August 2009 Monthly Forecast

Posted 30 July 2009
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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 Rwanda (ICTR). These reports, which are published as both Security Council and General Assembly documents, are usually discussed in the General Assembly in September. In accordance with its usual practice, the Council is not expected to discuss them. This year’s reports are likely to include timetables on trials, latest information on remaining fugitives and progress on a residual mechanism.

For the first time, they are also expected to include a section on the activities of the Council’s Informal Working Group on International Tribunals.

Key Recent Developments
On 4 June the presidents and prosecutors of both Tribunals briefed the Council on their completion strategies. Both presidents assessed that the Tribunals are unlikely to complete their work before 2013.

On 7 July the Council adopted resolutions 1877 and 1878 extending, respectively, the terms of 11 permanent judges and 19 ad litem judges of the ICTY and six permanent judges and 11 ad litem judges of the ICTR until 31 December 2010, or until completion of their cases if sooner. The Council also agreed to review by 31 December the extension of the terms of permanent judges who were members of the Appeals Chamber. It also agreed that two judges of the ICTR could work part-time for the remainder of their terms of office but emphasised that this did not set a precedent.

Other developments related to the ICTY and ICTR include:

  • On 8 July the ICTY rejected former Bosnian Serb leader Radovan Karadžić’s application to be granted immunity from prosecution because of an agreement which he claims he struck with the US government in 1996.
  • On 14 July the ICTR jailed for life former Kigali governor, Tharcisse Renzaho, convicted of genocide, rape and murder.
  • The ICTR on 30 June ruled that Rwandan businessman Félicien Kabuga’s assets should remain frozen until all ICTR trials are completed.
  • On 22 June the ICTR sentenced Callixte Kalimanzira, a former Rwandan interior minister, to thirty years in prison for genocide and complicity to commit genocide.

Since January, the Council’s Working Group has held 19 meetings to discuss the details of a residual mechanism or mechanisms. It also considered the requests for the extension of judges’ mandates and drafted the resolution for these extensions.

Residual matters discussed by the Working Group included trials of fugitives and contempt cases, witness protection, the review of judgements, referrals of cases to national jurisdictions (including revocation), assistance to national jurisdictions, supervision of sentence enforcement and maintenance of archives.

Other areas discussed included possible commencement dates for a residual mechanism or mechanisms and the structure. In the second half of the year the Working Group is expected to begin discussions on a resolution to establish a mechanism.

The Secretary-General’s report on administrative and budgetary implications of possible locations for ICTY and ICTR archives and the seat of the residual mechanism is expected to be published shortly. It is likely to include a recommendation that the Council should agree on residual functions to be transferred to the mechanism and narrow down the choice of locations. This would allow the Secretariat to produce more tangible recommendations and costings.

Options
The most likely option is for members to simply receive but not discuss the annual reports and to address issues in the context of the Secretary-General’s report. However, an open debate in the Council is a possibility to respond to growing interest by a wider range of members of the UN and to allow Council members to send some positive signals as well.

Options related to the Secretary-General’s report on administrative and budgetary aspects of possible locations for the Tribunals’ archives and seat of the residual mechanism or mechanisms include:

  • the president of the Council to send a letter to the presidents of the Tribunals endorsing recommendations relevant to them but expressing concern about the delay in the completion strategy of the Tribunals and exerting pressure on them to complete their work as soon as possible; and
  • the Working Group to provide the Council with a draft letter to the Secretary-General following up on his recommendations related to the Council.

Key Issues
An increasingly serious issue is staff retention in the Tribunals. Lack of clarity from the Council is increasingly a barrier to finding creative, non-monetary incentives to help retain staff already seeking other employment options due to the Tribunals’ unclear timing status.

Also an issue is whether the larger UN membership needs to be involved in the discussions about the residual mechanism. Some member states have shown interest in expressing their views.

A continuing issue is how to put pressure on member states to intensify cooperation with the Tribunals in finding and arresting the remaining fugitives.

Another issue is whether the Working Group will be able to reach agreement on the structure and remit of a residual mechanism or mechanisms by the end of the year. Some members seem inclined to defer any decision on a residual mechanism now that the completion dates are likely to be around 2013.

A related issue is whether it would be better to take a two-step approach to the establishment of the residual mechanism or mechanisms. As a first step, a legal framework would be established, with a second step needed to put it into practice.

Council and Wider Dynamics
Council members agree that the most senior fugitives must face international trials and that the legacy and the archives of the Tribunals must be preserved. There is also an understanding that establishing a roster of available judges may be the most feasible residual system. Members have yet to agree on whether there should be one or two mechanisms or one mechanism with two branches, or on the possibility of co-location of the Tribunals’ archives with the mechanism or mechanisms.

While the final positions on the residual mechanism are likely to be revealed only once negotiations begin on a draft resolution, differences are expected over the location of the archives and the timing of the start of the mechanism.

China and Russia continue to maintain the position that the Tribunals should be guided by the timeframes laid down by the Council and do everything possible to ensure that the bulk of their work is completed by the end of 2010. Their position came out clearly during the negotiations on the resolution to extend the judges’ terms when they pushed to limit the terms to 2010.

While most members support the need to strengthen the capacities of national institutions and judicial systems some, like Austria and Mexico, have stressed that referral of cases should only occur when the national jurisdictions meet international standards.

However, there appears to be an emerging interest in trying to reach an agreement on structures and functions of the residual mechanism or mechanisms by the end of the year. Both the UK and Russia voiced this expectation during the June debate.

Austria, as chair of the Working Group since January, has played a leading role in instituting regular meetings and structured agendas for the Working Group.

UN Documents

Selected Security Council Resolutions

  • S/RES/1877 and S/RES/1878 (7 July 2009) were, respectively, the resolutions extending the terms ICTY and ICTR permanent and ad litem judges till 31 December 2010 or until they have completed assigned cases.
  • S/RES/955 (9 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 Presidential Statement

  • S/PRST/2008/47 (19 December 2008) was the statement acknowledging the progress made in the consideration of a possible residual mechanism or mechanisms by the Working Group.

Selected Report of the Secretary-General

  • S/2009/258 (21 May 2009) was the Secretary-General’s report on administrative and budgetary implications of possible locations for ICTY and ICTR archives and the seat of the residual mechanism.
  • S/25704 (3 May 1993) contained the statute of the ICTY as requested by resolution 808 of 22 February 1993.

Selected Letters

  • S/2009/252 (18 May 2009) and S/2009/247 (14 May 2009) were, respectively, letters from the presidents of the ICTY and ICTR transmitting their assessments of implementation of the Tribunals’ completion strategy to the Council.

Other Relevant Documents

  • S/PV.6155 and S/PV.6156(7 July 2009) were, respectively, the meeting records of the adoption of the extension of ICTY and ICTR permanent and ad litem judges’ terms.
  • S/PV.6134 (4 June 2009) was the June 2009 Council briefing by the presidents and prosecutors of the ICTY and ICTR. S/PV.6134

Other Relevant Facts

ICTY

  • Two accused at large, including former Bosnian Serb military commander Ratko Mladić and Goran Hadžić
  • Four accused at the pretrial stage, 13 referred to national jurisdiction, 21 on trial and 12 at the appeal stage

ICTR

  • Thirteen accused at large, including Félicien Kabuga, a businessman accused of inciting massacres in Rwanda
  • Five accused awaiting trial, 23 on trial, seven at the appeal stage and 0 awaiting transfer.

Full forecast