Address by Carla Del Ponte, the Tribunal's Chief Prosecutor, to General Affairs and External Relations Council of the EU in Luxembourg, on 11 October 2004


The Completion Strategy approved by the Security Council of the United Nations last year gives a clear perspective for the Tribunal and for the States of the former Yugoslavia. Now, each and every government in the region knows precisely what remains to be done in terms of co-operation with the ICTY. However, I am afraid that the timeframe set in the completion strategy, whereby the Tribunal is to close its doors by the end of 2010, was misinterpreted. The protective networks of Karadzic, Mladic, Gotovina and the other persons indicted by the ICTY who are still at large are simply waiting for the end of the Tribunal. They expect that on 1st January 2011 they will be free.

This would be a bad blow to international justice, as well as to peace and reconciliation in the former Yugoslavia. I am therefore grateful to you for having underlined on 13 July that "the work of the ICTY would not be completed without the arrest and transfer to The Hague of key indictees such as Radovan Karadzic, Ratko Mladic and Ante Gotovina." It is of crucial importance to stress this message towards the local authorities over and over again. Impunity bears the germ of future conflicts.


THREE AREAS BEYOND THE TRIBUNAL'S CONTROL

In June, the President of the ICTY and myself explained in detail our plans to the Security Council. I focused in particular on three areas which are beyond our control, and which are key conditions for the success of the Tribunal's work: the co-operation of the States in the region, proper conditions for the conduct of domestic trials, and the resources provided to ICTY.

All States have the obligation in international law to co-operate fully with the Tribunal. Such a co-operation is essential to bring the accused to the custody of the Tribunal, and to allow us to have access to the relevant documents and witnesses. The failure to bring to The Hague the 21 accused which are currently at large is the most significant obstacle hampering a swift and efficient implementation of the completion strategy. Serbia and Montenegro, Croatia and the Republika Srpska within Bosnia and Herzegovina bear the main responsibility for this failure.

I was in Belgrade last week, and I discussed this matter with the State Union and with the Republican authorities. At the level of the State Union, convincing measures were taken recently to reduce the backlog of unanswered requests for documents. Furthermore, almost all our requests to interview witnesses were responded. Unfortunately, I could not recognise such a strong political will to solve all remaining issues at the level of the Serbian Government. The republican authorities are responsible for the transfer of the persons accused by the ICTY who are on the territory of Serbia. More than a dozen of them are there, and Ratko Mladic is among them. This was not denied by any of the officials I met in Belgrade.

In two occasions this year, my investigators could see with their own eyes two accused flee their house in a hurry shortly after I had passed information on their location to the Serbian authorities. The first such incident occurred in March, when we had located Ljubisa Beara, a close associate of Ratko Mladic indicted in March 2002 for the Srebrenica genocide. The second one happened on 13 July, just hours after I had forwarded an indictment concerning Goran Hadzic, the then President of the so-called Republika Srpska Krajina, to the authorities in Belgrade. Furthermore, Belgrade has refused so far to arrest and transfer the generals indicted in October 2003 for their role in Kosovo.


SERBIAN GOVERNMENT NOT READY TO PROCEED WITH ARRESTS

Last Monday, I announced to the Serbian Prime Minister that I would provide him detailed information on the whereabouts of a fugitive in the days to come, and that I expected the Serbian authorities to be able, this time, to proceed efficiently with the arrest and transfer. On Friday, the precise location of Ljubisa Beara was communicated to the Serbian authorities. I asked them to act within the next 48 hours, also so that I can inform you today. He was arrested without opposing resistance on Saturday and transferred to The Hague the same night. Four co-accused of Beara are still at large in Serbia, and I expect the Serbian authorities to be pro-active in locating and transferring them to The Hague. I remain sceptical about their readiness to do so. The Minister of Justice of Serbia, who was accompanying Ljubisa Beara, told me that the government was not ready to proceed with arrests, only with voluntary surrenders.

It is a great disappointment for the ICTY that Croatia did not arrest General Gotovina to this day. In the course of the spring, the Government seriously intensified its efforts to locate this fugitive, and I was confident that he would be arrested during the summer. It is very unfortunate that this did not happen and that, in July and August, the momentum was lost. I have urged again the Croatian authorities to arrest him as soon as possible, so that Croatia continues along the road of full co-operation. Otherwise, there is no significant problem in Croatia's co-operation with the ICTY.

In relation to Bosnia and Herzegovina, the authorities of the Republika Srpska have still not located and arrested one single indicted fugitive to date. Radovan Karadzic is known to spend much of his time in that part of Bosnia and Herzegovina. He still enjoys the full support and assistance of the authorities there at all levels. I look forward to work closely with the EUFOR when it will be established, and I hope that the new arrangement will be more effective in tracking fugitives.


ONE MORE KLA INDICTMENT BEFORE THE END OF THIS YEAR

Regarding Kosovo, you may remember that one KLA-related indictment was issued in 2003 and 3 persons arrested and transferred. One more indictment concerning the KLA leadership will be signed before the end of this year. In both cases, we face enormous problems because of the huge pressure exerted by the suspects and the accused on our witnesses. Witness intimidation is a serious problem throughout the former Yugoslavia, but in Kosovo it is widespread and systematic. We have recently approached the Special Representative of the UN Secretary General on this sensitive and difficult question.

As the ICTY focuses on the most senior leaders responsible for war crimes, crimes against humanity and genocide, domestic courts will have to carry out numerous trials of mid- and low-level perpetrators. I have already requested the Chambers to refer to Bosnia and Herzegovina and to Croatia three cases involving persons who are currently under the jurisdiction of the ICTY. Two of these cases should be transferred to the Bosnia State Court. It is therefore crucial that its war crimes chamber becomes operational early next year, as foreseen. The third case should be forwarded to Croatia.

There are many more indicted cases that I would like to transfer to the region. However, most of these cases involve mid- and small-level accused who are at large. There is no reason to believe that they would be more likely to appear in front of a domestic court than they were in front of the ICTY. Therefore, we would be rewarding the fugitives and those protecting them, including the authorities. In other words, the failure by Belgrade and Banja Luka to arrest fugitives in practice blocks the transfer of ICTY cases to the region, which is so adamantly promoted by the Serbian government.


URGENT NECESSITY TO INTENSIFY JUDICIAL COOPERATION

There is no doubt that, since last year, a great deal of effort was made to put in place adequate legislation and establish credible court systems to deal with cases not indicted in The Hague. We are working closely with the OHR and State Prosecutor in Bosnia and Herzegovina. My office has also developed a close professional relationship with the state prosecutor in Zagreb and with the special war crimes prosecutor in Belgrade. We are providing assistance to the Belgrade prosecutor in three important cases which are under his jurisdiction. This assistance includes the transfer of documents, evidence and other materials that are necessary to prepare his indictments. The judiciary in the former Yugoslavia is in need of the robust political support of both the local authorities and the international community.

There is also an urgent necessity to intensify judicial cooperation throughout the region. Such cooperation concerns the communication of documents and evidence, the testimony of witnesses, the extradition of suspects and possibly the transfer of whole cases. We were approached to help in a case where witnesses living in Croatia refused to testify in Serbia. The war crimes prosecutor in Belgrade also asked us to intervene with UNMIK so that he can interview witnesses in Kosovo in the course of his investigation of the largest mass grave found in the Balkans, which is located on the outskirts of Belgrade and contained over 700 bodies of Kosovo Albanians.

The State Prosecutor of Croatia has recently taken the initiative to propose an arrangement facilitating direct communication with his colleagues throughout the region. This would concern not only war crimes, but also organised crime and other serious offences. I wish to underline how important this and other initiatives aimed at strengthening regional cooperation are for the future of these countries. It is about fighting impunity for the worse crimes committed in Europe since 1945.


THE TRIBUNAL UNDER UNBEARABLE FINANCIAL PRESSURE

The Tribunal is under strong pressure to wind down its task as soon as possible. Unbearable financial pressure was added to the political pressure in the course of the spring. As a result, I have lost almost 50% of my senior legal staff and over 40% of my senior investigators. A freeze on new recruitment imposed by the UN Secretariat prevents me from replacing them. The easy solution for me would be to cancel investigations, stop fighting for all fugitives to be brought to The Hague and focus on the trials of those who are in our custody. This is what many want, both within and outside the former Yugoslavia.

But this would overshadow the future of the region for decades, and it would be a very bad omen for the future of international justice. One of the main motivating factor we can rely on is the strong support that the ICTY has continuously received from the European Union. EU conditionality has proven to be an effective tool to move States to cooperate with the ICTY. We saw the effect of EU conditionality early this year with Croatia. We begin to see its impact on Serbia and Montenegro. The same steady determination remains essential to bring the remaining fugitives to The Hague, in particular Karadzic, Mladic and Gotovina. If the international community accepts that one of them escapes justice, then all of them may well enjoy impunity for ever.

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