International Criminal Tribunals
Expected Council Action
In June the presidents and prosecutors of the International Criminal Tribunals for the former Yugoslavia and Rwanda are expected to brief the Council and there will be a debate on the Tribunals’ completion strategies. Progress reports from the Tribunals are expected in early June.
The Council is also expected to consider issues relating to the Tribunals’ judges. In resolutions 1900 and 1901 adopted in December 2009 it set a deadline of 30 June 2010 for a decision on the terms of office of all judges.
Also in June, negotiations on a resolution establishing a residual mechanism following the closure of the Tribunals are expected to continue in the Informal Working Group on International Tribunals. (A revised draft was circulated at the end of May by Austria as chair of the Group.)
Key Recent Developments
The presidents and prosecutors of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) last briefed the Council on 3 December 2009. The president of ICTY, Patrick Robinson, said that all possible steps were being taken to speed up the proceedings and that the Tribunal’s Working Group on Speeding up Trials would present its recommendations in the next completion strategy report. Both Robinson and ICTY Prosecutor Serge Brammertz stressed the importance of arresting the two remaining high-level fugitives, Ratko Mladić and Goran Hadžić.
The president of ICTR, Dennis Byron, focused in particular on the importance of state cooperation, while ICTR Prosecutor Hassan Bubacar Jallow expressed regret over Kenya’s continued unwillingness to cooperate in the case of Felicien Kabuga (one of three high-ranking ICTR fugitives who remain at large). Jallow also said he planned to file new applications early in 2010 for the referral to Rwanda of the cases of eight of the remaining 11 ICTR fugitives.
On 1 March the trial of Radovan Karadžić resumed at the ICTY after a five-month break following the Tribunal’s decision on 5 November 2009 to adjourn to allow time for the appointed counsel to prepare. (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 Tribunal had denied a motion filed by Karadžić on 1 February for a further postponement of the 1 March resumption date. On 2 March Karadžić filed an appeal against this decision. The trial finally resumed on 13 April following the dismissal of the appeal.
The ICTY prosecutor visited Bosnia and Herzegovina from 26 to 28 April and Serbia from 12 to 14 May. On both occasions, Brammertz reiterated that the arrest of the two remaining fugitives was a priority and said his next report to the Council would emphasise their arrest as central to judging states’ cooperation. In Serbia he also stated that he had no reason to believe that Mladić was anywhere outside of that country. Brammertz also visited Croatia from 25 to 28 May.
On 10 May the ICTY prosecutor filed a motion to amend the indictment against Mladić. The amended indictment adjusts the charges, which include 11 counts of genocide, crimes against humanity and the laws and customs of war, to facilitate the possible joinder with the case of Karadžić.
In the Council’s Informal Working Group on International Tribunals, negotiations have continued on the establishment of a residual mechanism to deal with unresolved issues following the closure of the Tribunals. Following Austria’s circulation of a first draft resolution in November 2009, a revised draft was circulated in February. This second draft contained as an annex a possible statute for the mechanism, drafted by the UN Office of Legal Affairs (OLA). It was agreed in the Working Group that it would be more efficient to negotiate the establishment of the residual mechanism and its statute simultaneously.
In addition to drafting the statute for the mechanism, OLA has been asked by the Working Group to provide further information on options for the location of the two branches of the mechanism and also on issues regarding witness protection. In September the Council requested the Secretary-General to ask the presidents of the Tribunals to implement recommendations of his May 2009 report on residual issues, one of which was that the Tribunals consider possible ways to review witness protection orders and decisions with a view to withdrawing those no longer deemed necessary.
Key Issues
The immediate issue for the Council is the extension of the terms of office of the judges and whether these should be extended until 31 December 2012 or for a different time period.
Another key issue is the Tribunals’ work progress and whether the June reports will indicate any further delays. (According to the last progress reports, ICTY would conclude all trials, including that of Karadžić, by September 2012 and all appeals by 2014, whereas the ICTR would complete all trial work in 2011 and all appeals in 2013 at the latest.)
A further issue is the failure to arrest the remaining high-ranking fugitives. A related issue is the cooperation of key countries such as Serbia and Kenya in ensuring their arrest.
Cooperation by other states on ongoing cases also remains an issue.
A particular issue relating to the ICTR is whether obstacles to referral of cases to Rwanda have been resolved.
The larger substantive issue currently facing the Council remains the residual mechanism to be established following the closure of the Tribunals. Key questions to be decided include the structure and location of the mechanism, residual functions to be carried out, jurisdiction and start date.
Options
Main options for the Council include:
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adopting a resolution for each Tribunal extending the terms of office of judges until 31 December 2012 and calling for the arrest of the remaining high-ranking fugitives and enhanced cooperation from states to ensure completion of the Tribunals’ work;
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continuing negotiations on the establishment of a residual mechanism with a view to reaching agreement on a draft resolution to be adopted by the end of July; or
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continuing negotiations on a draft resolution, but with a longer term view, possibly adoption by the end of this year.
Council Dynamics
It seems that substantial differences among Council members have remained on many of the issues relating to the establishment of a residual mechanism. China and Russia essentially want a small mechanism with limited scope (in particular relating to jurisdiction) and of fixed duration while the majority of Council members favour a stronger mechanism with broader functions.
To try and bridge these divisions, Austria conducted consultations with Council members bilaterally in April and May. A third revision of the draft resolution and statute was circulated at a meeting of the working group on 25 May and negotiations are expected to resume towards the middle of June. (Many legal experts will be away during the first half of the month for the review conference for the International Criminal Court from 31 May to 11 June in Kampala.) While it is unclear when the resolution might be adopted, several Council members seem doubtful that it will be possible to reach agreement on a text before the end of July.
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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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Other Relevant Facts
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ICTY |
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ICTR |
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