Global Policy Forum

By Janet Anderson *

Judge Fausto Pocar says all fugitives must be in custody within months if the court is to keep to its completion strategy.

The president of the Hague tribunal, Judge Fausto Pocar, has outlined his vision of how the court will wind down its work in the coming years in line with current plans, in an interview with IWPR. He admitted that there are still many issues that need to be addressed before it can close its doors. If the existing schedule is to be met, he said, this must include taking the remaining fugitives into custody by the end of this year. Judge Pocar, whose own mandate as a judge runs out in 2009, became president of the tribunal in November last year. Just last month, he presented his second bi-annual report to the United Nations Security Council on the progress that The Hague court is making with its work.

The last six months have been some of the most turbulent ever seen at the tribunal. The death of the court's most prominent detainee, former Yugoslav president Slobodan Milosevic, from a heart attack in March came just days after a key insider witness, former Croatian Serb leader Milan Babic, committed suicide in custody. The period was also marked by an intense international focus on the continuing failure of the tribunal to secure the arrests of either of its two most high-profile fugitives, the Bosnian Serb political and military leaders Radovan Karadzic and Ratko Mladic.

The tribunal's so-called completion strategy, which was rubberstamped by the UN in July 2002, envisaged the completion of all first-instance trials by late 2008. The court was then due to complete all of its business, including appeals proceedings, and close its doors altogether in 2010. But those deadlines have already slipped. Judge Pocar's predecessor as tribunal president told the Security Council that first-instance trial proceedings could not be completed any earlier than 2009. Pocar confirmed to IWPR that 2009 is still the deadline that he is aiming for, "if everything goes smoothly".

But he stressed that much would depend on whether major unforeseen problems arose - including health issues - in any trials, and whether new rules recently adopted by the judges, "are fully respected". This is a reference to a new measure giving judges the power to order prosecutors to drop sections of an indictment, in order to speed up trial proceedings. Judge Pocar also said that meeting the 2009 deadline would also depend on all indictees being in custody in The Hague within months. "The tribunal cannot close without both Karadzic and Mladic, and also the other four [indictees], who must be arrested and prosecuted," he said. He noted that this must happen "at the latest, by the autumn, or this summer", since "if they are arrested later they cannot be joined to trials already starting, and clearly the prospects of finishing by 2009 might not be possible to achieve". "If Mladic or Karadzic were to be arrested in 2008 or 2009 I don't see how we can finish the trials in 2009," he added.

When questioned about whether the international community would be willing to bear the cost of keeping the tribunal open beyond the official deadline for its closure, Judge Pocar acknowledged that there might be difficulties. Even though there are "a substantial number of states" who would not let the tribunal close "without all the high-level perpetrators being tried here", he said, there were others who "may prefer in practice, to do away with this tribunal". He suggested that those states might then press for the court to survive on voluntary contributions only, rather than the regular payments that it currently receives from the UN budget, in order to "affect its continuation".

At the same time, the judge acknowledged that some countries might also argue that the Yugoslav tribunal ought to rely on voluntary funding anyway, "for reasons of equality in how international justice is treated". Other ad hoc courts - including those in Sierra Leone and Cambodia - are forced to get by in this way.

Some commentators have mooted the possibility that the cases of those indictees who are yet to arrive in The Hague might be transferred to local courts in the Balkans instead. But Judge Pocar dismissed such speculation, saying that it would be "difficult" to allow high-level detainees to be handled in the region. He did, however, suggest that it might be possible for these individuals to face trial on some charges in The Hague and then face further proceedings elsewhere. In this way, "the rest of the crimes, that may either be in the indictment or identified later, would be tried at a local level". He disagreed with the suggestion that, under this kind of system, the trials in The Hague might be little more than symbolic. "No," he said, "the trials here should concern the substantial part of charges brought in the indictment against the accused."

The power recently invested in Hague tribunal judges to order that indictments be cut has proved highly controversial. The chief prosecutor Carla Del Ponte has reacted forcefully to the move, describing it as an infringement of her own powers. Some commentators have suggested to IWPR that to have two of the organs of the court at loggerheads in this way is a "recipe for disaster". But Judge Pocar said he disagreed entirely with Del Ponte's criticisms, stating that she is simply "completely wrong in her assessment". In fact, he said, the judges "have long been aware that the problem of the length of the trials starts with the complexity and breadth of the prosecution's indictments".

He told IWPR that previous attempts to challenge this practice had "met with considerable resistance by the prosecutor". But in fact, he said, "Avoiding overloaded indictments is common practice in national jurisdictions." The chamber must manage the trial, he argues. At the same time, that "does not mean necessarily that the other counts have to be forgotten". Instead, they might be dealt with in separate trial proceedings.

This new no-nonsense approach by the judges was announced shortly after Milosevic's demise, by which time he himself had been on trial for over four years. The last few months have been marked by a wave of criticism from tribunal observers arguing that the failure to bring Milosevic's trial to its natural conclusion came down partly to the fact that the indictments used against him and others at the court were too long and complex. But Judge Pocar denied that the decision to expand the judges' powers to address the contents of indictments was a reaction to Milosevic's death. "This change of policy, if we can talk about a change of policy, is primarily not a reaction to any event," he said, "but to ensure that we have trials that are conducted in a reasonable time in compliance with human rights standards that require that a trial not be too long." He also insisted that it was not "a measure taken for the sake of the completion strategy".

As the tribunal's work draws to some sort of a close, questions are being raised about where things will go from there. What will happen to its enormous archives? What will happen with its efforts to cooperate with other courts, especially in the Balkans? Will the appeals chamber be reformulated to accommodate the influx of work that will need to be completed before the court can shut its doors? Judge Pocar agreed that these are important matters and admitted that no solutions had yet been worked out.

On the question of the archives, he said the main issue was not where they would be housed - there are already several possibilities, including in The Hague - but rather how to maintain public access to the material, along with judicial access to confidential records for potential use in future trials. He suggested that another existing court could be appointed to deal with the matter - maybe a section of the International Criminal Court, ICC. Or a group of judges may be needed who are "ready to be called in on a case-by-case basis when necessary". Judge Pocar suggested that it was "a bit early to make a clear evaluation" on what should happen with the appeals chamber. This, he said, would depend on a large number of factors, including the number of judgments issued by the court in the coming years, how many are appealed and how many guilty pleas emerge.

IWPR also asked the tribunal president directly about the criticism that the court has faced concerning the way in which it handled the Milosevic case. In response, Judge Pocar acknowledged that "probably some mistakes were made". "The indictment was too large, maybe we should have had a shorter trial," he said. While he was keen not to apportion blame, he also pointed to the way in which the trial was managed, suggesting that "maybe it should have been different".

When questioned about whether the tribunal itself will be considered a failure, having missed the chance to issue a judgement against its top indictee, Judge Pocar admitted that this was possible, since for years the Milosevic case was "the only case the media brought to the attention of the public". But he stressed that such a conclusion "would be an unfair and unbalanced assessment of the tribunal".

Despite all of the challenges involved in setting up a tribunal which had no precedents for applying "customary international law" and had to "invent and adopt its own procedure", he said, "the court has brought about an impressive amount of case law. And [it has] clarified a large number of aspects of humanitarian law. Other courts, both national and international are applying our precedent and prosecuting crimes under international humanitarian law following our example. And this will remain."

About the Author: Janet Anderson is the director of IWPR's International Justice Programme in The Hague.