December 2020 Monthly Forecast

Posted 30 November 2020
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International Criminal Tribunals

Expected Council Action

In December, the Security Council is scheduled to hold its semi-annual debate on the International Residual Mechanism for Criminal Tribunals (IRMCT), which was established in 2010 to carry out the remaining essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) after their respective closures. The IRMCT’s president, Judge Carmel Agius, and its prosecutor, Serge Brammertz, are expected to brief during the debate and to meet with the Informal Working Group on International Tribunals prior to this.

Key Recent Developments

The IRMCT, with branches in The Hague, Netherlands, and Arusha, Tanzania, focuses on the completion of trials and appeals from the ICTY, which closed in December 2017, and the ICTR, which closed in December 2015. Its tasks include locating and arresting the remaining fugitives indicted by the ICTR—now six, following the arrest of one fugitive and confirmation of the death of another, both in May— and assisting national jurisdictions in handling requests related to prosecuting international crimes committed in the former Yugoslavia and Rwanda. The IRMCT was established by resolution 1966 in 2010, which says that “the Mechanism shall continue the jurisdiction, rights and obligations and essential functions of the ICTY and the ICTR”, and that it “should be a small, temporary and efficient structure, whose functions and size will diminish over time”.

Under resolution 1966, the IRMCT was mandated to operate for an initial period of four years and for subsequent periods of two years thereafter unless the Security Council decided otherwise. The Council most recently extended the IRMCT’s operating period and Brammertz’s term until 30 June 2022 with the adoption of resolution 2529 on 25 June. It was adopted with 14 votes in favour and one abstention (Russia). The resolution requested the IRMCT to continue to take steps to enhance efficiency and effective and transparent management, including the production of clear and focused projections of completion timelines; continued ensuring of geographic diversity and gender balance of staff; and further reduction of costs, such as flexible staff engagement. It also requested that the IRMCT update the Council in its semi-annual reports on progress in implementing the resolution, with detailed information on staffing, workload and related costs, and detailed projections of the duration of residual functions.

On 16 May, Félicien Kabuga, at the time one of eight remaining fugitives indicted by the ICTR, was arrested in Paris by French authorities as the result of a joint investigation with the IRMCT Office of the Prosecutor. Kabuga was indicted by the ICTR in 1997 on seven counts of genocide; complicity in genocide; direct and public incitement to commit genocide; attempt to commit genocide; and conspiracy to commit genocide, persecution and extermination, all in relation to crimes committed during the 1994 genocide in Rwanda. On 1 October, Agius assigned Kabuga’s case to a Trial Chamber of the IRMCT. On 21 October, Judge Iain Bonomy amended the warrant of arrest and order for transfer, ordering that Kabuga be transferred to the Hague branch of the Mechanism. That happened on 26 October, and on 11 November, Kabuga entered a plea of not guilty to the charges in the indictment.

The last semi-annual debate on the IRMCT was held on 8 June in an open videoconference. Agius told the Council that at the end of 2019, the IRMCT had been expected to finish its judicial caseload by the end of 2020 with the exception of pending appeals. However, those projections have been affected by the COVID-19 pandemic, which has stalled in-court proceedings, he said. As a result, cases that were to conclude by the end of 2020 are expected to continue into early 2021. Agius also said that the case against Ratko Mladić, which was originally scheduled for March but was postponed to June as the defendant underwent surgery, has been put on hold as a result of the pandemic. Agius also noted with concern that nine acquitted people, released to a safe house in Arusha, have not yet been able to be relocated.

Key Issues and Options

A key issue is for members to continue monitoring the work of the IRMCT and the implementation of its mandate, including the areas specified in resolution 2529. The impact of the COVID-19 pandemic on projected timelines for completion of the IRMCT’s caseload is a related issue.

Council Dynamics

Council members generally assess the IRMCT and the progress it has made positively with the exception of Russia, which was also consistently critical of the ICTY. Russia has also been critical of the appointment of Brammertz, who was the prosecutor of the ICTY from 2008 until its closure in 2017 and had already abstained on previous resolutions appointing him in 2016 and 2018.

It seems that the negotiations on resolution 2529, which extended Brammertz’s term until 30 June 2022, were similarly lengthy and difficult. (See our What’s In Blue story on 25 June 2020.) In explaining its abstention on resolution 2529, Russia referred to “the unsatisfactory work of that body, which continues not to allow the Council to proceed with its legal closure”. Russia also emphasised the importance of the protection of detainees of the Mechanism, including their access to medical care, specifically referring to the case of Mladić. It added that the IRMCT must produce “clear and focused projections of completion timelines at the earliest stage possible and disciplined adherence thereto”, as set out in resolution 2529.

Viet Nam is the chair of the Informal Working Group on International Tribunals.

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Security Council Resolutions
25 June 2020S/RES/2529 This was a resolution extending IRMCT prosecutor Serge Brammertz’s term until 30 June 2022.
22 December 2010S/RES/1966 This resolution established the residual mechanism.
Security Council Letter
15 April 2020S/2020/309 This was the review report of the IRMCT submitted pursuant to resolution 1966 and S/PRST/2020/4.
Security Council Meeting Record
8 June 2020S/2020/527 This was a letter transmitting the statements made at the semi-annual debate on the IRMCT.