Criminal Tribunal for Former Yugoslavia to Close by Year’s End, Residual Mechanism Will Assume Remaining Workload, Its President Tells General Assembly
Serbia’s Representative Refutes Claims Its Failure to Cooperate with Arrest Warrants Thwarting Progress on Two Remaining Cases
After 24 years of ground‑breaking work in the fight against impunity, the International Criminal Tribunal for the Former Yugoslavia would close its doors by end of year, having “blazed a trail of remarkable firsts”, the General Assembly heard today.
“In my view, the principle achievement of the Tribunal, and its most important legacy, is its ground‑breaking role in the fight against impunity,” said Tribunal President Carmel Agius.
Established in 1993 to deal with war crimes committed during the Balkans war, the Tribunal had issued more indictments than any other international criminal court and had successfully brought to justice 161 individuals for serious violations of international humanitarian law, he said. It was also the first international criminal tribunal since the post‑Second World War, Nuremberg and Tokyo tribunals and the first to indict a sitting Head of State.
“On front after front, the [Tribunal] has developed not only jurisprudence but also tools, procedures, and programmes to address specialized areas of international criminal law and practice, such as witness protection, state cooperation, and judicial efficiency,” he said.
Mr. Agius detailed progress made toward completing the Tribunal’s mandate and the transition of duties to the International Residual Mechanism of Criminal Tribunals. He said that judgments of the two remaining substantive cases were scheduled for 22 November for the Mladić trial case, and 29 November for the Prlić et al appeal case. There had been no progress in the cases against Petar Jojić and Vjerica Radeta, he said, adding that the accused were still at large in Serbia, due to Serbia’s lack of cooperation with the Tribunal.
He also underscored the importance of ensuring a seamless transfer of responsibilities to the Mechanism, while at the same time “taking pains” to ensure that the Tribunal’s efficient closure remained an example of other downsizing institutions to follow. By 1 January 2018, the Mechanism would have assumed full responsibility for all residual functions of the Tribunal, as well as its extensive archives.
Also briefing the General Assembly, Theodor Meron, President of the Residual Mechanism, said if the Mechanism failed to fulfil those responsibilities, it would be a failure not only for the legacies of both the Former Yugoslavia and Rwanda Tribunals but also for international justice itself.
“What victims and witnesses will come forward in the future to give evidence as to what they have seen in Syria, in Iraq, or in countless other conflicts” if it became apparent protections were not available, he asked, adding that States would no longer cooperate with investigations by providing sensitive information if the safeguarding of confidential materials could not be guaranteed.
He said the efficient completion of the Mechanism’s mandate would not be possible without such continued support, noting that due to limited resources all the entity’s work must be undertaken with the greatest efficiency and urgency and in the most cost‑effective manner possible. “We owe nothing less to this Organization and to the public interest of the international community at large,” he concluded.
The representative of Serbia, responding to claims that his country was not cooperating regarding arrest warrants, said it had handed over 45 defendants to the Tribunal out of the total of 46 requested. One defendant had committed suicide before he could be handed over. “This is a clear sign that Serbia’s cooperation with the [Tribunal] has been comprehensive and uncompromising,” he said. The Jojić case was a case of contempt of court and Serbian courts did not provide extradition for alleged crimes other than serious war crimes. “Please read the statute,” he said. “It is simply wrong to require the Serbian Government to cure this mistake.” While the Tribunal had completed its work, it hardly accomplished its mission, he said, adding that: “However, irrespective of the bitter taste it may leave, it will not influence my country’s commitment to non‑selective prosecution of war crimes.”
The representative of Rwanda voiced concern that nine fugitives from the Criminal Tribunal for Rwanda remained at large, commending the Mechanism’s efforts to track them. Noting that the Rwanda Tribunal had been established partly to contribute to Rwanda’s national reconciliation process and its restoration and maintenance of peace, she said those objectives had not been achieved, as most of the master planners of the 1994 genocide against the Tutsi were still at large. The technocrats running the Rwanda Tribunal had denied Rwandans the right to host convicted perpetrators, instead sending them to distant countries. “This has frustrated survivors who feel that the [Tribunal] does not value them,” she said.
In the ensuing discussion, several Member States commended the Tribunal for its successful prosecution of all 161 indicted persons, with the representative of Mexico saying that experience could serve as a model for future tribunals.
The representative of the Russian Federation said that the results of Tribunal’s work had yet to be analysed objectively. Given the challenges that had accumulated in the Tribunal’s work, he said that serious flaws in its functioning would continue to impact its responsibilities.
Several speakers urged Serbia to cooperate with international mechanisms, with the representative of the United States expressing concern about the divisive nature of statements by some individuals in the region, as well as attempts to deny or revise the true record of crimes established by the Tribunal. He said the historical record should be depoliticized, voicing concern about Serbia’s failure to execute arrest warrants for the two surviving individuals charged with contempt of court in relation to witness intimidation in the case of Vojislav Šešelj.
The representative of the European Union said that despite progress, revisionism threatened the entire region. Such trends must be fought, he stressed. He also urged Serbia, as a country negotiating its accession to the European Union, to execute arrest warrants, immediately cooperate with the Tribunal, and implement its decisions and judgments.
The Assembly took note of the twenty‑fourth and final annual report of the International Tribunal for the Prosecution of Persons Responsible for serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 and also the fifth annual report of the International Residual Mechanism for Criminal Tribunals.
Also speaking today were the representatives of New Zealand (also on behalf of Canada and Australia), Slovenia, Chile, Guatemala, and Turkey.
The General Assembly will meet again at 10 a.m. on Friday, 20 October, to consider new partnerships for Africa’s development, reports of the Secretary‑General and the Decade to Roll Back Malaria in Developing Countries, Particularly in Africa.
Opening Remarks
CARMEL AGIUS, President of the International Criminal Tribunal for the Former Yugoslavia, said that until the very moment the Tribunal closes its doors, “we will continue to reinforce our message to the international community that perpetrators of crimes must be brought to justice”. Presenting the Secretary‑General’s note (document A/72/266) transmitting the twenty‑fourth and final report of the Tribunal, he said it detailed progress made toward completing the Tribunal’s mandate and the transition of duties to the International Residual Mechanism of Criminal Tribunals. The Tribunal had completed all its work but two substantive cases. Judges had heard the final arguments in both cases within the last year, and had been fully engaged in intensive deliberations and judgment drafting. The Tribunal’s goal was to conclude all judicial work by November 2017. Delivery of judgments was scheduled for 22 November for the Ratko Mladić trial case, and 29 November for the Prlić et al appeal case.
He noted that there had been no progress in the cases against Petar Jojić and Vjerica Radeta, adding that the accused were still at large in Serbia, due to Serbia’s lack of cooperation with the Former Yugoslavia Tribunal. Given its imminent closure, there was no longer any possibility for the Tribunal to try the case, but it would still take whatever action was necessary to ensure that the accused faced justice. After 24 years the Tribunal would close its doors on 31 December.
“In my view, the principle achievement of the Tribunal, and its most important legacy, is its ground‑breaking role in the fight against impunity,” he said. The Tribunal blazed a trail of remarkable firsts: it was the first international criminal tribunal since the post‑Second World War Nuremberg and Tokyo tribunals; the first tribunal ever established under Chapter VII of the United Nations Charter; and the first to indict a sitting Head of State.
The Former Yugoslavia Tribunal had issued more indictments than any other international criminal court and had successfully brought to justice 161 individuals for serious violations of international humanitarian law, he said. The Tribunal was the first to comprehensively address conflict‑related sexual violence and the first to affirm that the destruction of cultural heritage may amount to a crime against humanity. “On front after front, the [Tribunal] has developed not only jurisprudence, but also tools, procedures and programmes to address specialized areas of international criminal law and practice, such as witness protection, state cooperation and judicial efficiency,” he said.
The achievements extended beyond The Hague, he added, noting the Tribunal’s role in rebuilding trust between the States of the former Yugoslavia and the United Nations. Today the former Yugoslav republics had adjudicated numerous cases through their own special war crimes courts, and their specialized war crimes prosecutors continued to investigate and bring charges against perpetrators numbering in the thousands. However, there was room for improvement and a need for continued assistance to the relevant institutions and actors on the ground.
To ensure that the Former Yugoslavia Tribunal continued to contribute to the fight against impunity, even after its closure, it had developed a series of legacy and closing events, he said. He underscored the importance of ensuring a seamless transfer of responsibilities to the Mechanism, while at the same time “taking pains” to ensure that the Tribunal’s efficient closure remained an example of other downsizing institutions to follow. By 1 January 2018, the Mechanism would have assumed full responsibility for all residual functions of the Tribunal, as well as its extensive archives. He also commended the hard work and dedication of all the Tribunal’s judges, principals and staff members.
THEODOR MERON, President of the International Residual Mechanism for Criminal Tribunals, quoting the late international law professor Cherif Bassiouni — who had been instrumental in the creation of the International Criminal Court — declared: “Peace is not merely the absence of conflict. It is the restoration of justice and the resort to the rule of law to mediate and resolve […] conflicts.” It was in recognition of those principles that the Former Yugoslavia Tribunal was established in 1993 and, a year later, the Rwanda Tribunal. The Mechanism was borne of the same commitment to justice and the rule of law, in recognition of the fundamental need to ensure that the remaining fugitives could and would still be called to account, even after the closure of the respective Tribunals.
Nevertheless, he said, the Mechanism’s creation bespoke something more, namely a recognition that with justice came certain enduring responsibilities. Those included obligations to vulnerable victims and granting protection to witnesses, convicted persons serving sentences or seeking revisions to their sentences, States and individuals that had provided sensitive information and communities that sought to ensure accountability in their own courts for terrible crimes being committed in Rwanda and the former Yugoslavia. Were the Mechanism to fail to fulfil those responsibilities, it would be a failure not only for the legacies of both the Former Yugoslavia and Rwanda Tribunals but also for international justice itself. “What victims and witnesses will come forward in the future to give evidence as to what they have seen in Syria, in Iraq, or in countless other conflicts” if it became apparent protections were not available, he asked, adding that States would no longer cooperate with investigations by providing sensitive information if the safeguarding of confidential materials could not be guaranteed.
Noting that the Mechanism’s mandate was indisputably limited in material and temporal scope, he outlined strides made in carrying out its work over the last year and highlighted several important developments set out in the Mechanism’s fifth annual report, transmitted in a Secretary‑General note (document A/72/261). The Mechanism had welcomed a new Registrar, Olufemi Elias of Nigeria, and on the judicial front it had begun its first re‑trial in the case of Stanišič & Simatovič, which now proceeded apace. In the case of Augustin Ngirabatware, a bench in the Appeals Chamber had resumed its work and a hearing was pending in the coming months. Listing several other cases of which the Appeals Chamber remained seized, he said the judges also stood ready to try the remaining fugitives indicted by the Rwanda Tribunal. In November 2016, the Mechanism had opened its landmark new premises in Arusha, United Republic of Tanzania, and staff at that office and in The Hague were working together to ramp up the administrative capacity needed to ensure smooth operations on both continents.
In all that work, he continued, the Mechanism depended on the cooperation and support of Member States. In Africa and in Europe, it had partnered with countries and made significant advances in such areas as enforcement of sentences and the relocation of acquitted and released convicted persons. The efficient completion of its mandate would not be possible without such continued support, he stressed, noting that due to limited resources all the Mechanism’s work must be undertaken with the greatest efficiency and urgency and in the most cost‑effective manner possible. “We owe nothing less to this Organization and to the public interest of the international community at large,” he concluded.
Statements
FINNIAN CHESHIRE (New Zealand), also speaking on behalf of Canada and Australia, said the international community should be proud of the Former Yugoslavia Tribunal’s achievements including delivering justice to victims of some of the most horrific atrocities in recent history. Among other things, it had also contributed to international criminal jurisprudence and international humanitarian law, he said, adding that both that entity and the Rwanda Tribunal “leave behind a rich legacy” of concerted effort to combat impunity. Nevertheless, as the work of the Former Yugoslavia Tribunal came to an end, reports of ongoing and widespread denial and revisionism of its work were concerning.
Welcoming the Former Yugoslavia Tribunal’s progress in fulfilling its completion strategy and maximizing its effectiveness and efficiency, as well as the Mechanism’s efforts to explore the relocation of those acquitted, he called on the latter to develop a process for risk‑based assessment for relocation and encouraged it to continue to work with States to address that pending issue. All States — especially those in the region — were required to work with the Tribunals, and Chapter VII of the United Nations Charter further obligated them to take any necessary measures under their domestic law to implement the resolutions establishing those bodies, including complying with requests for assistance or orders issued. In that regard, he urged all States in the region to lend their full support to the Former Yugoslavia Tribunal in its final months of operation, and to the Mechanism once it assumed those functions. He also encouraged greater cooperation between those two instruments to bring to justice the eight indicted individuals who remained at large.
ERIC CHABOUREAU, European Union delegation, expressed deep concern over the lack of cooperation from Serbia on arrest warrants issued by the Former Yugoslavia Tribunal. Turning to that Tribunal’s two outstanding cases, he said that the absence of a verdict would be a failure on the part of the Tribunal as well as the international community. He called on Serbia, as a country negotiating its accession to the European Union, to execute arrest warrants, immediately cooperate with the Tribunal, and implement its decisions and judgments. On the Tribunal’s closure, he said that the smooth liquidation of its assets was essential and commended the gender parity within the Tribunal’s staff. Moving forward, it would be vital to uphold rule of law and maintain peace in the region, both of which required improved capacity of national judicial systems.
Despite progress noted by the Former Yugoslavia Tribunal’s Prosecutor on war crimes, genocide and crimes against humanity, there was a trend among some candidates to the European Union to deny such crimes, he said. Defending war crimes and revisionism threatened the entire region. Such trends must be fought. “The Tribunal fully carried its functions as mandated to it by the Security Council,” he said, commending the Tribunal’s 7,000 staff members for their dedication. Stressing the need to preserve the Tribunal’s legacy for the benefit of other international criminal courts as well as national tribunals, he welcomed the close cooperation between the Mechanism and the Tribunal and said both bodies must work closely to enable the Mechanism to take over the Tribunal’s work. Prosecution by national jurisdiction of crimes committed in Rwanda was crucial, he added.
DARJA BAVDAŽ-KURET (Slovenia), associating herself with the European Union, said the Former Yugoslavia Tribunal had been instrumental in bringing to justice and giving a voice to thousands of victims of the most heinous crimes. Among other things, it had inspired the international concept of transitional justice, strengthened national capacities, and affirmed that no one – even leading politicians – was above the law. Despite those historic accomplishments, the process had not been without challenges and criticism, and a “sense of incompleteness” remained, due not least to the fact that not all those indicted had seen a final verdict. Given its proximity to the Western Balkans, Slovenia had followed the Tribunal’s work closely and was conscious of persistent challenges including in the form of nationalism. Intolerance, outstanding bilateral issues and the pursuit of particular political interests stood in the way of necessary reforms, she said, citing worrying and increasing instances of the denial of crimes committed during the conflict in the former Yugoslavia. “The revisionism and glorification of war crimes are undeniably counter-productive to the stability of the region,” she said, adding that in light of the Tribunal’s imminent closure, countries must now demonstrate a commitment to combating impunity at the national level.
Mr. KAYINAMURA (Rwanda) voiced concern that nine fugitives from the Rwanda Tribunal – including the top three: namely Felicien Kabuga, Protais Mpiranya and Augustin Bizimana – remained at large, commending the Mechanism’s efforts to track them and calling for tangible results. Noting that the Rwanda Tribunal had been established partly to contribute to Rwanda’s national reconciliation process and its restoration and maintenance of peace, he said those objectives had not been achieved, as most of the master planners of the 1994 genocide against the Tutsi were still at large. The technocrats running the Rwanda Tribunal had denied Rwandans the right to host convicted perpetrators, instead sending them to distant countries. “This has frustrated survivors who feel that the [Tribunal] does not value them,” he said.
Spotlighting the important body of jurisprudence established by both Tribunals, he echoed calls to preserve their legacies, also urging the Security Council to “be on the right side of history” by supporting victims, particularly when those convicted of genocide were being set free under the so-called early release agreement. Any early release request must be considered in the context of the gravity of the crime, and the Government of Rwanda must be notified and consulted. The Residual Mechanism’s Practice Direction on Procedures for the determination of the application of early release did not allow for transparency or recourse, and had been set up in such a way that the president was not required to notify relevant witnesses and victims of the impending release of a convicted person. In cases where those convicted of genocide were granted early release, there were also no measures in place for continued monitoring, he said, adding that the growing cases of genocide denials noted in the report represented warning signs that must not be ignored.
ČEDOMIR BACKOVIĆ (Serbia) said that with respect to the steps taken so far by his country, it was hard to deny that it was probably the only nation that had successfully fulfilled its role on two tracks: by the implementation of the obligation to cooperate with the Former Yugoslavia Tribunal and by the results achieved within its national judicial system. Serbia had also fully complied with it on both legislative and implementation levels. The country’s criminal legislation was fully aligned with relevant standards which had enabled it to cooperate with the Tribunal. Serbia had handed over 45 defendants to the Tribunal out of the total of 46 requested. One defendant committed suicide before he could be handed over. Out of the 46, 26 had voluntarily surrendered, he said, noting that many of them were highly ranked officials. “This is a clear sign that Serbia’s cooperation with the [Tribunal] has been comprehensive and uncompromising,” he said.
Serbia had also given the Former Yugoslavia Tribunal’s Prosecutor free access to important evidence located in Serbia, including documents, archives and witnesses, he said. Some 759 witnesses had been allowed to testify freely despite the right and obligation to withhold testimony due to State, military or official secrets. Serbia had also continually worked on improving its national judicial system including by establishing a monitoring mechanism and strengthening the capacities of the War Crime Prosecutor’s Office. “Three other deputy prosecutors are expected to be appointed in the coming months,” he said. Special training was provided for judges, public prosecutors and police officers in charge of investigating and prosecuting of war crimes.
While supporting the observations made in the Former Yugoslavia Tribunal’s report on the importance of the reconciliation and cooperation in the region, he noted that only 16 out of 30 Serbian requests had been positively resolved by Bosnia and Herzegovina and of the nine requests for special assistance submitted to Croatia only two had been positively resolved. Some realities had been ignored in the report and some parts went “beyond the facts and beyond the law”. He said that the Jojić case was a case of contempt of court and that Serbian courts did not provide extradition for alleged crimes other than serious war crimes. “Please read the statute,” he said. “It is simply wrong to require the Serbian Government to cure this mistake.” Rule of law could not be advanced by violating the rule of law. While the Tribunal had completed its work, it hardly accomplished its mission, he said, adding that: “However, irrespective of the bitter taste it may leave, it will not influence my country’s commitment to non‑selective prosecution of war crimes.”
PABLO ADRÍAN ARROCHA OLABUENAGA (Mexico), describing the Former Yugoslavia Tribunal’s creation as an international milestone, said its successful prosecution of all 161 indicted persons could serve as a model for future tribunals. Mexico had participated in the negotiations leading to the Residual Mechanism’s establishment, and had supported that body’s work since its inception, he said, adding that it would be essential not only in ensuring the completion of the Tribunals’ work but also in preserving and disseminating their valuable legacies in the field of international criminal law.
Ms. SAPAG (Chile), echoing support for the achievements of the Former Yugoslavia Tribunal and the Residual Mechanism, welcomed their solid progress but said repeated appeals for greater international cooperation — including in such areas as arrest warrants — had not yet been achieved. Drawing attention to the Tribunal’s “Legacy Dialogues”, which represented an additional effort to preserve that court’s achievements in ending impunity and shaping international law, she outlined several tasks aimed at ensuring its efficient closure, completing its pending procedures and ensuring the Mechanism’s continued prosecution of international crimes committed in both Rwanda and the former Yugoslavia. She also called on Member States to support the Mechanism and to continue to combat impunity and pursue justice for the worst international crimes.
EVGENY T. ZAGAYNOV (Russian Federation), noting that the Former Yugoslavia Tribunal should have closed in 2010, said the results of its work had yet to be analysed objectively. Given the challenges that had accumulated in the Tribunal’s work, he said that serious flaws in its functioning would continue to impact its responsibilities. He expressed hope that the duration of the Mechanism’s work would be outlined in detail in future reports. He also requested information on what the Mechanism was doing to increase the capacity of national jurisdiction. According to the Security Council, the Mechanism had a temporary mandate and must not be used as a new international court. The work of the Mechanism must be strictly guided by the Security Council. The Mechanism must not expand beyond its mandate and should focus on concluding the Tribunal’s remaining cases in a timely manner.
Mr. GARCIA (Guatemala) said that 161 persons indicted had already been judged, leaving only two substantive cases on the Former Yugoslavia Tribunal’s agenda. He commended the efforts of judges and staff to conclude responsibilities on time. The Tribunal was resolved to ensuring that the liquidation process continued successfully. The lessons of the Tribunal were relevant as they had demonstrated what could be expected from an international court concerning criminal issues. Expectations must be managed, however, and if possible the decisions of the Tribunal must be part of the national jurisdiction of the former Yugoslavia. The Tribunal had proved that it was possible to proceed with high‑profile cases to ensure that those atrocities never occur again.
CARLOS TRUJILLO (United States), noting that the world continued to face conflicts where serious crimes had been committed, underlined the need to continue to find ways to support accountability for perpetrators of atrocities and justice for victims. “We must now turn out focus on fulfilling national‑level obligations to resolve remaining war crimes cases,” he said, voicing the United States’ commitment to those ends. Regarding the upcoming appeals judgement in the Former Yugoslavia Tribunal in the Prlić case, he supported the independence of the Tribunal to reach its decision. Meanwhile, the case against Ratko Mladić — charged with 11 counts of genocide, crimes against humanity and violations of the laws and customs of war — was a “fitting bookend” to the Tribunal’s work. Stressing that both cases, like others, should not be viewed as trials of any one country, he expressed concern about the divisive nature of statements by some individuals in the region, as well as attempts to deny or revise the true record of crimes established by the Tribunal.
The historical record should be depoliticized, he continued, also voicing concern about Serbia’s failure to execute arrest warrants for the two surviving individuals charged with contempt of court in relation to witness intimidation in the case of Vojislav Šešelj. The United States was impressed with the range of assistance being provided by the Residual Mechanism, which was also being guided by the Security Council to remain a small and efficient structure. The Office of the Prosecutor was now working to locate and arrest eight remaining fugitives, three of whom would be tried by the Mechanism. In that regard, he welcomed the establishment of two task forces, one focused on Africa and the other on Europe, which brought together key national law enforcement authorities and the International Criminal Police Organization (INTERPOL). The United States continued to offer a reward of up to $5 million each for information leading to the arrest or transfer of those eight men, he said, calling on States ‑ especially those in the Great Lakes region — to cooperate with efforts to apprehend them.
Action
The Assembly, acting without a vote, then took note of the Former Yugoslavia Tribunal’s twenty‑fourth report.
The representative of Turkey, taking the floor before the Assembly took note of the fifth report of the Residual Mechanism, registered his country’s position on the report, some of whose contents referred to Turkey and Turkish nationals. His country had made its position on the issue of diplomatic immunity known to relevant counterparts, the Secretariat, the Secretary‑General, the Security Council and the wider United Nations membership in a series of official letters. In that vein, he announced Turkey’s non‑concurrence with regard to those sections of the report, and registered the lack of consensus on them in the General Assembly. In addition, he rejected all attempts to interfere with the independent judiciary of a Member State, stressing that such actions were not permissible “under this roof”.
The Assembly then took note of the Mechanism’s report.