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Your Excellency,

In advance of the report by their respective Presidents and Prosecutors on June 29, we write regarding the urgent situation at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Human Rights Watch has already shared these concerns with the tribunals.

These institutions are facing an extraordinary crisis stemming from factors beyond their control: the tribunals seek to adhere to the dates of the Completion Strategies, but they receive little cooperation from a few key United Nations member states. At the same time, while both tribunals have improved efficiency, they lack funds to operate with full effectiveness because member states have failed to pay their assessed contributions.

The Completion Strategies proposed by former ICTY President Claude Jorda mandate the tribunals to complete all investigations by 2004, all trials by 2008, and all appeals by 2010. These strategies were predicated on the assumption that United Nations member states would cooperate fully with the tribunals, as required by the two statutes and numerous Security Council resolutions. Yet, those states have not cooperated.

ICTY President Theodor Meron recently highlighted the stark failure on the part of Serbia and Montenegro to comply with its obligations to cooperate under Article 29 of the ICTY Statute. This failure includes obstruction on the arrest and transfer of fugitives, failure to produce documents, and failure to assure access to witnesses. In Bosnia and Herzegovina, the authorities of Republika Srpska have yet to arrest a single person indicted by the ICTY, out of a dozen that are believed to reside under their jurisdiction. Also, the efforts so far by the Stabilization Force in Bosnia and Herzegovina to apprehend Radovan Karadzic have failed, and the wartime leader of Bosnian Serbs, Ratko Mladic, is still at liberty.

Rwanda took months before approving the transfer of detainees in government custody to testify in Arusha and has not yet complied with all ICTR requests for such transfers. In addition, the authorities in Kigali have not yet provided large numbers of documents necessary for trials, some of them under way at the present time. Other states have failed to arrest indicted persons known to be on their territory.

The establishment of rigid deadlines for finishing the work of the tribunals may have helped to foster improvements in efficiency, but at the same time appear to have encouraged targets of prosecution and others to believe that obstructive tactics might help indictees avoid trials. Rather than assisting the tribunals to end impunity, insisting on an arbitrary deadline may in fact frustrate justice. It may facilitate impunity for Ratko Mladic, Radovan Karadzic, Nebojsa Pavkovic, and Ante Gotovina. Rwandans like the financier Felicien Kabuga, Minister of Defense Augustin Bizimana, and Major Protais Mpiranya of the Presidential Guard can hope that the end of ICTR investigations six months from now will make effective prosecution of their cases impossible.

Thus far, the ICTR prosecutor has given priority to the enormous task of investigating the genocide. If the prosecutor proves unable to complete investigations of alleged crimes by Rwandan Patriotic Front soldiers in the six months that remain, and thus fails to prosecute any such crimes, the ICTR will not have fulfilled its complete mandate and will appear as an exercise in selective justice. Delivering justice to those on only one side of the conflict will fail to achieve the objectives the Security Council set when it established the tribunal.

Given these obstacles to their effective functioning, it appears it will be impossible for the ICTY to complete all trials by 2008 and for the ICTR to fulfill its mandate to investigate “serious violations of humanitarian law” if it must terminate all investigations by the end of 2004. Rigid implementation of the deadlines associated with the Completion Strategies will certainly limit the impact of the tribunals and diminish the return on the resources invested thus far.

Additionally, states are in arrears in their contributions to both tribunals. Because rule changes have made it impossible for the tribunals to temporarily draw funds from the Department of Peacekeeping Operations (DPKO) budget to meet their current shortfalls, the United Nations Comptroller has frozen all hiring at both tribunals and they can fill no vacancies. With the usual departures through attrition increased by the impending end of the tribunals, the hiring freeze has led to a serious reduction in staff able to carry out the work of the courts. So long as these institutions lack the resources to conduct their work effectively, they will find it harder, if not impossible, to meet the dates of the Completion Strategies.

It would be a serious blow to justice if the tribunals were forced to end prematurely; this would surely undercut their historical legacy.

In light of the present obstacles that the tribunals face, we make the following recommendations.

(1) Human Rights Watch urges the Security Council to review the viability of the Completion Strategies dates. We call on the Security Council to publicly state that the dates are “goals” and that they will be adjusted, if necessary, to allow the tribunals to fulfill their mandate. This is the only way to make clear to uncooperative states and indictees that they cannot wait out the tribunals.

(2) We urge the Security Council to press Serbia and Montenegro, Republika Srpska, and Rwanda to cooperate fully with the respective tribunals.

(3) We urge the Security Council to call on all member states to meet their assessed payments to the tribunals.

(4) We urge the United Nations Comptroller to immediately allow necessary exemptions to the present hiring freeze. We encourage a return to the previous practice of allowing the tribunals to borrow from the DPKO budget to deal with temporary shortfalls in their own funds.

The tribunals have made important contributions to strengthening the rule of law. They have affirmed the viability of international criminal mechanisms and their judgments have contributed enormously to international criminal jurisprudence. They have brought a measure of justice to those who have suffered. In the face of criticism, both institutions have improved their practices and efficiency. By giving the tribunals greater flexibility in meeting their deadlines, the Security Council will enable them to fulfill their mandates and enhance respect for the rule of law.

Human Rights Watch stands ready to provide you with information on the situation regarding the ICTY and ICTR.

Thank you for your kind attention to this matter.


Richard Dicker
Director, International Justice Program

Joanna Weschler
U.N. Advocacy Director

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