International Criminal Tribunals
Expected Council Action
In June, the Security Council is scheduled to hold its semi-annual debate on the International Residual Mechanism for Criminal Tribunals (IRMCT). 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 Tribunals prior to that.
The term of the prosecutor and the IRMCT’s operating period expire on 30 June 2024.
Background and Key Recent Developments
The IRMCT—with branches in The Hague, the Netherlands, and Arusha, Tanzania—focuses on completing the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), which closed in December 2017 and December 2015, respectively. Its tasks include hearing the remaining trials and appeals from the ICTY and the ICTR; locating and arresting the three remaining fugitives indicted by the ICTR; assisting national jurisdictions with requests related to prosecuting international crimes committed in Rwanda and the former Yugoslavia; monitoring cases referred to national courts; enforcement of sentences; protection of witnesses and victims; and the preservation of archives.
The IRMCT was established in 2010 by resolution 1966, which said 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, with a small number of staff commensurate with its reduced functions”.
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 decides otherwise. The Council most recently extended the IRMCT’s operating period and Brammertz’s term in resolution 2637, which was adopted on 22 June 2022 with 14 votes in favour and Russia abstaining. 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 2022 of the deaths of two fugitives indicted by the ICTR and included new language noting that decisions on the relocation of persons who have been acquitted or completed their sentences should take into account, among other matters, the readiness of the state of origin to accept its nationals, the consent or any objections raised by the individuals to be relocated and the availability of other relocation states. (For more, see our What’s in Blue story of 21 June 2022.)
The Council’s last semi-annual debate on the IRMCT took place on 12 December 2022. Brammertz and Gatti Santana briefed. In her briefing, Gatti Santana provided an update regarding the two remaining cases concerning core international crimes currently being managed by the IRMCT, the appeal in Prosecutor v. Jovica Stanišić and Franko Simatović and the trial of Félicien Kabuga. Gatti Santana also highlighted several of the new elements in resolution 2637 and outlined the priorities for her presidency, including by noting that she had presented a road map for developing an IRMCT-wide scenario-based workforce plan to the Council’s Informal Working Group on International Tribunals on 9 December 2022, which laid out the remaining residual functions with preliminary projections involving three drawdown phases. Gatti Santana further said that eight persons, who have been acquitted or completed their sentences, have not been relocated and are under de facto house arrest, before noting that member state assistance “will go a long way to helping the [IRMCT] move ahead with its transition plans”.
Brammertz highlighted that there are still more than 1,000 fugitives wanted by Rwandan prosecutors for crimes committed during the 1994 genocide and emphasised that some of these individuals are currently residing in third countries, before saying that his office will work with national authorities responsible for extraditing or prosecuting those individuals. Brammertz also noted that more than 3,000 suspected perpetrators of war crimes, crimes against humanity, and genocide living in the former Yugoslavia have yet to be investigated or prosecuted and noted that over the past five years, his office had received an average of 362 requests per year for assistance with these cases. He further referred to difficulties encountered by prosecutors in the region caused by a lack of cooperation from Croatian authorities.
Regarding the search for remaining fugitives formally accused by the ICTR, Brammertz said that the IRMCT’s top priority is Fulgence Kayishema, who was indicted for the April 1994 murders of more than 2,000 people. Brammertz reported that, although the investigation had been impeded since 2018 by a lack of cooperation from South Africa, coordination had improved, and the investigation was progressing quickly after South Africa established a dedicated national investigative team to work directly with the IRMCT’s tracking team. Kayishema was arrested in South Africa on 24 May and is expected to face an extradition hearing in the coming weeks.
On 24 and 25 January, the IRMCT heard oral arguments in Prosecutor v. Jovica Stanišić and Franko Simatović. The pronouncement of the appeal judgment in this case is scheduled for 31 May. In mid-March, the trial hearing in Prosecutor v. Félicien Kabuga, which began in late September 2022, was stayed pending a determination from the IRMCT regarding Kabuga’s fitness to stand trial.
Key Issues and Options
A key issue for the Council is 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 Gatti Santana regarding her priorities for the IRMCT, including the scenario-based workforce plan she referred to during the 12 December 2022 debate.
Council members generally have a positive assessment of the IRMCT and the progress it has made, except for Russia, which was also consistently critical of the ICTY. Russia has regularly criticised 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 2022.
As a result, the negotiations on resolution 2637, which most recently extended Brammertz’s term, were lengthy and difficult. An area of disagreement during the negotiations was how to characterise the conclusions of the 23 February 2022 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.
Language regarding the importance of ensuring the rights of persons detained on the authority of the IRMCT—including those related to healthcare—was also contentious. At least two members were apparently in favour of the deletion of this text, but Russia opposed the deletion. Russia has repeatedly emphasised the importance of the protection of detainees of the IRMCT, including their access to medical care, specifically referring to the case of Ratko Mladić.
Ambassador Michel Xavier Biang (Gabon) chairs the Informal Working Group on International Tribunals.
UN DOCUMENTS ON INTERNATIONAL CRIMINAL TRIBUNALS
|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|
|12 December 2022S/PV.9217||This was a record of the semi-annual debate on the IRMCT held on 12 December 2022.|
|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.|