December 2009 Monthly Forecast

Posted 1 December 2009
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SECURITY COUNCIL AND WIDER UN STRUCTURE

International Criminal Tribunals

Expected Council Action
In December the presidents and prosecutors of the International Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) are expected to brief the Council on implementation of the Tribunals’ completion strategies. The Tribunals’ reports were circulated to Council members in November.

The Council is also expected to consider the terms of office of permanent judges who are members of the appeals chamber, as decided in resolutions 1877 and 1878. Their mandates do not expire until 31 December 2010, but the Tribunals are seeking an early decision on extension beyond that date for advance planning purposes.

In addition the Council is expected to consider requests from the ICTY and ICTR to extend until 31 December 2010 the authorisations for the Tribunals to exceed the maximum number of ad litem judges allowed by their statutes and extend the mandates of two ICTY ad litem judges which expire on 31 December 2009.

Key Recent Developments
Since the Council last considered the Tribunals in July, two ICTR fugitives were apprehended. On 11 August Grégoire Ndahimana was arrested by Congolese soldiers engaged in military operations in the eastern part of the Democratic Republic of the Congo. He is accused of having planned the massacre of some 2,000 Tutsis while mayor of the Rwandan town of Kivumu and is charged with four counts of genocide and crimes against humanity.

On 5 October Idelphonse Nizeyimana was arrested by Ugandan police. (He is one of four high-rank fugitives who are earmarked for trial before the Tribunal and not for referral to national jurisdiction.) Nizeyimana was a captain in the Rwanda Armed Forces in 1994 and faces five counts of genocide and crimes against humanity. He is accused among other things of having ordered the execution of the former queen of Rwanda, Rosalie Gicanda. Both Nizeyimana and Ndahimana have pleaded not guilty.

At the ICTY on 13 October, the appeals chamber upheld the trial chamber’s rejection of Radovan Karadžić’s application to be granted immunity from prosecution based on an alleged 1996 agreement with Richard Holbrooke, chief US peace negotiator for the Balkans at the time. The former Bosnian Serb leader faces an 11-count indictment, including two counts of genocide related to his role in the 1995 massacre of Bosnian Muslims at Srebrenica.

The appeals chamber also denied Karadžić’s request for a ten-month delay in the start of his trial. (Karadžić is conducting his own defence.) The trial started on 26 October but Karadžić boycotted the opening, claiming he had had insufficient time to prepare his defence and that his basic rights had been violated. He finally appeared in court on 3 November to request once again a postponement of the trial. On 5 November the trial chamber decided to appoint him a legal counsel and scheduled resumption of the trial for 1 March 2010 to allow time for counsel to prepare. Karadžić has not yet lost his right to self-representation, but will if he obstructs the proceedings when the trial resumes in March. The appointed counsel must then be ready to step in at any time the chamber deems necessary.

The Council’s Informal Working Group on International Tribunals has continued to meet, but not as frequently as in the first half of the year. In July it held a preliminary discussion on the Secretary-General’s May report on residual issues. Based on discussions in the Working Group, the Council president on 28 September wrote a letter to the Secretary-General welcoming the recommendations in his report on specific tasks the Tribunals should focus on as part of their completion strategies, including referrals to national jurisdictions, witness protection orders and archives management, and requesting him to write to the Tribunals’ presidents to ask them to implement those recommendations.

As Chair of the Working Group, Austria on 8 October convened an informal meeting on residual issues with all UN member states. Speakers included the presidents of the Tribunals, representatives of the UN Office of Legal Affairs, the International Committee of the Red Cross and the International Center for Transitional Justice. The main purpose of the meeting was to increase transparency and allow a wider group of states to express their views. The Working Group has also met bilaterally with some interested states.

On 12 November the Tribunals submitted reports on implementation of their completion strategies to the Council. While acknowledging that there had been a slippage in the trial schedule, mainly from factors not directly within the Tribunal’s control, the ICTY report concluded that this would have a minimal impact on the estimated completion date. All but four trials were estimated to conclude in 2010. Of the remaining four three would finish by early 2011 while the trial of Radovan Karadžić was expected to end in September 2012. Conclusion of the appeal in the Karadžić case, however, is not anticipated until 2014. The report urged the Council “to adopt all possible measures” to secure the immediate apprehension of the two remaining ICTY fugitives, Ratko Mladić and Goran Hadžic.

The ICTR, according to its report, expects that most of its trial work will be completed by the end of 2010, with a few cases continuing into 2011. Appeals are expected to be completed in 2013 at the latest. (The ICTR’s appeal schedule is laid out in an annex in the ICTY report as the two Tribunals have a joint appeals chamber.)

Key Issues
The immediate issue for the Council is how to respond to the requests from the Tribunals relating to ad litem judges and the terms of office of appeals judges.

The larger substantive issue facing the Council is the residual mechanism (or mechanisms) to be established following the closure of the Tribunals. Eight residual functions have been identified as essential: trial of fugitives, trial of contempt cases, protection of witnesses, review of judgements, referral of cases to national jurisdictions, supervision of enforcement of sentences, assistance to national authorities and management of the archives. Issues to be decided include:

  • the structure of the mechanism(s), and whether there will be one or two mechanisms or one mechanism with two branches;
  • the location of the mechanism(s) and whether the archives should be co-located with, and co-managed by the mechanism(s);
  • residual functions to be carried out by the mechanism(s);
  • jurisdiction of the mechanism(s) and how best to ensure that there is no impunity for any fugitives; and
  • the start date for the mechanism(s) and whether the Council should decide on a specific date or identify a trigger for establishment (such as completion of all trials and appeals).

A related issue for the Council is whether to decide on all these questions in one resolution or whether to take a two-stage approach.

Another issue is whether to request a further report from the Secretary-General. His first report on residual issues suggested the possibility of a further report focusing on the establishment and location of the mechanism(s) and the archives once the Working Group has reached agreement on some of the key questions. However, there has been only limited progress in the Working Group to date.

Options
Main options for the Council include: 

  • deciding to defer discussion on the residual mechanism(s) in December, and continue discussions in the Working Group in 2010;
  • adopting a presidential statement similar to that of December 2008, encouraging the Working Group to move forward in 2010 and possibly requesting a follow-up report on residual issues from the Secretary-General; and
  • adopting a resolution for each Tribunal responding to the presidents’ requests relating to ad litem judges and extending the mandates of the appeals judges.

Other, but unlikely options in December include:

  • deciding to establish the residual mechanism(s) in principle, but postponing setting a start date; or
  • deciding to establish the residual mechanism(s) on a specific date or linking the start date to a trigger.

Council Dynamics
There seems to be some agreement emerging in the Working Group on a number of elements of the residual mechanism(s), including that the most senior fugitives must face international trial by the mechanism(s), that the legacy and archives of the Tribunals must be preserved, that the mechanism(s) should have trial capacity based on a roster of judges and be small, temporary and efficient.

There are substantial differences, however, between members who prefer a minimalist approach (which would devolve as many functions as possible to national jurisdictions and limit the potential number of fugitives to be tried by the mechanism(s),) and others who are concerned about the legal implications of such an approach, in particular in terms of trial of fugitives and witness protection. Views also differ on the start date of the mechanism(s) with Russia in particular pushing for establishment as early as 1 January 2011.

In November, Austria circulated a draft resolution on residual issues in the Working Group, but given the Tribunals’ current estimated completion dates, most Council members appear to accept that there is no hurry to adopt a resolution. Members point to several factors having an impact on progress in the discussions. These include the complexity of the issues, in particular relating to jurisdiction, and the continuing uncertainty regarding future arrests of fugitives. Another uncertainty relates to whether it will be possible to transfer cases for trial in Rwanda. In this regard the ICTR has up to now declined requests for such referrals based on fair trial concerns.

Issues related to the mandates of the ad litem judges are seen to be uncontroversial. However, the review of the mandate of the appeals judges is less straightforward. In the past Russia has been opposed to any extension of their mandates beyond 31 December 2010.

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UN Documents

Selected Security Council Resolutions

  • S/RES/1877 and S/RES/1878 (7 July 2009) were, respectively, the resolutions extending the terms of ICTY and ICTR permanent and ad litem judges till 31 December 2010 or until they have completed assigned cases if sooner, and deciding to review by 31 December 2009 the terms of office of permanent judges who are members of the appeals chamber.
  • S/RES/1534 (26 March 2004) requested ICTY and ICTR to provide to the Council every six months assessments of implementation of their completion strategies.

Selected Presidential Statement

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

Selected Report of the Secretary-General

  • S/2009/258 (21 May 2009) was on administrative and budgetary implications of possible locations for ICTY and ICTR archives and the seat of the residual mechanism or mechanisms.

Selected Letters

  • S/2009/589 (12 November 2009) and S/2009/587 (12 November 2009) were letters from the presidents of the ICTY and ICTR, respectively, transmitting to the Council reports on implementation of the Tribunals’ completion strategies.
  • S/2009/571 (2 November 2009) and S/2009/570 (28 October 2009) were letters from the Secretary-General to the Council transmitting requests from the presidents of ICTR and ICTY, respectively, for the Council to extend authorisation for the Tribunals to exceed the maximum number of ad litem judges established by their statutes.
  • S/2009/496 (28 September 2009) was a letter from the president of the Council to the Secretary-General welcoming recommendations (l) and (m) in his May report on residual issues and requesting him to write to the Tribunals’ presidents to ask them to implement those recommendations.

Other Relevant Documents

  • S/2009/396 (31 July 2009) and S/2009/394 (31 July 2009) were, respectively, the annual reports of ICTR and ICTY to the Council and the General Assembly.
  • 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 last Council briefing by the presidents and prosecutors of the ICTY and ICTR.

Other Relevant Facts

ICTY

  • Two accused at large: former Bosnian Serb military commander Ratko Mladić and former Croatian Serb politician Goran Hadžić
  • One accused at the pre-trial stage, 24 on trial and 13 at the appeal stage

ICTR

  • Eleven accused at large, including Félicien Kabuga, a Rwandan businessman accused of helping to finance and organise the 1994 genocide
  • Three accused awaiting trial, 26 on trial and ten at the appeal stage

Full forecast

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