What's In Blue

Posted Tue 21 Jun 2022

The International Residual Mechanism for Criminal Tribunals: Vote on Resolution*

Tomorrow morning (22 June), the Security Council is expected to vote on a draft resolution extending the term of Serge Brammertz as Prosecutor of the International Residual Mechanism for Criminal Tribunals (IRMCT) for another two years, until 30 June 2024.

Background

The Security Council established the IRMCT in December 2010, with the adoption of resolution 1966, 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 in 2015 and 2017. It has two branches in The Hague, Netherlands and Arusha, Tanzania, which have focused on the completion of trials and appeals from the ICTY and ICTR. 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 following the confirmation of deaths of two fugitives in May—and assisting national jurisdictions in handling requests related to prosecuting international crimes committed in the former Yugoslavia and Rwanda.

In resolution 1966, the Security Council mandated the IRMCT to operate for an initial period of four years and for subsequent periods of two years thereafter, unless the Council decided otherwise. A preambular paragraph notes that it “should be a small, temporary and efficient structure, whose functions and size will diminish over time”. The Council most recently extended Brammertz’s term until 30 June, thereby also extending the IRMCT’s operating period, with the adoption of resolution 2529 on 25 June 2020. It was adopted with 14 votes in favour and one abstention (Russia). (For more information, see our 25 June 2020 What’s in Blue story.)

On 23 February, the Council received the report of the UN Office of Internal Oversight Services (OIOS) reviewing the methods and work of the IRMCT, as mandated in resolution 2256 of 22 December 2015 (S/2022/148). The report assessed the implementation of the recommendations contained in two prior evaluations carried out by the OIOS in 2018 and 2020 (S/2018/206 and S/2020/236). It concluded that two recommendations were implemented, namely, to support and strengthen staff morale through the conduct of a survey to identify key concerns to manage downsizing and upsizing and to provide clear and focused projections of completion timelines of judicial activities. Two recommendations were partially implemented: to develop scenario-based workforce plans to enhance responsiveness to a surge in workload and systematic thinking with a shared vision of institution-building. The report makes no new recommendations.

On 31 March, the Council adopted a presidential statement requesting the IRMCT to submit a report on the progress of its work since the last review of the IRMCT, which was conducted in June 2020. Council members received that report on 14 April (S/2022/319). The presidential statement also requested the Security Council’s Informal Working Group on International Tribunals to carry out a thorough examination of this report and the OIOS report by 13 May.

On 13 June, the Informal Working Group on International Tribunals met with the IRMCT’s president, Judge Carmel Agius, and Brammertz. On 14 June, the Security Council held its semi-annual debate on the IRMCT (S/PV.9062), with briefings by Agius and Brammertz. This was Agius’ last briefing to the Council, as he is expected to step down later this month. (In a 10 June letter to the Council, the Secretary-General expressed his intention to appoint Judge Graciela S. Gatti Santana of Uruguay as the IRMCT’s president from 1 July to 30 June 2024.) At the meeting, Agius updated the Council on the status of the IRMCT’s remaining three cases. He noted that the appeal judgement in the Fatuma et al. (formerly Nzabonimpa et al.) case will be delivered on 29 June, while the appeal proceedings in the Stanišić and Simatović case are on track for completion by the projected timeframe of June 2023. In the Kabuga case, the Trial Chamber issued its decision on 13 June, finding that the defence has not established that the Rwandan businessman Félicien Kabuga is presently unfit for trial, he said.

In his briefing to the Council, 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.

Negotiations on the Draft Resolution

Council members generally have a positive assessment of the IRMCT and the progress it has made, with the exception of Russia, which has been consistently critical of the ICTY. Russia has also 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 and 2020. As a result, it seems that negotiations were once again lengthy and difficult.

Gabon, the chair of the Informal Working Group on International Tribunals and the penholder on the resolution, circulated an initial draft of the text to Council members on 16 May. It convened four rounds of negotiations on 3, 7, 10 and 16 June. A draft was placed under silence procedure until 9 am today (21 June). The draft passed silence and is now in blue.

The draft in blue re-appoints Brammertz as Prosecutor for a period of two years, until 30 June 2024 (as nominated by the Secretary-General in his 10 June letter). It contains new language on cooperation to enforce sentences pronounced by the ICTR, ICTY and the IRMCT, and welcomes the continuing support already provided by states in this regard. The draft also notes the Prosecutor’s confirmation in May of the deaths of the two fugitives indicted by the ICTR.

A new paragraph was added noting that decisions on the relocation of persons who have been acquitted or completed their sentences should take into account, inter alia, 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. Language on this was proposed by Kenya, following the 14 June Council debate, apparently in relation to the ongoing issues experienced by the eight acquitted or released individuals who were relocated from Arusha to Niamey, Niger, in December 2021. That month, however, the relocated persons were presented with an order expelling them from Niger “for diplomatic reasons”. They currently remain in Niger. At the 14 June debate, Rwanda said that in all its previous engagements with the IRMCT, it “made it clear that we welcome all ex-convicts who have completed their sentences and persons who have been released to return to Rwanda and resettle.”

An area of disagreement during the negotiations was around how to characterise the conclusions of the 23 February OIOS report. Russia apparently proposed language noting that the IRMCT failed to implement all OIOS recommendations and calling on the OIOS to focus its further assessments and recommendations on the process of termination of the functions of the IRMCT. The suggested language also called 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 has failed to demonstrate any visible reduction with regard to its staff or budget. However, most members did not support such language and it was not added to the draft in blue. The draft in blue does contain new language calling on the IRMCT, as part of its completion strategy, to provide options regarding the transfer of its remaining activities in due course.

The draft in blue retains paragraphs contained in resolution 2529, which recall the importance of ensuring the rights of persons detained on the authority of the IRMCT— including those related to health care—and encourage the IRMCT to consider an appropriate solution to the approach of early release of persons convicted by the ICTR. At least two members were apparently in favour of the deletion of these paragraphs, 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.

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*Post-script: On 22 June, the Security Council adopted resolution 2637 extending the term of the IRMCT’s prosecutor Serge Brammertz for another two years, until 30 June 2024. The resolution was adopted by a vote of 14 in favour and one abstention (Russia).

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