Since its creation, one year before the International Criminal Tribunal for Rwanda (ICTR) was set up, the ICTY closed 106 proceedings, and some 50 are still pending. In total 161 persons were prosecuted. Among the 106 concluded proceedings, 51 ended with a sentence in last instance, 36 were concerned with deceased accused or accused whom indictment was withdrawn, 5 persons were acquitted and 14 were referred to the national courts of Bosnia-Herzegovina, Serbia and Croatia.
But since the Resolution 1503 imposed a deadline on the ICTY, just like on the ICTR, in August 2003, the successive presidents of the ICTY and the Prosecutor Carla Del Ponte repeated that they would not hand over the keys of the building before having tried the main persons presumed responsible of the ethnic cleansing in Bosnia-Herzegovina, Ratko Mladic and Radovan Karadzic, still at large.
So far this precious demand has not moved the Security Council. During the last report presented by the Court in New York in December 2006, Russia firmly denied the request: "we won't accept the argument according to which Mladic and Karadzic would justify the endless life of the ICTY", Ilya Rogachev said.
Together with Russia, other states gave the Tribunal its first nightmare: To change the financing of the Tribunal to purely voluntary contributions from 2010 on. Only France, Great Britain and the USA affirmed the obligation to try Karadzic and Mladic.
Nevertheless the General Secretary of the United Nations invited the Tribunal to find solutions for a post-2010. Like before the ICTR, a lot of legal issues will be pending after the closing of cases. The transfer of sentenced persons to the host countries in order to serve their sentence, the demands of release, the protection of witnesses and also the question of the five last fugitives. The Tribunal notably envisages to set up a minimal structure to deal with such cases after 2010.
Today, the Tribunal has still to end the proceedings of 50 accused, among them 12 are pending before the Appeals Chamber, 18 before the Trial Chamber, 10 are at the pre-trial stage and 5 are at large. According to the deadlines imposed by New York, the Tribunal has 18 months left to try 43 accused in first instance. Which is not a lot of time.
Last September, Fausto Pocar asked the Security Council for an additional year in order to close the proceedings before the Trial Chamber in 2009 and in appeal in 2011. He invoked the possibility of having to judge cases already referred to countries of the former Yugoslavia.
Pursuant to article 11 bis of the Rules, adopted to authorize such transfers of files, the Tribunal can revoke the order of referral before its judgement. This article aims at enabling the Tribunal to control that the proceedings in former Yugoslavia respect the principles of the international criminal law. The referrals have already started but have faced a first problem on 25 May: the first accused transferred to Bosnia-Herzegovina, Radovan Stankovic, broke out of jail after having been sentenced to 20 years imprisonment.
Moreover, if the Tribunal only provides for the transfer of accused of "intermediate level", nothing prevents them from "envisaging an extension of this definition and the transfer of the last accused, whatever their level of responsibility might be", a lawyer explains. The "exit strategy" would look like a "liquidation".
Facing criticism after the death of Slobodan Milosevic in his cell in March 2006, the Tribunal chose tackle the problem head on: The judges amended the Rules, enabling them to shorten the indictments and the trials. During the opening of the Kosovo case, against six high Serbian responsible leaders, the Chamber asked the prosecutor to skip two crime sites, among the most controversy ones.
Since its creation on 25 May 2003, the Tribunal for the former Yugoslavia cost more than 1,2 billion USD. A sign for an announced closing: At the beginning of June, the biggest of the rooms reserved for the press was reallocated to the defence teams.
© Hirondelle News Agency