International Tribunals
Expected Council Action
On 12 December the Council will receive briefings from the presidents and prosecutors of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) on their biannual progress reports about completion strategies for each tribunal. The reports are expected to provide updates on trials and cooperation by states in arresting fugitives as well as downsizing of the tribunals and residual issues.
Belgium, as chair of the Informal Working Group on Tribunals, is also expected to report to the Council on the Working Group’s activities over the year and present a resolution on a mechanism to handle the tribunals’ residual issues and essential functions once the tribunals close. At press time it was not clear whether this would be a resolution establishing the mechanism, or one indicating to the Secretary-General the Council’s preferred basic framework for the mechanism and requesting him to provide a report fleshing out details.
Key Recent Developments
There have been several recent developments related to individuals indicted or convicted by both tribunals.
On 10 November, Serbian special police searched the town of Valjevo for Ratko Mladić. . Serbian president Boris Tadić has said Serbia is determined to capture Mladić if he is in the country. (Mladić’s capture is a key condition for Serbia to join the EU.)
Former Bosnian Serb president Radovan Karadžić made his first appearance before the ICTY on 31 July. Representing himself, he filed his first legal brief on 1 August. On 22 September prosecutors proposed reducing the geographic scope of Karadžić’s criminal responsibility in order to make the proceedings more efficient. If this is accepted, he will be charged on 11 counts of war crimes and crimes against humanity, including two counts of genocide. Little progress was made at the 28 October pre-trial conference as Karadžić claimed there had been insufficient time to review proposed amendments. The next pre-trial conference is scheduled for 20 January 2009.
On 8 October the appeals chamber of the ICTY reaffirmed the trial chamber’s decision of June 2007 to sentence Milan Martić, a former political leader of rebel Serbs in Croatia, to 35 years in jail for 16 crimes against humanity.
The ICTR appeals chamber on 8 October upheld the 28 May decision by the trial chamber denying the application by the prosecution for referral of the case of genocide suspect Yussuf Munyakazi to Rwanda, dismissing three of the four grounds of the prosecutor’s appeal.
Augustin Ngirabatware, a former Minister of Planning in Rwanda, pleaded not guilty at the ICTR on 8 October to charges of genocide and crimes against humanity for murder, extermination and rape. He was arrested in Frankfurt in September 2008 and transferred to the ICTR in early October.
Rwanda’s government protocol chief Rose Kabuye was arrested in Frankfurt on 9 November at the request of a French judge who had issued an arrest warrant against her in connection with the April 1994 aircraft crash that killed Rwandan President Juvénal Habyarimana. Kabuye was in Germany preparing for a visit by Rwandan President Paul Kagame. Rwanda has written to the Secretary-General and UN member states stating the arrest violated the Vienna Convention on Diplomatic and Consular Relations. The AU has noted the arrest with dismay and concern, and it expressed the hope that an EU or international regulatory mechanism could be put in place to ensure that indictments against African leaders meet certain criteria and are not politically motivated. Rwanda expelled Germany’s envoy to Kigali and recalled its ambassador from Berlin.
The Council’s Informal Working Group on Tribunals has met regularly since September to discuss elements of a resolution on residual issues. The Working Group visited the ICTY and the ICTR from 26 September to 3 October.
The report of the Advisory Committee on the Archives of the UN Tribunals, chaired by former ICTY and ICTR Prosecutor Richard Goldstone, originally expected in June, was circulated in mid-November to the Working Group.
Patrick Robinson of Jamaica and O-Gon Kwon of South Korea were elected as president and vice-president, respectively, of the ICTY on 4 November.
Options
The Council may consider the following options.
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A resolution with the details of the mechanism, and its statute attached or adopted separately. This is unlikely at this stage given the lack of consensus among members over the details of the mechanism;
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A resolution (or other Council decision) providing some basic elements of a framework for the mechanism for the two tribunals and requesting the Secretary-General to provide a detailed report and draft statute. This option would look forward to a further resolution setting up the mechanism to be adopted in 2009 following the report.
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A letter to the Secretary-General from the president of the Council attaching a working paper from the Working Group on the mechanism and residual issues and requesting a report.
Another option is to include in any resolution or presidential statement a call for greater cooperation from the international community in apprehending the remaining fugitives.
Key Issues
The most significant issue for the Council is how to develop a mechanism for dealing with residual issues created by the closure of the Tribunals. Among the issues are:
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trials of fugitives;
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review of earlier judgments;
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referrals of cases to national jurisdictions;
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supervision of prison sentences, early release, pardon and commutation;
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contempt or perjury proceedings;
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prevention of double jeopardy in national courts;
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witness protection;
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issues relating to defense counsel and legal aid;
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claims for compensation;
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archives;
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public information, capacity building and outreach; and
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human resources issues.
Closely related is whether the Council is ready to decide on the type of mechanism, specifically whether it should be one (with two branches) or two, where it should be located, and what the start-up date should be. Key residual issues are still undecided.
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Trials of fugitives after 2010: What type of trial capacity is needed and who will be tried by this mechanism? There appears to be some agreement that the remaining ICTY fugitives (Ratko Mladić and Goran Hadžić) should be on the list. Less clear is how to handle the 13 ICTR fugitives still at-large.
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Witness protection: How to ensure protection after the tribunals close?
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Archives: Location and whether there should be one or two archives? The Goldstone report for the ICTR suggested Arusha, Nairobi or Addis Ababa. Rwanda has also expressed interest. The report suggests The Hague, Vienna, Geneva or Budapest for the ICTY. Where the archives are located will impact the location of the new mechanism.
For some members a key issue is whether the Council needs to formally extend the timeframe for first instance trials beyond December 2008. Resolution 1503 in 2003 asked the tribunals to: “take all possible measures to complete investigations by 2004, to complete trial activities at first instance by the end of 2008 and all work in 2010.” Clearly this goal has proved optimistic since a number of first instance trials are outstanding.
Some members see resolution 1503 as indicative only. Others regard it as mandatory. However, the Council’s decision in July (S/RES/1824) and September (S/RES/1837) to extend the term of office of ICTR and ICTY permanent and ad litem judges till 31 December 2009 suggests a tacit understanding that first-instance trials will continue at least until the end of 2009. However, a resolution formally agreeing to a new time line may be needed at some point for budgetary purposes and extending judges beyond 2009.
Then there is the issue of when the tribunals will finally close. How this is handled could exacerbate staff retention problems and complicate budgetary discussions.
An issue is how the situation in the Democratic Republic of Congo (DRC) will impact arresting ICTR fugitives believed to be in eastern DRC. A related issue is securing Kenya’s cooperation with the ICTR in capturing Félicien Kabuga, believed to be in the country.
Capacity-building in national courts remains a significant issue. The ruling by the ICTR on the Munyakazi appeal is a sign that transferring cases to national jurisdictions may not be an easy option as part of the completion plan and for some fugitives caught after the tribunals have shut.
Council Dynamics
This is the first time the Council has had to consider the winding down of an international judicial body and members are aware of the significance of their decisions for other tribunals, such as the Special Court for Sierra Leone.
There appears to be a broad understanding on the need for some sort of transitional mechanism, but beyond this consensus it has been difficult given differing political and ideological positions. Russia and China have consistently stated their opposition to the tribunals staying open beyond the 2010 deadline. They see transfer of untried and new cases to national bodies as the solution. Other members, in particular the UK and the US, believe that all the remaining fugitives need to be tried by an international tribunal.
Some non-permanent members, like South Africa (who is leaving the Council), have also had strong opinions on a number of these issues. However, given that the differences among the permanent members are unlikely to disappear; protracted discussions are expected before a more detailed resolution can be agreed.
Belgium leaves the Council at the end of the year and members are aware of the need for a replacement that can lead the Informal Working Group on Tribunals with the same level of commitment and energy.
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Selected Security Council Resolutions |
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Selected Reports of the Secretary-General |
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Selected Letters |
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Other Relevant Documents |
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ICTY |
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ICTR |
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