International Criminal Tribunals
Expected Council Action
In June, the 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 and the Residual Mechanism for International Criminal Tribunals are expected to brief. No outcome is anticipated.
The Informal Working Group on International Tribunals may meet with the presidents and prosecutors prior to the debate.
Key Recent Developments
The International Criminal Tribunal for Rwanda (ICTR)
The ICTR officially closed on 31 December 2015 after delivering its final judgment on appeal on 14 December 2015. During its two decades, the ICTR sentenced 61 people to terms of up to life imprisonment, acquitted 14 and referred ten others to national jurisdictions. The Council issued a press statement on 31 December, acknowledging the ICTR’s substantial contribution and calling upon all states to cooperate with the Residual Mechanism now responsible for the arrest and prosecution of the eight remaining ICTR-indicted fugitives.
The International Criminal Tribunal for the former Yugoslavia (ICTY)
The Council adopted a resolution on 22 December 2015, extending the terms of 17 ICTY judges and the prosecutor for varying lengths of time not beyond 31 December 2016, with Russia abstaining. The resolution reiterated continued concern over repeated delays in the conclusion of the ICTY’s work, which the Council had requested in a 2010 resolution be completed by 31 December 2014. In this regard, the resolution called for the Office of Internal Oversight Services (OIOS) to carry out an evaluation of the methods and work of the ICTY in implementing its completion strategy. The report, covering 2010-2015, offered a mixed assessment. It found that “the ICTY has adequately developed the structures, mechanisms and operational activities to implement the completion strategy” and “has been somewhat effective in planning and carrying out its case work”. The report said the Court had “introduced notable measures to expedite judicial activities…but evidence to demonstrate it is working in the most efficient manner from 2010-2015 is weak, and there is inadequate accountability for the conduct of judges.” In addition, voluntary separation, not downsizing, posed a major challenge to the timely completion of judicial activities. The report made four recommendations to the ICTY: monitor progress toward internal benchmarks; ensure that planning and monitoring mechanisms are tracking efficiency results; develop a code of conduct and disciplinary mechanism for judges; and develop a centralised information system on staff separations and an improved human resources analysis.
At press time, the ICTY had concluded proceedings against 151 of the 161 persons indicted, with two trial cases, involving two individuals, and two appeal cases, involving eight individuals, ongoing. Judgement in one of the appeal cases is expected by the end of June, and completion of the remaining cases is expected in November 2017. On 24 March, the ICTY convicted Radovan Karadžić, the former President of Republika Srpska and Supreme Commander of its armed forces, of genocide, crimes against humanity and violations of the laws or customs of war. He was sentenced to 40 years’ imprisonment. Karadžić is currently appealing the judgement. On 31 March, the ICTY acquitted Vojislav Šešelj, President of the Serbian Radical Party and a former member of the Assembly of the Republic of Serbia, of all charges. The Office of the Prosecutor has appealed the decision. In both cases, appeal proceedings fall under the jurisdiction of the Residual Mechanism.
The Residual Mechanism
The Residual Mechanism, established in 2010, is mandated by the Council to carry out certain essential functions of the ICTY and ICTR after completion of their respective mandates, including tracking and prosecuting remaining fugitives and conducting appeals proceedings. The Council emphasised, in its 22 December 2015 resolution, that the Mechanism was established to be a small, temporary and efficient structure. The resolution also noted the conclusion of the Council’s initial review of the progress of the Mechanism and requested the Mechanism to take into account certain views and recommendations to further enhance its efficiency and effective and transparent management, including more focused completion projections, disciplined adherence to those projections and further reduction of costs.
On 25 February, Council members were briefed under “any other business” on the Secretary-General’s nomination of ICTY prosecutor Serge Brammertz (Belgium) as prosecutor of the Residual Mechanism after some countries expressed opposition. On 29 February, the Council adopted a resolution appointing Brammertz until 30 June 2018. Angola, Egypt, Senegal and Russia abstained. In their explanation of vote, Angola, Egypt and Senegal expressed their view that the replacement of prosecutor Hassan Jallow (The Gambia) with Brammertz resulted in a lack of equitable geographical distribution among the Mechanism’s leadership. Russia abstained because, since Brammertz will also remain the ICTY prosecutor, it was concerned about “the reproduction and continuation in the Mechanism of the significant flaws that were characteristic of the ICTY”. Effective 1 March, Judge Theodor Meron (US) was re-appointed by the Secretary-General as president of the Mechanism until 30 June 2018.
The presidents and prosecutors of the ICTY, ICTR and Residual Mechanism last briefed the Council on 9 December 2015.
Key Issues
The main issue is the continuing review by the Informal Working Group on International Tribunals of the completion strategy of the ICTY as well as following the work of the Residual Mechanism.
Options
The Council will likely hold the debate without taking further action.
Council Dynamics
Delays in the ICTY’s completion of its activities have been a source of some tension in the Council. According to the relevant Council resolutions, the ICTY was expected to complete its caseload in 2010 or, failing that, by the end of 2014. Currently, the ICTY expects completion in late 2017. The most recent resolution, adopted in December 2015, extended ICTY judges’ and the prosecutor’s terms to no later than 31 December 2016. As it did in previous years, Russia abstained, 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, arguing that it has not done justice on behalf of Serbian victims of the Yugoslav conflict. As no requests for extending judges’ terms are expected in June, these differences should not have practical effect until the end of the year when further extension requests will be made.
Council members, including Russia, have so far generally assessed the Residual Mechanism positively with the caveat that it must continue to fulfil its mandate expeditiously and cost-effectively. While Angola, Egypt and Senegal abstained from the resolution appointing Brammertz as prosecutor, this was related mainly to the resulting decrease in African representation at key UN posts, and not to the work of the Residual Mechanism itself. Similarly, Russia’s abstention was motivated by its dissatisfaction with the ICTY and not with the Mechanism directly.
During the debate, Council members will likely focus on the ICTY’s completion strategy, including the OIOS’s evaluation report and the handover of activities to the Residual Mechanism. The eight remaining ICTR-indicted fugitives and the relocation of persons released or acquitted by the ICTR may also be discussed.
Uruguay is the penholder and chair of the Informal Working Group on International Tribunals.
| Security Council Resolutions | |
| 29 February 2016 S/RES/2269 | This resolution appointed Serge Brammertz as the prosecutor of the Mechanism with effect from 1 March until 30 June 2018. |
| 22 December 2015 S/RES/2256 | The Council extended 17 ICTY judges’ terms and the ICTY prosecutor’s term for up to a year, with Russia abstaining. |
| Security Council Meeting Records | |
| 29 February 2016 S/PV.7636 | The Council adopted resolution 2269 appointing Serge Brammertz as the prosecutor of the Mechanism with effect from 1 March until 30 June 2018. |
| 9 December 2015 S/PV.7574 | This was the semi-annual debate on the ICTY and ICTR. |
| Security Council Press Statements | |
| 31 December 2015 SC/12188 | This was a press statement that marked the ICTR’s closure. |
| ICTY & ICTR Reports | |
| 17 May 2016 S/2016/453 | This was the Residual Mechanism’s assessment report. |
| 17 May 2016 S/2016/454 | This was the ICTY’s assessment report. |
| 12 May 2016 S/2016/441 | This was the OIOS evaluation report on the ICTY. |
