ICTY President to UN Security Council – trials should finish by 2009 if all Rule 11bis motions granted, all joinders allowed and no new arrivals; Prosecutor: fugitives -'most serious obstacle'

Today the President and Prosecutor of the ICTY addressed the United Nations Security Council to assess the progress made towards realizing the 'completion strategy' to wrap up the work of the Yugoslav war crimes court.  Since they last reported to the Security Council in November 2004, dramatic progress has been made in various aspects of the Tribunal's work.  Most notably, 22 new accused have been taken into the custody of the court – halving the number of fugitive suspects but at the same time creating a bottleneck for trials.  The arrival of these indictees is equivalent to a 50% increase in the numbers of defendants awaiting trial.   Meanwhile all three courtrooms are operating at full capacity now with 6 trials ongoing – one in the morning and afternoon per courtroom, with a total of nine accused currently standing trial.   However, due to the drastic influx of suspects over the past 6 months, the President has now shifted his assessment for completion of trials to 2009.  This assessment, he cautioned, is based on 'assumptions subject to unpredictable factors' such as whether all requests for transfer back to the Balkans under Rule 11bis are granted – as well as a host of other procedural 'ifs.' 

President Meron's Address

Procedural measures taken to meet goals of completion strategy

In order to meet the goal of completing trials by 2008 (and now assessed at 2009) both the Court and the Office of the Prosecutor (OTP) have embarked on several procedural endeavors to reduce the caseload of the Tribunal and speed up trials in progress.  The first procedural development mentioned by the President was the amendment of Rule 98bis which now mandates that the 'judgment of acquittal' process proceed orally rather than through lengthy written submissions.  The rule allows the defense to move to have the case (or parts of the case) dismissed at the close of the Prosecution's case-in-chief, if it believes that the OTP has not met its burden of proving its allegations.  It works in a similar fashion to a directed verdict.

Rule 98bis oral proceedings

Although the President did not refer to it specifically, just last week, parties in the Oric trial undertook the first amended Rule 98 bis  procedure.  Two out of six counts against the Bosnian Muslim commander were dismissed after both the defense and Prosecution made oral arguments before the bench on whether or not the facts set forth by the OTP could cause a reasonable trier of fact to find the defendant guilty of the crimes alleged.  The judgment was rendered orally, with Judge Agius noting that the entire process saved weeks if not months of time. 

Rule 11bis transfers back to national courts

The President also focused on Rule 11bis referrals of cases back to the region for trial.  He recalled the opening of the War Crimes Chamber in Sarajevo in March and the fact that the OTP had filed 10 motions involving 18 low- to mid- level accused for referral to courts in the former Yugoslavia.  (Last week the Prosecutor withdrew her motion for the transfer of the Vukovar Three to either Croatia or Serbia – this is discussed below).

Factors to consider in completion strategy prognosis

The President noted that successful implementation of the completion strategy will depend on effective use of the above mentioned procedural mechanisms as well as other considerations.  In total, six factors must be considered:

1)      Total number of new indictments – the Prosecutor had issued seven new or amended indictments since the last report to the Security Council.  Five of these indictments will require new, separate trials, which will add more time to completion strategy. 

2)      Whether all the 11 bis motions are granted – the Proseuctor has already withdrawn the motion against the Vukovar Three.

3)      The number of guilty pleas – there had been no guilty pleas since the last report.

4)      Arrival of new indictees and fugitives – with the arrival of 22 new indictees projections for completion must be adjusted.

5)      The timing of arrivals of indictees.

6)      Joinder of cases.  The Prosecution is currently working on motions to join up to 9 Srebrenica defendants, 7 Kosovo suspects, and 5 Serbian Krajina indictees in a series of 'mega trials.'  (More below in discussion of Prosecutor's address).

The President also noted the need for member states to submit more nominations for ad litem (temporary) judges and the possibility of building a fourth courtroom to handle the growing docket of the Tribunal – which would be financed by donor countries rather than through the UN budget.  Finally the President referred to the continued liberty of Radovan Karadzic and Ratko Mladic on the eve of the 10 year commemoration of the Srebrenica massacre as a shame. 

Prosecutor Del Ponte's Address

Focus on fugitives

The address by the Proscutor focused on efforts to apprehend the remaining indicted fugitives.  She noted that a major shift in the attitude of Serbian authorities has yielded improved access to documents, military files, witnesses and most importantly, the transfer of 14 suspects since the last progress report, including six indicted for Srebrenica.  The liberty of the last ten fugitives, however, remained the 'most serious obstacle to the completion strategy' according to Madame Del Ponte.  

The Prosecutor noted that two of the remaining fugitives (Serbian Police General Vlastimir Djordjevic and Foca rape camp suspect Dragan Zelenovic) are believed to be in Russia while all others except for Croatian General Ante Gotovina are within the reach of Serbian authorities.  She expressed concern that Croatian authorities had not fulfilled their obligations to locate and arrest Gotovina.  During the first part of 2005, she claimed, 'efforts made by the authorities were neither proactive, nor focused' and she even went so far as to characterize several incidents of obstruction. 

Joinder of cases

The Prosecutor also highlighted the joinder of cases as a method to save courtroom resources.  By joining cases with the same crime base (such as Srebrenica or Kosovo) the underlying facts will not have to be repeatedly litigated and witnesses will only need to come to testify once.  Currently three 'mega-trials' are being considered for joinder by the Prosecution, which has to file motions and obtain court approval for the process.  The cases are: for Srebrenica, where up to nine indictees are likely to be joined (with only Tolimir still at large); for Kosovo with up to seven defendants including former Serbian President Milan Milutinovic and Yugoslav Army Chief of Staff Dragoljub Ojdanic (with only Djordevic absent); and for the Serbian Krajina where five suspects including Serbian Interior Ministry officials Frenki Simatovic, Jovica Stanisic, as well as Vojislav Seselj, Milan Martic and Goran Hadzic (still at large) may be joined.  While there remains uncertainty about the logistical capacity to carry out trials of this scale (for example, will each defendant have an opportunity to cross examine? What courtroom can hold all accused and counsel?) it is believed that the efficiency of holding single trials will outweigh the technical obstacles.

Vukovar  Three transfer request  withdrawn

Madame Del Ponte also mentioned her recent withdrawal of the request to transfer the Vukovar Three to either Croatia or Serbia for trial under Rule 11bis .  She cited her recent trip to the region and what she considered the 'extremely sensitive' nature of the trial as influencing her decision to retain the case.  Notably, the Prosecutor recalled that the Vukovar case (in which 260 Croats and other non-Serbs were taken from the Vukovar hospital and murdered in 1991) had long ago drawn the attention of the international community and that the Security Council was itself seized of the issue of transferring the three suspects to The Hague, through Security Council Resolution 1207. 

The Prosecutor noted several administrative measures designed to help meet the completion strategy deadline, including scaling down the investigation division (since all investigations were closed at the end of 2004) and shifting priorities to meet trial and appellate proceedings. 

Like the President, the Prosecutor closed her remarks noting the 10^th year commemoration of the Srebrenica massacre and the continued liberty of Mladic and Karadzic.