June 2011 Monthly Forecast

Posted 31 May 2011
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SECURITY COUNCIL AND WIDER UN STRUCTURE

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.

The Council is expected to adopt a resolution for each tribunal responding to various technical requests submitted by the tribunals’ presidents relating to the extension of judges’ mandates.  

The working group will also hear a briefing from the presidents and prosecutors and continue to discuss practical arrangements for the residual mechanism.

Key Recent Developments
On 22 December 2010, the Council adopted resolution 1966, establishing the international residual mechanism for criminal tribunals, with two branches. (The mechanism is meant to carry out the essential remaining functions of the tribunals, including the trial of fugitives, after their closure.) The branch for the International Criminal Tribunal for Rwanda (ICTR) will commence functioning on 1 July 2012 and the branch for the International Tribunal for the former Yugoslavia (ICTY) on 1 July 2013. Annexed to the resolution are the statute of the residual mechanism and arrangements for the transition period before the closure of the tribunals. The Council requested the tribunals to conclude their work by 31 December 2014.

The presidents and prosecutors of the ICTY and ICTR last briefed the Council on 6 December 2010. In his report of 12 May, ICTY President Patrick Robinson reiterated his concerns about staff attrition and its negative impact on the work of the tribunal. ICTY Prosecutor Serge Brammertz stressed in his report that Serbia must re-evaluate its failed strategy for apprehending the two remaining fugitives and demonstrate more determination.

On 26 May, Serbian President, Boris Tadić, announced that former Bosnian Serb military commander Ratko Mladić, has been arrested by the Serbian Security Intelligence Agency. Tadić confirmed that extradition to the ICTY is under way. Mladić, chief of the Bosnian Serb military, faces charges over the massacre of at least 7,500 Bosnian Muslim men and boys at Srebrenica in 1995.

The ICTR report of 12 May highlighted that ten fugitives remain at large, while Kenya has yet to provide credible information on Félicien Kabuga’s alleged departure from Kenya and the investigation and sequestering of his assets in the country. On 5 May, President Dennis Byron wrote to the Secretary-General, requesting that the Council remove the requirements in the ICTR statute that the president be a trial judge and that the president be resident at the seat of the court, in order for it to be possible for the president to be redeployed to the appeals chamber sitting in The Hague. Alternatively, Byron suggested the Council authorise that an ad-litem judge be elected vice president and become president later on, after the departure of the president.

On 25 May, ICTR Prosecutor Hassan Jallow announced that Bernard Munyagishari was arrested in the DRC by the Congolese Army, with the participation of the ICTR tracking unit, and will be transferred to the Tribunal. Munyagishari is a former Hutu militia leader charged with counts of genocide and crimes against humanity for allegedly recruiting, training and leading militiamen in acts of mass killings and rapes against the Tutsi population.

Key Issues
The immediate issue for the Council are the various requests from the tribunals’ presidents relating to the extension of judges’ mandates and in particular to amend the ICTR statute in order to fill the position of ICTR president. 

Another issue is the continuing work of the working group on tribunals on practical arrangements for the residual mechanism.

Options
Options for the Council include:

  • adopting technical resolutions for each tribunal responding to the various requests submitted by the presidents;
  • laying out solutions or options the Secretariat should employ to address the staffing issues; or
  • urging all states to cooperate with the tribunals on issues of evidence and appearance of witnesses.

Council Dynamics
With the adoption of resolution 1966 and its annexed statute setting up the residual mechanism for the tribunals, the most substantive differences between Council members have subsided. The working group is meeting in June to consider the technical requests made by the presidents of the tribunals. It will also continue to discuss outstanding arrangements for the mechanism, such as sentencing arrangements for condemned individuals and the rules of procedure and evidence of the residual mechanism. These and other issues will become more pertinent as the mechanism’s operational date draw nearer. In addition, the working group continues to monitor the progress of negotiations between the tribunals and the UN Office of Legal Affairs on practical arrangements for the residual mechanism. 

Council members seem comfortable with a resolution extending judges’ terms as needed. There is also support for amending the ICTR statute or approve the appointment of an ad-litem judge as vice-president, in accordance with President Byron’s letter. The decision is likely to depend on President Byron’s exact request in his briefing before the Council.

The briefing by the ICTY prosecutor will be much anticipated in light of the apprehension of Mladić by Serbia after the conclusion of his report. As mentioned above, the report criticised Serbian cooperation with the ICTY and its efforts to apprehend Mladić. The issue is of particular interest to the European members of the Council and other EU states, as the prosecutor’s comments on Serbian and Croatian cooperation with the Tribunal may impact Croatia’s accession to the EU, now in its final stages, as well as Serbia’s progress towards EU membership.

UN Documents

Selected Security Council Resolutions

  • S/RES/1966 (22 December 2010) established the residual mechanism.
  • S/RES/1954 and S/RES/1955 (14 December 2010) on the ICTY and the ICTR respectively, extended the terms of office of the tribunals’ judges. 

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 Letter

  • S/2010/513 (13 October 2010) was from the Secretary-General transmitting a request from the president of the ICTR for the Council to authorise two judges to complete their cases after their terms of office expire, extend the authorisation for the tribunal to temporarily exceed the maximum number of ad-litem judges allowed by its statute and amend the statute to allow ad-litem judges to fill the positions of president and presiding judge.

Other Relevant Documents

  • S/2011/317 (12 May 2011) and S/2011/316 (12 May 2011) were the latest reports from the ICTR and ICTY, respectively, on implementation of their completion strategies.
  • S/PV.6434 (6 December 2010) was the latest Council briefing by the presidents and prosecutors of the ICTY and ICTR.
  • A/64/PV.16 (8 October 2009) was the presentation in the General Assembly of the tribunals’ annual reports.

Other Relevant Facts

ICTY

  • Former Croatian Serb politician Goran Hadžić still at large
  • Former Bosnian Serb military commander Ratko Mladić awaiting extradition to the Tribunal
  • Three accused awaiting re-trial, 14 on trial and 11 at the appeal stage

ICTR

  • Nine accused at large, of which three are considered high-ranking, including Félicien Kabuga, a Rwandan businessman accused of helping to finance and organise the 1994 genocide
  • Bernard Munyagishari awaiting extradition to the Tribunal
  • One accused awaiting trial, 20 on trial and nine at the appeal stage

Full forecast