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The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals

Published online by Cambridge University Press:  27 February 2017

Daryl A. Mundis
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American Journal of International Law , Volume 99 , Issue 1 , January 2005 , pp. 142 - 158
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Copyright © American Society of International Law 2004

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References

1 Hereinafter referred to as “the ICTY” and “the ICTR.” Collectively, the tribunals shall be referred to as “the International Tribunals.”

2 The total cost of operating both International Tribunals since their inception is more than $ 1 billion. Since its establishment in 1993 and through the budget for 2005, the ICTY alone has cost $629,777,722. The ICTY at a Glance, available at <http://www.un.org/icty/> (visited Sept. 14, 2004).

3 Hereinafter all citations to the rules refer to the Rules of the ICTY, infra note 31, unless noted.

4 For information on the efforts to improve the efficiency of the International Tribunals, see Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for die Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634 (1999); Daryl, A. Mundis, New Mechanisms for the Enforcement of International Humanitarian Law, 95 AJIL 934, 949–51 (2001)Google Scholar; Daryl, A. Mundis, The Election of Ad Litem Judges and Other Recent Developments at the International Criminal Tribunals, 14 Leiden J. Int’l L. 851 (2001)Google Scholar; Daryl, A. Mundis, Improving the Operation and Functioning of the International Criminal Tribunals, 94 AJIL 759 (2000)Google Scholar. The United States played an important role in pushing the International Tribunals to focus on their completion strategies. See, e.g., Pierre-Richard, Prosper, War Crimes and State Responsibility for Justice, Remarks at OSCE Conference in Belgrade (June 15, 2002)Google Scholar, available at <http://belgrade.usembassy.gov/press/2002/020615.html>. Prosper, the U.S. ambassador-at-large for war crimes issues, has stated that “to reach the finish line” at the ICTY, “much remains to be done.” Id.

5 ICTY President Claude Jorda submitted the ICTY completion strategy on June 10,2002. Report on the Judicial Status of the International Criminal Tribunal for the Former Yugoslavia and the Prospects for Referring Certain Cases to National Courts, UN Doc. S/2002/678 (2002) enclosure [hereinafter Jorda Report]. On February 23,2003, Judge Theodor Meron was elected president of the ICTY. Judge Theodor Meron and Judge Fausto Pocar Elected as President and Vice-President Respectively, ICTY Press Release CC/PIS/735-e (Feb. 27, 2003). See also the remarks delivered by ICTY president Meron and ICTY prosecutor Carla Del Ponte, respectively, to the Security Council on October 9, 2003. UN Doc. S/PV.4838, at 3-7,9-13 (2003) [hereinafter Meron Speech and Del Ponte], also available as Statement of Judge Theodor Meron to the United Nations Security Council, ICTY Press Release JL/P.I.S./788-e (Oct. 9, 2003), and Address by Ms. Carla Del Ponte to the United Nations Security Council, ICTY Press Release FH/PIS/791-e (Oct. 10, 2003). ICTY press releases are available at the ICTY Web site, <http://www.un.org/icty>.

6 ICTR president Erik Møse forwarded a revised ICTR completion strategy in a letter to the UN secretary-general dated September 29, 2003. Completion Strategy of the International Criminal Tribunal for Rwanda, enclosure, in Letter Dated 29 September 2003 from the President of the International Criminal Tribunal for Rwanda Addressed to the Secretary-General, UN Doc. S/2003/946 (2003) [hereinafter ICTR Completion Strategy]. See also remarks made by President M0se and ICTR prosecutor Hassan Bubacar Jallow, respectively, before the Security Council on October 9, 2003. UN Doc. S/PV.4838, supra note 5, at 7-9, 13-16. Following his address to the Security Council, Prosecutor Jallow undertook to review all cases and investigations pursued by his office and compiled a document on February 28, 2004, entitled, Completion Strategy of the Office of the Prosecutor, UN Doc. S/2004/ 341, at 1 n.2 (not yet publicly available). The initial ICTR completion strategy was submitted to the United Nations on July 14, 2003. See ICTR, for the Biennium 2004-2005, annex, UN Doc. A/58/269 (2003); ICTR Completion Strategy, supra; see also ICTR, Seventh Annual Report, UN Doc. A/57/163-S/2002/733, paras. 21-23 (2002).

7 SC Res. 1503, para. 7 (Aug. 28, 2003); SC Res. 1534, para. 3 (Mar. 26, 2004). At the same time that Resolution 1534 was adopted, both France and the United States reiterated their strong support for the International Tribunals in terms of bringing those most responsible for crimes in the former Yugoslavia and Rwanda to justice before the ICTY and the ICTR, respectively. Letter Dated 30 March 2004 from the Permanent Representative of France to the United Nations Addressed to the President of the Security Council, UN Doc. S/2004/265 (2004):

France wishes to make it clear that the need to respect the dates for completion of the work of the ICTY and ICTR . . . should not be construed as undermining the principle of independence of the two Tribunals and the separation of their functions, in accordance with the relevant provisions of their respective Statutes and Rules of Procedure and Evidence.

U.S. Favors Trial of War Crime Fugitives, UPI, Mar. 26, 2004 (quoting Department of State spokesman as saying that the United States continues to support the operation of the ICTY through the trials of Radovan Karadžić, Ratko Mladic, and Ante Gotovina), available at LEXIS, News Library, Wire Service File.

8 This emphasis may be justified on the grounds that the ICTY completion strategy was articulated prior to the ICTR policy, with the result that the ICTY plan is more fully developed, particularly with respect to the role that national courts will play in the ICTY strategy.

9 Judge Claude Jorda, Address to the United Nations Security Council, ICTY Press Release J DH/PIS/690-e, at 1 (July 23, 2002).

10 Id. Judge Claude Jorda, Address to the United Nations Security Council, ICTY Press Release JDH/PIS/708-e (Oct. 30, 2002) [hereinafter Jorda, Oct. 2002 Speech]; Carla Del Ponte Address to the United Nations Security Council, ICTY Press Release JJJ/PIS/709-e (Oct. 30, 2002).

11 Jorda Report, supra note 5, para. 15 (the ICTY prosecutor noting that it would not be possible to complete the ICTY’s mandate by the anticipated date unless those indicted individuals at liberty were arrested); see also Del Ponte, supra note 10, at 3-4; Jorda, Oct. 2002 Speech, supra note 10, at 1; Jorda, supra note 9, at 2.

12 Statement by the President of the Security Council, UN Doc. S/PRST/2002/21 [hereinafter Presidential Statement].

13 SC Res. 1503, supra note 7, pmbl. The resolution made specific references to the need to arrest Radovan Karadžić, Ratko Mladić, and Ante Gotovina, who were indicted by the ICTY, and Felicien Kabuga, an ICTR indictee. Id., paras. 2-3. Former ICTY prosecutor (and current UN high commissioner for human rights) Louise Arbour has publicly stated that she was never convinced that NATO intended to arrest Karadžić and Mladić. Louise Arbour: Indictments Against Karadžić and Mladić Will Exist for Good, in SFOR, Main News Summary (May 11, 2004)Google Scholar, available at <http://www.nato.int/sfor/media/2004/ms040511.htm>.

14 The ICTY leadership has been consistent in stating that the completion strategy target dates are conditioned on the apprehension and trial by the ICTY of Radovan Karadžić and Ratko Mladić. See, e.g., Meron Speech, supra note 5, at 5-6; Carla Del Ponte Address to the UN Security Council, ICTY Press Release GR/PIS/642-e, at 5 (Nov. 27, 2001). On May 6, 2004, pursuant to ICTY Rule 7 bis, President Meron forwarded to the Security Council a report of the prosecutor setting forth a pattern of “consistent failure on the part of Serbia and Montenegro to comply with its obligations” under the ICTY Statute and Rules of Procedure and Evidence. He specifically noted that the failures of Serbia and Montenegro “are detrimental to the expectations placed upon the Tribunal by its completion strategy and could seriously impinge on the Tribunal’s ability to meet those expectations.” UN Doc. S/2004/353 (2004) & annex & enclosure.

15 Presidential Statement, supra note 12; UN Doc. S/2002/678.

16 SC Res. 1503, supra note 7. Rwanda specifically endorsed this idea in its letter concerning the bifurcation of the ICTY/ICTR prosecutor. UN Doc. S/2003/794. As noted above, this step was taken in September 2003. ICTR Completion Strategy, supra note 5.

17 SC Res. 1534, supra note 7, para. 4.

18 Id., para. 5. This has been the official policy of the Office of the Prosecutor at the ICTY since at least October 2002: “I have drastically prioritised our investigative objectives, for both Tribunals, and further focused our efforts on ‘the main civilian, military and paramilitary leaders’ so that we can now reasonably expect to fulfil the essence of our prosecution missions for both Tribunals by the end of 2004.” Del Ponte, supra note 10, at 4. Note the contrast from the position taken by the prosecutor less than one year previously:

[O]ne should not fall into the trap of polarising accused into big fish and small fish. A number of the accused under investigation in the ICTY and ICTR played a very nasty role somewhere in between these two extremes— as key organisers and motivators at the district or local level.

Del Ponte, supra note 14, at 1.

19 SC Res. 1534, supra note 7, paras. 6-7.

20 For the ICTY reports, see UN Doc. S/2004/420, enclosures I, II. For the ICTR report, see Completion Strategy of the International Criminal Tribunal for Rwanda, UN Doc. S/2004/341, annex [hereinafter ICTR 2004 Report].

21 As of May 24, 2004, the ICTY had completed trial proceedings involving fifty-one individuals, including thirty-five who were either convicted or acquitted following seventeen trials and seventeen who entered guilty pleas. (One individual pleaded guilty to some counts but was tried on other counts; thus, his case was counted under both the trial and the guilty plea tallies.) UN Doc. S/2004/420, supra note 20, Annex 1, at 23. Six trials, involving eight individuals, were underway as of May 24, 2004, while thirty-three individuals (in seventeen cases) were awaiting trial. Id., Annexes 2, 3, at 26,28. Through May 3, 2004, the ICTR had rendered fifteen Judgments, involving twenty-one persons, with seven cases covering twenty-one individuals were under way and a further twenty-one individuals were awaiting trial. ICTR 2004 Report, supra note 20, apps. 1-3.

22 UN Doc. S/2004/420, supra note 20, at 41, paras. 7-13.

23 Id. at 42, paras. 14-15.

24 Id. at 20-21, para. 83. President Meron has specifically noted that additional guilty pleas, in conjunction with referrals pursuant to Rule lite of the ICTY Rules of Procedure and Evidence, are the “two measures that have the greatest chance of assisting the Tribunal in achieving the Completion Strategy,” although these measures concern the number of potential trials and not the duration of trials. Id. at 18, para. 73. At the same time, the president noted that it is improper for the judges to encourage guilty pleas. Id., para. 72.

25 ICTR 2004 Report, supra note 20, paras. 4-7, 36-39.

26 Id., para. 62.

27 Id., para. 8. This is due in part to the fact that the two tribunals share an appeals chamber.

28 Review of the Office of the Prosecutor at the International Criminal Tribunals for Rwanda and for the Former Yugoslavia, UN Doc. A/58/677 (2004).

29 Id., Summary & paras. 8-13.

30 The third prong was added at a plenary in June 2004, while the first two prongs were the results of amendments to the Rules of Procedure and Evidence in September 2002.

31 ICTY Rules of Procedure and Evidence, as amended, Doc. IT/32/Rev.32, (2004), Rule 11 bis(B), available at <http://www.un.org/icty/basic/rpe/IT32_rev24.htm>.

32 Id

33 The discussions of the judges at plenary sessions (where rules are adopted or amended in accordance with Article 15 of the ICTY Statute) are not public, with the result that no “legislative history” of the Rules is available. Consequently, it is not possible to determine whether the judges intended to foreclose the opportunity for the accused to request that his or her case be transferred or whether this was simply an oversight.

34 Rules, supra note 31, Rule 11 bis (A).

35 Pursuant to Rule 23, the bureau consists of the ICTY “President, Vice-President and the Presiding Judges of the three Trial Chambers.”

36 Del Ponte, supra note 5, at 15. In October 2003, the ICTY prosecutor indicated that her office had thirteen remaining investigations, all of which involved “individuals who held the highest possible levels of responsibility, for very serious crimes committed in the former Yugoslavia.” Id. at 9-10. She also indicated that because she had shifted her focus to investigate only the most senior perpetrators, she was prepared to transfer seventeen cases, involving sixty-two suspects, to local courts because of the relative low level of the perpetrators involved. Id. at 10; see also Meron Speech, supra note 5, at 6. The U.S. government, which has been an enthusiastic supporter of the ICTY completion strategy, expressed “surprise” at the figures set forth by Prosecutor Del Ponte and President Meron, stating that the additional investigations indicated an “approach that complicates and puts at risk the timeline set out in the Completion Strategy.” Stephan, M. Minikes, Statement on the International Criminal Tribunal for the Former Yugoslavia Before the Permanent Council of the OSCE (Nov. 2, 2003)Google Scholar, available at <http://usinfo.state.gov/dhr/Ai-chive/2003/Nov/06-767701.html>.

37 Rules, supra note 31, Rule 28(A).

38 SC Res. 1503, supra note 7, para. 8. But see UN Doc. S/2003/794, in which Rwanda indicated that it preferred that the ICTR to be given a separate prosecutor, citing what it considered to be problems at the Tribunal and about which Rwanda had previously complained.

39 SC Res. 1503, supra note 7, Annex 1; see also Carla Del Ponte Press Conference, The Hague, ICTY OTP Press Release FH/PIS/781-e (Sept. 12, 2003)Google Scholar; The Security Council Appoints Separate Prosecutors for the Two ad hoc UN Tribunals, ICTR Press Release ICTR/INFO-9-2-359.EN (Sept. 4, 2003).

40 Letter Dated 13 January 2004 from the President of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 Addressed to the President of the Security Council, UN Doc. S/2004/53, annex, at 3 [hereinafter Meron Letter]; see also UN Doc. S/2004/420, supra note 20, at 19, paras. 76-77.

41 Meron Letter, supra note 40, at 3-4; see ICTY Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, annex (May 25, 1993), 32 ILM 1203 (1993), as amended May 13, 1998, Nov. 30, 2000, May 17, 2002, Aug. 14, 2002, & May 19, 2003, Art. 13 ter (l)(e) and 2 (concerning the parameters of the terms of office of the ad litem judges) [hereinafter ICTY Statute]; see also UNGA Press Release UN Doc. GA/9878 (June 12, 2001); Pool of 27 ad litem Judges Elected by UN General Assembly, ICTY Press Release JUPIS/596-e (June 13,2001).

42 Meron Letter, supra note 40, at 3.

43 Id.

44 Id. at 4.

45 ICTY Weekly Press Briefing (Apr. 14, 2004), available at <http://www.un.org/icty/latest/index.htm>. On April 27, 2004, the prosecutor received a response from the president concerning her request for clarification. The prosecutor has not publicly released the contents of this letter, which she has characterized as a “personal letter.” ICTY Weekly Press Briefing (Apr. 28, 2004), available at id.

46 Good Enough for The Hague, Not Good Enough for Arusha, Sense News Agency, Apr. 27, 2004 Google Scholar, available at <http://www.sense-agency.com/portal/english/index.php?sta=3&2085:pid=5201>.

47 Chief Prosecutor ‘Does not Share’ View of the Tribunal’s President, Sense News Agency, Apr. 28, 2004 Google Scholar; see also UN Doc. S/2004/420, supra note 20, at 41, para. 13, (statement by Prosecutor Del Ponte that this amendment was “contrary to the Statute and unnecessary in light of the independence given to me under the Statute of the Tribunal”).

48 ICTY President Wants Karadžić Judged Before Court Shuts, ONASA News Agency, May 12, 2004; available in LEXIS, News Library, Wire Service File. Pierre-Richard Prosper, the U.S. ambassador-at-large for war crimes issues, agrees with President Meron that the amended rule does not violate the independence of the ICTY prosecutor. Ambassador Prosper asserted that in the past the prosecutor had gone beyond her “intended scope.” War Crimes: United States “Forced to Practice What It Preaches,” supra note 4.

49 There is nothing inherently wrong with the idea of having judges participate in decisions about whom to indict; in fact, such an approach is common in most civil law systems that rely upon juges d’instruction, who play a role similar to that of independent prosecutors in most common law systems. The point, however, is that the system adopted by the Security Council—as reflected in the Statutes of the International Tribunals—resembles typical common law, rather than civil law, procedure.

50 See ICTY Statute, supra note 41, Arts. 16(1), 18, 19.

51 This provision provides for the independence of the ICTY prosecutor and states that the prosecutor “shall not seek or receive instructions from any Government or from any other source.” Article 15(2) is the corresponding article of the ICTR Statute, SC Res. 955, annex (Nov. 8, 1994), 33 ILM 1602 (1994).

52 Prosecutor v. Milošević, Reasons for Refusal of Leave to Appeal from Decision to Time Limit, No. IT-02-54- AR73, para. 12 (May 16, 2002); see also Prosecutor v. Strugar, Decision on Motion Challenging Jurisdiction, No. rT-01-42-PT, para. 29 (June 7, 2002) (“The Prosecution is at liberty to choose charges to be brought against an accused; it exercises discretion when preparing indictments.”) (citing Prosecutor v. Delalić, Appeal Judgment, No. 96-21-A, para. 602 (Feb. 20, 2001); Delalić, supra, paras. 596-619.

53 Milošević, supra note 52, para. 12.

54 For a discussion on the legal character of the ICTY and ICTR Rules of Procedure and Evidence, including other instances where the judges, sitting in plenary, have overruled judicial decisions, see Daryl, A. Mundis, The Legal Character and Status of the Rules of Procedure and Evidence of the ad hoc International Criminal Tribunals, 1 Int’l Crim. L. Rev. 191, 207–12 (2001)Google Scholar.

55 Prosecutor v. Jelisić, Appeal Judgment, Partial Dissenting Opinion of Judge Wald, No. IT-95-10-A, paras. 4, 14 (July 5, 2001). This appeal concerned, in part, whether it was appropriate for the trial chamber to enter notguilty findings on a genocide count following the completion of the prosecution case when the defense had not filed a motion for acquittal under ICTY Rule 98 bis and without having given the prosecution an opportunity to be heard on this issue. Prosecutor v. Jelisić, Appeal Judgment, supra, paras. 1-5. The appeals chamber held that it was error for the trial chamber to have entered a not-guilty finding but declined either to remit the case for further proceedings or to reverse the acquittal. Id., paras. 40, 77. The accused had pleaded guilty to thirty-one counts of war crimes and crimes against humanity and had been sentenced to forty years’ imprisonment on those counts; in Judge Wald’s opinion, a reasonable prosecutor might have chosen to withdraw the genocide count. Wald, supra, para. 3. Consequently, she would have remanded the case to the trial chamber to permit the prosecutor to determine whether to withdraw the genocide count or proceed to trial. Judge Wald disagreed with the majority that the appeals chamber could find that the trial chamber had erred but that such a finding could go undisturbed in cases involving a charge as “serious as genocide.” Id.

56 SC Res. 1504 (Sept. 4, 2003) (regarding the ICTY); SC Res. 1505 (Sept. 4, 2003) (regarding the ICTR). Mr. Jallow, who had been a member of the expert group that conducted a review of the operations of the International Tribunals in 1999, see Mundis, Improving the Operation, supra note 4, was elected as an ad litem judge of the ICTY in 2000 (although he was never selected to sit on a case) and a judge of the appeals chamber of the Special Court for Sierra Leone in 2002 (again, without ever having sat on a case before that court) and was a candidate for deputy prosecutor of the ICC. UN Doc. ICC-ASP/2/8, annex (2003).

57 UN Doc. S/2003/766 (2003).

58 Id.

59 Lynch, Colum, UN Prosecutor Fights To Keep Her Job Intact, Wash. Post, Aug. 8, 2003 Google Scholar, at A12. Prosecutor Del Ponte also indicated her belief that the Tutsi-dominated Rwandan government sought her removal because she had proposed investigating the possible involvement of the Tutsi-led Rwandan Patriotic Army in reprisal killings after the genocide was halted. Id.

60 GA Res. 2200A (XXI) (Dec. 16, 1966).

61 GA Res. 44/128, annex (Dec. 15, 1989).

62 For the status of ratifications, see the Web site of the ICCPR, <http://www.ohchr.org/English/bodies/hrc/> (last modified Nov. 3, 2004).

63 See Claude Jorda, president, Current State if the International Criminal Tribunal for The Former Yugoslavia: Future Prospects and Reform Proposals, UN Doc. A/55/382-S/2000/865, Annex I, paras. 47-52.

64 Id., para. 52.

65 For example, there are potential problems in prosecuting command responsibility cases before Croatian courts because of an apparent gap in national legislation concerning that doctrine. Organization for Security and Co-Operation in Europe [OSCE], Mission to Croatia, Supplementary Report: War Crimes Proceedings in Croatla and Flndings from Trial Monitoring(June22, 2004), available at <http://www.osce.org/documents/mc/2004/06/3165_en.pdf>; see also Zeljka, Vujčić, Ready for Its Close Up, Transitions Online (Prague) (June 17, 2004)Google Scholar, available at <http://www.tol.cz/lookyTOLrus/section.tpl?IdLanguage=l&IdPublication=4&NrIssue=69>.

66 ICTY Rules, supra note 31, Rule 68(v).

67 The ICTY has identified other issues that need to be addressed “in [preparation for the [w]inding [u]p of the [t]ribunal,” including the procedures for reviewing judgments after trial when new evidence is discovered or considering pardons or commutation of sentences following the closure of the ICTY. UN Doc. S/2004/240, supra note 20, at 19-20, paras. 78-79.

68 This subject is obviously beyond the scope of this Note; the examples that follow are illustrative only. For information on efforts by the ICTR to transfer cases to national courts, including those of Rwanda, see ICTR 2004 Report, supra note 20, paras. 36-39; ICTR Completion Strategy, supra note 6, paras. 23-24.

69 OSCE Mission to Croatia, Background Report: Domestic War Crimes Trials 2002, Executive Summary, (n.d. but released Mar. 1, 2004), available at <http://www.osce.org/documents/mc/2004/03/2185_en.pdf>. This report was based on the monitoring of seventy-five trials and noted, inter alia, that in absentia proceedings were almost exclusively utilized in cases involving Serb perpetrators; that there were significant differences in rates of convictions and acquittals between Serbs and Croats; and that “the length of proceedings on both ends of the spectrum” and delays in the proceedings were causes for concern. Id.; see also OSCE Mission to Croatia Report Finds Ethnic Serbs “Disadvantaged” in War Crimes Trials, OSCE Press Release (Mar. 1, 2004), available at <http://www.osce.org/news/show_news.php?id=3893>; OSCE, supra note 65. The European Commission, in considering Croatia’s application for EU membership, has also raised concerns about Croatia’s progress toward prosecuting war crimes cases. Opinion on the Application of Croatia for Membership in the European Union, COM(04)257 final at 31; see also UN Doc. S/2004/420, supra note 20, at 7-8, paras. 25-26.

70 See, e.g., Croatian Rights Group Says Belgrade War Crimes Trial Is “Farce,” HINA News Agency, Zagreb, Apr. 30, 2004 Google Scholar, available in LEXIS, BBC Monitoring Int’l Rep., European Stories. With respect to efforts by the ICTY to assist the legal system of Serbia and Montenegro, see Study Tour of the ICTY by Judges and Prosecutors from the Special Court for War Crimes in Belgrade, Serbia and Montenegro, ICTY Press Release OK/P.I.S./847-e (May 14, 2004).

71 Serbia’s Special War Crimes Court Should be Abolished: JusMin, ONASA News Agency, Mar. 29, 2004 Google Scholar; available in LEXIS, News Library, Wire Service File.

72 OSCE Mission to Serbia and Montenegro, War Crimes Before Domestic Courts: OSCE Monitoring and Empowering of the Domestic Courts to Deal With War Crimes 4 (2003), available at <http://www.osce.org>.

73 Serbia and Montenegro: Compliance with Obligations and Commitments and Implementation of the Post- Accession Co-operation Programme, Council of Europe Doc. SG/Inf(2004)14, paras. 28-34.

74 UN Doc. S/2004/420, supra note 20, at 8, paras. 27-28.

75 For further information on war crimes trials conducted in Bosnia and Herzegovina, see Uzelac, Ana,Can Balkan Courts Be Trusted with Tribunal Cases? Institute for War and Peace Reporting, Tribunal Update No. 358 (May 15, 2004), available at <http://www.iwpr.net>Google Scholar; Merdijana, Sadović, Teething Problems for Bosnian Courts, id.; Mostar; Investigation Against 900 Persons Suspected of War Crimes, Federation News Agency, June 8, 2004, available at <http://www.fena.ba/uk/>Google Scholar; Fifty Indictments for War Crimes Before BiH Court, Dnevne Nezavisne Novine, Tuzla Night Owl( June 10,2004),available at <http://www.tfeagle.army.mil/tf’eno/Feature_Story.asp?Article=85514>..>Google Scholar

76 Office of the High Representative, Decision Establishing the BiH State Court (Nov. 12, 2000), Decision Imposing the Law on the State Court of BiH (Nov. 12, 2000), available at <http://www.ohr.int/decisions/>.

77 The international humanitarian law division subsequently came to be called the “War Crimes Chamber.”

78 Consultants’ Report to Office of the High Representative, The Future of Domestic War Crimes Prosecutions in Bosnia and Herzegovina, 2, 10-14 (on file with author); see also Jorda, supra note 9, at 3.

79 Jorda Report, supra note 5, paras. 59-69. ICTY president Jorda originally envisioned a three-tiered approach, with the ICTY trying the most serious cases, the state court prosecuting intermediate-level accused, and the lowerlevel domestic courts handling low-ranking accused pursuant to the Rome Agreement. Id., para. 69; see also Jorda, supra note 9, at 4. The Rome Agreement on Agreed Measures of February 18, 1996, established the “rules-of-the-road” program, whereby the presidents of the Federal Republic of Yugoslavia, Croatia, and BiH agreed to submit war crimes indictments to the ICTY prosecutor for review prior to proceeding to trial before domestic courts. 1998 ICTY Y.B. 255, also available at <http://www.ohr.mt/other-doc/fed-mtng/default.asp?content_id=3568>. These lower-level courts are often referred to as “entity” courts or cantonal courts. Entity courts are those at the level of either the Federation of Bosnia and Herzegovina (the Bosnian-Croat federation) or the Republika Srpska. Cantonal courts are those at the lowest level of the judiciary, analogous to county courts in the United States.

80 Jorda, supra note 9, at 3 (“In practical terms, a limited number of key posts would be set aside for international judges for a restricted time.”).

81 Presidential Statement, supra note 12.

82 OHR-ICTY Working Group on Development of BiH Capacity for War-Crimes Trial Successfully Completed, ICTY Press Release OHR/P.I.S./731-e (Feb. 21, 2003) [hereinafter Working Group Press Release]; see afro Joint Preliminary Conclusions of OHR and ICTY Experts Conference on Scope of BiH War Crimes Prosecutions, ICTY Press Release OHR/P.I.S./723-e (Jan. 15, 2003).

83 Working Group Press Release, supra note 82.

84 Statement by President Meron on Establishment of Special War Crimes Chamber in Bosnian State Court, ICTY Press Release JL/P.I.S./761-e (June 13, 2003); see also Statement of Judge Theodor Meron Before the Commission on Security and Cooperation in Europe, ICTY Press Release JL/P.I.S./786-e (Oct. 8, 2003); Meron Speech, supra note 5.

85 SC Res. 1503, supra note 7, pmbl.

86 See UN Doc. S/PV.4837 (2003) for the full comments of both President Meron and High Representative Ashdown.

87 Id. at 8. With respect to the lower-level entity and cantonal courts, the situation was even worse than it was for the state court. President Meron said:

[T]he local courts still suffer from significant structural difficulties, as well as from lack of cooperation between the entities; political pressures brought to bear on judges and prosecutors; the often mono-ethnic composition of the local courts; eth[n]ic bias; difficulties protecting victims and witnesses effectively; and lack of adequate training of court personnel.

. . . The possibility of internationally credible war crimes prosecutions in entity or cantonal courts, unfortunately, cannot be contemplated as yet.

88 Donors Raise 15.6 Million Euros for War Crimes Chamber of BiH Court, ICTY Press Release OM/P.I.S./797e (Oct. 30, 2003) [hereinafter Press Release]; see also SC Res. 1534, supra note 7, para. 10, (calling for additional financial support for the proper funding of the war crimes chamber of the state court).

89 Press Release, supra note 88. More recent estimates indicate that the total cost for the first two years of operation will be € 3 8 million. Twenty-fifth Report of the High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina to the Secretary-General, UN Doc. S/2004/126, enclosure, para. 48.

90 Press Release, supra note 88.

91 First Meeting of the Joint Executive Board of the BiH Special War Crimes Chamber Implementation Project, OHR Press Release (Dec. 5, 2003), available at <http://www.ohr.int/>.

92 See, e.g., ICTY Weekly Press Briefing (Apr. 28, 2004), available at <http://www.un.org/icty/latest/index.htm>.

93 These cases could involve approximately fifteen accused. Id.; see also The Fourth Diplomatic Seminar Hosted by the ICTY Focused on the “Completion Strategy,” ICTY Press Release CC/P.I.S./727e (Feb. 14, 2003) (reporting that the ICTY president expressed “the hope that the first cases could be transferred in the course of 2004” and noting that seven cases, involving thirteen indictees, both fugitives and those in custody, had been provisionally identified as candidates for transfer under Rule 11 bis). In October 2003, Prosecutor Del Ponte told the Security Council that she thought it best to wait until early 2005, after the investigations mandate is completed to decide which cases should be transferred to local courts. Del Ponte, supra note 5, at 10-11.

94 These cases involve approximately forty-five suspects. Working Group Press Release, supra note 82.

95 Id.

96 Press Release, supra note 88.

97 Working Group Press Release, supra note 82.

98 Id.

99 Id.

100 Press Release, supra note 88; see also Working Group Press Release, supra note 82.

101 Press Release, supra note 88.

102 UN Doc. S/PV.4837, supra note 86, at 8.

While the OHR [Office of the High Representative] has initiated far-reaching .. . reforms of the judicial system, the process of reform will not be completed for several years. The establishment of a specialized War Crimes Chamber that will include international judges in its early years offers the best chance for rendering justice expeditiously and thus advancing the process of reconciliation in a timely way.

Id. More recent indications suggest that the war crimes chamber of the state court will become operational “by early 2005, assuming that detention facilities are available then which meet minimum human rights standards.” UN Doc. S/2004/420, supra note 20, at 7, para. 24 (report of President Meron).

103 Twenty-Fifth Report of the High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina to the Secretary-General, UN Doc. S/2004/126, enclosure, para. 49.

104 Id., paras. 49, 51.

105 Amnesty International, Bosnia-Herzegovina: Shelving Justice—War Crimes Prosecutions In Paralysis (2003)Google Scholar, available at <http://www.amnestyusa.org/countries/bosnia_herzegovina/index.do> ;see also Justice Cannot Be Achieved on the Cheap, Amnesty International Press Release (AI Index: EUR 63/021/2003), available at id.

106 Id., Introduction.

107 Id.

108 Id

109 Id., Issues of Concern; see also Jorda, supra note 9, at 4; UN Doc. S/PV.4837, supra note 86, at 8, quoted in note 87’supra (President Meron acknowledging the shortcomings of the entity and cantonal courts in BiH). Del Ponte, supra note 5, at 12-13 (highlighting potential problems with transferring cases to local courts).

110 UN Doc. S/2004/420, supra note 20, at 8, para. 29.

111 Id. at 7, para. 24.

112 Id. at 8, para. 29.

113 Pursuant to ICTY Statute, supra note 41, Art. 21, and ICTR Statute, supra note 51, Art. 20.

114 Prosecutor v. Nyiramasuhuko et al., Decision re Proceedings Under Rule 15 bis(D), No. ICTR-98-42- A15bis, Dissenting Opinion of Judge David Hunt, para. 17 (Sept. 24, 2003) (footnote omitted).

115 Prosecutor v. Milošević, Appeal Decision on Admissibility of Written Statements, No. IT-02-54-AR73.4 (Sept. 30, 2003), Dissenting Opinion of Judge David Hunt, para. 20.

116 Id

117 Id., para. 22.

118 Milošević, supra note 115, Separate Opinion of Judge Shahabuddeen, para. 21.

119 Milošević, supra note 115, Appeal Decision on Admissibility of Written Statements, para. 20.

120 Meron Letter, supra note 40, at 4.

121 Id.

122 That date would be June 11, 2005, for the ad litem judges.

123 Meron Letter, supra note 40, at 4. President Meron indicated that this proposal could be implemented either through amending the ICTY Statute or by temporarily suspending the application of the relevant provisions of the Statute and adopting “transitional” arrangements for “the composition of the Chambers during the Completion Strategy period.” Id.

124 In several cases judges have had to be replaced during the course of a trial or the Security Council has had to intervene following the reelection defeat of a judge, resulting in the adoption of Rule 15 bis. See, e.g., Nyiramasuhuko, Decision re Proceedings Under Rule 15 bis(D), No. ICTR-98-42-T (July 15, 2003); Prosecutor v. Blaškić, Order for Assignment of a Judge to Trial Chamber, No. IT-95-14-T (Jan. 29, 1999) (replacing an ill judge during the proceedings); Prosecutor v. Delalić et al., Decision on Whether Accused Will Waive Objection to Sitting After November 17, 1997, No. IT-96-21-T(June23, 1997);SC Res. 1126 (Aug. 27, 1997) (concerning the expiry of terms of the judges hearing the Delalić case).

125 Meron Letter, supra note 40, at 3.

l26 Milošević, Order Pursuant to Rule 15fc (D), No. IT-02-54-T (Mar. 29, 2004); see also Statement of Judge Theodor Meron upon the Resignation of Judge Richard George May, ICTY Press Release MF/P.I.S./824e (Feb. 22, 2004). On March 25, 2004, President Meron held a hearing pursuant to Rule 15 bis(C) to determine the views of the accused on proceeding with a substitute judge.

127 Rules, supra note 31, Rule 15 Ais(C), (D).

128 Del Ponte, supra note 5, at 12.

129 Amendments to the ICTY Rules, supra note 31, include those designed to streamline and improve the pretrial management of cases (Rule 65 ter); changes to permit sworn written statements to be tendered into evidence in certain circumstances (Rule 92 bis); the assumption by judges of greater control over the number of witnesses that a party may call and the scope of the crime base that the prosecution may lead (Rules 73 Us and 73 ter); changes to permit trials to proceed under certain conditions even when one of the judges leaves the ICTY due to resignation, illness, or nonreelection (Rule 15 bis); and changes to the disclosure system so as to streamline the process whereby the defense obtains documents and other information from the prosecution (Rules 66 and 68).

130 As of November 16, 2004, there were ten accused on trial at the ICTY and thirty-four individuals in pretrial detention awaiting trial. Key Figures of ICTY Cases, at <http://www.un.org/icty/glance/index.htm> (last modified Nov. 16, 2004).