What's In Blue

Posted Tue 11 Jun 2013

Debate on Tribunals

Tomorrow (12 June), the Security Council will hold its semi-annual debate on the ad hoc international criminal tribunals. The presidents (Judges Theodor Meron and Vagn Joensen) and prosecutors (Hassan Bubacar Jallow and Serge Brammertz) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are expected to brief the Council. No outcome is expected.

There was some possibility that the meeting might have been an open debate. On 15 May, Ambassador Christian Wenaweser (Liechtenstein) sent a letter to the President of the Council on behalf of 15 countries, requesting that the June debate on the tribunals be opened to the participation of member states to mark the 20th anniversary of the establishment of the ICTY. However, Russia took a firm position against having an open debate on the tribunals. Despite the support of most Council members to hold an open debate, no Council member was willing to request a procedural vote by the Council to allow all those interested to speak during the debate. (In a vote on a procedural issue, there must be at least nine votes in favour and permanent members cannot use their veto.) It seems that at present, besides the parties whose interests are affected (which regularly address the Council during these debates), Russia has only agreed to allow Liechtenstein to speak during the debate on behalf of the countries interested “on an exceptional basis”.

The Council’s Informal Working Group on International Tribunals met yesterday afternoon (10 June) with the presidents and prosecutors, prior to their appearance in the Council, to be updated on the work of the tribunals and their completion strategy and on the work of the Mechanism for International Criminal Tribunals, which was established by the Council on 22 December 2010 to carry out a number of essential functions of the ICTY and ICTR after the completion of their respective mandates.

An issue on the agenda of the Working Group meeting yesterday was the letter from the ICTY regarding the urgent need for the appointment of an appeals chamber judge. According to the ICTY, a replacement is to be filled by appointment of the Secretary-General after consultations with the Presidents of the Council and the General Assembly.
In an earlier meeting of the Working Group on 21 May, there was consensus on the need to appoint a judge, in order for the effective and timely completion of the ICTY’s mandate. However, no agreement was reached at this meeting on the applicable procedure. Russia was of the opinion that the vacancy should be filled in accordance with the election procedure for new judges, and not by the Secretary-General. (The election procedure grants states 60 days to propose nominees, after which the Council establishes a list of between 28 and 42 candidates for the General Assembly to choose 14 judges from).

This issue was followed up during an informal meeting at the expert level held on 6 June. At this point many Council members felt that some action was needed to appoint the judge as soon as possible, regardless of the procedural approach taken. At this meeting agreement was reached for a shortened election process. After the meeting in the Working Group on 10 June, its chair (Guatemala), drafted a letter to be sent by the President of the Council, requesting the Secretary-General to invite States to submit nominations within 30 days (instead of the 60 required under the ICTY Statute). The Council will then establish a list of three candidates from which the General Assembly will elect a judge.

It seems that while several Council members felt that the ICTY request to fill the appeals vacancy presented some legal difficulties, they also wanted to avoid the time-consuming process of a new election in accordance with the Statute, and so were less concerned with the exact procedure concerning the appointment. It is also likely that Russia’s position on the appointment is closely related to the dissatisfaction with the ICTY’s jurisprudence that it has expressed publicly in several forums in recent months.

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