Challenge Ahead for International Criminal Tribunals: Concluding Remaining Cases on Time, Retaining Experienced Staff, General Assembly Told
While there were still many challenges to be addressed, international tribunals set up in the wake of the wars in the former Yugoslavia and Rwanda had left behind a historic legacy of bringing to justice perpetrators of atrocity crimes, the General Assembly heard this morning.
Briefing the Assembly, Carmel Agius, President of the International Criminal Tribunal for the Former Yugoslavia, said that as the Tribunal prepared to close in 2017 it would continue diligent efforts to complete its work, while respecting due process and the rights of the accused. The body had concluded proceedings against 154 accused of the 161 persons indicted for serious violations of international humanitarian law. Yet despite the progress, the Tribunal faced many challenges, including ensuring that the remaining cases stayed on track for a timely closure as well as a smooth transition to the International Residual Mechanism for Criminal Tribunals.
Another challenge centred on taking all necessary measures to encourage the retention of Tribunal staff and prevent accelerated attrition, he said. While the fact that staff members were seeking secure employment elsewhere was disappointing yet understandable, their assistance was still urgently needed to complete the Tribunal’s work. In the year ahead, a comprehensive solution would be vital to keep experienced staff on until the end of the Tribunal’s mandate.
The Tribunal had managed to prosecute and convict several persons responsible for witness interference, including intimidation and tampering, he said, stressing that international courts and tribunals must take a decisive stand against such activities. With the completion of the Tribunal’s mandate approaching, accountability for international crimes now depended on national prosecution offices and judiciaries.
Also briefing Member States, Theodor Meron, President of the Mechanism for International Criminal Tribunals, said the establishment of the International Criminal Tribunals for the Former Yugoslavia and Rwanda in the early 1990s, and other international and hybrid criminal courts had helped bring about the dawn of what Secretary‑General Ban Ki‑moon called “a new age of accountability.”
With the closure of the Rwanda Tribunal in December 2015, the Mechanism had assumed responsibility for all remaining functions of that body and was continuing preparations for the transfer of relevant remaining functions of the Former Yugoslavia Tribunal, in anticipation of its closure at the end of 2017. The support and cooperation of individual Member States was essential to enable the Mechanism to resolve cases concerning individuals indicted by the Rwanda Tribunal who were subsequently acquitted or released in the United Republic of Tanzania.
In an ensuing debate, several representatives commended the historic legacy of the tribunals, with Australia’s delegate, also speaking on behalf of Canada and New Zealand, saying they had administered justice in cases involving some of the most horrific crimes in recent history. Having no fugitives at large from the Former Yugoslavia Tribunal was a testament to the fact that those accused of serious international crimes might be able to run, but they would not be able to hide from justice.
Other delegates stressed the importance of cooperation, with the representative of Serbia spotlighting that his country had surrendered the largest number of persons accused by the Tribunal, including the highest‑ranking Government officials, and had played an extensive role in ensuring that no fugitive indicted for core international crimes was on the loose.
But Croatia’s representative said Serbia continued not to cooperate. Arrest warrants for three of those indicted had been pending execution since January 2015. He also expressed worries about the Serbian judiciary’s failure to enforce the sentence imposed by Bosnia and Herzegovina. Convicted war criminals “belong on the margins of society as an eternal reminder of failed policies which led to unspeakable atrocities”, he added.
Echoing concerns of several delegations on the staffing challenges facing the Tribunal, the representative of the United States said that the depth of expertise of Tribunal counsel, judges and staff could help assist national prosecutions.
Before concluding the meeting, the Assembly took note of the annual report of the Former Yugoslavia Tribunal and the Mechanism (document A/71/262).
Also speaking today were the representatives of Chile, United Republic of Tanzania, Russian Federation and Turkey.
The General Assembly will meet again at 10 a.m. on Thursday, 10 November, to appoint members to the Committee on Conferences and the Joint Inspection Unit and to elect members of the Economic and Social Council.
Opening Remarks
CARMEL AGIUS, President of the International Criminal Tribunal for the Former Yugoslavia, said he had been fortunate to take office at a time when the Tribunal was fully operational, strong and well‑prepared for its final chapter. The body had concluded proceedings against 154 accused of the 161 persons indicted for serious violations of international humanitarian law, and there were no remaining fugitives charged with such violations. In a pending case, however, there were three accused persons whose arrest warrants were yet to be executed.
As the Tribunal prepared to close in 2017, he said, it had continued its diligent efforts to complete its remaining work expeditiously, while respecting due process and the fair trial rights of the accused. Outlining the five remaining challenges that the Tribunal would face in the next 12 months, he said the first dealt with ensuring that the remaining cases stayed on track for a timely and responsible closure as well as a smooth transition to the International Residual Mechanism for Criminal Tribunals. The judges were currently focused on one remaining trial, namely that against Ratko Mladić, one remaining appeal —— the Prlić et al. case —— and one contempt case, the Jojić et al. proceedings. In light of such work, a request for a final extension of the terms of office of the judges had recently been made before the Security Council.
Continuing, he said another challenge centred on taking all necessary measures to encourage the retention of all Tribunal staff and prevent accelerated staff attrition. While the fact that staff members were seeking secure employment elsewhere was disappointing, it was understandable, he said, stressing that their assistance was still urgently needed to complete the Tribunal’s work. Expressing hope that Member States would continue to offer other forms of staffing assistance, as China had done in 2016, he stressed that a more comprehensive solution was needed to keep experienced staff on until the end of the Tribunal’s mandate.
A third challenge before the court was that of defending its integrity, including enforcing a zero‑tolerance policy with respect to witness interference, he said. So far, the Tribunal had managed to prosecute and convict several persons responsible for witness interference, including intimidation and tampering, he said, stressing that international courts and tribunals must take a decisive stand against such activities.
Noting that another challenge involved the promotion of the Tribunal’s image and the consolidation of its legacy, he said a fifth and final challenge for the Tribunal dealt with supporting and enabling national jurisdictions to adjudicate international crimes, including through enhancing cooperation. Indeed, with the completion of the Tribunal’s mandate approaching, accountability for international crimes now depended on national prosecution offices and judiciaries. “I have faith that […] this bold experiment in international justice will successfully conclude on time and, in the years to come, will continue to serve as a reminder of what is possible in the fight against impunity,” he concluded.
THEODOR MERON, President of the Mechanism for International Criminal Tribunals, said that in the past quarter century, the international community had come together in an effort to end impunity and promote what Shakespeare referred to in his play Henry IV, as the “majesty and power of law and justice.” The establishment of the International Criminal Tribunals for the Former Yugoslavia and Rwanda in the early 1990s, and other international and hybrid criminal courts had helped bring about the dawn of what Secretary‑General Ban Ki‑moon called “a new age of accountability.” Highlighting recent developments, he noted that following the issuance of judgements in December 2015 and March 2016, the Mechanism was seized of a retrial in the case of Stanišić & Simatović, and appeals in the cases of Radovan Karadžić and Vojislav Šešelj.
With the closure of the Rwanda Tribunal in December 2015, he added, the Mechanism had assumed responsibility for all remaining functions of that Tribunal and was continuing preparations for the transfer of relevant remaining functions of the Former Yugoslavia Tribunal, in anticipation of that Tribunal’s closure at the end of 2017. Thanking the Government of the United Republic of Tanzania for its generosity, he noted that in three weeks the Mechanism would be opening new premises in Arusha. The support and cooperation of individual Member States was essential in resolving the situation faced by the Mechanism with regard to individuals indicted by the Rwanda Tribunal who were subsequently acquitted or released in the United Republic of Tanzania.
Turning to “a serious matter impacting the effective discharge of the Mechanism’s mandate”, he noted that in December 2011, the Assembly had elected Judge Aydin Sefa Akay of Turkey as a judge of the Mechanism. In July 2016, following his appointment for a new term, Judge Akay was appointed to a bench of the Appeals Chamber to address a motion for review of judgement and associated applications advanced by Augustin Ngirabatware, who was currently detained following his conviction. But without notification to the United Nations or the Mechanism, on or around 21 September 2016, Judge Akay was detained in Turkey in relation to allegations connected to the events of July 2015 directed against the constitutional order of Turkey. He had remained in detention since that time, with the result that the proceedings to which he had been assigned had come to a standstill.
“Judicial independence is a cornerstone of the rule of law,” he said and it was a longstanding practice to accord international judges privileges and immunities to protect the independent discharge of their functions. The United Nations Office of Legal Affairs had formally requested the immediate release of Judge Akay to the Government of Turkey. Noting that he himself had also requested the Government of Turkey permission to visit Judge Akay, he added that the Government had thus far provided no formal communication whatsoever on those matters. That affected the Mechanism’s ability to perform its core mandate, while also causing strong concern about Judge Akay’s welfare. Calling on the Government of Turkey to immediately release Judge Akay, he stressed that the resolution of that matter was crucial to ensure that United Nations institutions were able to carry out their mandates in accordance with the law.
Statements
ERIC CHABOUREAU, European Union, reaffirmed the Union’s unwavering support for the work of the Former Yugoslavia Tribunal and the Office of the Prosecutor of the Tribunal. The Tribunal had played a key role in strengthening the rule of law and promoting long‑term stability and reconciliation. Each organ of the Tribunal continued to undertake measures to ensure completion of its mandate by the end of 2017. The Union valued the fact that the Tribunal had been taking steps to ensure a smooth handover of functions to the Mechanism in an efficient and timely manner.
The Union welcomed the fact that the joint European Union‑Tribunal Training Project for National Prosecutors and Young Professionals from the former Yugoslavia remained a central component of the Office of the Prosecutor’s efforts to build national capacity in the national justice sectors to ensure an efficient transition. The Union’s direct budgetary support to domestic war crimes prosecutions, in place since 2013 in some Western Balkan countries, complemented the efforts to increase national capacities in tackling the backlog of war crimes cases. International criminal justice played an essential role towards lasting peace, accountability and the rule of law.
GILLIAN BIRD (Australia), also speaking on behalf of Canada and New Zealand, said that viewed through a lens spanning more than 20 years since their establishment, the exceptional contribution of the Tribunals was clear. The significance of their legacy for the practice of international criminal law, and towards ending impunity, could not be overstated. They had added breadth and depth to international criminal law jurisprudence, administering justice in cases involving some of the most horrific crimes in recent history. She noted that while the Rwanda Tribunal had now completed its work and was closed, eight fugitives still remained at large. If apprehended, three of the fugitives would be tried by the Mechanism and five of the fugitives would be tried by Rwanda. It was important that those individuals had their day in court.
It was particularly commendable that international cooperation had resulted in the fact that there were no fugitives at large from the Former Yugoslavia Tribunal, she said. That was a testament to the fact that those accused of serious international crimes might be able to run but they would not be able to hide from justice. While the trials and appeals of the Former Yugoslavia Tribunal were nearing an end, important work remained regarding staff attrition and the loss of senior staff and their extensive case‑specific knowledge. The United Nations must look at creative solutions to that challenge. Moreover, the Mechanism had a critical role to play in completing trials and appeals, the protection of witnesses, the enforcement of sentences, the provision of assistance to national jurisdictions, and the maintenance of the Tribunal archives.
SAŠA OBRADOVIĆ (Serbia), associating himself with the European Union, said his country had consistently complied with its international obligations and no request to it had remained unaddressed. It had surrendered the largest number of persons accused by the Tribunal, including the highest‑ranking Government officials, and had played an extensive role in ensuring that no fugitive indicted for core international crimes was on the loose. Spotlighting the recent delay in cooperation in the matter of the Tribunal’s arrest warrants and its orders for surrender, issued against three individuals indicted in a case of contempt, he recalled that the High Court of Belgrade had decided that the legal conditions for the execution of the Tribunal’s warrants had not been met; that decision, however, did not stand in the way of Serbia’s cooperation with the Tribunal.
Recalling that his country had been pleading with the United Nations since 2009 to sign an agreement with the Tribunal on the enforcement of sentences in its prison institutions, he said no progress had yet been made in that respect. While the Secretary‑General’s 1993 recommendation that the enforcement of sentences take place outside of the territory of the former Yugoslavia —— which continued to be maintained —— might have once been justified, it was clear that it had now lost its logic and justification. Noting that the treatment of convicted persons varied from country to country, that many persons served their sentences thousands of kilometres away from their countries where they did not understand the language or culture, and that no organized legal aid conformant with the specific international judicial procedure in which those persons had been convicted was provided, he said Serbia was ready to take responsibility for the enforcement of the Tribunal’s sentences.
VALERIE BIDEN OWENS (United States) said the diligence of Tribunal jurists to bring to justice those responsible for the worst crimes known to humankind —— genocide, war crimes, and crimes against humanity —— had served as a model for future international criminal justice institutions. It also served as a warning to potential perpetrators that there could be no impunity for atrocity crimes. Regarding the work of the Former Yugoslavia Tribunal, the United States continued to support its important work on moving forward thoroughly to render verdicts in cases that served the broader needs of justice while protecting the rights of the accused. The United States was confident that the Tribunal could fulfil its commitment to complete its work by the end of 2017. Full cooperation was vital particularly with respect to the execution of arrest warrants issued by the Tribunal for three individuals in a contempt case. The pursuit of justice for victims in Rwanda and the former Yugoslavia must not end with the closure of the Tribunals for both nations. The depth of expertise of Tribunal counsel, judges and staff could help assist national prosecutions. The United States also supported aspects of the Mechanism, including prioritization of the location and arrest of remaining fugitives “until each and every one of these men stands to answer for their alleged crimes”.
VLADIMIR DROBNJAK (Croatia) emphasized that full cooperation with the Former Yugoslavia Tribunal must be ensured and both the Tribunal and Mechanism must receive all support necessary to complete their mandates in time. He expressed regret that not all individuals indicted by the Tribunal had faced final judicial assessment for their actions. Stressing the importance of fully cooperating with the Tribunal, he shared his concerns about Serbia’s continued non‑cooperation. Arrest warrants for three of those indicted had been pending execution since January 2015.
He also expressed concern about the Serbian judiciary’s failure to enforce the sentence imposed by Bosnia and Herzegovina. Convicted war criminals “belong on the margins of society as an eternal reminder of failed policies which led to unspeakable atrocities”, he added. Serbia’s Law on the Organization and Competence of State Authorities in War Crime Proceedings —— which was neither universal, subsidiary or politically neutral in its application —— was hindering successful regional cooperation in criminal matters. Croatia was considering a proposal for a series of Tribunal legacy and closing events. While the Tribunal’s legacy was not without flaws and controversies, that should not tarnish its overall record and historic legacy, instead serving as an important lesson for other stakeholders, particularly the International Criminal Court.
CRISTIÁN BARROS MELET (Chile) recognized the role of the Former Yugoslavia Tribunal in combating impunity and promoting the progressive development of international law. The Tribunal continued to successfully implement its transitional period with the assistance of the United Nations, including the Security Council. In that vein, it was necessary to urgently call for greater international cooperation, particularly in areas of State inaction in executing arrest warrants. He called for correct implementation of principles of universal jurisdiction and complementarity, which remained a prerequisite for a country rooted in the rule of law. He supported a drawdown process of the Tribunal that would guarantee its effectiveness and efficiency.
TUVAKO N. MANONGI (United Republic of Tanzania) said that the activities of the Prosecutor’s Office of the Rwanda Tribunal had showed the beginning of a period of intense trial and appeals work. That stage of litigation would have its unique challenges, requiring support and cooperation from the United Nations and its Member States. The report expressed concern about the trend by convicted persons to seek a review and possible revocation of their convictions, he said, noting that such applications must prevent frivolous claims and preserve the integrity of convictions. Furthermore, issues pertaining to the support and protection of witnesses deserved greater and humane attention as they had suffered serious emotional and psychological impact. In addition, he emphasized that the continued presence in Arusha of persons acquitted or released by the judicial process must be a matter of concern to all, urging increased effort for the relocation of those individuals. Among other things, he acknowledged and commended the seamless transfer of the work of the Rwanda Tribunal following its closure in December 2015 to the Mechanism.
EVGENY T. ZAGAYNOV (Russian Federation) expressed concern that the work of the Former Yugoslavia Tribunal had gone over its deadline for concluding its activities. He welcomed the new leadership to conclude all cases by 2017. Challenges with loss of staff should not serve as an excuse to further draw out procedures. He welcomed the amendment introduced in Security Council resolution 2306 (2016) and hoped that the Tribunal would find effective solutions for its staffing challenges. Noting that the Mechanism’s docket had grown significantly, he called for more detailed information on the projected duration of cases and estimate end dates. The Mechanism was a temporary process, he said, calling on the Tribunal’s leadership to make full use of procedural possibilities.
Right of reply
The representative of Turkey said that the President of the Mechanism had mentioned his country in his briefing regarding the detainment of Judge Aydin Sefa Akay, emphasizing that the investigation was ongoing and in line with Turkish laws. He could not concur with such an interference with the sovereignty of a Member State. Nobody, not even a judge, was above the law and no crime should enjoy impunity.