International Criminal Tribunals
Expected Council Action
In August the Council is expected to receive the annual reports of the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR).
The annual reports of the two Tribunals are published both as Council and General Assembly documents. They are usually discussed in the General Assembly in September. The 2007 reports are likely to address issues that have been before the Council for some time such as the outstanding arrest warrants and the “completion strategies”. Mention of “legacy” issues is possible. Further Council discussion of the matter, in particular in the Council’s Working Group on Ad Hoc Tribunals, is likely. Formal action is possible-although probably not in August.
The next report specifically on completion strategies is due at the end of November.
An issue that will be on Council members’ minds will be the fact that Carla Del Ponte’s term as ICTY Prosecutor ends in mid-September. A decision on a replacement will also be an important consideration.
The Security Council established the ICTY in 1993 in resolution 827 to bring to justice those responsible for violations of international humanitarian law in the territory of the former Yugoslavia during the war that began in 1991.
In the aftermath of the genocide in Rwanda in 1994, the Council established the ICTR in resolution 955.
These two Tribunals were the first international criminal tribunals since the Nuremburg and Tokyo tribunals were established after the Second World War. The ICTY and ICTR differed significantly from the earlier tribunals in that they were established by the Council under Chapter VII.
Both the ICTY and ICTR have jurisdiction to prosecute very specific crimes. The ICTY is authorised to prosecute persons responsible for grave breaches of the 1949 Geneva Conventions, violations of the laws of war, genocide and crimes against humanity. It can hear only cases of crimes committed on the territory of the former Yugoslavia since 1991. It has so far tried 106 accused of which five were acquitted, 51 sentenced, 14 transferred to national jurisdiction and 36 died or had their indictments withdrawn. The ICTY is funded by the General Assembly through a special account for the ICTY and through voluntary contributions that are acceptable to the Secretary-General. The ICTY had cost a billion dollars by 2005 and its 2006-2007 budget is just over 275 million.
The ICTR has the power to prosecute persons responsible for serious violations of international humanitarian law in the territory of Rwanda between 1 January and 31 December 1994. The ICTR can also prosecute Rwandan citizens who committed crimes in neighboring countries during that period. It has tried 33 indictees of which 28 were convicted and five acquitted. Like the ICTY, the ICTR is funded through a special account and by voluntary contributions. From 1995 to 2007 the ICTR has spent almost a billion dollars. Its 2006-2007 budget is just over 250 million.
In 2003, the Council in resolution 1503 called on the ICTY and ICTR to take “all possible measures to complete investigations by the end of 2004, to complete all trial activities in the first instance by the end of 2008 and to complete all work in 2010”. Resolution 1534 adopted on 24 March 2004 requested the ICTY and ICTR to “to provide to the Council, by 31 May 2004 and every six months thereafter” assessments on progress made towards implementation of the completion strategies and measures that remain to be taken.
Key Recent Developments
The Council’s Working Group met on 19 June to discuss a joint draft paper prepared by the Tribunals on legacy and post-Tribunal issues. This paper had been submitted to the Working Group in April for review. The day before, the Council had received a briefing from the presidents and prosecutors of both tribunals on their revised completion strategy reports submitted in May.
Carla Del Ponte in her report stressed that the continuing impunity enjoyed by fugitives like former Bosnian Serb President Radovan Karadžic and his military commander Ratko Mladic undermined the principle of justice for the victims and affected the Tribunal’s credibility. Four suspects indicted by the ICTY-Radovan Karadžic, Ratko Mladic, Stojan Župljanin, Goran Hadžic-remain at large.
ICTR Prosecutor Hassan Jallow also underlined the importance of bringing the remaining Rwandan indictees to trial, particularly Félicien Kabuga.
Both ICTR President Dennis Bryon and the ICTY President Fauto Pocar addressed the issue of transferring cases to national jurisdictions and the accompanying need to strengthen rule of law.
Serbia has recently taken steps to address the arresting of fugitives. The Serbian government’s National Security Council established in May will coordinate national intelligence agencies involved in locating and apprehending ICTY indictees. The National ICTY Cooperation Council in Serbia has also been given more authority to process ICTY requests.
Zdravko Tolimir, a top aide to Ratko Mladic was arrested on the Bosnia-Serbian border in a joint operation by the Serbian and Bosnian police at the end of May. Tolimir was considered the third most wanted war criminal still at large in the Balkans after Mladic and Radovan Karadžic. Vlastimir Djordjevic, a senior Serbian police official, was arrested in Montenegro on 17 June as a result of cooperation between the ICTY, Montenegro and Serbia. On 16 July he pleaded not guilty to five charges of murdering and persecuting ethnic Albanians in Kosovo.
On 20 July the ICTY decided to jointly try two Bosnian Serb paramilitaries accused of multiple crimes and whose cases are factually closely related in The Hague. Originally Sredoje Lukic was to be tried in Bosnia and Herzegovina but the ICTY revoked its referral of the case allowing him to be tried together with Milan Lukic and reducing the trauma on victims who now only have to testify once.
In Rwanda, the government has passed a bill which excludes the application of capital punishment for Rwandans accused of genocide. This bill is expected to facilitate the referral of cases from the ICTR to Rwandan courts. Rwanda has also developed a comprehensive capacity-building plan for the country’s justice sector.
However, given that key deadlines for completion of trials are drawing closer, the Council may want to be more assertive regarding the outstanding issue of suspects still at large, particularly Karadžic, Mladic and Kabuga. One option would be a resolution encouraging Serbia and other involved countries to fulfil their international obligations by stepping up cooperation with the Tribunal.
Other options include:
implicit or explicit threats of measures against persons or institutions deemed to be blocking cooperation in securing the necessary arrests;
approving additional steps to ensure the timely conclusion of the Tribunals’ activities, such as providing more appeals judges and encouraging incentives for retaining current staff; and
requesting a report from the Tribunals on all residual issues to be presented to the Council before the end of the year.
The key issues for the Council are that some of the major suspects indicted for serious crimes are still at large. How to proceed if the key fugitives are caught but there is not enough time to finish the trials by the end of 2008? The Council will have to decide whether to allow flexibility for the Tribunals to continue with these cases beyond 2008.
A practical issue is the retention of staff as the Tribunals wind down. This issue is likely to become more critical as the Tribunals move towards their completion dates. If key personnel depart this will further slow down trials and adversely impact the completion strategy.
Another significant issue is how to deal with what is described as “legacy issues.” These are matters which would either survive the legal existence of the Tribunals or be created by their closure.
Ongoing capacity for trials of fugitives and appeals: Should a single mechanism be set up or a skeleton body retained for each of the defunct ad hoc tribunals in order to try the remaining key indictees? Could the International Criminal Court (ICC) be empowered to play such a role?
Supervision and commutation of sentences: What authority will be empowered to grant pardons or commute sentences?
Review of cases: Natural justice requires some ongoing capacity to respond to requests for a review of judgement based on new facts. Could this be done by the ICC, or an ad hoc panel of judges appointed on a case-by-case basis, a fixed ad hoc panel of judges or an ad hoc panel of judges taken from a roster?
Witness protection: Who would handle issues such as oversight of protective measures and review of applications for the modification of protective measures after 2010?
Monitoring of referred cases: What body would be in charge of monitoring compliance with Tribunals’ standards once cases are transferred to national authorities?
An important administrative issue relates to the future of the archives of the Tribunals. Where should they reside? Among the key factors are the availability and accessibility of judicial institutions. Rwanda, the AU, Tanzania and the Netherlands have all expressed interest in housing them. The United Nations is also a possibility.
Related to legacy issues are the financial implications after closure of the Tribunals, including pensions and health insurance schemes for former staff. This issue is likely to be brought up in the forthcoming annual reports.
An immediate issue is capacity for the appeals chamber. As the workload of the trial chambers winds down, increase in the work of the appeals chamber is expected. The judges of the one appeals chamber are responsible for hearing appeals from both the ICTR and ICTY. It is likely, if the completion strategy is to be met, that the Council will have to consider the issue of an increase in the number of appellate judges in order to meet the 2010 deadline for completion.
Connected to meeting the 2010 deadline is the need to build capacity in national courts. Meeting the completion strategy deadlines, particularly for the ICTR, is heavily dependent on transferring remaining cases to competent national jurisdictions.
A continuing issue is the position of individuals who have been acquitted or have completed their sentences and fear for their safety if required to return to their home country. Very few countries are willing to take in these individuals. For example, only two of the five persons acquitted by the ICTR have been accepted by a member state.
There are some differences within the Council stemming from the interpretation of the 2010 deadline. Russia considers this a fixed deadline and expects the Tribunals to comply strictly with the schedule. It has said that it will not accept attempts to reinterpret the completion strategy. China’s position is similar but it may be more flexible on legacy issues.
Most other members see 2010 as an indicative date rather than one set in stone. It is important to them that the Tribunals are still able to bring to trial after 2010 any of the high-level accused who have not been apprehended by 2010. There is concern among several members that if there is no mechanism for this the legacy of the Tribunals will be tarnished.
Another area that could cause differences among Council members is the issue of cost surrounding some of the legacy issues. In the end the General Assembly would have to approve the funding for any residual expenditure.
These different points of view may come to a head in the next few months as the Working Group begins to explore concrete options for the Tribunals’ future.
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