What's In Blue

Posted Thu 25 Jun 2020

Council to Vote on the International Residual Mechanism for Criminal Tribunals

This afternoon (25 June), the Security Council president (France) is expected to announce the result of the voting on a resolution extending the operating period and the term of the prosecutor of the International Residual Mechanism for Criminal Tribunals (IRMCT, the Mechanism), both of which expire on 30 June. The IRMCT 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.

On 8 June, the Council held its semi-annual debate on the IRMCT in an open videoconference with the Mechanism’s president, Judge Carmel Agius, and prosecutor, Serge Brammertz, as the briefers. Prior to that, on 3 June, they met remotely with the Informal Working Group on International Tribunals.

Council members generally have a positive assessment of the Mechanism and the progress it has made, with the exception of Russia, which was consistently critical of the ICTY.

It seems that the negotiations were lengthy and difficult. Viet Nam, the chair of the Informal Working Group on International Tribunals and penholder, circulated the first draft of the resolution on 28 May. The latest draft passed silence at 10 am on 24 June and is now in blue.

According to Article 28 of the statute of the Mechanism, “states shall cooperate with the Mechanism in the investigation and prosecution of persons”. In his 8 June statement to the Council, Brammertz emphasised that requests to states to cooperate often go “ignored and unanswered”. Several Council members (the Dominican Republic; EU members Belgium, Estonia and Germany; the UK; and the US) therefore supported strongly additional language on the need for states to cooperate with the Mechanism. Such language was incorporated, and the draft in blue contains a new preambular paragraph recalling “the strong need for States to cooperate with the Mechanism to achieve the arrest and surrender of those remaining fugitives indicted by the ICTR”. (Out of the initial 90 fugitives indicted by the ICTR, six remain at large; the ICTY closed without any remaining fugitives.)

The same countries also supported language highlighting the success of the Mechanism in the past year, including the 16 May arrest of Félicien Kabuga, which is welcomed in a new operative paragraph. Indicted on charges of genocide and crimes against humanity in 1994 in Rwanda, Kabuga was arrested in Paris by French authorities as the result of a joint investigation with the IRMCT Office of the Prosecutor. The prosecution had been seeking South Africa’s assistance in his case since 16 August 2018, when they submitted an urgent request for assistance on the basis of confirmation provided by INTERPOL that Kabuga was in the country. South Africa did not execute the arrest warrant issued by the Mechanism’s prosecutor.

On 28 February, the Council adopted a presidential statement which, among other things, requested the Informal Working Group on International Tribunals to review a report by the Office of Internal Oversight Services (OIOS) on the Mechanism by 15 May. The statement said that the outcome of the review would be “reflected by the Security Council in an appropriate form”. Some difficulties arose between members on the question of what the “appropriate form” would be. The OIOS report pointed out that the Mechanism “was not systematic in presenting focused projections, insofar as they declined to methodically predict the future progress of a trial or estimate a completion date at the start of proceedings”. Russia apparently argued that the same point had already been made in a 2018 OIOS report, requesting that the resolution reflect the Mechanism’s failure to fully implement a timeline for the completion of cases. Russia threatened to block the resolution if the Council was unable to agree on a formulation that demonstrated its concerns; as a result, it appears that language was incorporated to address Russia’s input. Operative paragraphs seven to nine of the draft resolution in blue address the OIOS report. Operative paragraph seven takes “note of the OIOS’s conclusions on the Mechanism’s implementation of the OIOS recommendations”, as well as noting “paragraph 8 of resolution 2422 (2018)”, which included the OIOS recommendations from 2018. More specifically, operative paragraph nine requests the Mechanism to implement the recommendations, especially “more clear and focused projections of completion timelines at the earliest stage possible”.

Another issue discussed during the negotiations was the issue of genocide denial. In his 8 June briefing to the Council, Brammertz stressed that the denial of genocide and the glorification of convicted war criminals is “pervasive throughout the former Yugoslavia” and that especially among the Rwandan diaspora, “there are still concerted efforts to deny the Rwandan genocide”. The “A3+1” (Niger, South Africa, Tunisia and Saint Vincent and the Grenadines) apparently suggested language related to the denial of the Rwandan genocide. As a compromise, the draft in blue recalls a resolution adopted by the General Assembly (A/RES/74/273) on 21 April on the International Day of Reflection on the 1994 Genocide against the Tutsi in Rwanda. A proposal to refer to the former Yugoslavia in the context of genocide denial was not agreeable to all members.

During the 8 June debate, Russia emphasised the importance of the protection of detainees of the Mechanism, including their access to medical care, specifically referring to the case of Ratko Mladić. In May, the Mechanism had announced the postponement of Mladić‘s appeals hearing as his health makes him more vulnerable to COVID-19.  It seems that Russia had suggested language referring to the medical care of detainees. It appears that Russia threatened to block the text if its concerns were not taken into account. A compromise formulation in the draft in blue now recalls “the importance of ensuring the rights of persons detained… in accordance with applicable international standards, including those related to health care”.

In a 19 June letter to the President of the Council, the Secretary-General conveyed his intention to re-appoint 25 judges as well as Carmel Agius as president of the Mechanism for two years, in line with the operating period of the Mechanism. He further nominated Serge Brammertz to be re-appointed as prosecutor of the Mechanism by the Council. It seems that Russia first broke silence on a response by the Council to the Secretary-General taking note of his letter, arguing that such a response could only be sent after the adoption of the resolution. Agreement was reached on the response, however. Russia has been critical of the appointment of Brammertz (who was the prosecutor of the ICTY from 2008 until its closure in 2017) and has abstained on past resolutions appointing him in 2016 and 2018. The draft in blue re-appoints Brammertz.

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