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). The President of the IRMCT, Judge Graciela Gatti Santana, and the Chief Prosecutor of the IRMCT, 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 Chief 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. Since its establishment, the IRMCT’s tasks have included 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 unless the 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 June. Brammertz and Gatti Santana briefed. In her briefing, Gatti Santana noted that the IRMCT’s Appeals Chamber had recently handed down its last judgment regarding crimes committed during the conflicts in the former Yugoslavia in the case Prosecutor v. Jovica Stanišić and Franko Simatović and said “with that judgment, the ambitious journey of the [ICTY] has come to an end, insofar as the cases against all 161 persons indicted by that Tribunal have concluded”. Gatti Santana also updated Council members on the final case concerning core international crimes on the IRMCT’s docket, the trial of Félicien Kabuga. In this regard, she highlighted the Trial Chamber’s 6 June decision to continue the proceedings through an alternative finding procedure despite its finding that Kabuga is unfit to stand trial. She further mentioned “three main areas that require the Council’s urgent attention and vigorous backing”: enforcement of sentences, the situation of acquitted or released persons relocated to Niger in December 2021, and “attempts to undermine our current work and the judgments issued by the ICTR, the [ICTY] and the [IRMCT]”.
Brammertz noted that under Gatti Santana’s leadership the IRMCT “is actively planning its future as a true residual institution”, while emphasising that it still has “important work to do”. He mentioned that more than 1,000 fugitives have not yet been prosecuted in Rwanda and said that national prosecutors in the former Yugoslavia are still processing several thousand cases before observing that his office “has received more requests for assistance than ever before”. Brammertz also highlighted the 24 May arrest of Fulgence Kayishema, who was indicted for the April 1994 murders of more than 2,000 people in Rwanda, and commended the work of national authorities that led to the arrest.
On 7 August, the IRMCT’s Appeals Chamber overturned the Trial Chamber’s 6 June decision to continue proceedings against Kabuga using an alternative finding procedure, concluding that “neither the Statute nor the jurisprudence of the [IRMCT] and its predecessor tribunals allow for the conduct of an ‘alternative finding procedure’…in lieu of a trial”. On 8 September, the Trial Chamber stayed the proceedings against Kabuga indefinitely.
Key Issues and Options
Continuing to monitor the work of the IRMCT and the implementation of its mandate is a key issue for the Council. Members could choose to use the closed format of the Informal Working Group on International Tribunals to have a frank discussion with Gatti Santana and Brammertz regarding the next phase of the IRMCT’s operations. Members could also use this format to ask questions about whether there is anything the Council can do to help manage the three issues identified by Gatti Santana during her 12 June briefing.
Council members generally have a positive assessment of the IRMCT and the progress it has made, with the exception of Russia. Russia has regularly criticised the appointment of Brammertz, who was the ICTY prosecutor from 2008 until its closure in 2017, and it abstained on resolutions reappointing him in 2016, 2018, 2020, and 2022. Russia was also consistently critical of the ICTY.
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 deleting this text, but Russia opposed the deletion. Russia has repeatedly emphasised the importance of protecting persons detained by the IRMCT and maintaining their access to medical care, often by 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 2023S/2023/566
|This letter transmitted the eleventh annual report of the IRMCT.
|Security Council Meeting Record
|12 June 2023S/PV.9344
|This was the semi-annual debate on the work of 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.