International Criminal Tribunals
Expected Council Action
On 4 June 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 will provide updates on trials and cooperation by states in arresting fugitives.
The Secretary-General’s report on administrative and budgetary aspects of possible options for a residual tribunal mechanism and location of the tribunals’ archives, requested in a presidential statement on 19 December, is likely to be circulated in early June and it is expected that the Council’s Informal Working Group on International Tribunals will take it up for discussion.
Key Recent Developments
At the 12 December briefings from the presidents and prosecutors of the ICTY and ICTR Patrick Robinson, president of the ICTY, said arrest of remaining fugitives should be the priority of the international community. He also said that while the ICTY was still on track to complete most of its trials during 2009, a number would continue into the first part of 2010. This would also affect the dates for appeals and a few may spill over into 2012. Dennis Byron, president of the ICTR, emphasised the importance of member states cooperating with the arrest and transfer of fugitives.
The Council was also briefed by Belgium, chair of the Council’s Informal Working Group on International Tribunals in 2008. The Working Group had made significant progress on establishing a residual mechanism to carry out essential functions of the Tribunals after their mandates expired.
On 18 December the Council adopted a presidential statement noting that the 2008 target for completion of trial activities at first instance had not been able to be met and therefore the completion of work of the tribunals by 2010 was unlikely to be met. The Council emphasised that trials should be conducted by the Tribunals as quickly and efficiently as possible.
The statement also acknowledged the need for an ongoing ad hoc mechanism to carry out essential functions of the Tribunals, including trials of remaining high-level fugitives, after the Tribunals closed. It said the mechanism should be:
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a small, temporary and efficient structure;
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structured so that functions and size would diminish over time; and
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funded by UN assessed contributions in accordance with article 17 of the UN Charter.
The statement also asked the Secretary-General to report on administrative and budgetary aspects of options for possible locations for the Tribunals’ archives and the seat of the residual mechanism. It seems the Secretariat report will focus on the following questions:
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Will there be one or two residual mechanism(s)?
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Will the residual mechanism(s) and the archives be managed together or separately?
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If the archives are managed separately, will they be located in the same building or city?
The report is not expected to recommend a single outcome but rather staffing and costing indications for various options.
Austria has the chair of the Working Group for 2009 and has instituted weekly meetings which allow the Working Group to focus systematically on each issue that needs to be agreed on for the residual mechanism. Areas covered include witness protection, review of judgments, trial of contempt cases, referral of cases to national jurisdictions and the start date and structure of the mechanism.
During the visit of the Council to Rwanda on 18 May, which included a two hour meeting with President Paul Kagame, the Rwandan authorities reiterated their interest in having cases not yet tried by the ICTR transferred to Rwanda. ICTR judges have rejected five prosecution attempts to transfer cases to Rwanda, but Kigali has said that it is working on lifting obstacles to the transfer of cases. It would also like to see ICTR convicts serve their sentence in Rwanda in a specially built prison.
Other developments include:
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Colonel Théoneste Bagosora, former cabinet director for Rwanda’s Defence Ministry, was sentenced to life in prison on 18 December by the ICTR. He is the most senior military officer to have been convicted.
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The ICTY appeals court more than tripled the prison sentence for Veselin Šljivančanin. He had originally been sentenced to five years for torture and mistreatment of Croatian prisoners of war in 1991. The appeals court ruled that he was also guilty of aiding and abetting their execution, and it extended his sentence to 17 years.
Options
No formal action is required in June but a presidential statement with the following elements is an option:
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highlighting progress made by the Working Group in the last six months;
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reinforcing the need for speed and efficiency;
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upping pressure on states to further intensify cooperation with the Tribunals, perhaps by requesting the Secretary-General to recommend targeted strategies to more effectively engage with countries in question; and
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requesting the Working Group to report in September on progress made with an eye to a possible resolution by the end of the year.
Other options include:
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requesting the Working Group to consider the feasibility of a two step approach where a first resolution would set out the legal framework and structure and a second would put it into effect;
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setting out benchmarks for the Working Group over the next six months; and
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requesting input from the Tribunals in response to the Secretary-General’s options regarding the residual mechanism.
Key Issues
One key issue is getting agreement over the form and function of the residual mechanism before the end of the year.
A related issue is whether the Council should take the current opportunity to send stronger signals to the Tribunals to reinforce the need for efficiency and speed in conducting remaining trials and to states that could be doing more to cooperate in apprehending key fugitives.
A potential issue is the possible need to reinforce the appeals chamber which is likely to face an increasing workload as more first instance trials are completed.
An important issue is the cost of keeping the Tribunals running beyond what had been anticipated.
Another issue is ensuring that national courts can handle case referrals. Concerns range from witness protection and impartiality to financial resources and guarantees of fair trials.
Council Dynamics
Regular meetings of the Working Group have improved the atmosphere surrounding discussion of these issues and allowed members to focus on the technical issues relating to the residual mechanism. An understanding is emerging on what a mechanism might involve, though clear differences remain on how to implement it. The European members and some elected members like Mexico feel that a residual mechanism is important, despite its expense, and that the UN must see the process through to the end and avoid any risks of miscarriage of justice by rushing its completion. Others, such as Russia and China prefer early transfers to national jurisdiction and a very lean mechanism with as few functions as possible.
Other differences among members include those who prefer indicative dates for the start of the mechanism like the UK and others like Russia who want a set date.
Many of the elected members like Croatia, Burkina Faso and Uganda have participated actively in the Working Group. Japan and Mexico assess the issue in terms of rule of law principles. Japan also focuses, however, on the budgetary dimension.
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Selected Security Council Resolutions |
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Selected Presidential Statement |
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Selected Report 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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