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International Criminal Tribunals

Expected Council Action
The Council will receive briefings from the presidents and prosecutors of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) on completion strategies for each tribunal on 4 June.

No formal action is required. However, in 2003 resolution 1503 established an expectation that the tribunals would complete all “trial activities at first instance” by the end of 2008 and all work in 2010. Reports from the ICTY and ICTR, expected to be released in early June, are likely to indicate that both deadlines will not be met.

The Council may discuss various options for assisting the tribunals to meet the deadline. Some Council members may also focus on “legacy” or “residual issues” (which would either survive the legal existence of the tribunals or be created by their closure.) However, with the Council majority of ambassadors away on the Council mission to Africa at the time of the briefing, no substantive action is expected.

Recent Developments

In January, the Security Council’s Informal Working Group on Tribunals began discussions on “residual issues’” under the chairmanship of Belgium. In the past, chairmanship rotated monthly according to the Council presidency and the group met sporadically. This year it has met nine times, largely to discuss residual issues based on a report submitted by the two tribunals. Issues identified included trials of fugitives, review of judgments, referral of cases to national jurisdictions, witness protection and archives. The Informal Group is expected to start discussing the possible solutions such as downsized tribunals and transfer of non-judicial functions to the International Criminal Court. It is likely to start work on a draft resolution in the second half of the year.

During his visit to Belgrade in April, ICTY Chief Prosecutor Serge Brammertz urged Serbia to locate war crimes fugitives, grant access to state archives and introduce a witness protection programme. Many observers believe that the impunity of the fugitives Radovan Karadzic, Ratko Mladic, Stojan Zupljanin, and Goran Hadic, undermines ICTY principles and that a means of prosecuting them after 2010 must continue to be available. Serbia’s cooperation has not improved in recent months.

On 29 April, the EU signed a Stabilisation Association Agreement (SAA) with Serbia. Until then, the EU had insisted that full cooperation with the ICTY, including surrender of Mladic, was a necessary precondition for an SAA.

On 3 April, the ICTY acquitted Kosovo’s former prime minister, Ramush Haradinaj, of alleged crimes against humanity. Serbia raised strong objections. ICTY prosecutors have said that they will appeal Haradinaj’s acquittal. During Haradinaj’s trial, there were repeated allegations of witness intimidation.

Other ICTY/ICTR related developments included:

• The first hearing to transfer to Rwanda an ICTR case took place on 24 April. On 29 May the ICTR judges declined to transfer Yussuf Munyakazi on the basis that he may not receive a fair trial in Rwanda. This verdict is expected to have a significant impact in determining ICTR’s completion strategy as the ICTR was hoping to transfer some cases to national jurisdictions to meet the 2008 deadline.
• Callixte Nzabonimana, a former Rwandan cabinet minister, was arrested in Tanzania in early February. He is the second of the six most wanted people still on ICTR’s list. Augustin Ngirabatware, the former Rwandan minister for planning, was apprehended in Germany last September.
• On 10 March, the Advisory Committee on Administrative and Budgetary Questions (ACABQ) recommended that the General Assembly authorise as an exception, payment of retention incentives to staff required to remain at the tribunals. This will be taken up in the 5^th Committee of the General Assembly.
• Assisted by the United Nations Interregional Crime and Justice Research Institute (UNICRI), the ICTY has begun compiling a best-practices manual. It is expected to be completed in the third quarter of 2008.
• The Advisory Committee on Archives to the Registrars set up in October under the chairmanship of former ICTY and ICTR prosecutor, Richard Goldstone, is expected to present final recommendations to the Registrars in the middle of 2008. They will also present recommendations to the Council.
• On 20 February, the Council authorised up to four more ad litem ICTY judges through December 2008.

Options

Although no formal action is required in June, a presidential statement containing some of the following elements may be possible:

• acknowledging the difficulty in meeting deadlines and indicating that extensions would be considered;
• highlighting progress made and encouraging the tribunals to find ways of speeding up trials;
• urging the international community to intensify cooperation with the tribunals;
• acknowledging the progress made by the Informal Working Group under Belgium and highlighting the residual issues under consideration;
• requesting the Informal Working Group to present possible options for a downsized tribunal; and
• noting with satisfaction the ACABQ recommendation on retention incentives to staff.

Other options include:

• focusing primarily on the capture of the key fugitives so as to allow for the outstanding trials to go forward;
• requesting a timeline for the Working Group including for a resolution of residual issues; and
• agreeing to meet more regularly on this issue to more closely monitor the activities of the tribunals.

Key Issues

The key issue is whether the Council should be more proactive in assisting the ICTY and ICTR to meet the 2008 and 2010 deadlines. The two reports indicate ICTR trials are unlikely to be completed before 2009 and ICTY trials only in early 2010.

A related issue is deciding what action should be taken if key indictees are not apprehended this year. Linked with this is what pressure the Council might apply to parties, notably Serbia, to intensify cooperation with the tribunals in the next six months.

If it is accepted that the tribunals cannot meet the 2008 and 2010 deadlines, the Council will have to determine when it should extend the mandate of the tribunals and adopt a resolution with new deadlines.

A decision on handling residual functions is becoming an increasingly urgent issue. Among the most pressing are trials for the key fugitives, witness protection and archives.

Retaining tribunal staff remains a continuing issue especially if the Council remains silent on the above key issues. Reignations can be expected to increase leading to 2010.

The ability of national courts to handle case referrals is relevant to the completion strategy. Concerns include impartiality, witness protection, guarantees of fair trials and court financial resources.

Council Dynamics

More regular meetings of the Informal Working Group under consistent leadership have created a much better and more productive working atmosphere. Russia and China publicly continue to insist that the deadlines in resolutions 1503 must be strictly followed. However, it seems that there is a growing consensus that some functions of the tribunals will need to continue, particularly for trials of key fugitives after 2010. The US and European members want some flexibility with the deadlines and on which key fugitives need to be tried by the tribunals.

Apart from the permanent members, elected members like Panama, Costa Rica and Burkina Faso as well as the European elected members have participated actively in the Working Group, offering constructive suggestions to dealing with the residual issues. Croatia has been particularly vocal on the need to bring all the key fugitives to justice and on the issue of the archives.

Other Relevant Facts

Full forecast

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