Tribunal to Miss 2008 Deadline

The Hague tribunal’s president, Judge Theodor Meron, has warned the UN Security Council that the court has little hope of meeting the 2008 deadline set out in its completion strategy.

In a report to the council on May 25, which was made public on June 8, Judge Meron said that the unprecedented number of indictees arriving in The Hague over the past six months would have an effect on the court’s schedule.

However, he stressed that the tribunal will not close its doors before bringing its three most-wanted fugitives – the Bosnian Serbs’ former army chief Ratko Mladic and president Radovan Karadzic, and Croatian general Ante Gotovina - to justice.

“I cannot emphasise enough that these three fugitives cannot wait the tribunal out,” he said.

Judge Meron noted that while a number of factors made it difficult to predict a likely finish date for the tribunal’s remaining trials, it would not be in late 2008 as previously predicted.

“It is not feasible to envisage an end of all trial activity … by the end of 2008,” he said. “This is due to the large number of [senior] indictees and fugitives who have arrived since the last report, as well as the confirmation of seven new or amended indictments involving 13 accused.

“Moreover, no guilty pleas have been entertained since the last report, nor have all the Rule 11 bis motions for transfer of cases [to local courts] … been decided upon.”

The tribunal president has said that he will present his best estimate when he makes an oral report to the Security Council on June 13, but added, “I can already predict that trials will have to run into 2009.”

The tribunal’s completion strategy, which was rubberstamped by the UN in July 2002, envisaged the completion of all trials by late 2008, with the court completing all business and closing its doors altogether in 2010.

However, the schedule was very much dependent on a series of factors combining to ease the court’s caseload – and the tribunal president has admitted that this has not been the case.

The recent arrival of several fugitive indictees from Serbia and Montenegro has proved a mixed blessing for the court. While chief prosecutor Carla Del Ponte has been consistently vocal in her demands for increased cooperation from Belgrade, the flood of “voluntary surrenders” that have followed over the past six months has been unprecedented.

As a result, 51 persons are now awaiting trial in The Hague compared to the 34 on standby at the time of the president’s last report. This, he said, “amounts to a 50 per cent increase.”

The 2008 estimate - which was outlined in Judge Meron’s previous six-monthly statement to the Security Council in November 2004 - had assumed that trials would be unaffected by the expiration of the mandates of the tribunal’s permanent judges in November 2005, and had not envisaged events such as delays caused by the ill health of a defendant or counsel.

“The … report also stated that ‘if new indictees or current fugitives arrive at The Hague and require new and separate trials, it will become likely that it will take at least until the end of 2009 to complete the trials of all accused within the custody of the tribunal’,” he said.

Six factors will have great bearing on the tribunal’s ability to complete its business, Judge Meron has warned. These include the number of new indictments; the number of cases transferred to local courts under Rule 11bis; the number of guilty pleas; the arrival of remaining indictees and fugitives and the timing of their arrival; and the success of prosecution attempts to join existing indictments featuring similar crimes and potential witnesses into large single trials.

As the OTP issued its final indictments at the end of 2004, the only new such charges would involve contempt of court cases, two of which have been heard in 2005 alone. Ten 11 bis referral motions relating to nine tribunal cases have been lodged so far, although only one has been confirmed, and each decision may be appealed by the defendant’s legal team.

The original estimate placed a certain amount of importance on accused entering guilty pleas and thus speeding up the trial process, but this has not happened. Not one of the many indictees to appear before judges since November 2004 has pleaded guilty.

The arrival of the ten remaining fugitive indictees would also have an impact on the running of the court.

Six are named in the same indictments as suspects already in tribunal custody, so the formers’ arrival in the tribunal would not require entirely new proceedings. But if four others turn up - former Serb Krajina president Goran Hadzic; Stojan Zupljanin, ex-commander of the Security Service Centre in Banja Luka; and Ratko Mladic and Radovan Karadzic, onetime Bosnian Serb military and political leaders respectively - separate trial would be required.

While tribunal insiders stress that the court is already working at full capacity, a number of possibilities are being examined which may allow the tribunal to increase its workload.

The length of time some indictees are expected to remain in custody pending trial due to the limited availability of trial chambers has been the subject of increased debate, sometimes even by court personnel.

In April, Judge Patrick Robinson – presiding over Bosnian army general Rasim Delic’s request for provisional release – told the indictee that he was “a little bit embarrassed to be part of a system” where an accused could wait for more than two and a half years in detention before a trial was convened.

The most radical of the proposals currently under discussion would be to build a fourth courtroom, which would allow a seventh trial to be held instead of the current maximum of six. It would also take pressure off the existing three courtrooms, which at present are limited to five hours of court time a day per trial. However, Judge Meron notes that the cost of introducing a fourth courtroom would not come from the Security Council’s budget, and that “interested governments” would instead be approached to fund such a venture, if it is deemed feasible.

Longtime Hague watcher Dr Avril McDonald, head of International Humanitarian Law and International Criminal Law at the Hague-based Asser Institute, told IWPR that the initial projection of 2008 may have been a little optimistic given the tribunal’s already heavy workload.

“Take the [long-running] Milosevic case, for example, and imagine if Karadzic and Mladic were to arrive in The Hague tomorrow,” she said. “Their trial would be on a similar scale, and could run for years.”

However, she praised the strategy for “concentrating the minds” of all those connected with the tribunal, and for possibly speeding up the formation of the War Crimes Chamber in Sarajevo, which is expected to take on a number of low- and mid-ranking 11 bis cases from The Hague.

“I think that the completion strategy could be like a set of moveable goalposts,” she said. “The only question would be: will the donor governments – particularly the United States – continue to fund [the tribunal] beyond a certain point?”

Alison Freebairn is an IWPR editor in The Hague.