial, logistical and legal support are vital.

The Tribunal is aware that this is not an easy task. Nevertheless -- and I reiterate this here before the Assembly -- such concerted action is the sine qua non for the effective implementation of the referral process and, as such, for the accomplishment of our mandate within the prescribed time frames. Very recently, the Office of the High Representative confirmed to me that the goal of establishing this specialized chamber by 2003 was still on track, provided, inter alia, that the necessary financial support was forthcoming.

May I, from this rostrum, express some confusion, because the High Representative came before the Security Council last week and was not very explicit on this question. We will be discussing this again. I believe there is a need for there to be clear and unambiguous discussions in this regard. It is my firm belief that the establishment within the State Court of a specialized chamber for jurisdiction over violations of international humanitarian law must be supported. And I ask you to support it. All means must be provided so that the chamber can function effectively.

The establishment of a deep-rooted and lasting peace in the former Yugoslavia will become a reality only once all the war criminals that are accused before that jurisdiction are brought to trial. In any event, such is the meaning of the International Tribunal's mission, under Chapter VII of the United Nations Charter.

I have spoken to you of the responsibilities of the Tribunal and of the responsibilities of the competent authorities at the national level. I would like to conclude by referring to the responsibilities of the international community towards this Tribunal.

I would like to recall that the Tribunal will not be able to accomplish its mandate within the anticipated time frames unless the Member States, and especially those created out of the former Yugoslavia, arrest and bring before the International Tribunal the accused in their territory and, further, hand over all of the evidence in their possession. As I indicated previously, the Tribunal has taken all of the measures necessary for the practical implementation of its programme of action. However, the Tribunal is not alone in this important endeavour. For the Tribunal to be able to concentrate its work on the prosecution and trial of the main political, military and civilian leaders, the States of the former Yugoslavia must also actively participate in their arrest and transfer to The Hague, as it is in this way -- and this way alone -- that we will be able to accomplish our mandate within the anticipated time frame.

The cooperation of the States -- and those particular States -- is, therefore, essential and remains one of my major concerns. Henceforth -- and I want to be very clear about this -- I will not hesitate to refer to the competent authorities the failure of any State to meet its international obligations. My predecessors have done this, and as you know, I myself have done so very recently.

In conclusion, it must be noted that the Tribunal will enter its tenth year of existence in 2003. We must thus examine the results of this institution's activities more than ever, and do so uncompromisingly. I am not speaking in terms of an anniversary, but in terms of a time to assess our work. I have endeavoured today to demonstrate to the Assembly that international criminal justice is possible. Yet, for such justice to flourish, it is also important to underscore the vital character of the collective action that must be taken by the international community, which is represented here, while never forgetting the voice of the victims and the ultimate goal of reconciliation among peoples.

The President

I give the floor to the representative of Denmark, who will speak on behalf of the European Union.

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