That Someone Guilty Be Punished - International Center for ...

1. Impetus for change
Although the ICTY had from the outset been pressed to produce results, 741 this intensified several
years into its work, when the United Nations expected to see more in the way of tangible
results. In a 1999 study commissioned by the UN General Assembly, a group of experts noted
that “[m]ajor concerns” had been voiced by a range of actors about “the slowness of the pace
of proceedings” before the ICTY and its sister court, the International Criminal Tribunal for
Rwanda (ICTR), as well as about the associated costs. The experts asked, “more pointedly …
why, after almost seven years and expenditures totaling $400 million, only 15 ICTY and ICTR
trials have been completed.” 742 While the experts’ recommendations focused on ways the two
tribunals could streamline procedures, their report served to catalyze planning of a different
sort in The Hague: It provided “a little nudge” to the ICTY judges to begin “thinking ahead
towards formulating a completion or exit strategy.” 743 Anticipating that the Security Council
would soon press them to wind up the ICTY’s work, the Tribunal’s judges seized the initiative
to shape the Hague Tribunal’s completion strategy.
Transferring cases not yet tried in The Hague to domestic courts—a subject addressed
only briefly in the experts’ study744 —became a key component of the completion strategy that
emerged from the ICTY and which was later adopted by the UN Security Council. 745 More
particularly, transferring cases of comparatively low-level suspects746 would free up human
resources in The Hague and thereby enable the Tribunal to focus on high-level suspects—the
centerpiece of what became the ICTY’s completion strategy. 747
There were, to be sure, other reasons for transferring some of its caseload to local
courts. In an address to the Security Council on November 27, 2000, then ICTY President
Claude Jorda introduced the idea of “relocating” some ICTY cases to domestic courts by noting
the potential implications of recent political changes in the former Yugoslavia: 748
The political upheavals recently witnessed in the Balkans have gradually changed the
perception of the International Tribunal held by the States from the region. However,
must these upheavals not also lead us to change our own view as to the ability of these
States to try some of the war criminals in their territory? From this perspective, must we
not, for example, further promote the new national reconciliation processes the Balkan
States are setting up, such as the truth and reconciliation commissions? 749
Even so, ICTY officials appeared to be motivated more by the Tribunal’s need to complete
its core work than by their secondary desire to foster greater participation by local courts in the
project of accountability for wartime atrocities. This came across in Judge Jorda’s November
2000 address to the UN Security Council as well as in his subsequent remarks to the Council.
Describing recent discussions among judges of the ICTY and ICTR and then UN Legal
Advisor Hans Correll, Judge Jorda made the case for transferring some cases to Balkan courts:
114 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS