August 2008 Monthly Forecast

Posted 31 July 2008
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SECURITY COUNCIL AND WIDER UN STRUCTURE

International Criminal Tribunals

Expected Council Action
In August the Council is expected to receive the annual reports of the International Criminal Tribunals of the former Yugoslavia (ICTY) and for Rwanda (ICTR).

The annual reports of the two tribunals, which are published as both Council and General Assembly documents, are usually discussed in the General Assembly in September. The 2008 reports are likely to be of particular interest following the arrest of former Bosnian Serb leader Radovan Karadzic and also with the deadline for both tribunals to complete initial trial activities rapidly approaching. (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”.)

Updates on timetables for trials, the capture of remaining fugitives, international cooperation in tracking them down, and “legacy” or “residual” issues (which would survive the legal existence of the tribunals or be created by their closure) are all expected to feature prominently in this year’s reports.

Key Recent Developments
On 21 July, Radovan Karadzic was arrested in Belgrade after 13 years as a fugitive. On 25 July, Karadzic’s lawyers filed an appeal against Karadzic’s extradition to the ICTY. The appeal—apparently posted just before the midnight deadline on 25 July—had not been received by 29 July leading the Serbian justice minister to issue a final extradiction order. On 30 July Karadzic was extradited to The Hague. Karadzic faces 11 counts of genocide, war crimes, crimes against humanity and other atrocities in the Bosnian war of the 1990s. Ultra-nationalists in Serbia have been holding protest rallies since Karadzic’s arrest. The rally on 29 July attracted over 10,000 supporters and led to clashes with the police.

On 4 June, the Council received a briefing from the presidents and prosecutors of both tribunals on the semi-annual progress reports on their completion strategies. Both presidents indicated that completion of first instance trials by the end of 2008 was unlikely because of recent arrests. (Between June and October 2007, there were three arrests of suspects who will be tried at the ICTR: former Rwandan Deputy Governor Dominique Ntawukuriryayo, former planning Minister Augustin Ngirabatware and former Minister for Youth Callixte Nzabonimana. In June 2007, former Bosnian Serb army officer Zdravko Tolimir and former Serbian police officer Vlastimir Dordević were arrested and transferred to the ICTY.)

On 11 June, one of the top three fugitives on the ICTY’s wanted list, Stojan Župljanin, was arrested in Belgrade by Serbian authorities and transferred to The Hague. This and Karadžić’s arrest are expected to affect the timeline for the ICTY’s first instance trials.

The mandate of the judges of the ICTR will expire at the end of 2008. On 6 June, the ICTR president wrote to the presidents of the Council and General Assembly asking for the extension of the term of office of the judges. In response, on 18 July the Council adopted resolution 1824 which extended the term of office of 9 permanent and 17 ad litem judges. The General Assembly on 28 July also endorsed the request.

Other developments related to the ICTY and ICTR included:

  • On 3 July, the Appeals Chamber of the ICTY overturned a June 2006 judgement from the trial chamber sentencing former Bosnian army commander Naser Orić to two years in prison for failure to prevent murder and cruel treatment of Serb prisoners in Srebrenica between late 1992 and early 1993.
  • The ICTY on 11 July granted Dragoljub Ojdanić, the former Chief of the General Staff of the Yugoslav Army, provisional release on compassionate grounds.
  • On 27 June, the ICTY ordered the temporary release of Jovica Stanišić and Franko Simatović, two former high-level officials with the Serbian secret service.
  • The ICTR on 9 June turned down a request to transfer Rwandan businessman Gaspard Kanyarukiga’s case to Rwanda on the basis that he may not receive a fair trial. (At the end of May, the ICTR had ruled against a similar transfer for another Rwandan businessman, Yusuf Munyakazi, and four others.)
  • On 3 June, the Secretary-General transmitted a letter to the Council from ICTR President Dennis Byron conveying a letter from the ICTR prosecutor to the Council president requesting the Council to call on the governments of Kenya and the Democratic Republic of Congo (DRC) to cooperate with the ICTR. The letter also asked the Kenyan police to investigate the presence of Rwandan businessman Félicien Kabuga in Kenya and freeze his bank accounts.

On 29 July, the Bosnian war crimes court in Sarajevo convicted seven Bosnian Serbs of genocide over the massacre of Bosnian Muslims in Srebrenica in 1995. The two-year trial was the first to be held in Sarajevo over crimes committed at Srebrenica and the first for genocide.

The Council’s Informal Working Group on Tribunals, which has been chaired by Belgium since January 2008, on 4 June met the presidents, prosecutors and registrars of the tribunals to discuss residual issues outlined in the report submitted by the two tribunals last year. The Informal Group is expected to start discussing the elements for a resolution setting up the framework for managing residual issues in September.

Options
The Council does not usually take up the tribunals’ annual reports for discussion. But with the arrest of Karadzic and its impact on deadlines, the Council may choose to discuss the annual reports. A possible option then could be a presidential statement highlighting the importance of international cooperation in apprehending the remaining key fugitives in the next few months as well as the Council’s commitment to providing guidance on legacy issues.

Key Issues
As the 2008 deadline for the tribunals approaches, the key issue facing the Council is its role in resolving questions such as:

  • How to balance the time needed for a proper trial for suspects like Karadzic against the deadlines set in resolution 1503?
  • What should be done if key fugitives are not apprehended by the 2010 deadline?

An increasingly urgent issue is cooperation in apprehending fugitives. The arrest of Karadzic is likely to lead to greater pressure on Serbia to cooperate in finding the remaining two key fugitives, Ratko Mladic and Goran Hadzic. In June during the Council debate ICTY Chief Prosecutor Serge Brammertz said that indictees sought by the ICTY were “within reach of the Serbian authorities” and rated Serbia as “unsatisfactory” in helping capture them. With Karadzic’s arrest there is hope that Serbia’s new government will be more open to cooperation with the ICTY. Hassan Jallow, the chief prosecutor of the ICTR, highlighted the need for greater cooperation from Kenya and the DRC.

An underlying issue will be the interpretation of resolution 1503 which called on the ICTY and ICTR to “take all possible measures” to complete all trial activities in the first instance by 2008, and to compete all work by 2010. Some members see the wording of this resolution to mean that the deadlines are indicative while others interpret it as mandatory.

Another issue of increasing urgency is the ongoing functions of the tribunals in the future. One option is to downsize and maintain essential functions. Another is to close down and transfer functions to the International Criminal Court. Other issues being considered are what type of mechanism should be set up, how to deal with arrests after the tribunals close down, and what happens if new evidence comes to light.

An increasingly important issue is witnesses’ protection. There are questions about how this will be maintained following the closure of the tribunals.

Another significant issue is building capacity in national courts. Transferring cases to national jurisdictions is a key component of current completion strategies. But recent ICTR rulings against transferring cases to Rwanda signal potential problems in relying exclusively on national jurisdiction.

Archives continue to be a key issue. Important factors include availability and accessibility. Rwanda, the AU, Tanzania, and the Netherlands have all expressed interest in housing them. The UN is also a possible home. The Advisory Committee on Archives to the Registrars set up in October 2007 is expected to present its final recommendations to the tribunals’ registrars in the next few months.

Council Dynamics
There is now heightened awareness among Council members of the need to make progress on residual issues by the end of the year. Positions should emerge more clearly in the next few months as the Security Council’s Informal Working Group on Tribunals discusses elements of a framework for residual issues.

There appears to be agreement on the need to ensure that the remaining fugitives are brought to justice even after the tribunals have closed. However, some members, especially China and Russia state publicly that the timetables need to be observed. Russia has proposed that the tribunals should begin “no judicial proceedings in the first instance after 1 January 2009”. Other members prefer a more flexible approach and do not think a resolution is necessary to allow the tribunals to continue.

Increased sensitivity to issues relating to the former Yugoslavia, due to developments in Kosovo, may be influencing the ICTY issues. Over the last year, Russia has shown increasing unhappiness with the ICTY, reacting strongly to the allegations of witness intimidation in the case of Ramush Haradinaj, a former prime minister of Kosovo, as well as the acquittal of Naser Orić.

UN Documents

Selected Security Council Resolutions

  • S/RES/1824 (18 July 2008) was the resolution extending the term of office of 9 permanent and 17 ad litem ICTR judges.
  • S/RES/1534 (26 March 2004) called on the ICTY and ICTR to review their respective caseloads and requested both tribunals to provide the Council with a progress assessment of their completion strategies every six months.
  • S/RES/1503 (28 August 2003) called on the ICTY and ICTR to complete all trial activities in the first instance by the end of 2008 and to complete all work in 2010.
  • S/RES/955 (8 November 1994) established the ICTR and contained its statute in the annex.
  • S/RES/827 (25 May 1993) established the ICTY and approved the statute as proposed by the Secretary-General in his report (S/25704).

Selected Reports of the Secretary-General

  • S/25704 (3 May 1993) contained the statute of the ICTY, as requested by resolution 808 of 22 February 1993.

Selected Letters

  • S/2008/436 (13 June 2008) transmitted the ICTR’s request for an extension of the terms of office judges and eight ad litem judges.
  • S/2008/356 (3 June 2008) was the letter from ICTR regarding fugitives in Kenya and the DRC.
  • S/2008/326 (13 May 2008) was the letter from the ICTY president transmitting his assessment of the implementation of the tribunal’s completion strategy as of May 2008.
  • S/2008/322 (12 May 2008) was the letter from the ICTR president transmitting his assessment of the implementation of the ICTR’s completion strategy as of May 2008.

Selected Presidential Statements

  • S/PRST/2002/21 (23 July 2002) endorsed the ICTY’s completion strategy.

Other Relevant Documents

  • S/PV.5904 (4 June 2008) was the last Council briefing by the presidents and prosecutors of the ICTY and ICTR.
  • A/62/284-S/2007/502 (15 August 2007) was the 2007 annual report of the ICTR.
  • A/62/172-S/2007/469 (1 August 2007) was the 2007 annual report of the ICTY.

Other Relevant Facts

ICTY

  • Two accused at large, including former Bosnian Serb military commander Ratko Mladić.
  • Five accused at the pre-trial stage, 13 referred to a national jurisdiction, 27 on trial, 8 at the appeal stage
  • Webpage: http://www.un.org/icty/index.html

ICTR

  • Thirteen accused at large, including Félicien Kabuga, a businessman accused of inciting massacres in Rwanda
  • Eight accused awaiting trial, 28 on trial, two at the appeal stage

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