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 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 expires on 30 June.
A resolution on the IRMCT is also scheduled for adoption in June. The first draft of this resolution was circulated to Council members in late May.
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 have included hearing the remaining trials and appeals from the ICTY and the ICTR; locating the 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; enforcing sentences; protecting witnesses and victims; and preserving 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 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 on member state cooperation with the enforcement of sentences handed down by the ICTR, the ICTY, and the IRMCT—and welcomed the continuing support that states had provided. It called on the IRMCT, as part of its completion strategy, to provide options regarding the transfer of its remaining activities in due course. (For more information on resolution 2637, see our What’s in Blue story of 21 June 2022.) It appears that the Informal Working Group on Tribunals is currently considering a framework of operations for completing the IRMCT’s functions. This document was prepared by the IRMCT and provided to the Working Group.
On 4 March, the Council adopted a presidential statement which, among other matters, requested the Informal Working Group on Tribunals to review a progress report from the IRMCT and a report by the Office of Internal Oversight Services (OIOS) on the evaluation of the methods and work of the IRMCT and present its views and any recommendations to the Council by 15 May. The presidential statement said that the outcome of the review will be “reflected by the Security Council in an appropriate form” and included new language requesting that the report from the IRMCT provide detailed timelines for the completion of its functions and realistic options for the transfer of those functions. Council members received the progress report from the IRMCT on 15 April. The OIOS report was issued on 29 February.
The OIOS report, which assessed “the relevance, effectiveness and coherence of the outcomes achieved as a result of the [IRMCT] discharging its residual functions”, concluded that the IRMCT has effectively leveraged cooperation with member states and international organisations to track fugitives, supervise the enforcement of sentences, and facilitate access to information from its archives. It also noted that the IRMCT assisted more than 400 investigations and judicial proceedings in 15 countries between January 2021 and August 2023. The report recommended that the IRMCT should:
- clarify the respective roles and responsibilities of its principals regarding the relocation of acquitted and released persons;
- further strengthen the ways it leverages partnerships with the UN system to find long-term solutions to the challenges it faces regarding cooperation with member states;
- apply lessons learned and best practices from the closure of the Sarajevo field office, particularly for the upcoming closure of the Kigali field office; and
- take steps to further client orientation, including by improving statistics on assistance activities and soliciting feedback from those who request assistance and receive capacity-building training.
The Council’s last semi-annual debate on the IRMCT took place on 12 December 2023. Brammertz and Gatti Santana briefed. Gatti Santana said that the IRMCT “has finally transitioned to its new, truly residual phase” and noted that it no longer has active trials or appeals related to core crimes on its docket following the indefinite stay of proceedings against Félicien Kabuga granted in September 2023. Gatti Santana also mentioned that she had presented the Informal Working Group on International Tribunals with “a draft framework of operations to complete functions” and highlighted that sentence enforcement, the situation of seven acquitted or released persons relocated to Niger in December 2021, and attempts to undermine the IRMCT’s work continue to cause difficulties.
Brammertz noted that his office is now focused on its remaining residual functions, particularly the provision of assistance to national authorities. In this regard, he explained that his office provides three primary forms of assistance: access to evidence and information contained within the IRMCT’s evidence collection; advice on legal, evidentiary, prosecutorial, and strategic matters; and expert support concerning fugitives from Rwanda and the former Yugoslavia.
On 15 May, the IRMCT announced that it had accounted for all fugitives indicted by the ICTR after confirming that the remaining two fugitives—Ryandikayo and Charles Sikubwabo—have died. In a decision handed down on 10 May, the IRMCT denied an application filed by Ratko Mladić, a former military officer serving a life sentence at the UN Detention Unit after being found guilty of committing genocide, crimes against humanity, and war crimes. The application sought provisional release on compassionate grounds or, in the alternative, permission for Mladić to serve the remainder of his sentence in Serbia.
Key Issues and Options
Appointing a Chief Prosecutor is an issue for the Council. A related issue is reflecting the outcome of the Informal Working Group on International Tribunals’ review “in an appropriate form”, as requested in the 4 March presidential statement. The Council could adopt a resolution that appoints a Chief Prosecutor, reflects the outcome of the review process, and makes any changes to the IRMCT’s mandate that are deemed necessary.
Continuing to monitor the work of the IRMCT and the implementation of its mandate is another key issue. 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 IRMCT’s operations. Members could also use this format to ask questions about the framework of operations for completing the IRMCT’s functions and to discuss whether there is anything the Council can do to help manage the issues identified by Gatti Santana during her 12 December 2023 briefing.
Council Dynamics
Council members generally have a positive assessment of the IRMCT and the progress it has made, except for 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. Members disagreed about how to characterise the conclusions of the 23 February 2022 OIOS report on the IRMCT. Russia apparently proposed language noting that the IRMCT failed to implement all OIOS recommendations and text 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 referring to the cases of specific individuals. (For more information on the negotiations, see our 21 June 2022 What’s in Blue story.)
| 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 | |
| 16 November 2023S/2023/881 | This transmitted the assessments of the President and the Prosecutor of the IRMCT. |
| Security Council Meeting Record | |
| 12 December 2023S/PV.9502 | This was the semi-annual debate on the work of the IRMCT. |
| Other | |
| 29 February 2024S/2024/199 | This was the report of the OIOS on the IRMCT. |
