PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT HEARS STATEMENT BY FORMER YUGOSLAVIA TRIBUNAL JUDGE

Press Release
L/2949

PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT HEARS STATEMENT BY FORMER YUGOSLAVIA TRIBUNAL JUDGE

As the Preparatory Commission for the International Criminal Court continued its work on formulating the rules and guidelines necessary for the eventual functioning of the Court, a judge from the International Criminal Tribunal for the Former Yugoslavia described the Tribunal’s practice and experience in some unresolved areas still under discussion within the Commission.

Judge Richard George May (United Kingdom) said a judges’ paper being submitted to the Commission by the Tribunal concentrated on technical issues and practical realities, rather than on general principles or broad overviews. The paper focused on: evidence in cases of sexual violence; the role of the Victims and Witnesses Unit; issues arising with respect to defence counsel; and matters relating to the enforcement of sentences.

He told the Commission that the Tribunal’s Rules governing the admission of evidence in cases of sexual assault had been consciously adapted to take into account the organized and systematic rape of women, particularly in detention facilities, as evinced in the former Yugoslavia conflict. Given the nature of modern conflicts, the International Criminal Court certainly would face issues relating to sexual violence committed within the context of war crimes, crimes against humanity or genocide, and would have to grapple with the same issues faced by the Tribunal.

On defence counsel, he said there was a general lack of familiarity with the Tribunal and its procedures. While that was understandable in view of the Tribunal’s unique nature, the problem was that defence counsel who were new to the procedures might cause serious delays given the Tribunal’s large docket. For that reason, steps were being taken to implement training courses for defence counsel.

The Commission is conducting a “second reading” of draft texts on the Rules of Procedure and Evidence and Elements of Crimes from a document that represents a consolidation of the results of the discussions of the three previous sessions.

Also at this morning’s meeting, coordinators of several of the Commission’s working groups provided updates on their work. Representatives of Spain, Bosnia and Herzegovina, Norway and the Netherlands, as well as the observer for the Holy See, spoke during a question-and-answer session with Judge May. Philippe Kirsch (Canada), Chairman of the Commission, also spoke. The mandate of the Commission calls for a completion of work by 30 June on the Rules of Procedure and Evidence and Elements of Crimes. The Rules cover such issues as composition and administration of the Court, penalties for crimes, obligations of international cooperation and assistance, as well as enforcement of sentences. On the matter of crimes within the Court's jurisdiction -- genocide, war crimes and crimes against humanity -- the Commission is working to identify what elements constitute those crimes. In the category of crimes against humanity, such crimes as murder, enslavement, extermination, persecution, disappearance and sexual crimes are under discussion.

The Court, which is to be a permanent judicial body with jurisdiction over crimes committed by individuals, will become operational once the treaty establishing it, known as the Rome Statute, receives 60 ratifications.

The Commission will hold its next plenary meeting at a date and time to be announced.

Progress Reports by Working Group Coordinators

HERMAN VON HEBEL (Netherlands), coordinator for the working group on Elements of Crime, said the group had been informed of the outcome of the Siracusa intersessional meeting on the relationship between Elements of Crime and the mens rea requirement. The meeting had been very useful in further sharpening thoughts on that relationship. At the moment, the group’s focus was more that of a technical nature, with discussions centring around the structure of the text. However, where footnotes in the text indicated that further clarification was needed on some aspects, the group reverted to a discussion of substantive questions.

The working group was trying to create as much transparency and efficiency as possible in its work, he continued. The atmosphere in the meetings was good and delegations were working in a spirit of cooperation.

SILVIA FERNANDEZ DE GURMENDI (Argentina), coordinator for the working group on Rules of Evidence and Procedure, said the group had made a good start. The group had begun with a discussion of the Rules of Procedure and Evidence relating to Part 8 on Appeal and Review. There had been a detailed exchange of views during the group’s two formal meetings. It was the first time there had been such an in-depth discussion. The results would be reflected in a revised paper that would be presented in all languages later this week. A further meeting was scheduled with the aim of coming closer to the final version of a text.

Informal meetings had been held concerning Part 2, she continued. There had also been an informal meeting on pending issues of Part 6 related to sexual violence. Work would continue this week with further informal discussions on Parts 5 and 6.

PHAKISO MOCHOCHOKO (Lesotho), coordinator for the working group on Rules of Procedure and Evidence relating to Part 9 -- International Cooperation and Judicial Assistance -- said the group continued to make steady progress. There had been one formal working group meeting and two informals. The focus had been on outstanding issues, as well as the examination of new proposals. The group had identified the issues where problems remained. New proposals had been discussed in informal meetings which would continue. Most of the new proposals would be dealt with bilaterally and with other interested delegations.

TUVAKO MANONGI (United Republic of Tanzania), coordinator of the working group on the Crime of Aggression, said the group had met on 13 March to continue a general discussion on the consolidated text of proposals that had been presented. Those delegations unable to submit their views at the Commission’s last session had been invited to do so at the meeting. All delegations had been encouraged to contribute to the formulation of a definition of the crime of aggression that would attract the broadest level of support.

So far, the response from delegations had been good, he said. There was strong concern about further steps to narrow the various proposals. In that respect, Italy had suggested several ways the Commission could proceed. Delegations had exhibited a willingness to further examine the proposals. The working group would continue to explore ways to reach a consensus on how best to build upon what had already been accomplished.

PHILIPPE KIRSCH (Canada), Chairman of the Commission, said only two weeks remained at this session and three at the next to finalize work on the Rules of Procedure and Elements of Crimes. He urged delegations to use the remaining time as efficiently as possible and continue to consult informally with other delegations on issues of concern. He added that he was happy to note that delegations were taking the time constraints into account.

Statement by Judge of International Criminal Tribunal for Former Yugoslavia

RICHARD GEORGE MAY (United Kingdom), Judge of the International Criminal Tribunal for the Former Yugoslavia, said that the judges’ paper being submitted to the Commission today described the Tribunal’s practice and experience in some unresolved areas. It concentrated on technical issues and practical realities, rather than on general principles or broad overviews. The four specific areas were: evidence in cases of sexual violence; the role of the Victims and Witnesses Unit; issues arising with respect to defence counsel; and matters relating to the enforcement of sentences.

On the first topic, he said that the Tribunal’s Rules, particularly Rule 96 governing the admission of evidence in cases of sexual assault, had been consciously adapted to take into account the organized and systematic rape of women, particularly in detention facilities, as evinced in the former Yugoslavia conflict. In drafting Rule 96, the judges had intentionally rejected many of the evidentiary rules applied to rape trials in national jurisdictions. Instead, they had adopted a policy precluding evidence of consent to sexual contact when certain oppressive or coercive conditions were present. Therefore, consent could not be used as a defence when the victim had been subjected to violence, duress, detention or psychological oppression.

Moreover, he said, the Rules precluded any effort by the defence to introduce evidence concerning the prior sexual conduct of the victim, as such evidence was deemed irrelevant in those situations and could only serve as a pretext to intimidate or undermine the victim’s credibility. Given the nature of modern conflicts, the International Criminal Court certainly would face issues relating to sexual violence committed within the context of war crimes, crimes against humanity, or genocide. It would thus have to grapple with the same issues faced by the Tribunal. The approach taken in its Rules and in its subsequent jurisprudence represented a progressive development of the law which had been instrumental in protecting victims of sexual violence without infringing on the right of an accused to a fair trial.

Regarding the role and protection of victims and witnesses, he said that the contact of most individual victims with the Court would be as witnesses. In the past two years, the Tribunal’s Victims and Witnesses Section had worked with almost 800 witnesses, the majority of whom had travelled to The Hague from the former Yugoslavia or other countries. The Section must, where necessary, protect the confidentiality of witnesses and make complicated logistical arrangements for them while complying with United Nations travel, procurement and financial accountability. While accountability was important, the Preparatory Commission might want to allow a certain amount of financial and administrative flexibility to the Court’s Victims and Witnesses Unit in its Rules or in the Court’s financial regulations.

On defence counsel, he said there was a general lack of familiarity with the Tribunal and its procedures. While that was understandable in view of the Tribunal’s unique nature, the problem was that defence counsel who were new to the procedures might cause serious delays given the Tribunal’s large docket. For that reason, steps were being taken to implement training courses for defence counsel.

In the area of ethics and discipline, he said it would be difficult for any of the Court’s organs to monitor ethical issues, a difficulty faced by the Tribunal as it had defence counsel from a number of different countries. The root problem was that generally in domestic jurisdictions, ethical issues were monitored and dealt with by professional associations of lawyers or bar associations. In the international context there was no comparable body. In order to fill that lacuna, the Tribunal had adopted a Code of Professional Conduct.

While the Code did address the problem of establishing standards, the problems of effective monitoring and appropriate enforcement mechanisms remained, he said. Misconduct in Court could be dealt with by the judges, but the more general ethical requirements expected of counsel could not be monitored by the judges or the Registrar. It might be appropriate for the Court’s Rules to provide for an association of defence counsel, which would have responsibility for bringing ethical violations to the attention of the judges or the Registrar.

Regarding the enforcement of sentences, he said the Tribunal had no permanent facilities to imprison convicted persons and depended on the voluntary cooperation of States to enforce its sentences. At present, the Tribunal had relevant agreements with only six States to enforce its sentences. One of the difficulties experienced with some States was that domestic law prevented them from entering into such agreements without time-consuming amendments to current legislation. In the case of the Court, almost all States would require implementing legislation. This would be the perfect opportunity to make the amendments necessary to domestic legislation.

Questions and Answers

JUAN ANTONIO YANEZ-BARNUEVO (Spain) said that a text on an agreement with the Tribunal was far advanced. It was hoped that it would be signed and enter into force by the end of this year, making Spain the seventh State with such an agreement.

He noted that the Statute of the Tribunal for the former Yugoslavia did not contain the same kind of norms as the Rome Statute of the International Criminal Court regarding the participation of victims and witnesses. Had the Tribunal considered some sort of development of its own Rules of Procedure regarding the protection of victims as a result of the Tribunal’s experience thus far?

He noted that so far the Tribunal worked in English and French only with the result that its judgements are not always easy to understand for those working in Spanish and other official languages. Had there been any consideration of issuing summaries of judgements in the other official languages?

MUHAMED SACIRBEY (Bosnia and Herzegovina) said there appeared to be inconsistencies in the work of the Tribunals for the former Yugoslavia and Rwanda with respect to enforcement. What kind of role could the Security Council play in the context of an International Criminal Court -- whether in enforcement, definition of crimes, or the Prosecutor’s work -- especially bearing in mind that the Council was the source of authority for the Tribunal while the Court had a different source?

ROLF FIFE (Norway), referring to case management, asked what suggestions could be made on reducing the length of trials.

HERMAN VON HEBEL (Netherlands) asked whether the Tribunal had considered a more free-standing defence unit as a fourth organ or as an equal-footed counterpart of the Office of Prosecutor? Could such an approach provide the Tribunal with a more equitable distribution of resources?

Judge MAY, responding, said that the Defence Counsel Unit came under the Registrar, who was also responsible for the administration of the Prosecutor. He would urge the need for a fully funded unit that could provide training so that defence counsel would have at least some knowledge of what was expected of them. They would, thus, be in a much better position to represent the accused. As to whether it should be a free-standing unit, that was an organizational matter. Even if it did stand alone, there would be difficulties regarding financial accountability.

On victims and witnesses, he said the Tribunal had developed a broad range of protections, starting with voice and facial distortions, pseudonyms, closed sessions, and anonymous evidence. Such protections were commonly requested. There was a need to balance public justice with the need for witness protection. Regarding the perceived inconsistencies between the Tribunal for the former Yugoslavia and that for Rwanda, he noted that they had a common Prosecutor. The Appeals Chamber was also common to both Tribunals, which would make it easier to iron out such perceived inconsistencies.

On the role of the Security Council in a future International Criminal Court, he said no thought had been given to that issue at the moment.

He said case management and speedier trials were a very complicated and important matter for the Tribunal. It must be understood that modern trials of the sort undertaken by the Tribunals were becoming fewer and longer. Trials of six to nine months were no longer an exception even in national jurisdictions. They were going to be longer, and there was no way around that if they were to be conducted properly.

The Tribunals were seeking ways to speed them up, such as a pre-trial approach whereby both parties would put their cases on the table, clarifying the issues to be tried, he said. There was a role for the pre-trial judge in shortening the list of witnesses and reducing the scope of the case, both for the prosecution and the defence, and in cutting down the time given over to written motions, procedures and pleadings. If motions and decisions were dealt with orally, time and resources spent on translation and transcripts would be saved through the use of simultaneous translation.

Monsignor VINCENT LA ROCCA, observer for the Holy See, referring to problems associated with the accused and their defence, asked if it would not be helpful to have a unit, under the Registrar, to deal with those problems. If one particular unit were taking care of those problems, might it not allow for a sharper focus? Would Judge May be averse to such a unit or would he consider it?

Judge MAY responded that such a unit did, in fact, exist in the Tribunal, in the form of the Defense Counsel Unit. That Unit was responsible for the administration of defence counsel and would also be responsible for training.

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