June 2013 Monthly Forecast

Posted 31 May 2013
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THEMATIC ISSUES

International Criminal Tribunals

Expected Council Action
In June, the Security Council will hold its semi-annual 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. This debate may be open to wider membership participation to mark the 20th anniversary of the ICTY.

ICTY President, Judge Theodor Meron, will also brief the Council as President of the Mechanism for International Criminal Tribunals, which was established to complete the work of the tribunals. ICTR Prosecutor, Hassan Bubacar Jallow, will also brief the Council as prosecutor of the residual mechanism.

The Council may adopt a resolution appointing a permanent judge to the appeals chamber of the ICTY.

The Council’s informal working group on international tribunals may meet with the presidents and prosecutors prior to their appearance in the Council.

Key Recent Developments
The ICTY President sent a letter on 29 October 2012 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 asked for extension of terms for one ad-litem judge until 31 December 2013, four ad-litem judges until 1 June 2013 and three other ad-litem judges until 31 December 2014.

The last debate on the two tribunals took place on 5 December 2012. The presidents of the ICTY and the ICTR—Judges Meron and Vagn Joensen, respectively—and the prosecutors—Serge Brammertz and Jallow, respectively—briefed the Council. The debate came soon after the appeals chamber of the ICTY overturned the convictions of Generals Ante Gotovina and Mladen Markač on 16 November and ordered that they be released immediately. (On 15 April 2011, they 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 and Markač to 18 years. A majority of the appeals chamber reversed the convictions.)

During the debate, Russia criticised the acquittal of the two generals claiming that justice was not done for their Serb victims. Russia also commented on an extension of judges’ terms requested by the tribunal, claiming that its work had not been timely and effective, with no justification for the amount of time the cases took. Russia asked the ICTY to produce a consolidated plan of action for finishing its work under resolution 1966 (2010) and provide an extended individual timetable for the prosecution of each case.

During negotiations over the resolution on the judges’ terms, Russia took the position that independent experts should be used to review the ICTY’s work and that terms should not be extended for more than six months, the tribunal’s requests notwithstanding. On 17 December, the Council adopted resolution 2081 extending the terms of 13 permanent judges and four ad-litem judges of the ICTY until 31 December 2013. It extended the terms of four other ad-litem judges until 1 June 2013 and asked the ICTY to submit a consolidated comprehensive plan for the completion strategy by 15 April 2013, to be considered by the Council before 30 June. Russia abstained in the vote. (The ICTY submitted the report, with detailed assessments of the lengths of the remaining cases, on 15 April.)

The 12 December 2012 adoption of resolution 2080 extending the terms of five permanent ICTR judges until 31 December 2014, as requested by the tribunal, was unanimous.

In February the Council received a letter from the ICTY regarding the urgent need for the appointment of an appeals chamber judge. According to the tribunal, a replacement is to be filled by appointment of the Secretary-General after consultations with the Presidents of the Council and the General Assembly.

Russia has posed questions to the ICTY through the chair of the working group (Guatemala), questioning the procedure suggested by the tribunal, indicating that the vacancy should be filled in accordance with the election procedure for new judges. In the meeting of the working group on 21 May, there was consensus on the need to appoint a judge, in order for the ICTY to remain on schedule. However, no agreement was reached on the applicable procedure. While most Council members were in favour of a resolution or an exchange of letters to allow the Secretary-General to fill the position, Russia was not in favour of a resolution on the issue. Council members were asked to submit to the chair written proposals on the approach the Council should take, and the working group will further discuss these.

(A replacement under the same procedure is also sought to fill an ICTR appeals chamber judge, yet this does not raise any controversy as did the ICTY request.)

Guatemala, with the support of some Council members, attempted to invite the ICC Prosecutor to a meeting of the working group in early 2013, but some members, such as China and Rwanda, opposed this initiative, arguing that the ICC is not part of the working group’s mandate because it is not an ad hoc tribunal. Subsequently, an interactive dialogue session was held with the ICC Prosecutor on 7 May regarding Libya, as some Council members sought new ways of interacting with the ICC.

On 10-11 April, the President of the General Assembly, Vuk Jeremić (Serbia) initiated a debate and two panel discussions on the “role of international criminal justice in reconciliation”, with President Tomislav Nikolić of Serbia attending. Victims of crimes in the former Yugoslavia were not invited, and representatives of the ICC and the ad hoc tribunals declined to participate. Nikolić said that the ICTY was perceived in Serbia as biased and that as a result Serbia is only cooperating with the ICTY “only on a technical level”. Ambassador Vitaly Churkin (Russia) suggested that the ICTY failed to deliver impartial and depoliticised justice, and its trials have lasted “for an absurd length of time”. He suggested the Council should address what he called a “systemic dead end”. The Secretary-General said that states are to respect the independence and integrity of the tribunals, rather than question them. Canada, Jordan and the US boycotted the meeting, claiming it was a disguised attempt to attack the conduct of the ICTY.

On 15 May, Ambassador Christian Wenaweser (Liechtenstein) sent a letter to the President of the Council on behalf of 15 countries, requesting that the June debate on the tribunals be opened to the participation of member states to mark the 20th anniversary of the establishment of the ICTY. On 25 May, the Council adopted a press statement commemorating the event and the ICTY’s contribution to the fight against impunity, as well as its own commitment to this fight.

Key Issues
The immediate issue for the Council will be the request relating to the appointment of the ICTY judge.

Another issue is the continuing work of the working group regarding the completion strategies of the ICTY and ICTR, the work of the residual mechanism and related practical arrangements.

Options
Options for the Council include:

  • adopting a technical resolution allowing the Secretary-General to appoint an appeals judge to the ICTY;
  • adopting a technical resolution indicating that elections should be held to fill the position, or creating an abbreviated and small scale election process;
  • exchanging letters with the Secretary-General indicating its agreement to one of the processes above;
  • sending a letter from the working group to the Council President with a summary of discussions and taking note of the ICTY report on its comprehensive plan for completion;
  • requesting an independent review of the ICTY’s case progress; or
  • taking no action at this time.

Council Dynamics
As may have been the case in December 2012, the current disagreement on the ICTY appointment is reflective of Russia’s dissatisfaction with the tribunal’s jurisprudence, which manifests itself when technical decisions are to be taken by the Council. Views on the proper format of informal meetings with the ICC Prosecutor are also reflective of wider political agendas of Council members.

As for the ICTY judge appointment, while several Council members feel that the ICTY request to fill the appeals vacancy presents some legal difficulty, they would prefer to avoid the time-consuming process of a new election in accordance with statute for the sake of expediency and efficiency. If no consensus is reached for the Secretary-General to appoint the judge, some Council members are of the opinion that a possible compromise would be a shortened and small-scale election process, which would allow for a speedy appointment of the judge.

UN Documents on International Criminal Tribunals

Security Council Resolutions
17 December 2012 S/RES/2081 This resolution extended the terms of 13 permanent judges of the ICTY until 31 December 2013 and the terms of eight ad litem judges for different periods of time.
12 December 2012 S/RES/2080 This resolution extended the terms of five permanent judges of the ICTR until 31 December 2014.
22 December 2010 S/RES/1966 This resolution established the residual mechanism.
Security Council Press Statements
30 May 2013 SC/11015 This was on the anniversary of the ICTY.
Security Council Letters
23 May 2013 S/2013/310 This letter transmitted the report on the completion strategy of the ICTR.
23 May 2013 S/2013/309 This letter transmitted the report of the residual mechanism for criminal tribunals for the period of 15 November 2012-23 May 2013.
23 May 2013 S/2013/308 This letter transmitted the report of the ICTY covering the period 15 November 2012-23 May 2013.
14 November 2012 S/2012/845 This letter transmitted the request from the ICTY to extend judges terms.
Security Council Meeting Records
5 December 2012 S/PV.6880 The Council was briefed by the presidents and prosecutors of the ICTY and ICTR.