International Criminal Tribunals
Expected Council Action
In December, the Security Council will hold its semi-annual debate on the ad-hoc international criminal tribunals. The Presidents and Prosecutors of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are expected to brief the Council.
ICTY President Theodor Meron will also brief the Council as President of the Residual Mechanism for International Criminal Tribunals as well as ICTR Prosecutor Hassan Bubacar Jallow as the Residual Mechanism’s Prosecutor. Established in 2010 by resolution 1966, the Residual Mechanism is mandated to complete the work of the Tribunals by assuming responsibility for essential functions. Operations at its Arusha branch commenced on 1 July 2012, assuming functions inherited from the ICTR and at its Hague branch on 1 July 2013, assuming functions from the ICTY. The Mechanism was tasked to operate for an initial period of four years, and subsequently for periods of two years, following reviews of its progress, unless the Council decides otherwise.
Resolutions are expected to be adopted on the extension of judges’ and prosecutors’ terms for both the ICTR and the ICTY.
The Council’s Informal Working Group on International Tribunals may meet with the Presidents and Prosecutors prior to their appearance at the Council.
Key Recent Developments
The ICTY trial chamber on 23 October granted the prosecution’s request in the case of Ratko Mladić to reopen its case to present recently discovered evidence regarding the Tomašica mass grave in Bosnia and Herzegovina. Mladić, the former commander of the Bosnian Serb Army, stands accused of genocide and a multitude of other crimes committed against Bosnian Muslim, Bosnian Croat and other non-Serb civilians in Bosnia and Herzegovina from 1992 to 1995. The chamber conceded that the re-opening will prolong the trial but said the delay will not be excessive.
According to its completion strategy report, the Tribunal has concluded proceedings against 141 of the 161 persons indicted, with no outstanding indictments for violations of core statutory crimes. By the end of 2015, based on current forecasts, only one trial and one appeal, in the Mladić and Prlić et al. cases, will still be ongoing, concluding in 2017. The report also details measures taken to expedite the completion of the Tribunal’s work and its downsizing.
Council members received a letter from Judge Meron on 31 October requesting extensions of the terms of six permanent judges until 31 December 2015, eight permanent judges until 31 July 2017 and three ad litem judges until 31 December 2015. The extensions beyond the target date for completion of 31 December 2014, set out in resolution 1966, are based on projections for the completion of the Tribunal’s remaining four trials involving four persons and five appeals involving 16 persons. In a letter to the Council on 31 October, the Secretary-General nominated Serge Brammertz for reappointment as Prosecutor of the ICTY until 31 July 2017.
As for the ICTR, the appeals chamber delivered judgements in three cases on 29 September, affirming sentences of life imprisonment for Édouard Karemera and Matthieu Ngirumpatse (tried jointly), convicted of direct and public incitement to commit genocide, extermination, rape and murder, and for Callixte Nzabonimana for instigating genocide and extermination. It reduced the sentence of Ildéphonse Nizeyimana from life imprisonment to 35 years imprisonment for genocide and murder, after deciding the trial chamber had erred in finding his involvement in certain attacks.
According to its completion strategy report, the Tribunal has completed cases at the trial level for all 93 accused indicted and only one case remains, concerning the appeal of six individuals, Nyiramasuhuko et al. (“Butare”), projected for completion not before August 2015. The report also details the transition of functions to the Residual Mechanism and states plans for closure are close to completion with most judicial and prosecutorial functions already handed over.
Council members received a letter from ICTR President Vagn Joensen on 31 October requesting extensions of the terms of five permanent judges until 31 December 2015, two permanent judges until 31 July 2015 and one ad litem judge until 31 December 2015. The extensions beyond the target date for completion of 31 December 2014, set out in resolution 1966, are based on projections for the completion of the Butare case and the involvement of certain ICTR judges in cases before the ICTY. In a letter to the Council on 31 October, the Secretary-General nominated Hassan Bubacar Jallow for reappointment as ICTR Prosecutor until 31 December 2015.
As for the Residual Mechanism, according to its progress report, it has assumed responsibility for many of the Tribunals’ functions, including judicial activities, enforcement of sentences, protection of victims and witnesses and the management of archives. It is also on track to deliver its first appeal judgement by the end of the year, while it also faces two pre-eminent challenges. The first is to ensure that nine individuals indicted by the ICTR but not yet arrested are apprehended (the three most senior individuals are to be tried by the Mechanism and the other six by Rwanda). The second challenge involves the relocation of individuals the ICTR has acquitted or released, but who are unable or afraid to return to their country of citizenship. Since 2011, the Council has called on member states to assist with their relocation. The number of acquitted persons still in Arusha was recently reduced to eight after Belgium agreed to accept one person. Rwanda has provided assurances that they are welcome to return, but the Tribunal is unable to assess whether the threats perceived by the individuals are real. As of 1 January 2015, the Mechanism will take over the formal responsibility for relocation.
The Council’s Informal Working Group on International Tribunals met on 13 November for preliminary discussions on the requested extensions and the issue of relocation of persons released or acquitted.
The Presidents and Prosecutors of the ICTY and ICTR last briefed the Council on 5 June.
Key Issues
The immediate issue for the Council will be the request relating to the extension of terms of the judges and prosecutors.
A key issue is the relocation of persons released or acquitted.
Another issue is the continuing review by the Working Group of the completion strategies of the ICTY and ICTR.
Options
The Council could adopt technical resolutions extending the judges’ and prosecutors’ terms as requested or extend the terms for a shorter period of time.
Council Dynamics
Difficulties arose last December when the Council adopted resolution 2130, extending ICTY judges’ terms for one year. As it did the previous year, Russia abstained, commenting that the situation regarding the Tribunal’s exit strategy had not improved and that costly trial delays continued. Similarly, during the debate in June, Russia commented on the ICTY’s and ICTR’s lack of progress in completing their activities and transferring functions to the Residual Mechanism. As in the past, Russia also demanded an independent review of the Tribunals’ work. There is currently no mandate for such a review and it seems unlikely the request will be included in the upcoming resolutions. It seems Council members, other than Russia, are generally supportive of the requested extensions for one year. However, it is less clear what the outcome will be regarding the requested extensions until 2017 for the eight permanent ICTY judges and the Prosecutor.
| Security Council Letters | |
| 31 October 2014 S/2014/778 | This was a letter nominating Hassan Bubacar Jallow for reappointment as Prosecutor of the ICTR. |
| 31 October 2014 S/2014/779 | This was a letter requesting to extend the terms of seven ICTR judges. |
| 31 October 2014 S/2014/780 | This was a letter requesting to extend the terms of 17 ICTY judges. |
| 31 October 2014 S/2014/781 | This was a letter nominating Serge Brammertz for reappointment as Prosecutor of the ICTY. |
| Security Council Meeting Record | |
| 5 June 2014 S/PV.7192 | This was the semi-annual briefing on the ICTY and the ICTR. |
| Security Council Press Statement | |
| 8 November 2014 SC/11637 | This was a press statement issued on the 20th anniversary of the ICTR. |
| ICTY & ICTR Reports | |
| 19 November 2014 S/2014/829 | This was the ICTR’s completion strategy report. |
| 19 November 2014 S/2014/827 | This was the ICTY’s completion strategy report. |
| 19 November 2014 S/2014/826 | This was the Residual Mechanism’s progress report. |
