Security Council

5796^th Meeting (AM)

ENDURING FREEDOM OF SUSPECTS INDICTED ON GENOCIDE CHARGES ‘A STAIN’ ON FORMER

YUGOSLAVIA TRIBUNAL’S WORK, PROSECUTOR TELLS SECURITY COUNCIL

 

Rwanda’s Delegate Says Country Ready to Take on All Pending Tribunal Cases

It was a stain on the work of the International Criminal Tribunal for the Former Yugoslavia that two individuals indicted for genocide and responsible for the worst crimes committed in Europe since the Second World War were still at large, Prosecutor Carla del Ponte, told the Security Council today.

The departing Prosecutor, who will be succeeded by Serge Brammertz, former head of the International Independent Investigation Commission, said that, of the 161 persons initially indicted, only four remained at large, including Ratko Mladić, former commander of Bosnian Serb forces in Bosnia and Herzegovina, and Radovan Karadžić, former Bosnian Serb president.  They had both been repeatedly sighted in Serbia, which had, however, failed to take action.

Reminding the Council that the Tribunal had been established to try those most responsible for the most serious crimes committed in the former Yugoslavia since 1991, she said Mladić and Karadžić belonged in that group.  “You will have the responsibility to decide if this Tribunal can fulfil the mandate you gave to it or not,” she said, adding that it was “impossible to envisage” that they would be put on trial in Belgrade, where they were considered national heroes.

The Tribunal had achieved a great deal, having accomplished most of its goals and paved a wide and solid road for international justice, she said, adding, however, that she would leave the institution with “a feeling of disappointment” because of commitments not honoured and the legacy that might be left behind for the many victims who would not see justice.  “Let us not, by our failure to act, give them reason to feel that any stone was left unturned in the pursuit of justice for those most responsible for the terrible crimes committed in the former Yugoslavia.”

Ms. Del Ponte spoke during a joint briefing by officials of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda on the activities of those bodies and their actions to achieve the Council-mandated Completion Strategy to finish most of their work by 2010.

Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, said it had enjoyed unparalleled efficiency in conducting international criminal proceedings.  Trial and appeal proceedings against 111 accused had been completed, and of the 50 accused whose cases remained incomplete, 4 remained at large, 8 had pending appeals, 27 had commenced trial and 11 were currently in the pre-trial stage.  The Tribunal had set an example for other international criminal jurisdictions, elaborating and developing rules to ensure the fair and expeditious conduct of international criminal proceedings.

However, a number of experienced and highly qualified staff had left the Tribunal for more secure employment, he said, urging the Council and Member States to support the Tribunal’s efforts to offer sufficient incentives to guarantee, as much as possible, that its best staff remained until the Tribunal completed its work.  The procedure whereby the Tribunal would refer some of its cases to competent national jurisdictions was also of key importance in achieving efficiency.  Ten accused had already been transferred to the Special War Crimes Chamber of Bosnia and Herzegovina, two had been transferred for trial in Croatia and one accused had been transferred to Serbia.

Dennis Byron, President of the International Criminal Tribunal for Rwanda, said the last half year had seen substantial achievements, despite unexpected problems.  The judicial calendar for 2008 projected the delivery of final judgements in all cases in the judgment-writing phase.  The cases of accused persons in detention awaiting trial should be completed in the course of next year.  Special arrangements would have to be made if new cases arose for trial as a result of the arrest of the 14 fugitives still at large.  At the Appeals’ level, two judgments concerning four accused had been delivered, bringing to 24 the total number of persons whose judgments had been completed at that level.

The impact of the Tribunal’s work had already extended beyond the number of persons prosecuted and judgments rendered, he said.  One of its fundamental and lasting contributions was bringing justice to the peoples of Rwanda and the Great Lakes region.  “Justice is an essential element of peace and reconciliation.  There will be no lasting peace if there is no credible justice perspective that unites on a higher level the people of Rwanda and the Great Lakes region, who have suffered from the heinous crimes committed in 1994.”

Hassan Jallow, Prosecutor of the Rwanda Tribunal, said the implementation of the strategy for referring cases to national jurisdictions was under way.  A capacity-building programme was being implemented in Rwanda and training programmes in the areas of investigations and prosecutions, use of information technology and records management had been established for officials in the Office of the Rwanda’s Prosecutor-General.  The Office of the Rwanda Tribunal Prosecutor was providing support to national agencies, some of which would continue well beyond the Tribunal, provided they continued to receive its support, particularly with regard to accessing the Tribunal’s evidentiary database.

In the ensuing debate, many speakers deplored the fact that Mssrs. Mladić and Karadžić, who had been sighted in Belgrade, and Rwanda Tribunal indictee Felicien Kabuga, who might be in Kenya, still had not been arrested and transferred for trial.  They called on all Member States to cooperate fully with the Tribunals in arresting and transferring the fugitives.

Speakers also expressed appreciation for the Tribunals’ efforts to meet the deadlines of the Completion Strategy.  Delays were due to circumstances beyond the Tribunals’ control, including the late arrest of fugitives.  They stressed in that regard that the deadlines mentioned in the Completion Strategy were “indicative” and that a certain flexibility should be applied.  They also underlined that consideration should be given to the Tribunals’ legacy, including the matter of archives.

The representative of the Russian Federation noted, however, that both Tribunals must be guided by the deadlines established by the Council and that work must be completed by the end of 2010.  The fact that some indictees were not present could not be considered a reason for a possible mandate extension and national jurisdictions should take over.

Serbia’s representative assured the Council that, since the establishment of a democratic Government in his country in 2000, its cooperation with the former Yugoslavia Tribunal had been significant and effective.  At the political level, the Government had created the National Security Council and improved coordination between services involved in cooperation with the Tribunal.  At the operational level, the Action Team, comprising various services, had become more effective recently.  The Government had also promised rewards to those providing information that led to the arrest of fugitives, and a recently passed law had expanded the role of the War Crimes Prosecutor to include jurisdiction over those who aided and abetted war crime fugitives.

Rwanda’s representative welcomed initiatives regarding the transfer of cases to national jurisdiction, principally to Rwanda, saying the Government and prosecution had made remarkable progress with respect to referral of cases.  To the extent possible, pending cases should be transferred to Rwanda’s national jurisdiction for trial, because justice must be seen to be done within the territory of the country where the crimes were committed.  Rwanda was willing to take over all cases from the Tribunal and to supervise sentences imposed by it.

Croatia’s representative noted that recent judgments delivered by the former Yugoslavia Tribunal in the case of the “Vukovar Three” had provoked strong reactions in Croatia and beyond.  Two of the accused had been sentenced to 20 and 5 years in prison, respectively, having been found guilty of aiding and abetting the torture and execution of nearly 200 civilians in Vukovar in 1991.  The third accused had been acquitted.  While no appeal had been filed regarding the acquittal, Croatia hoped an appellate judgment in that case would render justice that could stand the test of time.

Other speakers today were the representatives of the United States, United Kingdom, Slovakia, Peru, Qatar, Panama, China, France, Belgium, Congo, South Africa, Ghana, Indonesia and Italy.

The meeting started at 10:22 a.m. and adjourned at 1:32 p.m.

Background

The Security Council met today to consider the work of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

Before the Council was a letter dated 12 November from the President of the International Criminal Tribunal for the Former Yugoslavia addressed to the Council President (document S/2007/663) containing assessments and reports by the President and Prosecutor, detailing the progress made towards implementation of the Completion Strategy.

The President notes that, out of the 161 accused, only 11 remain in the pre-trial stage.  Four indictees are still at large, 27 accused are in the course of trial and another 8 have appeals pending.  All other cases have been completed.  It is estimated that all trials will be completed by the end of 2009, except those of two recent arrivals whose trials will be finished early in 2010.  All appeals are presently estimated to be concluded during 2011.

The Appeals Chamber continued to increase its productivity in relation to both the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, the President states.  It rendered 103 written decisions, 81 pre-appeal decisions and 7 other decisions since the last report to the Council.  It rendered judgment in four appeals leaving a total of only 10 appeals pending.  Two of those appeals should conclude in December.

According to the letter, the Tribunal continues to seek additional avenues for the transfer of convicted persons from the United Nations Detention Unit (UNDU) to States for the enforcement of their sentence.  Although there were no new transfers over the reporting period, an agreement on enforcement of sentences was signed on 7 August with Ukraine, the twelfth State to enter into such an agreement.

The Tribunal continues to benefit greatly from the work of 12 ad litem judges (non-Tribunal judges assigned to specific cases), the President says.  As the number of staff leaving the Tribunal for more secure employment has increased, it is critical to the successful implementation of the Completion Strategy that the Tribunal retain its highly qualified and experienced staff.  The Tribunal asks for the Council’s support to offer sufficient incentives.

In conclusion, the President points out that the success of the Tribunal cannot be measured only by the judgements it has issued or the number of trials and appeals it has completed.  Rather, the crux of its success is the invaluable precedent it has set for the enforcement of international humanitarian law and the contribution it has made to the establishment of peace and stability in the former Yugoslavia.

The Tribunal’s Prosecutor notes that, during the reporting period of six months, progress was made in meeting the goals of the Completion Strategy, but the fact that four accused remain at large, including the most notorious, Ratko Mladić and Radovan Karadžić, remains a crucial challenge to the Tribunal and the international community.  The Office of the Prosecutor focused on four priorities:  the completion of trails and appeals; the transfer of cases involving intermediate and lower-ranking accused to competent national jurisdictions pursuant to Rule 11bis; international cooperation to apprehend the remaining fugitives; and forward planning.  In order to successfully fulfil its mandate, the Office of the Prosecutor relies on the full cooperation of States.

Convinced that the remaining four accused are within reach of the authorities in Serbia and that the country has the means to locate fugitives which would lead to their arrest, she notes that the new Serbian Government, installed in May, has adopted a more positive stance towards cooperation with the Tribunal.  Since then, two fugitives have been arrested, and during the Prosecutor’s most recent visit to Belgrade, the President and Prime Minister indicated it would be in Serbia’s best interest to arrest Mr. Mladić.

She reports serious problems related to the protection of witnesses and witness intimidation.  Many prosecution witnesses in the Ramusch Haradinaj et al. case have refused to testify out of fear and the Office of the Prosecutor will therefore need to continue to rely heavily on the assistance of the United Nations Interim Administration Mission in Kosovo (UNMIK).  The Prosecution continues to be concerned with the close relationship that UNMIK’s senior leadership maintains with Ramush Haradinaj, which can only have a chilling impact on witnesses.

In conclusion, she says it remains unacceptable that Ratko Mladić and Radovan Karadžić remain at large, and calls on the international community, the western Balkan States and Serbia to do their utmost to make sure that they are brought to justice and face trial in The Hague.

Also before the Council was a letter dated 16 November from the President of the International Criminal Tribunal for Rwanda (document S/2007/676), transmitting the assessments of its President and Prosecutor regarding the Completion Strategy. 

It concludes that significant progress has been made in completing the Tribunal’s mandate, which will be on schedule for on-time completion with the possible exception of delays in fugitive arrests or the inability to refer cases to national jurisdictions for trial.  The Tribunal constantly seeks new measures to increase efficiency and expedite work while safeguarding the rights of the accused to a fair trial and due process.  Its ability to maintain or improve on its current level of efficiency, however, depends largely on the retention of its highly experienced and qualified judges and staff.  The Council and Member States should assist the Tribunal by offering incentives to guarantee that judges and staff remain with the Tribunal as the Completion Strategy is implemented.

Statements by Tribunal Presidents

FAUSTO POCAR, President of the International Criminal Tribunal for the Former Yugoslavia, highlighted the main points of his eighth report to the Council, submitted on 12 November, regarding the Tribunal’s progress in achieving the objectives of the Completion Strategy from June 2007 to November 2007.  The Tribunal had enjoyed unparalleled efficiency in conducting international criminal proceedings.  Out of 161 accused persons indicted, trial and appeal proceedings against 111 accused had been completed.  Of the 50 accused whose cases remained incomplete, 4 remained at large, 8 had pending appeals, 27 had commenced trial and 11 were currently in the pre-trial stage.  Two contempt proceedings had also been initiated.  The dramatic increase in those figures, particularly in recent years, had surpassed any reasonable expectation.

During the reporting period, the three trial Chambers continued to operate at record capacity, conducting additional hearings during the three-week summer recess, he continued.  The Tribunal had started the trial of Vojislav Seselj on 7 November, bringing to eight the number of cases simultaneously handled in the trial phase.  That was possible because all members of the trial bench in that case were currently sitting in two trials.  The Appeals Chamber had also increased its productivity, having rendered 235 written decisions and 15 judgments, including 4 review or referral appeals.

The report illustrated the significant impact that previously adopted measures had had on expediting proceedings, he said, noting that some of the rules adopted recently had enabled Trial Chambers to prune indictments and remove witnesses whose evidence was deemed repetitive.  Other recently amended rules -- which enabled a Trial Chamber to admit written evidence under certain conditions -- had been applied regularly in a number of cases, leading to a substantial reduction of the average length of court examinations.  The Tribunal had also continued to explore new ways to further streamline trial and appeals procedures.  At the last ordinary plenary session of 12 July, the adoption of two other rule amendments had provided for greater use of video-link testimony and specified timelines for the filing of pre-trial motions for unrepresented accused.

Only 11 accused remained in seven cases awaiting trial before the Tribunal, he said.  The net increase of two accused awaiting trial since the last report was attributable to the arrest of two fugitives.  That increase had required the Tribunal to adjust its forecast and it was expected that, with the exception of the two recent arrivals, the Tribunal would be able to complete all its trials, including Lukic & Lukic, by the end of 2009.  The trials of the two recent arrivals were estimated to finish in early 2010 and all appeals could still be concluded by 2011.  Such minor adjustments were attributable to the new late arrivals.  The overall efficiency of the Tribunal had in fact increased.

The Tribunal had set an example for other international criminal jurisdictions, elaborating and developing rules to ensure the fair and expeditious conduct of international criminal proceedings, he said.  It had also lent concrete support to other international criminal jurisdictions by loaning and transferring staff and training workshops.  It was important to maintain the Tribunal’s experienced judges, many of whom were serving their second and third terms.  It was also crucial to implement correctly their conditions of service as they were disappointed about delays in commissioning the study on options for designing their pension schemes.  The longer it took Member States to resolve that matter favourably, the greater the risk of losing some of the Tribunal’s most experienced judges and thus seriously affecting the timely and efficient completion of its work.

During the reporting period, the number of staff leaving the Tribunal for more secure employment with other institutions had increased, he said, urging the Council and Member States to support the Tribunal’s efforts to offer sufficient incentives to guarantee, as much as possible, that its best staff remained until the Tribunal completed its work.  The work of the 12 ad litem judges was also important as they had been willing to take on an onerous workload to ensure the expeditious completion of the Tribunal’s mandate.

Turning to the Tribunal’s partnership with domestic courts, he said the success of the referral procedure was a key indicator of its commitment to sharing know-how with domestic courts, particularly in the former Yugoslavia, as was its involvement with capacity-building and outreach activities in the region.  While there had been no new referrals during the reporting period, 13 accused had been transferred for trial before domestic courts.  Ten accused had been transferred to the Special War Crimes Chamber of Bosnia and Herzegovina, two had been transferred for trial in Croatia and one accused had been transferred to Serbia.

He said there was a need to improve the quality of cooperation between States of the region in the investigation and prosecution of alleged war criminals.  The Tribunal had recently taken the initiative to strengthen cooperation with and facilitate the work of its domestic counterparts, especially in the former Yugoslavia, by amending Rule 75 of the Rules of Procedure and Evidence, to allow judicial authorities in other jurisdictions, or parties duly authorized by an appropriate judicial authority, to petition the Tribunal directly for access to confidential material.  The timeliness of that amendment had been demonstrated shortly after its adoption when judicial authorities in Bosnia and Herzegovina had quickly petitioned the Tribunal for access, thus further reinforcing the existing partnership.

Regrettably, there had been a failure to secure the arrest and transfer of four remaining high-level fugitives, namely Karadžić, Mladić, Zuplijanin and Hazdic, he said.  The Tribunal’s success depended on the willingness of States to cooperate fully with it, a necessity that had reached a critical stage.  The Tribunal should not close its doors before those fugitives were arrested and tried.  The Council should make it clear that their trial did not hinge upon the Tribunal’s proposed Completion Strategy dates.  The Tribunal remained steadfast in its commitment to meeting Completion Strategy deadlines and the slippage in previously projected completion dates had occurred for reasons out of its control.  Failure to arrest the remaining four fugitives would inevitably lead to further delays and necessarily result in separate trials, which would cause additional adjustments to the current projected deadlines.

At that point, he continued, two solutions could be envisaged with respect to ad litem judges, both of which would require the Council’s intervention.  First, the statutory three-year terms of current ad litem judges could be extended for the time required to complete a second trial on which they would be expected to sit.  Another option would be to appoint additional ad litem judges, thus temporarily increasing their number above 12.  The number of ad litem judges would return to 12, as provided under the Statute, as soon as the first multi-accused trial was completed, which was foreseen for September 2008.  It was essential that the international community affirm that those responsible for serious violations of international humanitarian law would not enjoy impunity.

DENNIS BYRON, President of the International Criminal Tribunal for Rwanda, said one new indictment had been issued in August to prosecute a witness for giving false testimony.  It was the first such case in the history of the Tribunals.  Final Trial Chamber judgments had been delivered and sentences imposed with respect to three persons.  The cases of two accused had been referred to France.  The evidence phase in the trials against five persons had been completed, bringing the total in the judgment-writing phase to nine persons.  Trials were in progress against 18 persons and three detainees were awaiting transfer to the Tribunal.

He said the reporting period had seen substantial achievements, despite unexpected problems.  The judicial calendar for 2008 projected the delivery of final judgements in all cases in the judgment-writing phase.  The evidence phase in the cases of accused persons whose trials were in progress would be completed, except for the multi-accused case of Karamera et al.  The cases of the accused in detention awaiting trial should be completed during next year.  If there were new cases for trial resulting from the arrest of the 14 fugitives still at large, special arrangements would have to be made.

At the Appeals’ level, two judgments concerning four accused had been delivered during the reporting period, bringing to 24 the total number of persons whose judgments had been completed at the appellate level, he said.  There were currently two accused with appeals pending.  In its decision in the Media case, the Trial Chamber had set, for the first time, international criminal law standards applicable to the responsibility of journalists for serious crimes against humanitarian law.  However, unless it was supplemented, the Appeals Chamber would not have sufficient capacity to complete its anticipated workload by December 2010.

He said the Tribunal’s significant results over the last six months were indisputably due to the coordinated efforts of all sections within the Tribunal.  The Tribunal’s ability to maintain and improve upon its current level of efficiency, however, remained largely dependent on the retention of its highly experienced and qualified judges and staff.  The Council was invited to authorize and require the Secretary-General to take all reasonable measures to ensure that the Tribunal would be able to retain its staff.  The matter of ad litem judges should also be addressed.

The Tribunal had benefited from the cooperation and assistance of States during the reporting period, he said.  France had received two referral cases and four fugitives had been arrested, three in France and one in Germany.  Failure to arrest the 14 remaining fugitives would seriously undermine the purpose of the Tribunal and Member States were urged once again to guarantee their arrest and transfer without delay.  The relocation of acquitted persons had also become an issue.  Two acquitted persons remained under the protection of the Tribunal in Arusha while the Registrar continued to make strenuous attempts to find a country of residence for them.  The Tribunal needed support and assistance in finding and imposing a sustainable solution.

He said the Tribunal and various stakeholders in Rwanda’s justice sector continued working to strengthen the capacity of the country’s judicial system through, among other things, its Outreach Programme.  In November the Tribunal had co-organized a three-day symposium in Arusha, focusing on its legacy.  Progress had also been made regarding the Tribunals’ archives.  An Advisory Committee on Archives had engaged in informal consultations with Governments, civil society and non-governmental organizations, victims groups and international organizations.  Its report would provide informed recommendations to the Council.

The impact of the Tribunal’s work had already extended beyond the number of persons prosecuted and judgments rendered, he said.  One of its fundamental and lasting contributions was bringing justice to the peoples of Rwanda and the Great Lakes region.  “Justice is an essential element of peace and reconciliation.  There will be no lasting peace if there is no credible justice perspective that unites on a higher level the people of Rwanda and the Great Lakes region, who have suffered from the heinous crimes committed in 1994.”

Statements by Prosecutors

CARLA DEL PONTE, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, said Serbia’s cooperation in the search for remaining fugitives remained essential to the work of the Office of the Prosecutor.  Two years ago, the Serbian Government had raised expectations that Ratko Mladić would be arrested soon.  However, Serbia had failed to take action and today the situation remained exactly the same.

She recalled that, during her briefing six months ago, she had been cautiously optimistic that, after 12 years, Mr. Mladić and Mr. Karadžić might finally be in custody.  However, they and two other accused were still at large.  “I have to say my optimism has waned considerably.”  While some of the remaining issues had been resolved, there had been too little progress and commitment on the issue of fugitives and too few concrete steps taken to arrest them.

Noting that 91 individuals had been brought into custody during her mandate, she said that, of the 161 persons initially indicted, only four remained at large.  However, it was a stain on the Tribunal’s work that two individuals indicted for genocide and responsible for the worst crimes committed in Europe since the Second World War were still fugitives.  Since the newly established Government of Serbia had taken office in June, communication with the Tribunal had improved, but leadership and coordination between the two principal security services in charge of the search for fugitives remained problematic.  Despite the Serbian authorities’ declared commitment to full cooperation, there was no clear road map, or plan in the search for fugitives.

She recalled that, for several years immediately after the war, the responsibility for arresting indictees had rested with the international forces in Bosnia and Herzegovina, who, “in the purported interest of a fragile peace, failed to arrest them”.  Mr. Mladić and Mr. Karadžić had been repeatedly sighted in Serbia and the authorities there should take action because “it is now high time to take the necessary steps that would lead to the arrest of the fugitives”.  The international community should seriously address the issue.  In particular, European Union member States and the European Commission must maintain their principled position by insisting on Serbia’s full cooperation as a condition in the European Union pre-accession and accession process.

The Tribunal had achieved a great deal, having accomplished most of its goals and paved a wide and solid road for international justice, she said, adding that she would, however, leave the institution with “a feeling of disappointment” because of commitments that had not been honoured and the legacy that might be left behind for the many victims who would not see justice.  “Let us not, by our failure to act, give them reason to feel that any stone was left unturned in the pursuit of justice for those most responsible for the terrible crimes committed in the former Yugoslavia.”

HASSAN JALLOW, Prosecutor of the International Criminal Tribunal for Rwanda, said that, with the delivery of two more judgments since the presentation of the revised Completion Strategy on 16 November, the number of cases completed had grown to 35, with 6 accused awaiting trial, 23 presently standing trial and 3 expected to be transferred to the Tribunal now that they had been arrested in Europe.  Intensified tracking and cooperation by States had also led to four more arrests and reduced the number of at-large fugitives to 14.

The implementation of the strategy for referring cases to national jurisdictions had got under way with the decision in November to transfer to France the cases of two indictees who were resident there, he continued.  Five requests for the transfer of cases to Rwanda were pending and more would be filed to achieve the Completion Strategy objective of prosecuting the most senior leaders and transferring the rest for trial by competent national jurisdictions by 31 December.  While one case was expected to continue into 2008 and a number of others would still be in the judgment-writing phase in 2009, other cases were expected to be completed on time.  In the event that the Tribunal’s workload increased due to an inability to transfer cases to Rwanda, the Security Council would be informed and provided with specific recommendations for moving forward.

He said INTERPOL had shown a strong interest in helping with arrests and had agreed on measures for cooperation with the Tribunal, the United Nations and the Government of the Democratic Republic of the Congo to arrest fugitives suspected of being there.  The Joint Task Force between the Tribunal and Kenya was also waiting for the Kenyan Government to fulfil commitments and obligations on recommendations submitted in August.

Rwanda continued to cooperate with the Tribunal, he said.  The capacity-building programme was being implemented and training programmes were under way for officials in the Office of the Prosecutor-General in the areas of investigations and prosecutions, use of information technology and records management.  The investigation of allegations against members of the Rwanda Police Force was expected to conclude early next year.

He said a number of special offices had been established to investigate and prosecute crimes against humanity and war crimes.  The Prosecutor’s Office was providing support to national agencies, some of which would continue well beyond the Tribunal, provided they continued to receive its support, particularly with regard to accessing the Tribunal’s evidentiary database.  A meeting would be convened in early 2008 with a select number of those agencies to enhance modalities for information sharing and cooperation, both now and beyond the Tribunal.

Statements

CAROLYN WILSON ( United States) noted with appreciation the efforts of Prosecutor Del Ponte and her team in forcefully championing accountability and successfully managing the Prosecutor’s Office.  As the Tribunals were preparing to close, they must maintain current levels of efficiency and expedite proceedings as outlined in their assessments.  Nearly 20 fugitives remained at large and all States must fulfil their legal obligations to cooperate with the Tribunals.  The Government of Serbia must make all efforts, especially through the transfer of all fugitives that may be in their territories.  The United States welcomed the cooperation shown by the Government of Bosnia and Herzegovina and was encouraged by its ongoing efforts to gain further evidence.  Regional cooperation was crucial in apprehending and bringing to justice the remaining fugitives. 

Evidence continued to mount that fugitive Felicien Kabuga remained in Kenya, which must cooperate fully with the Rwanda Tribunal in apprehending him, she said.  The United States welcomed the 9 November agreement between Kenya and the Democratic Republic of the Congo in that regard.  Mssrs. Mladić, Karadžić and Kabuga were charged with horrific crimes and it was unthinkable that they would be allowed to escape international justice.  With four Rwanda Tribunal cases pending, it was imperative that they be addressed judiciously and pragmatically.

KAREN PIERCE ( United Kingdom) paid tribute to Prosecutor Del Ponte and welcomed the recent appointment of Serge Brammertz to succeed her.  While Croatia’s cooperation with the Tribunal for Former Yugoslavia was laudable, Serbia had made little progress over Mr. Mladić, which was indeed disappointing and a lasting insult to the more than 7,000 victims of Srebrenica.  Council resolutions 1503 (2003) and 1534 (2004) made it clear that the capture of Mssrs. Karadžić and Mladić was necessary.  The United Kingdom called on the Government of Serbia to take the necessary steps to transfer them to the Tribunal without any delay.  An orderly completion of the Tribunals’ work was required, though the United Kingdom agreed that they should not close immediately after the completion of their trials.

She congratulated the Rwanda Tribunal on its continued progress in meeting its case load and lauded that fact that in broad terms it remained on track.  However, it was a matter of deep concern that 14 indictees remained at large and all States must cooperate fully with the International Criminal Tribunal for Rwanda.  The United Kingdom was concerned over reports that Mr. Kabuga may be in Kenya and that a number of indictees remained at large in eastern Democratic Republic of the Congo.  The Congolese Government with the full support of the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) must arrest and transfer any indictees found to be in their territories.

PETER BURIAN ( Slovakia) expressed appreciation for the Tribunals’ efforts to meet their deadlines and commended their cooperation with respective national authorities, in particular regarding the increasing number of referrals to competent national jurisdictions and helping to build national court capacities.  The Tribunals should now focus on trying most severe crimes.  Trials at the national level should comply with international standards. 

Regrettably, some of the most important indictees remained at large, he said.  It was not acceptable that perpetrators of serious international crimes should be able to evade justice and Slovakia appealed strongly to States to cooperate fully with the Tribunals in arresting and transferring fugitives to the Tribunals.  “We cannot and must not allow the perpetrators of the worst crimes under international law to go unpunished,” he said.  Slovakia was also confident that the Outreach Programmes contributed to national reconciliation. 

LUIS ENRIQUE CHAVEZ ( Peru) said that, where the Tribunals’ work could not be finished, the Council should assess ways in which justice could be delivered.  It was encouraging that four fugitives had been arrested for the International Criminal Tribunal for Rwanda, but it was lamentable that Mladić and Karadžić were still at large.  Impunity could not be granted and all States should meet their international obligations.

He said the transfer of competent national jurisdictions was an integral part of the Completion Strategy and welcomed the Tribunals’ efforts to strengthen the capacities of local jurisdictions.  The States involved should get the necessary international assistance.  As for administrative and financial matters, the work of the Tribunals could be affected if experienced staff left.  The Council should take the concerns expressed into consideration.

NASSIR ABDULAZIZ AL-NASSER ( Qatar), while recognizing the need for the Tribunals to complete their work by the deadlines set, stressed that there must be a balance between respecting such time frames and ensuring the full implementation of the mandates that guaranteed a fair trial for all.  The Tribunal’s establishment exemplified the commitment of the international community to put an end to impunity.  However, that commitment must be matched by a continued commitment by the Council and all Member States to arrest and surrender indictees still at large.  Justice could not be complete while they remained at large. 

He said that, during the Tribunals’ final years, the focus must be on their legacy, which could guide future courts.  The Tribunals should continue their efforts to complete their work because the victims of heinous crimes were pinning great hopes on them for the affirmation of justice and peace.  In addition, the work of the Tribunals contributed significantly to security, stability and national reconciliation.

ALFREDO SUESCUM ( Panama) took note of the cooperation by the Serbian authorities in the detention of Zdravko Tolimir and Vladimir Djordjevic, both of whom were wanted by the Tribunal for the Former Yugoslavia.  Serbia must continue to cooperate in order to capture the four remaining fugitives.  In September, the German authorities had detained Agustin Ngirabatware, whose arrest and transfer the Rwanda Tribunal had called for in 2001.

He said it was worrisome that fugitives remained at large, stressing that impunity must not be an option in the cases relating to the crimes committed in Rwanda and the former Yugoslavia.  The credibility of both Tribunals, and that of the Council, was at stake.  The Council must examine carefully the protection of witnesses, without whom cases that were under way could be seriously affected.  The Council must also pay attention to the concerns expressed by both Tribunals with respect to the retention of experienced staff.  Panama urged the Tribunals to take the necessary additional measures to ensure they could retain the appropriate staff until their work was completed.

LIU ZHENMIN ( China) noted the continued progress in the work of the two Tribunals, including their continuing efforts to improve proceedings and making the referral of cases to national jurisdictions a core part of the Completion Strategy.  It was to be hoped that the Tribunals would put more trust in the neighbouring countries and give them more opportunities.   China called for more technical support to help the Tribunals make referrals in a step-by-step manner and as quickly as possible.  The international community must not underestimate the state of the courts in the former Yugoslavia.  The two Tribunals also faced problems, including witness protection, cooperation with all States and staff retention, among others.

Expressing the hope that the two Tribunals and all parties concerned would exert greater effort to cooperate, he lauded the fact that the Tribunals had submitted a joint report.  They should also work out how to deal with the question of residual functions and put forward an appropriate plan to do so.  Good cooperation would facilitate the implementation of the Completion Strategy.

HUBERT RENIE ( France) said the Tribunals had been established to end impunity for genocide, crimes against humanity and war crimes.  Both Tribunals had contributed to the rendering of justice.  They had allayed tensions and contributed towards peace and security.  France hoped that judgments against those who had perpetrated the most horrible crimes would act as a deterrent in the future. 

Noting requests for human and other resources and delays that threatened the deadlines of the Completion Strategy, he said those deadlines were indicative, and circumstances outside the Tribunals’ control had caused the delays.  It was essential that justice be rendered.  Mladić, Karadžić and the others must be handed over.  While Ms. Del Ponte had expressed her disappointment, the work she had done should give her a clear conscience.

JOHAN VERBEKE ( Belgium) said his country supported the Tribunals in their fight against impunity, especially nowadays, when demands for justice were often relegated to second place.  The reports had convincingly highlighted the efforts made to achieve the Tribunals’ respective completion strategies.  However, those deadlines were indicative and could be extended given valid reasons. 

Expressing appreciation of the problems caused by the departure of highly qualified staff and other administrative matters, he said he recognized that the Council could not ask the Tribunals to complete their work within deadline without providing them with the necessary resources.  They could not be seen as having rendered justice if the fugitives accused of the most serious crimes were not transferred to them.  Serbia’s deteriorating cooperation with the Tribunal was regrettable and the Government of Serbia should do everything in its power to cooperate.

LUC JOSEPH OKIO ( Congo) said the periodic evaluation of the Tribunal’s activities allowed it to assess progress made in the fight against impunity.  Numerous rulings had been handed down, arrests had been made of those presumed guilty of violating humanitarian law and individuals convicted had appeared for sentencing.  The Congo lauded efforts towards national reconciliation and justice in countries so torn apart by conflict as well as efforts by the Tribunals to significantly reduce the number of cases.  Some 106 of the 161 people accused by the Tribunal for the Former Yugoslavia had been tried, while the Rwanda Tribunal had tried 33 cases.  That represented significant progress in international criminal justice.

Noting the lack of urgency on the part of certain States to meet their international obligations, he only pointed out in particular that Radovan Karadžić and Ratko Mladić remained at large while 14 fugitives wanted by the Rwanda Tribunal were also at large.  The Congo shared the disappointment expressed by the Prosecutors in that respect and the Council must fight to end impunity.  States must cooperate with the Tribunals in reintegrating into society people who had been acquitted.  It was important to bring criminals to justice in order to show justice to the victims.  The Congo was also concerned about the difficulties encountered in relocating witnesses and offering them incentives.  Perhaps some sort of “loyalty bonus” could be considered in order to keep them on board.

SIVUYILE MAQUNGO ( South Africa) said there seemed to be an existing view that, due to the nature of some cases, even where arrests were to be made after the Tribunals closed, they would require their re-establishment.   South Africa was yet to be convinced as to the necessity of such a measure.  Referral to national jurisdictions was central to achieving the Completion Strategy, even in cases that might arise due to future arrests of individuals still at large.  Countries that had accepted cases from the Tribunals were to be commended, but South Africa was particularly keen to see the countries where the crimes had been committed assume responsibility for accepting referrals from the Tribunals.

Both Tribunals had indicted suspects who were still at large, including some high-level people alleged to have committed crimes that should be dealt with at the international level, he said.  For example, there was Felicien Kabuga in the case of the Rwanda Tribunal and Radovan Karadžić and Ratko Mladić in the former Yugoslavia.  It was important that those fugitives ultimately be brought to justice, and the Tribunals needed full cooperation to arrest and transfer them for trial.

He stressed the need to provide the Tribunals with sufficient resources to enable them to complete their mandate.  States should extend cooperation with respect to witness travel, the arrest and transfer of accused persons and the resettlement of individuals acquitted by the Tribunals.  Furthermore, it was necessary to address the legacy that the Tribunals would leave behind and to ensure that their achievements were preserved.

ILYA I. ROGACHEV ( Russian Federation) welcomed the efforts of the International Criminal Tribunal for Rwanda to clear its caseload and refer cases to national jurisdictions.  To that end, it was increasingly urgent to develop further the capacity of Rwanda’s justice system.  The Rwanda Tribunal had made efforts to implement the Completion Strategy, but assessments of the possibilities for timely completion of trial hearings and appellate proceedings were worrisome.  Both Tribunals must be guided by the deadlines established by the Council and work must be completed by the end of 2010.  The fact that some indictees were not present could not be a reason for a possible mandate extension.  National jurisdiction should take over.

Noting a reference by the Prosecutor for the former Yugoslavia regarding fears among witnesses in the Ramush et al. case, he said that, according to Ms. Del Ponte, it was difficult to get evidence because witnesses feared intimidation.  UNMIK’s assistance in witness protection was illusory because of support for Haradinaj among the Mission’s senior leadership.  Having previously made proposals regarding that “scandalous situation”, the Russian Federation sought further clarification from Ms. Del Ponte.

ROBERT TANGIE-MENSON ( Ghana) said referral to competent national jurisdictions was an important means to achieve successful implementation of the Completion Strategy.  Linked to that was the question of capacity-building which was critical for the enhancement of national capacity to handle referred cases.  Ghana was concerned that indictees remained at large and that witnesses had reportedly been intimidated.

He said the progress made in the disposal of Rwanda Tribunal cases was impressive.  As for difficulties in referring cases, the international community should provide the Tribunal with the resources necessary to place capacity-building and technical assistance programmes in the target countries.  The international community would soon be confronted with legacy issues, particularly the question of fugitives at large, review of judgments, supervision of prison sentences and archives.  A downsized version of the Tribunals would have to be in place to tackle those issues for the sake of continuity.  The Completion Strategy was not a fixed and rigid deadline in that regard. 

HASAN KLEIB ( Indonesia) said his country was firmly committed to cooperating with the Tribunals to ensure their mandates were discharged fully and send a clear signal against impunity.  The Completion Strategy was instrumental in streamlining the final phases of the Tribunals’ work, in which they had made significant progress.  Their possible residual functions were also important and the Council should address and discuss that matter in a very systematic and comprehensive way in the framework of a broad, inclusive process involving related States, similar tribunals and civil society.  Lessons learned from the residual functions of the post-Second World War international military tribunals would also be useful.

Special attention must be paid to the trials of fugitives, he continued, stressing that the two Tribunals could not complete their work until the principal indictees were brought to justice.  That required the full cooperation of all States concerned.  The referral of cases to national courts was also important, as was the need to build the capacity of national jurisdictions.  The Tribunals had made commendable efforts to continue strengthening cooperation with national authorities.  Indonesia supported calls for continued international assistance to develop the domestic judicial capacity so as to ensure that all referred cases were conducted in full compliance with the standards of due process.

Council President ALDO MANTOVANI (Italy), speaking in his national capacity, commended the tangible progress made in the Completion Strategy of both Tribunals, thanked Ms. Del Ponte for her commitment over the years and wished Mr. Brammertz success in his new post.  Cooperation with the Tribunals by all relevant parties had improved and was more crucial than ever.  It was imperative that pending warrants be executed.  Failure to bring Radovan Karadžić, Ratko Mladić and Felicien Kabuga to justice would not bode well for the Council.

The signal to the families of the victims must not be that perpetrators of the greatest crimes would go unpunished, he said.  The message must not be sent that time was on the side of the culprits.  The key issue must be to finalize cases before the Tribunals and to increase the Tribunals’ outreach and capacity-building activities.  Any support from the international community in that process was more than welcome, including building the capacity of States to prosecute international crimes.  International criminal justice in the former Yugoslavia and Rwanda would not expire in 2010.

JOSEPH NSENGIMANA ( Rwanda) noted that, with the recent arrests in Germany and France, the number of fugitives from the Rwanda Tribunal still at large had dropped from 18 to 14.  However, the remaining 14 were among the most notorious fugitives and the Council should take urgent measures to ensure they did not evade justice.  There was fairly good information about the whereabouts of high-level fugitives and the Council must take the necessary measurers to ensure that all States cooperated in apprehending and handing them over for trial.  It should also hold States that failed to do so to account.

Welcoming the initiatives of the Rwanda Tribunal’s Prosecutor regarding the transfer of cases to national jurisdiction, principally in his own country, he said the Government had promulgated an organic law to govern all legal matters pertaining to the referral of cases to Rwanda.  Other arrangements had been made to ensure that all requirements set forth under Rule 11bis were met.  To the extent possible, pending cases should be transferred to Rwanda’s national jurisdiction on the grounds that:  justice must be seen to be done within the territory where the crimes were committed; it was more efficient and effective to hold cases in Rwanda since the evidence and witnesses were mostly there; from a sovereign equality point of view, Rwanda, having cooperated with the Tribunal as an international judicial institution, should not be subordinated to other national systems; and it would complement and reinforce Government reconciliation policies.  Rwanda was willing to take over all the Tribunal’s cases and to supervise the sentences it had imposed.  All the necessary preparations were being undertaken in partnership with the Tribunal and with valuable support from development partners.

He called on the Council to provide a clear deadline with respect to the steps necessary to ensure that convicts were transferred to Rwanda without further delay.  As the Tribunal’s legacy on international justice was considered, in general but more specifically its effect on Rwanda, it would be necessary to incorporate the transfer of all court documents and materials to Rwanda as part of the Completion Strategy.  Those documents constituted an important part of the country’s recent history and they would be of critical importance in Rwanda’s reconciliation and civic policies.  That purpose overrode any desire to acquire them simply for research or similar purposes.

PAVLE JERVREMOVIC ( Serbia) said that, since the establishment of a democratic Government in his country in 2000, its cooperation with the International Criminal Tribunal for the Former Yugoslavia had been significant and effective.  Out of the 161 accused by the Tribunal, only four were still at large, and they would be located and apprehended in the near future.  At the political level, the National Security Council had improved coordination between services involved in cooperation with the Tribunal.  At the operational level, the Action Team, comprising various services, had become more effective recently and, since mid-October, a senior representative of the Prosecutor’s Office attended the bi-weekly Action Team meetings.  The Serbian Government had promised rewards to those providing information leading to the arrest of fugitives.  In addition, a recently passed law had expanded the role of the War Crimes Prosecutor to include jurisdiction over those who aided and abetted war-crime fugitives.

He said other equally important aspects of cooperation included access to witnesses, production of documents, access to archives and effective regional cooperation.  Thus far, Serbia had received more than 1,600 requests for assistance from the Prosecutor and over 1,000 requests from defence lawyers.  In response to various requests, Serbia had provided the Tribunal with hundreds of thousands of pages of confidential and sensitive State documents.  The Government had also given waivers to more than 500 military, police and Government officials, releasing them from the duty to keep State, official and military secrets.  The Prosecutor’s Office had been given general access to Serbian archives.

One of the basic preconditions for the success of the Tribunal’s Completion Strategy was the capacity of domestic courts to process the cases transferred to them, he said.  To that end, the Government had established the Chamber for War Crimes within the District Court of Belgrade in July 2003, and the War Crimes Prosecutor’s Office, which was specially authorized to deal with those cases.  Since then, proceedings in several cases had proven the effectiveness of the new judicial institutions.   Belgrade’s District Court and the Prosecutor’s Office were properly equipped to deal with cases according to legal standards.  The Agreement allowing the Serbian Prosecutor’s Office access to the Tribunal’s electronic database had been signed in July 2006.   Serbia also welcomed the agreement enabling the Organization for Security and Cooperation in Europe missions in Bosnia and Herzegovina, Croatia, Montenegro and Serbia to monitor the trials of war crimes in the domestic courts of those countries.

MIRJANA MLADINEO ( Croatia), welcoming efforts to design residual mechanisms to ensure the continuation of the Tribunal’s essential functions after the completion of all trials and appeals, said they would be crucial to its long-term legacy.  The matter of archives also deserved attention.  Their physical location and management must be properly addressed.  Another issue was the serving of sentences.  As circumstance had changed substantially, there was justification for those convicted serving their sentences in the region.  Perhaps most important for the Tribunal’s long-term legacy was ensuring that it was embraced by the countries that had been subject to its jurisdiction.  In that regard, the Tribunal and the Council should give greater attention to the role that national legal systems in the region could play in carrying out the Tribunal’s residual functions.

Emphasizing that one could not truly speak of the completion of the mandate while those most responsible for war crimes remained at large, she said Radovan Karadžić, Ratko Mladić and Goran Hadzic must face charges before the Tribunal.  Without their trials, the Tribunal’s mandate would remain unfulfilled and its legacy incomplete.  Justice was an essential prerequisite for lasting peace, and a just punishment was a powerful deterrent.  However, recent judgments delivered by the Tribunal in the case of the “Vukovar Three” had provoked strong reactions in Croatia and beyond.  Two of the accused had been sentenced to 20 and 5 years in prison, respectively, having been found guilty of aiding and abetting the torture and execution of nearly 200 civilians in Vukovar in 1991.  The third accused had been acquitted.  While Croatia was concerned that no appeal had been filed regarding the acquittal, hopefully the appellate judgment in the Vukovar case would render justice that could stand the test of time.

Responses by Tribunal Presidents

Mr. POCAR, President of the International Criminal Tribunal for the Former Yugoslavia, thanked the Council for its commitment to support its work until its work was complete.  The Tribunal would continue to explore all possible new avenues and make full use of all resources.  Facing a situation next month whereby it could start a new trial but lacked the judges to do so, the Tribunal’s current judges would have to remain until the end of the trial and the writing of the judgments.  The President could not ask the Secretary-General to appoint new judges until the current judges left and he could not give the new cases to the existing judges because their current three-year term would expire six months later.  They must therefore wait until their terms expired to start the new trial.

Requesting authority to appoint additional temporary judges so that the Tribunal could start a new trial pending the rendering of the judgements, he said that would be a temporary measure to go beyond 12 judges.  It was possible because the Tribunal had a new courtroom available and a precedent already existed.  In 2005, a newly-elected permanent judge had been appointed two months earlier than scheduled in order to allow a new case to start on time.  Doing something similar today would result in expediting the end of the trial and meeting the deadlines of the Completion Strategy.  The Tribunal’s real legacy would be its work in assessing international humanitarian law in terms of individual verdicts rendered and the continuation of the Tribunal’s work by domestic courts after the Tribunal was closed.

Mr. BYRON, President of the International Criminal Tribunal for Rwanda, said he had been inspired by the thoughtful and well informed statements by delegates.  Rwanda in particular had always cooperated with the Tribunal’s work.  The matter of the Tribunal’s legacy was being addressed in dialogue with the International Criminal Tribunal for the Former Yugoslavia and would be discussed in the working group tomorrow.  The Rwanda Tribunal would do its utmost to honour the Council’s mandate regarding the Completion Strategy.

Prosecutor’s Response

Ms. DEL PONTE, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, reminded the Council that the Tribunal had been established to try those most responsible for the most serious crimes committed in the former Yugoslavia since 1991.  Among those most responsible were Ratko Mladić and Radovan Karadžić.  “You will have the responsibility to decide if this Tribunal can fulfil the mandate you gave to it or not.”  It was “impossible to envisage” that Mladić and Karadžić would be put on trial in Belgrade, where they were considered national heroes.

Regarding the relationship between UNMIK and the indictee Ramush Haradinaj, she said the prosecution had had to close its case without having been able to obtain testimony from the three most important witnesses.  Luckily, Haradinaj remained in detention, having been denied provisional release for the Christmas holidays.  Such a release would have been dangerous and had a chilling effect on witnesses.  Because there was an ongoing investigation, no further comment could be made about the case.  The Council would be informed as needed.

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For information media • not an official record