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Address by Judge Dennis Byron, President of the ICTR, to the United Nations Security Council [Six monthly report on the Completion Strategy]
Dec 3, 2009

Mr. President, Your Excellencies, Ladies and Gentlemen,

I would like to join Judge Patrick Robinson in expressing congratulations to the distinguished representative of Burkina Faso who presides the Security Council in December, the last month of his country’s membership in this Council. I wish Your Excellency all the best for a successful tour of duty.

On 8 November 1994, the Security Council adopted Resolution 955 and created an international tribunal to bring justice to the hundreds of thousands of Rwandan victims of genocide, war crimes and crimes against humanity. Today, fifteen years later, I am pleased to inform you about remarkable progress in the conduct of trials and judgement deliveries. But yet, significant work remains ahead before we can safely say that we have achieved our mandate and tried the principal perpetrators of the horrendous atrocities committed in Rwanda in 1994.

Since my last report in June, our Tribunal has rendered five first-instance judgements in single-accused cases, including a sentencing judgement following a guilty plea, and one appeals judgement. We have mastered the difficult task of commencing ten new trials in the course of this year. In two of the cases, judgements have already been delivered, in further three cases, including a retrial, the entire evidence has been heard. In the remaining five cases, the defence phase will be completed before the end of this year or in the first half of 2010. The spill-overs are mainly linked to fair trial concerns: Defence counsel have needed more time to prepare their cases initially or more time to respond to the Prosecution case.

The four ongoing multi-accused cases continue to pose the greatest challenge for the Tribunal, even where the evidence phase has been completed, as it is the case in three of the trials involving seventeen accused. The judgement drafting in those three cases is expected to be completed in the course of next year, but progress is continuously challenged by parallel assignments of the judges and their legal staff to support other cases. While the judges sit full days over months in the courtroom to hear sometimes several additional trials, the scheduling of complex deliberations in the multi-accused cases is difficult and risks delays.

The fourth trial, Karemera et al., continues to be delayed largely due to the illness of one of the defendants, requiring the Chamber to sit in half-day sessions only and to allow additional breaks in the trial schedule to accommodate medical needs. Despite these unavoidable impediments, we aim to complete the evidence phase in this case by the end of 2010. The Karemera et al. trial will be one of three ongoing cases, where judgement drafting will continue in the first half of 2011. The other two, Ngirabatware and Nzabonimana, are likely to spill into 2011 because the presiding judges are also members of the bench in the largest multi-accused case, the Butare” trial.  Priority must be given to judgement delivery in that case, which is expected for autumn 2010, even if this will delay the delivery of judgements in the other cases by some months. 

The Plenary of the Judges has adopted in October an amendment of the Rules  of Procedure and Evidence, allowing for the hearing of special depositions for the preservation of evidence against the remaining fugitives. This amendment aims at preventing the loss of evidence fifteen years after the crimes were committed. The hearings, which are planned for the last quarter of next year, will focus on those of the currently three top-rank accused who still remain at large.

As you can see, we have another busy year ahead in which we need to provide increased output with declining resources. During the first half of 2010, we will focus on the completion of the evidence phase in all ongoing trials with the exception of Karemera et al. In addition, we expect judgement delivery in four single-accused cases. During the second half of 2010, additional judgements in six cases involving 17 accused are to be rendered. In short, and provided we manage to retain the current level of legal support staff, we expect judgment delivery in trials against 21 accused in 2010. Furthermore, two new trials will commence, and we aim, to the extent possible, for completion of their evidence phases during next year.

As I mentioned before, most of the seven permanent and eleven ad litem judges currently serving at the Tribunal are involved in several cases in parallel. This situation will continue for the majority of next year. Judges are also needed to handle the cases of the two newly arrested accused, for possible requests for referral of cases to national jurisdictions under Rule 11bis and for the special deposition hearings. Therefore, I ask this distinguished Council to extend the exception granted in Resolution 1855 of  December 2008, allowing for a maximum number of twelve ad litem judges to serve at the Tribunal at any one time, until the end of 2010.
I explained in June our concerns about the inequality in the terms and conditions of service between permanent and ad litem judges, concerning in particular the entitlement to pensions. Your Resolution of July 2009 took note of these concerns. I have had bilateral discussions with numerous Member States and the Secretariat on the matter, who have expressed their sympathy for our endeavor to achieve a review of the terms and conditions of service in the interest of equity and the Completion Strategy. I am confident that the matter can be addressed by the General Assembly in early 2010.

Let me now turn to another fundamentally important issue, that of State cooperation. The arrests in August and October of two of the fugitives, Grégoire Ndahimana and Idelphonse Nizeyimana, are a very positive development, and I would like to thank the respective national authorities in the Democratic Republic of Congo and Uganda for their important contribution to the fight against impunity. The transfer of Idelphonse Nizeyimana to Arusha only one day after his arrest in Uganda should serve as an example of efficient and swift cooperation between the Tribunal and Member States.

Your Excellencies, I am sure you agree with me that eleven fugitives remaining at large today, more than fifteen years after the genocide, are eleven too many. The list includes three top suspects, Félicien Kabuga, Protais Mpiranya and Augustin Bizimana. The time for their arrest is long overdue. They have benefited from impunity for far too long.

 I would like to recall once again that it was this distinguished Council who determined, when setting up the Tribunal in 1994, that genocide, war crimes and crimes against humanity “constitute a threat to international peace and security.” This was as true then as it is today: it is in the interest of the entire international community that the remaining fugitives be arrested and tried fairly. This Tribunal has not accomplished its mandate if top-level fugitives continue to benefit from impunity, while victims wait for justice. I call strongly upon all Member States, and in particular those where there is significant evidence that fugitives hide in their territory, such as Kenya, to fully cooperate with the Tribunal.

The fugitives need to be arrested and transferred to Arusha now, before the Tribunal closes down. Trial functions of a Residual Mechanism are indispensable as long as fugitives remain at large. But we should all aim at leaving behind a heritage of trials that is as limited as possible so that the Mechanism can focus on truly residual work, such as the management of the Tribunal’s archives, continuous witness protection and the supervision of sentences.

Recent developments at the Tribunal highlight the essential need for cooperation by Member States also in another area. During the last weeks, two accused were acquitted, Hormisdas Nsengimana on trial level and Protais Zigiranyirazo by the Appeals Chamber. For them, and two others who were previously acquitted and who all live currently in safe houses in Arusha, the Registrar of the Tribunal is seeking countries for relocation. It is of fundamental importance and in the interests of fair justice that Member States are ready and prepared to accept the relocation of acquitted persons to their territory.   

The third essential area of cooperation by Member States and a cornerstone of the Completion Strategy is the referral of cases to national jurisdictions under Rule 11bis. The Prosecutor, assisted by the Registrar, continues his efforts to ensure that more than the two cases, which have been transferred to France in 2007, can be handled by national courts now or in the near future. The focus of the efforts continues to be technical support for Rwanda in order to ensure that the State where the crimes were committed can take over cases. But other Member States with jurisdiction are urged as well to consider accepting some of the remaining cases of fugitives from the Tribunal for trial on national level. In this regard, we are pleased to note legislative changes that have been introduced or are under way in several countries, providing jurisdiction over genocide, crimes against humanity and war crimes committed for instance in Rwanda in 1994. Such laudable legislative changes not only support the Tribunal in its efforts to transfer cases to national jurisdictions, but underscore the willingness of these countries to effectively fight impunity for the most serious international crimes, irrespective of where or by whom or against whom they were committed.

Our efforts are channelled towards the completion of our remaining trial and appeals work. At the same time, we have been following up on the recommendations for the transitional period contained in the report of the Secretary General on the Residual Mechanism. An overview of the measures taken so far is contained in our Completion Strategy Report, and we will continue to the best of our abilities to provide you with comprehensive information to support your decision-making process.   

The discussions in the ACABQ and Fifth Committee on the Tribunal’s budget submission for the 2010–2011 biennium are ongoing. Since our submission, many developments, for example the two new arrests, have occurred and require certain adaptations of the initial request. Any change in the judicial calendar at this stage, when contract extensions are tightly linked to trial schedules, affects all who are involved in the trial work, from legal officers and trial attorneys to court reporters and interpreters. I ask for the understanding of all Member States for this increased need for flexibility.

Distinguished members of the Security Council, over the last six months your governments have continued to provide support for our work, through the adoption of Resolution 1878 in July, through the arrest of fugitives, through voluntary contributions to the Trust Fund, and through intense preparatory work for the Residual Mechanism. I would like to assure you that all of us in Arusha at the Tribunal greatly appreciate this support. The Secretariat, and in particular the Office of Legal Affairs, has facilitated our cooperation with you and your governments and has assisted in communicating our mutual needs and concerns. We extend our appreciation and thanks to all their staff.

Your Excellencies, it remains a fact that the ad hoc tribunals have laid the groundwork for the rapid and astonishing development of international criminal justice during the last decade and a half. Without them, there would be no International Criminal Court. Without their jurisprudence, their support and their policy-setting examples, convictions of Rwandan génocidaires in Canada, the Netherlands and Belgium and ongoing investigations against alleged perpetrators of genocide, war crimes and crimes against humanity worldwide would have been less likely, to say the least. 

We all know that the days of our Tribunal are numbered. It is essential that we reflect on lessons we can learn from the last fifteen years and on how to address best the fight against impunity for international crimes in the future. If we succeed together in establishing a more effective rule of international law, the suffering of countless victims will not have been completely in vain.

At the same time, we all know that the last part of the Tribunal’s lifespan is not an easy one. We must remain committed and strive to improve our work while our experienced and hard-working staff face the imminent end of their contracts and the need to secure their professional careers.

The future of the international fight against impunity will rest mainly on the shoulders of national jurisdictions and the International Criminal Court. But today, I ask for your continuous support so that our Tribunal which was at the starting point of this amazing development of international criminal justice can complete its mandate expeditiously and with all due respect for the highest standards of fair trials.

Thank you very much.