International Criminal Tribunals
Expected Council Action
In December, the Council will hold a debate on the ad hoc international criminal tribunals. The Presidents and Prosecutors of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are expected to brief the Council.
The President of the ICTY, Judge Theodor Meron, will also brief the Council on his role as the President of the Mechanism for International Criminal Tribunals, which was established to complete the work of the tribunals. The ICTR Prosecutor, Hassan Bubacar Jallow, will also brief the Council as Prosecutor of the residual mechanism.
Resolutions are expected on the extension of judges’ terms for both the ICTR and the ICTY.
The Council informal working group on international tribunals may also hear a briefing from the Presidents and Prosecutors prior to their appearance in the Council and continue to discuss practical arrangements for the residual mechanism and, more generally, the completion strategy.
Key Recent Developments
The Presidents of the ICTY and the ICTR, Judge Meron and Judge Vagn Joensen, respectively, and the Prosecutors of both tribunals, Serge Brammertz and Jallow, respectively, briefed the Council on 7 June. They emphasised that staff retention and lack of state cooperation in certain areas threatened the successful completion of the tribunals’ work. Preparations for the commencement of the work of the residual mechanism, which was to begin operations on 1 July, were also highlighted by the briefers. The residual mechanism had begun its staffing process, and swearing in of the 25 judges that were elected by the General Assembly to serve on the roster of the mechanism.
The judges of the residual mechanism on 8 June adopted rules of procedure and evidence to guide the work of the mechanism in preforming its task.
On 29 June, the Council adopted resolution 2054, extending the terms of four judges of the ICTR, including that of the Judge Joensen. The resolution also requested that the ICTR include in its next report information concerning the coordinated transition of functions of the tribunal to the residual mechanism.
Members of the Council released a press statement (SC/10700) on 5 July, welcoming the opening of the Arusha branch of the residual mechanism on 1 July as an important step in completing the work of the tribunals and ending impunity.
On 1 August, the annual report of the ICTY (S/2012/592) was submitted to the General Assembly and the Council. The ICTR report (S/2012/594) was submitted on 6 August. The reports cover the activities of the tribunals themselves and their work on the transition to the residual mechanism. The Presidents of the tribunals addressed the General Assembly on 15 October, focusing on the continuing challenges to their work but also on the legacy left behind by the tribunals.
The residual mechanism released its first ruling on 5 October. Its appeals chamber upheld a decision by the ICTR to transfer the case of Phénéas Munyarugarama to the Republic of Rwanda for trial.
In an 18 October letter (S/2012/779) to the Council, the Secretary-General of the East African Community requested that Rwanda host the archives for the ICTR. (According to resolution 1966 on the establishment of the mechanism, the archives are to be located in Arusha, the seat of the ICTR.)
The ICTY President sent a letter (S/2012/845) on 29 October to the Secretary-General, asking that the Council extend the terms of 13 permanent judges until 31 December 2014, in order to complete the trial and appeals process. The letter also requests the extension of terms for one ad-litem judge until 31 December 2013, four ad-litem judges until 1 June 2013 and 3 other ad-litem judges until 31 December 2014. And on 31 October, the ICTR President sent a letter (ICTR/PRES/022/12) to the Secretary-General, requesting that the Council extend the terms of five permanent judges until 31 December 2014, so the tribunal may finish its appeals process by the end of that year.
The appeals chamber of the ICTY on 16 November overturned the convictions of two former Croatian generals and ordered that they be released immediately. On 15 April 2011, Ante Gotovina and Mladen Markač were found guilty of committing crimes against humanity and war crimes by participating in a joint criminal enterprise to permanently and forcibly remove the Serb civilian population from the Krajina region of Croatia. Gotovina was sentenced to 24 years in prison; Markač was sentenced to 18 years. A majority of the appeals chamber concluded that the trial chamber erred in finding that artillery attacks ordered by Gotovina and Markač were unlawful. The majority also held that the trial chamber erred in finding the existence of a joint criminal enterprise whose purpose was the permanent and forcible removal of Serb civilians from the Krajina region. Accordingly, the majority reversed the convictions.
The immediate issue for the Council will be the requests relating to the extension of judges’ mandates and other procedural issues that may arise.
Another issue is the continuing work of the informal working group on international tribunals, reviewing practical arrangements for the residual mechanism.
Options for the Council include:
- adopting a technical resolution extending the judges’ terms for the ICTR and ICTY; and
- laying out solutions or options the Secretariat should employ to address the staffing issues.
Besides extending judges’ terms, the Council does not need to adopt any formal decisions at this time. However, the meeting of the informal working group prior to the Council debate is a good opportunity for a frank conversation between the Presidents and the Prosecutors on the one hand and the Council members on the other to address recent developments and issues pending before these subsidiary bodies.
Likewise, the Council does not necessarily need to address the request from Rwanda to host the archives, unless it decides to grant the request. In that case, it would need to adopt a resolution to that effect, since in resolution 1966 it designated Arusha as the location of the archives. The working group has yet to discuss this issue, and it may come up during its meeting with the Presidents and Prosecutors. However, as the request comes almost two years after the matter was decided, some Council members may be reluctant to reopen the issue.
UN DOCUMENTS ON INTERNATIONAL CRIMINAL TRIBUNALS
|Security Council Resolutions|
|29 February 2012 S/RES/2038||The Council appointed Jallow as the prosecutor of the residual mechanism.|
|22 December 2010 S/RES/1966||This resolution established the residual mechanism.|
|Security Council Press Statements|
|5 July 2012 SC/10700||The Council welcomed the commencement of the functioning of the Arusha branch of the International Residual Mechanism for Criminal Tribunals on 1 July 2012.|
|6 August 2012 S/2012/594||This was the Secretary-General’s annual report on the ICTR.|
|1 August 2012 S/2012/592||This was the Secretary-General’s annual report on the ICTY.|
|Security Council Letters|
|14 November 2012 S/2012/845||This letter transmitted the request from the ICTY to extend judges terms.|
|18 October 2012 S/2012/779||This transmitted the letter from the Secretary-General of the East African Community concerning the archives of the ICTR.|
|Security Council Meeting Records|
|7 June 2012 S/PV.6782||The Council held a debate on the ICTR/ICTY where top officials of the two tribunals briefed the Council.|
Useful Additional Source
ICTR/PRES/022/12 (31 October 2012) was the letter sent from the ICTR President concerning extension of judges terms.
Other Relevant Facts
Chair of the Informal Working Group on International Tribunals
Gert Rosenthal (Guatemala)
18 on trial and 17 at the appeals stage
Nine accused at large, of which three are considered high-ranking
One accused on trial and 16 at the appeals stage