December 2022 Monthly Forecast

Posted 30 November 2022
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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 Graciela Gatti Santana, 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 that.

The term of the prosecutor and the IRMCT’s operating period expire on 30 June 2024.

Key Recent Developments

The IRMCT—with branches in The Hague, Netherlands, and Arusha, Tanzania—focuses on the completion of trials and appeals from the ICTR and the ICTY, which closed in December 2015 and December 2017, respectively. Its tasks include locating and arresting the remaining fugitives indicted by the ICTR—of the 93 persons indicted by the ICTR, four remain at large—and assisting national jurisdictions in handling requests related to prosecuting international crimes committed in Rwanda and the former Yugoslavia.

Under resolution 1966 of 22 December 2010, 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. On 22 June, the Security Council adopted resolution 2637, extending Brammertz’s term for another two years until 30 June 2024. The resolution was adopted by a vote of 14 in favour and one abstention (Russia). It contained new elements—including language urging member states to intensify cooperation to enforce sentences handed down by the ICTR, the ICTY and the IRMCT— and welcomed the continuing support already provided by states in this regard. It called on the IRMCT, as part of its completion strategy, to provide options regarding the transfer of its remaining activities in due course. It also noted the prosecutor’s confirmation in May of the deaths of two fugitives indicted by the ICTR. (For more, see our What’s in Blue story of 21 June.)

On 29 June, the Appeals Chamber of the IRMCT delivered its judgement in the case of Prosecutor v. Marie Rose Fatuma et al., formerly Nzabonimpa et al. It unanimously dismissed Fatuma’s appeal and granted the prosecution’s appeal in its entirety. Following this, the judicial workload of the IRMCT currently consists of two cases, one a trial and the other an appeal. In the trial case of Prosecutor v. Félicien Kabuga, opening statements were heard at the end of September, and the prosecution commenced the presentation of its evidence on 5 October. In the appeal case of Prosecutor v. Jovica Stanišić and Franko Simatović, judgement is expected by June 2023.

On 24 October, Santana briefed the General Assembly on the tenth annual report of the IRMCT. (Santana, of Uruguay, was appointed by the Secretary-General on 27 June, succeeding Judge Carmel Agius, who had served as IRMCT President since January 2019.) She highlighted that in the coming years, the IRMCT will transition “from a fully operational court to a truly residual institution”, adding that the “necessary downsizing will create challenges”. She also highlighted three priorities for her presidency: “First, to ensure the efficient, effective and fair conclusion of the remaining trial and appeal proceedings. Second, to lead efforts in developing a comprehensive strategy to guide the Mechanism’s continuing transition from an operational court to a truly residual institution. Third, to consolidate the achievements of the ad hoc Tribunals and the Mechanism and to safeguard their invaluable legacy, while further enhancing inter-organ and inter-branch coordination and collaboration”.

On 14 June, the Security Council held its semi-annual debate on the IRMCT, with briefings by then-president Agius and Brammertz. In his briefing, Brammertz referred to his office’s mandate to respond to requests for assistance from domestic investigators and prosecutors. He noted that Rwanda’s prosecutor general is still seeking to prosecute more than 1,000 fugitives indicted for genocide, while in Bosnia and Herzegovina, Croatia and Serbia, there are more than 3,000 suspected perpetrators of war crimes, crimes against humanity, and genocide to be investigated and prosecuted.

Key Issues and Options

A key issue is for members to continue monitoring the work of the IRMCT and the implementation of its mandate. Members may choose to use the closed format of the Informal Working Group on International Tribunals to have a frank discussion with Santana about envisioned steps to promote her priorities for the IRMCT. They might also wish to ask about the possibility of elaborating a timeline for the completion of the Mechanism’s work—an issue raised by several Council members during the 14 June debate.

Council Dynamics

Council members generally have a positive assessment of the IRMCT and the progress it has made, except for Russia, which has been consistently critical of the ICTY. Russia has also been critical of the appointment of Brammertz, who was the ICTY prosecutor from 2008 until its closure in 2017, and it abstained on previous resolutions re-appointing him in 2016, 2018, 2020 and this year.

As a result, it seems that the negotiations on resolution 2637, which most recently extended Brammertz’s term, were once again lengthy and difficult. An area of disagreement during the negotiations was how to characterise the conclusions of the 23 February report of the UN Office of Internal Oversight Services (OIOS) reviewing the methods and work of the IRMCT. Russia apparently proposed language noting that the IRMCT failed to implement all OIOS recommendations and suggested language calling on the OIOS to generate new recommendations on the evaluation of the IRMCT’s methods and work pertaining to its closure, especially with a focus on staff reduction. Russia also apparently sought the inclusion of language expressing concern that the IRMCT had failed to demonstrate any visible reduction in its staff or budget. Most members did not support such language, however, and it was not added to the resolution.

Ambassador Michel Xavier Biang (Gabon) chairs the Informal Working Group on International Tribunals.

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Security Council Resolution
22 June 2022S/RES/2637 This was a resolution extending the term of the IRMCT’s prosecutor Serge Brammertz for another two years, until 30 June 2024.
Security Council Letter
28 July 2022S/2022/583 This was the tenth annual report of the IRMCT.
Security Council Meeting Record
14 June 2022S/PV.9062 This was the semi-annual debate on the IRMCT.
23 February 2022S/2022/148 This was the report of the Office of Internal Oversight Services (OIOS) reviewing the methods and work of the IRMCT.