December 2017 Monthly Forecast

Posted 30 November 2017
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International Criminal Tribunals

Expected Council Action

In December, the Security Council expects to 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 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 was expected to deliver judgements on its two final cases by 30 November, ahead of the Tribunal’s closure on 31 December. In its final trial judgement on 22 November, the Tribunal convicted Ratko Mladić of genocide, crimes against humanity and violations of the laws or customs of war and sentenced him to life imprisonment. At press time, the Tribunal’s final appeal judgement, Prlić et al., against six accused was expected on 29 November. Aside from the remaining appeal case, the ICTY had concluded proceedings against 155 of the 161 persons indicted, with 84 individuals sentenced, 19 acquitted, 13 referred to a national jurisdiction, 37 whose indictments were withdrawn or who are deceased, and two with retrials to be conducted by the Residual Mechanism.

The Council unanimously adopted resolution 2329 on 19 December 2016, granting a final extension of the terms of ICTY judges and its prosecutor until 30 November. The term of ICTY President Judge Carmel Agius was extended until 31 December. According to its annual report, the “Tribunal’s final chapter will undoubtedly be one of the busiest and most challenging periods in its history”. With its core judicial work completed by 30 November, when the mandate of the judges will end, the ICTY will continue to further ramp up its liquidation efforts, including through the implementation of its final downsizing exercises, the disposal or transfer of its remaining records and assets, and the transfer of its remaining functions to the Residual Mechanism.

The Residual Mechanism, with its branches in Arusha, Tanzania and The Hague, continues to focus on the completion of trials and appeals from the ICTY and ICTR, locating and arresting the eight remaining fugitives indicted by the ICTR, and assisting national jurisdictions prosecuting international crimes committed in the former Yugoslavia and Rwanda. According to its annual report, 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.

One of the 25 Residual Mechanism judges, Aydin Sefa Akay (Turkey), arrested by Turkish authorities in September 2016, was convicted on 14 June by a Turkish criminal court on a single charge of being a member of a terrorist organisation and sentenced to a prison term of seven years and six months. This happened despite the UN’s formal assertion of his diplomatic immunity in accordance with the Mechanism’s statute and the Mechanism’s issuing a judicial order to Turkey to cease all legal proceedings against Judge Akay and release him. Upon conviction, Judge Akay was provisionally released and prohibited from departing the country, pending appeal proceedings.

Key Issues and Options

The immediate issue is overseeing the completion of the ICTY’s work ahead of its 31 December closure. An option for the Council is to adopt a press statement marking the ICTY’s closure, as it did for the ICTR.

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. However, as the ICTY is expected to complete its caseload by November, no further extension of judges’ terms is necessary.

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.

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

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UN Documents on International Criminal 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 Meeting Record
7 June 2017 S/PV.7960 This was the Council’s semi-annual debate on the ad hoc international criminal tribunals.
Security Council Press Statement
31 December 2015 SC/12188 This was a press statement that marked the ICTR’s closure.
ICTY & ICTR Reports
1 August 2017 S/2017/662 This was the ICTY’s final annual report.
1 August 2017 S/2017/661 This was the Residual Mechanism’s annual report.

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