December 2015 Monthly Forecast

Posted 25 November 2015
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SECURITY COUNCIL AND WIDER UN STRUCTURE

International Criminal Tribunals

Expected Council Action

In December, the Security Council will hold its semi-annual debate on the ad hoc international criminal tribunals. The presidents of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are expected to brief. This is the last briefing on the ICTR, which will complete its work by the end of the year. The President of the Residual Mechanism for International Criminal Tribunals will also brief the Council.

A resolution is expected to be adopted on extending the terms of ICTY judges and the ICTY Prosecutor.

Key Recent Developments

The ICTR has completed cases at the trial level for all 93 accused who were indicted, and only one case remains concerning the appeal of six individuals convicted on 24 June 2011 of various charges of genocide, conspiracy to commit genocide, incitement to commit genocide, crimes against humanity and war crimes for their role in crimes committed against Tutsis during the 1994 genocide. The delivery of the final appeal judgment is scheduled for 14 December, marking the closure of the ICTR. By 1 January 2016, the ICTR will be in its liquidation phase, projected to be completed in the first half of 2016.

The ICTR’s Office of the Prosecutor has published a lessons-learned manual for the tracking and arrest of fugitives from international justice and, in collaboration with other prosecution offices, created a guide titled Prosecuting Mass Atrocities: A Compendium of Lessons Learned and Suggested Practices from the Offices of the Prosecutors.

In his address to the General Assembly on 13 October, outgoing ICTR President Vagn Joensen said the ICTR had made substantial progress in the preparation and transfer of its paper, electronic and audio-visual records for preservation and management by the Residual Mechanism. Joensen added that the records, “which are vital to the ICTR’s goal of ensuring that the events in Rwanda will never be forgotten, may also serve as roadmaps for the creation of future international tribunals and…can be used to further empower domestic courts.” In conclusion, Joensen said, “Two decades later and on the precipice of closure…the Tribunal, along with many others, assisted in rebuilding the trust between the Rwandan people and the UN, and through justice, as well as through numerous outreach and capacity-building programmes, aided Rwanda in putting the country back together”.

The ICTY has concluded proceedings against 147 of the 161 persons indicted, with 80 individuals sentenced, 18 acquitted, 13 referred to a national jurisdiction and 36 whose indictments were withdrawn or who are deceased. Trial proceedings are ongoing against four individuals. Proceedings against one were ordered stayed for an initial period of three months on 26 October, while judgments are expected in the first quarter of 2016 for two of the accused and in November 2017 for the remaining accused. There are ten individuals before the ICTY’s Appeals Chamber in three cases, with appeals judgments expected on 15 December, in June 2016 and in November 2017.

Council members received a letter from outgoing ICTY President Theodor Meron on 28 October, requesting extensions of the terms of 17 judges until dates ranging from 31 March 2016 to 30 November 2017, based on projections for the completion of the Tribunal’s remaining work (S/2015/825). Judge Carmel Agius (Malta) succeeded Judge Meron as ICTY President on 17 November.

The Residual Mechanism, established in 2010 by resolution 1966, has been mandated to complete the work of the Tribunals by assuming responsibility for their essential functions through two branches, the successor to ICTR in Arusha and the successor to ICTY in The Hague. The two branches were inaugurated in July 2012 and July 2013, respectively. The Residual Mechanism will assume full responsibility for all of the ICTR’s continuing functions by the end of this year and for the ICTY by its expected closure in 2017. According to Residual Mechanism President Theodor Meron’s address to the General Assembly on 13 October, “the transfer of functions from the ICTR and the ICTY has thus far been seamless and on-schedule”, but the Residual Mechanism continues to face two long-standing challenges. The first is to ensure that nine people indicted by the ICTR but not yet arrested are apprehended (the three most senior individuals are to be tried by the Residual Mechanism and the other six by Rwanda). The second challenge involves the relocation of eight individuals from Arusha whom the ICTR has acquitted or released but who are unable to return to their countries of citizenship.

On 16 November, the Council adopted a presidential statement that requested the Residual Mechanism to present by 20 November a report on the progress of its work since it commenced operations, as requested in resolution 1966. The statement also sets out the process by which the Informal Working Group on International Tribunals should examine the report and present its findings for the Council’s consideration in its review of the work of the Residual Mechanism, also requested in resolution 1966, by 21 December.

The presidents and prosecutors of the ICTY, ICTR and Residual Mechanism last briefed the Council on 3 June.

Key Issues

The immediate issue for the Council will be the request relating to the extension of terms of the ICTY judges and prosecutor.

Another issue is the Council’s consideration of the review by the Informal Working Group on International Tribunals of the Residual Mechanism’s work.

Options

The Council could adopt a technical resolution extending the ICTY judges’ and prosecutor’s terms as requested or extend the terms for a shorter period of time.

The Council could adopt a statement marking the closure of the ICTR.

Council Dynamics

According to the relevant Council resolutions, the Tribunals were expected to complete their caseload in 2010, or failing which, by end of 2014. However, last December, resolutions were adopted further extending ICTY and ICTR judges’ and prosecutors’ terms beyond the 2014 envisioned date for completion for one year only, despite requests for extensions until 2017 for the ICTY. As it had in previous years, Russia abstained on the resolution extending ICTY judges’ terms, commenting that the situation regarding the Tribunal’s exit strategy had not improved and that costly trial delays continued. Russia is also critical of the ICTY’s jurisprudence, claiming that it has not done justice on behalf of Serbian victims of the Yugoslav conflict. It seems that Council members other than Russia are generally supportive of the requested ICTY extensions this December, but again only for a period of one year.

In general all Council members, including Russia, assess the role and work of the Residual Mechanism positively. Regarding the presidential statement adopted on the progress report and review of the Residual Mechanism, some Council members, including Russia and France, were particularly in favour of the process being as substantive as possible, as reflected in the statement. There also seems to be consensus that the review should include how to best avoid certain challenges faced by the Tribunals, including in completing their functions with efficiency and effective management.

Chile is the penholder and chair of the Informal Working Group on International Tribunals.

UN Documents on International Criminal Tribunals  

Security Council Resolutions
18 December 2014 S/RES/2193 This was a resolution extending sixteen ICTY judges’ terms until 31 December 2015, with Russia abstaining.
18 December 2014 S/RES/2194 This was a resolution extending two ICTR judges’ terms until 31 July 2015 and four judges’ terms until 31 December 2015 and reappointing the ICTR Prosecutor Hassan Bubacar Jallow until 31 December 2015.
Security Council Presidential Statement
16 November 2015 S/PRST/2015/21 This presidential statement requested the Residual Mechanism to present its progress report and for the Informal Working Group on International Tribunals to thoroughly examine the report for the Council’s review of the work of the Residual Mechanism.
Security Council Meeting Record
3 June 2015 S/PV.7455 This was the semi-annual debate on the ICTY and ICTR.