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contribution 04 - DEL PONTE Carla

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ICTR assessment - Accused realeased - Politics & Justice - RPF prosecution - Completion strategy - Longueur des procédures

Carla Del Ponte

transtlated version

I must say that this symposium was a return to the past for me, and it is with great pleasure that I am participating. I must confess I feel like going back again. Maybe I will get over it when I will leave Geneva, but I must confess that is how I am feeling now.

On the completion strategy, I must make another confession. We are the ones who invented it. And I must say that today, after experiencing it, I am not so sure that it was a good idea. In 2002 already, we were facing political pressure. We were facing political pressure from members of the Security Council who were asking: “How long again are you going to take before finishing your work? It is expensive, it is long”. It seems that members of the Security Council thought we should execute some kind of summary justice. According to them it was taking too long and costing too much.

So my advisers in Arusha and in The Hague discussed and thought we should do something. And then we decided that we should draw up a program that would indicate the work of the Tribunal to the end to present to the Security Council. So the very name “completion strategy” took some debate. Now, how did we call it again, Cécile? So we called it “end game”.

So we talked it over with the President of both Tribunals who, naturally, were in agreement. So we launched the idea of a completion strategy. That is where the idea of the list that you mentioned came up. And like Prosecutor Jallow said if a completion strategy is implemented, we have to draw up a list and see how to prosecute all these persons.

So from 2003/2004, we worked under the pressure of this completion strategy. And I must say that looking back, with the benefit of hindsight, I tell myself it was not a good idea. You know, this is end justice. This is imposed justice. This is justice that had to produce because we had to produce by deadlines. I remember that with President Jorda we were discussing that we had to set a date to complete because that was always the demand, “When are you concluding?”

Well, we didn’t know, and of course, we couldn’t know. So we kept on discussing and giving estimates, we said “2009, 2010”. Well, back then in 2003, 2010 or 2009 was far off. When President Jorda went to the Security Council and made that announcement, the Security Council took the decision that in 2010 the Tribunal will close down. Now we find ourselves in a situation where in 2010 the Tribunals cannot close down because they have not completed their work, because they have not arrested some of the accused, because some of the trials are underway. So I must tell you that what appeared then as a very sound proposition, this completion strategy I must admit that I don’t really recognize it as such. Well, once again, it was because of the political pressure that we acted that way.

Let me go back to this issue of political pressure, to speak specifically of political assistance. We need politics as some assistance auxiliary to obtain justice. Now, for the future and for the International Criminal Court, this is going to be a major problem for the independence of international justice because we depend on the assistance of governments, institutions, states, to obtain the resources that we need to conduct investigations and to arrest accused persons. So I throw this question to you: Does the international community, does the Security Council, can we all find a solution to make politics unnecessary to international justice? That is my question and I know very well that the answer is difficult. But I would like us to talk about it because that is the source of the weakness of these international institutions.

You still have 13 accused persons at large. And we might more a less know where they are. For the ICTY, there is Hadzic. But Karadzic was arrested. So you see, where the state in question expresses the political will, you have arrests. We know that Karadzic was under the authority of Serbia, but the political will was lacking. How can we eliminate this absence of political will? How can we compel the states to cooperate? The legal basis exists: Article 29 of the Statute of the ICTY. I don’t know the article for the ICTR. But there is a legal basis to compel states but actually it is not applied. We always need politics.

It does not question the Prosecutor’s independence in his activity. I may say that one of the factors that affects the independence of the Prosecutors comes from the institution itself. That is another issue that we have to discuss. The Judges are the ones who prepare the rulings of procedure. The Judges decide to amend or change the rules or even add to them. I have experience an attack on the independence of the Prosecutor from the Judges who legislate. They prepared an article or a rule, which states that it will be the Judges who will have to decide whether the Accused should be indicted. Naturally, we objected. We prepared a legal report saying it was not possible to do so and that it was an attack on the independence of the Prosecutor. But naturally, nothing could be done, and that rule stood. When the indictment was presented, it was a Judge who decided whether the indictment should be issued against the suspect. But I must admit that the Judges from the ICTR refused to adopt that rule of procedure. So we were very satisfied with that result.

Then again, I don’t know whether the same situation prevails in the ICTR, but in the ICTY, the trial Judge decides on the counts that have to feature in your indictment, how many witnesses you are allowed to call to testify. And the Prosecutor, the independent Prosecutor, then became a mere Prosecution officer. He had no powers. He was stripped of all powers to decide on its strategy. So I consider that a serious attack on the independence of a Prosecutor. And I am really pleased to be able to bring that up here today.

How to speed up trials? By dropping counts? You know, as a Prosecutor, we have a very important task that is representing the victims. So if you drop a charge relating to the massacres of a village, then you have all the victims who ask you, “Why? Why are you dropping the killings in my village?” So you have to be very careful in trying to speed up trials and reducing charges. You have to be careful not to mete out unequal treatment to the victims because the trials in themselves are supposed to be for the victims in the first place because it is justice for them. One of the major principles of the national systems is that when an accused appears in court all the crimes that he has committed feature in the same indictment. You cannot split up the indictments into several indictments. How to accelerate the trial? According to me it is not possible by dropping charges.

Then, the objective facts of a massacre, of violence, killing, torture, rape in a village, why do we need to prove them for each trial? The accused are senior military or political officers. They are not executioners or foot soldiers. So why do we have to prove the objective facts each time? Admittedly after ten years, I understand that we now have the facts of the genocide that are considered as res judicata. But in the ICTY, the Appeals Chamber ruled that Srebrenica was a genocide. We are on the fourth case on Srebrenica and we still have to establish that it was genocide even when the Appeals Chamber had established it. Moreover the establishment of objective facts doesn’t affect the individual criminal responsibility of the accused. So in my opinion, the prime factor that can help speed up trials is that objective facts are considered res judicata. That is the starting point from which we can establish the responsibility of the accused.

The Defence. I have a question for them. The accused person who decides to defend himself, that is a major problem. I don’t know cases in the ICTR, but with us at the ICTY, it has become the rule. People defend themselves because people would take a lot of time and then posture. They do a lot of posturing and discuss politics. There we go again, politics. But I would like to know from the Defence attorneys what they think about this. It should be obligatory to be defended by a counsel in court. The Accused person who defends himself has 40 counsels outside the courtroom who prepare their defence, but they cannot appear in court. It is a waste of time. It is futile, and it has nothing to do with the observance of the rights of the Defence or all the other things that the rhetoricians reproduce that I don’t like because it is completely removed from the reality of things.

The RPF. I listened with keen attention to what has just been said. If I remember correctly, they have been acquitted. I must say that this is a confirmation that Rwanda does not want to deal with it. For me it is proved. Pierre knows it as well and we said so from the beginning that they are not able and not willing to do so. I heard myself the president Kagame saying, “We are not going to do it.” So this is just confirmation that they are not going to do it. But what I remember is that there were 13 incidents or events of killings that were committed. There are others, and I hope that investigations will be able to continue and get to the trial phase. And naturally, the ICTR has to do at least one special trial on the special investigations, at least one.

But there again, we realize that the ICTR has 13 accused at large; that they may still be out there for 10 years. There is still work to be done and it seems difficult considering the length of procedures. I don’t know why it lasts so long but when I see that Butare’s case has lasted for 8 years, I am shocked. 13, 14 years of pre-trial detention. How does one explain that? I do not strictly condemn pre-trial detention, because to me it is like anticipation of the sentence. Acquittals are nonsense. They result from the inability to present evidence. I do stand for pre-trial detention, but with 8 to 14 years of pre-trial detention, honestly, there we have a problem.

Accused persons who have served their time and are released. It has been said there is no legal basis but fortunately, there is no legal basis! In our national systems, what do we do? Do we continue to take care of persons who have been convicted who served their sentences and come out? I don’t think so. So why should we international organisations, international Tribunals monitor or follow up these persons? I mean, let us put an end to a case. Someone who has served his time is free. So let’s not try to follow them all the time. We fed them, accommodated them for years. Now let’s leave them to go on their own and live their lives. The Tribunal is not some care providing institution for convicted persons. They have to enjoy their freedom. They are free. I don’t know why we dwelt so much on it yesterday. Accused persons who have served their time are free. Well, it’s a bit ironic, but you understand me well.

So as you see there are quite a few large and small problems. But we can always find solutions. And we shouldn’t forget what you heard yesterday about Alison Des Forges on justice, on the importance of international justice. And don’t lose sight of what has been done by the ICTR and ICTY. The work which has been accomplished is very important. Whatever weaknesses we have talked about, it is the right direction. The two ad hoc Tribunals have succeeded in doing what at the time of their establishment most members of the Security Council did not believe possible. I remembered well. At that time, it was an excuse for the international community. Something had to be done because the press was there. Everybody was there to observe. And I think there were very few persons, very few persons, indeed, who believed in it. Obviously, Madeleine Albright believed. She had the faith. But there were very few of such persons.

But we have succeeded, and that is something that we must keep in our minds. That must be stated as well. We should not only hit hard. We should also acknowledge that there has been a great achievement. I’ve taken pleasure in looking at my collaborators with whom I worked a few years back, and I know and I believe that there is a sacrifice. It takes motivation. It takes energy. It takes living in Arusha, working in Arusha. In fact, The Hague is not any different. It is demanding but there is a great incentive. People were greatly motivated, and that is why we succeed. We successfully convicted quite a number of top officials and persons who were responsible for those serious crimes.

Regarding the issue of the sentence, I always say the Prosecutor is not responsible for sentencing. Thank God. The Prosecutor’s work is indicting and convicting. Sentencing is a job of the Judges. And if you look at what is happening in The Hague, they dread genocide. We haven’t got a conviction for genocide. We have charges for complicity of genocide. Indeed, it was a genocide in Srebrenica, but the convict was charged on the basis of complicity, in fact, aiding and abetting genocide. He was sentenced to 35 years. Well, sentences, it goes without saying that those who are conducting investigations who are in contact with the victims, those who were at the scenes, those who experience that, have kind of reconstructed the pain. For them, an eight or five year sentence it is ridiculous. You cannot convict somebody for crimes against humanity for a five year sentence. What does it mean? But I am still in the belief that it is not the responsibility of the Prosecutor. It is the call of the Judges. And this should not be course for discussion because if it’s up to the Judges, as you are well aware, the Judges would never come out of the their silence to discuss this matter, but our point is that it is the call of the Judges.

Thank you for your keen attention.

Andrew Clapham

Thank you very much, Ambassador Carla Del Ponte, for that impassioned and inspiring look at the work of the Prosecutor.

Now, my first career was actually in theatre, and the first rule that you learn is that you should always have the interval at a point when the audience wants just a bit more. So I think we’re going to actually have the coffee break now. It will give you time to think exactly what points you want to make in the second half of this morning, and we will reconvene here at let’s say eleven o’clock. Thank you very much.

(Suspension de la séance : 10h 40)}