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 Residual Mechanism for Criminal Tribunals—established in 2010 to carry out a number of the 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.
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with 83 individuals sentenced, 19 acquitted, 13 referred to a national jurisdiction, 37 whose indictments were withdrawn or who are deceased, and two with retrials to be conducted by the Residual Mechanism.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, of Ratko Mladić, and one remaining appeal, the Prlić et al. case against six accused. Judgements in these cases are expected by November 2017, after which the tribunal will be closed. There is also one remaining contempt case, Jojić et al. The latest ICTY report of 17 May notes that the three indictees in the latter contempt case are yet to be arrested and transferred to the Tribunal as Serbia continues to fail to cooperate in this case.
Council members received a letter from the ICTY president on 11 November 2016, requesting extensions of the terms of seven permanent judges and one ad hoc judge until 30 November 2017 and the term of the ICTY president until 31 December 2017, to perform functions required to close the tribunal. In transmitting the letter to the Council, the Secretary-General further requested that the ICTY prosecutor, Serge Brammertz, be reappointed until the closure of the ICTY.
In response, the Council unanimously adopted resolution 2329 on 19 December 2016, taking note of the ICTY’s request for a final extension of judges’ terms and extending their terms in accordance with the request. The Council also reappointed Brammertz until 30 November 2017. The Council strongly emphasised that the extensions and reappointment should be final and took note of the ICTY’s commitment to complete its work no later than 30 November 2017.
In its explanation of vote, Russia reiterated its concern over what it views as unacceptable delays in the judicial proceedings of the ICTY and the prolongation of its work beyond the limits set by previous Council resolutions. Russia emphasised that its vote in favour of resolution 2329 was due to the resolution’s provisions “ensuring that the current extension of the mandates of the judges and prosecutors will be the last”.
Regarding the work of the Residual Mechanism, the president and its judges have conducted a wide variety of judicial activities, issuing 152 decisions and orders between 16 November 2016 and 15 May. A 17 May assessment reports that the Mechanism and the ICTY continue to work closely to ensure a smooth and efficient transition of the remaining functions of the ICTY to the mechanism by the end of 2017. The report adds that the Mechanism is seeking to maximise its effectiveness and efficiency while maintaining relatively low staffing levels, conscious of the temporary nature of its mandate. In accordance with resolution 2256 of 22 December 2015, the report provides detailed projections of the duration of functions entrusted to the Mechanism.
In addition, the Mechanism’s president notes in the report that Judge Aydin Sefa Akay (Turkey), arrested by Turkish authorities on or around 21 September 2016 in relation to allegations concerning the attempted July coup to overthrow the government, continues to be detained despite the UN’s formal assertion of his diplomatic immunity in accordance with the Mechanism’s Statute and the issuance of a judicial order by the Mechanism to Turkey to cease all legal proceedings against Judge Akay and release him.
Key Issues
A continuing issue is overseeing the completion of the ICTY’s work by 30 November.
Another issue is Akay’s arrest and ongoing detention in Turkey and what pressure the Council could put on the Turkish government for his release.
Options
The Council could adopt a presidential statement or issue a press statement calling for Akay’s immediate release from detention and the cessation of all legal proceedings against him.
The Council could adopt a presidential statement or issue a press statement calling on Serbia to comply with the ICTY arrest warrants.
The Council could consider monitoring the work of the ICTY more frequently until November, including through its Informal Working Group on International Tribunals.
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. In the few years prior to the adoption of resolution 2329, Russia had routinely abstained on resolutions for extension of judges’ terms and insisted on granting shorter extensions than those sought, 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. If the ICTY does not finish its caseload by November 2017 and a further extension of judges’ terms is requested, these issues are likely to resurface.
Though several Council members would like to see the issue of the Turkish judge resolved swiftly, at present there does not seem to be any appetite among members to have the Council address the issue.
Uruguay is the penholder and chair of the Informal Working Group on International Tribunals.
| Security Council Resolution | |
| 19 December 2016 S/RES/2329 | This was a resolution to finally extend the ICTY judges’ and the prosecutor’s terms until 30 November 2017. |
| Security Council Letter | |
| 11 November 2016 S/2016/959 | This was a letter requesting extensions of the terms of ICTY judges. |
| Security Council Meeting Records | |
| 19 December 2016 S/PV.7842 | This was a meeting to adopt a resolution on the ICTY. |
| 8 December 2016 S/PV.7829 | This was the semi-annual briefing. |
