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 and prosecutors of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Residual Mechanism for Criminal Tribunals—established in 2010 to carry out a number of essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the ICTY, after the completion of their respective mandates—are expected to brief, and may meet with the Informal Working Group on International Tribunals prior to the debate. A resolution is expected to be adopted to extend the terms of ICTY judges and the ICTY prosecutor.
Key Recent Developments
The ICTY has concluded proceedings against 154 of the 161 persons indicted, with 83 individuals sentenced, 19 acquitted, 13 referred to a national jurisdiction, 37 whose indictments were withdrawn or who are deceased and two with retrials to be conducted by the Residual Mechanism. There is one remaining trial, against Ratko Mladić; one remaining appeal, the Prlić et al. case against six accused; and one remaining contempt case, Jojić et al. Judgements in the last remaining cases are expected by November 2017.
On 6 September, the Council unanimously adopted resolution 2306, amending the Statute of the ICTY to allow the Secretary-General to appoint a former judge of the ICTY or of the ICTR who is also a judge of the International Residual Mechanism, to be assigned on an ad hoc and temporary basis to the ICTY Appeals Chamber.
On 9 November, ICTY President Judge Carmel Agius outlined five main challenges in an address to the General Assembly: ensuring that the remaining cases stay on track for a timely and responsible closure and a smooth transition to the Residual Mechanism; taking all necessary measures to encourage the retention of all ICTY staff and prevent accelerated staff attrition; defending the integrity of the ICTY, which includes enforcing a zero-tolerance policy in respect of witness interference; promoting the ICTY’s image and engaging in discussions to consolidate the shared legacy of both the Tribunal and the UN; and finally, supporting and enabling national jurisdictions to adjudicate international crimes, including by enhancing regional cooperation.
Council members received a letter from the ICTY President on 11 November, requesting extensions of the terms of seven permanent judges and one ad hoc judge until 30 November 2017 or until the completion of the cases to which they are or will be assigned, if sooner, and the term of the ICTY president until 31 December 2017, to perform functions required in closing the Tribunal.
Regarding the work of the Residual Mechanism, on 9 November, its president, Judge Theodor Meron, said in an address to the General Assembly that the Mechanism had assumed responsibility for all remaining functions of the ICTR after its closure in December 2015, and preparations for the transfer of relevant remaining ICTY functions continue, in anticipation of its expected closure at the end of 2017. Meanwhile, since its establishment, the Mechanism has issued more than 800 judicial orders and decisions. Meron informed the General Assembly of the arrest in Turkey of Residual Mechanism Judge Aydin Sefa Akay (Turkey) on or around 21 September, in relation to allegations concerning the attempted July coup to overthrow the government of Turkey, and said that Akay had remained in detention since then. Expressing his personal concern for the welfare of Akay, the President also reported that the UN Office of Legal Affairs, on behalf of the Secretary-General, had formally asserted diplomatic immunity, in accordance with the Mechanism’s Statute, and, as a consequence, had requested Akay’s immediate release from detention and the cessation of all legal proceedings against him. Meron expressed regret that the Turkish government had not acted upon this formal request. In a 5 October letter to the Security Council, Meron informed the Council of Akay’s arrest and ongoing detention. At press time, Akay was still in detention.
The presidents and prosecutors of the ICTY and Residual Mechanism last briefed the Council on 8 June.
Key Issues
The immediate issue for the Council will be the request to extend the terms of ICTY judges and the prosecutor.
Another key issue is Akay’s arrest and ongoing detention in Turkey.
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 calling for Akay’s immediate release from detention and the cessation of all legal proceedings against him.
Council Dynamics
According to the relevant Council resolutions, the ICTY was expected to complete its caseload in 2010 or, failing that, by the end of 2014. Last December, the Council adopted a resolution further extending ICTY judges’ and the prosecutor’s terms until December 2016, despite requests for extensions until 2017. As it had in previous years, Russia abstained on the resolution, 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.
Uruguay is the penholder and chair of the Informal Working Group on International Tribunals.
| Security Council Resolutions | |
| 6 September 2016 S/RES/2306 | This was a resolution amending the Statute of the ICTY. |
| 29 February 2016 S/RES/2269 | This was a resolution that 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 Record | |
| 8 June 2016 S/PV.7707 | This was the semi-annual debate on the ICTY and the International Residual Mechanism for Criminal Tribunals. |
| Security Council Letters | |
| 11 November 2016 S/2016/959 | This was a letter requesting extensions of the terms of ICTY judges. |
| 5 October 2016 S/2016/841 | This was a letter from Residual Mechanism President Judge Meron on Judge Akay’s arrest and ongoing detention in Turkey. |
| ICTY & ICTR Reports | |
| 17 November 2016 S/2016/976 | This was the ICTY’s assessment report. |
| 17 November 2016 S/2016/975 | This was the Residual Mechanism’s assessment report. |
