International Residual Mechanism for Criminal Tribunals May Conclude Most Cases by May 2021, Its President Tells Security Council
The International Residual Mechanism for Criminal Tribunals — the judicial body that took over the remaining work of the two dedicated tribunals for war crimes committed in Rwanda and the former Yugoslavia — could conclude most of its pending caseload by the end of May next year, its President told the Security Council during a 14 December videoconference meeting.
“It is almost with a sense of déja vu that I say this because, were it not for COVID-19, the Mechanism would have been able to conclude the existing proceedings in 2020, as anticipated last December,” said Carmel Agius, President of the Mechanism. He emphasized that judges and staff are ready to exert all efforts to ensure completion of the relevant cases by the projected dates, with full regard for the rights of accused persons.
He pointed out that 22 December marks 10 years since the Security Council adopted resolution 1966 (2010), which established the Mechanism, successor to the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.
“It is particularly special for the Mechanism to reach this anniversary during a year marking the United Nations’ own seventy-fifth birthday,” he said, underscoring the Mechanism’s raison d’être while taking stock of the progress made and the work that remains to be done.
He said that, from the early days of transitional arrangements and “double‑hatting” to navigating the closure of the ad hoc Tribunals to finding its feet as a stand-alone institution, the Mechanism has certainly covered much territory over the years. Additionally, it has managed a considerable workload and consolidated the best practices of two disparate institutions.
Key developments in the former Yugoslavia cases since the last semi-annual meeting in June, he said, include the appeal hearing in the case against former Bosnian Serb commander Ratko Mladić, held at the Mechanism’s Hague premises in late August, with 4 of the 5 judges of the Appeals Chamber participating by video teleconference. The case is expected to conclude in May 2021.
In September, he recalled, in-court proceedings resumed in the case against Jovica Stanišić and Franko Simatović, with the Trial Chamber hearing the final five witnesses for the Simatović defence. The judgment is likewise expected by the end of May. On 8 December, the Single Judge seized of the contempt case against Petar Jojić and Vjerica Radeta issued a public decision, reiterating the previous request that Serbia comply with its obligation to transfer the accused to the seat of the Mechanism in The Hague without delay, with a view to ascertaining Serbia’s compliance with his decision within 90 days.
Turning to Rwanda cases, he said the Arusha branch finally commenced the trial in the case against Maximilien Turinabo and others on 22 October. With the presentation of witnesses for the prosecution now concluded, the defence phase will begin in early 2021, with the trial judgement also expected in May 2021, he added.
In addition, he continued, important events took place in relation to fugitives indicted by the Rwanda Tribunal, with new pretrial proceedings having commenced in the case against Félicien Kabuga, who was transferred to the United Nations Detention Unit in The Hague in October, following his arrest earlier in the year. His initial appearance took place on 11 November, when a plea of not guilty was entered on his behalf, he recalled. Further, the case against fugitive Augustin Bizimana was formally closed, following his death, he said, noting that only six fugitives remain, with one expected to be tried.
Stressing that the support of Member States is crucial to the Mechanism’s ability to effectively discharge its functions, he highlighted Mr. Kabuga’s arrest by the French authorities as an invigorating example of what the Mechanism can achieve with the collaboration and committed efforts of States and other stakeholders. He recalled that Council resolution 2529 (2020) urges all States to intensify their cooperation with, and render all necessary assistance to, the Mechanism regarding the remaining fugitives, as well as the protracted relocation of the nine acquitted and released individuals still waiting in an Arusha safe house.
Serge Brammertz, Prosecutor of the International Residual Mechanism for Criminal Tribunals, affirmed his staff’s commitment to completing its important work despite the COVID-19 pandemic. In relation to trials and appeals, he reported that in-court proceedings recommenced in late August, with his Office having presented its oral appellate arguments in the Mladić case and now awaiting the judgment. On Turinabo et al., his Office presented its witness evidence in only six weeks and is now preparing to respond to the defence cases and then make final submissions. The presentation of evidence in the Stanišić and Simatović re‑trial has been completed, with the prosecution team now working to prepare its final trial brief and closing oral arguments. In the newest case, against Mr. Kabuga, a team was established in Kigali in August, less than three months after his arrest, to prepare for trial. The team is now contacting witnesses, reviewing the evidence collected and meeting its pretrial obligations, despite pandemic obstacles. He thanked the Government of Rwanda for its strong cooperation in the case. On the remaining ad hoc judicial activities, he said his Office is firmly focused on completing them as quickly as possible, with judgments in three cases expected by the end of May 2021.
Regarding remaining fugitives, he said his Office has viable leads and is focusing in particular on Protais Mpiranya, who will be tried by the Mechanism upon his arrest. Fulgence Kayishema, who is charged with playing a major role in the horrific 1994 Nyange Church massacre, also remains at large, following what he called “South Africa’s failure to provide effective cooperation over the last two and a half years.” Addressing the South African delegate, he said: “Empower your operational services — particularly police and prosecutors — to work directly with us on a day-to-day basis. And truly give them your full political and diplomatic support, as well as the resources they require to help us.” He said he was prepared to visit Pretoria in 2021 to further discuss cooperation and agree on a clear joint strategy and operational arrangements, adding: “This would also send the right message to other capitals.” He also described further engagement with Zimbabwean and Ugandan authorities to strengthen their cooperation on locating other fugitives and appealed again for the Council’s firm support in encouraging such cooperation to close remaining cases. His Office also continues to urge full cooperation with the work of the Prosecutor General of Rwanda as he seeks to account for hundreds more fugitives who remain at large. Arrests conducted by Belgian and Dutch authorities in September and October, respectively, demonstrate both that international cooperation is vital and that justice can be achieved in courtrooms around the world, he observed.
His Office, he said, also continues to strengthen its support to national prosecutors in the countries of the former Yugoslavia, with several important files having been transferred to Croatia and Serbia. During the reporting period, a requested dossier concerning more than 15 suspects in serious crimes including sexual violence was handed over to Montenegrin authorities. In pursuing further such efforts, diplomatic support from the European Union and other partners will remain critical. Reiterating the importance of finishing work on missing persons in the former Yugoslavia, he said close cooperation with the International Committee of the Red Cross and national missing persons authorities is producing significant results. Just a few weeks ago, a new mass grave for Kosovo Albanians victims was found at Kizevak, Serbia, and in Bosnia and Herzegovina, assistance from his Office contributed to locating four new grave sites during the reporting period, as well. “More than two decades after the end of the conflicts, 10,000 families are still waiting to learn the fates of their loved ones. Accounting for all missing persons is a humanitarian imperative” he stressed.
In the ensuing discussion, speakers broadly welcomed the Mechanism’s progress made, including the arrest of Félicien Kabuga. Several Council members called upon authorities in all States, particularly those in which fugitives are known to be, to cooperate with the Mechanism and the Office of the Prosecutor. Other speakers encouraged the Mechanism to adhere to its completion schedule while stressing the importance of building national capacity to exercise their responsibility for fighting and preventing heinous crimes. The Council also heard that detained suspects, including Ratko Mladić, are treated inhumanely, with many having died in custody.
The representative of Viet Nam said that placing the case of Félicien Kabuga on the docket after his arrest sends a strong message that those who have committed grave crimes cannot evade justice. The launch of the Mechanism’s Unified Judicial Database will give the public greater access to jurisprudence, he added. Viet Nam encourages the Mechanism to keep moving to meet its completion schedule and stresses the importance of cooperation between the Mechanism and concerned States, he emphasized, noting the Mechanism’s cooperation with States to monitor how the COVID-19 situation impacts prisoners serving sentences. Stressing that the State bears primary responsibility for fighting and preventing heinous crimes, he called on additional efforts to build national capacity and help States exercise that responsibility. Acknowledging the Mechanism’s challenges faced in its search for remining fugitives and in relocating acquitted and released persons, he said that forging stronger direct communications with relevant States to identify such challenges should be a high priority.
The representative of Belgium said that Félicien Kabuga’s arrest gives hope to the survivors of the genocide in Rwanda. He went on to note the Mechanism’s measures to function effectively and efficiently despite COVID-19 restraints and the resumption of hearings through technology. Emphasizing the importance of cooperation between the Mechanism and States, he said, there are, however, some unacceptable conditions. Some States are not carrying out arrest warrants, he noted, calling upon all Member States, particularly those on whose territories fugitives are found, to cooperate with the Mechanism and the Office of the Prosecutor. While some progress has been made in some areas of the former Yugoslavia, there has been too little progress in others, he said. Denial of genocide and war crimes, and the glorification of war criminals is ongoing, contrary to the values of the United Nations and the European Union. They must end, he said, stressing that the memories must be maintained for future generations to avoid committing the same crimes.
The representative of Estonia, welcoming the reappointments of Mr. Brammertz as its Prosecutor and Mr. Agius as President, noted that the Mechanism has achieved significant progress against the caseload during the current extraordinary circumstances. Commending the President’s steps to ensure the Mechanism’s supervisory responsibility for detained persons in Arusha and The Hague, he also welcomed the continuing efforts by the Office of the Prosecutor to build the capacity of national judiciaries prosecuting war crimes. However, Estonia remains concerned about the challenges that Office continues to face in relation to cooperation with national authorities to apprehend the remaining fugitives, he emphasized.
The representative of Germany expressed concern over genocide denial in the area of the former Yugoslavia and urged all leaders in that region to ensure education on and acknowledgement of war crimes for the sake of the victims and to prevent further atrocities. He stressed that all relevant States must cooperate fully in the apprehension of the remaining fugitives. Despite the work of the Tribunals, recent history remains an open wound in the Balkans 25 years after the massacre in Srebrenica, he noted, underlining the need to intensify efforts to come to terms with crimes and promote reconciliation. No excuses should be made to keep remaining trials from taking place, he said, emphasizing the moral obligation to hold perpetrators of the horrific crimes in question to account.
The representative of the Dominican Republic said it is now critical that the Mechanism receive the cooperation it needs to complete its remaining work in a timely manner. In the interest of the Dominican Republic’s priority of strict compliance with human rights standards, he called for a rapid solution in the matter of relocating those who have served their sentences, emphasizing that, in that and other areas, all Member States must cooperate fully with the Mechanism. It is essential to complete its work in order to advance the common goal of ensuring justice and acting against impunity.
The representative of Indonesia welcomed the Mechanism’s continuing efforts to efficiency, transparency and effectiveness despite the challenges. It is now critical to continue making headway, in accordance with resolution 2529 (2020), and to conclude the mandate in a timely manner, she emphasized. Noting efforts to locate and arrest the six fugitives still at large, she called upon relevant States to intensify cooperation with the Mechanism to that end. “We need to make sure that no one can escape justice,” she stressed, reaffirming her county’s commitment to the rule of law and its support for the Mechanism’s work.
The representative of Saint Vincent and the Grenadines applauded the Mechanism’s progress despite the pandemic, welcoming its approach in addressing the conditional early release of prisoners. Victims and affected States should always be consulted on that issue, he added. Emphasizing the need for further international cooperation for the apprehension of the remaining fugitives, he said it was also required in order to resolve the matter of witness relocation. Denouncing all forms of genocide denial and the glorification of convicted war criminals, he stressed that recognition and remembrance of painful periods in history are critical to preventing them from being repeated.
The representative of the Russian Federation noted that resolution 2529 (2020) upholds the rights of persons in custody, but the report presented to the Council does not cover how the protection of their rights is implemented. Calling attention to the poor health condition of Ratko Mladić, he said the former commander is fighting for his life, but has been denied access to his doctor and medical treatment. He must be fully examined by a doctor to determine whether he has the cognitive function to appear in court, he said, emphasizing that it is not merely a health issue. How long will the Council turn a blind eye to inhuman treatment of detainees? Unfortunately, judgements of the International Criminal Tribunal for the Former Yugoslavia were predetermined long before they were delivered, he said. The Russian Federation supports speeding up the proceedings, but not at the cost of detainees’ human rights, he stressed, pointing out that 12 Serbian detainees died in the Tribunal’s custody. The Mechanism should not inherit such cruel practices, he added.
The representative of the United States said Washington, D.C., continues to offer rewards of up to $5 million for information leading to the arrest, transfer or conviction of any of the at-large fugitives. He recalled that General Mladić served as commander of the Bosnian Serb army during the genocide of Bosnian Muslim men and boys in Srebrenica, and his forces raped women and girls, all with the horrifying objective of permanently removing Muslims and ethnic Croats from territory claimed by the Bosnian Serbs. He acknowledged progress on the retrial of Jovica Stanišić and Franko Simatović on charges of crimes against humanity and war crimes for their alleged roles in the unlawful, forcible removal of non-Serbs from Croatia, as well as Bosnia and Herzegovina. He also commended the Mechanism’s efforts to support national judicial efforts, noting Rwanda’s continuing progress in trying genocide-related cases and urging the Balkan States to improve their cooperation across national systems.
The representative of China said the Mechanism’s launch of the pretrial phase against Mr. Kabuga in a case that began in 1994 demonstrates the Mechanism’s resolve to fight impunity. Noting the Council’s vision of the Mechanism as a small and temporary structure whose size will diminish over time, he expressed hope that it will uphold its mandate and complete trials for each case on the basis of the timelines and assessments provided in each report. Member States must allocate the necessary budgetary resources to assure the Mechanism’s effective functioning, he said, expressing hope that the Mechanism will continue improving its work as it receives guidance from the Council. Hopefully, States will work with the Mechanism in searching for remaining fugitives and help relocate acquitted and released persons, he added.
The representative of France, emphasizing his country’s continuing support for the fight against impunity, said the Mechanism requires appropriate financing. Pointing out that France contributed $4 million in 2020, he said the Mechanism must continue the work begun by the Tribunals in The Hague and Arusha. He went on to state that the opening of the case against Mr. Kabuga in 2021 will be a new point in time for the victims, emphasizing that justice in that case is a priority. Requesting that all States cooperate with the Mechanism, he expressed regret that some fail to do so. No case of genocide should go unpunished, he said, stressing that there can be no lasting reconciliation without recognition of all crimes committed. He calls upon all those denying such crimes to stop doing so.
The representative of Tunisia, welcoming the Mechanism’s contribution to accountability for core international crimes, said it is all the more important amid the resurgence of glorifying war criminals. To end that resurgence and complete its remaining work, the Mechanism must continue to rely on the full cooperation of relevant States, he emphasized. Applauding the Mechanism’s progress during the pandemic, he stressed the importance of adhering to the revised timelines as much as possible. He also underlined the need to resolve the question of persons residing in the Arusha safe house alongside expeditious and durable solutions to related problems, including those that are part of reconciliation processes.
The representative of Niger said that in order to allow the Mechanism to play its part in fighting impunity for the most serious international crimes, States must cooperation fully. Thanking Mechanism staff for its continuity during the pandemic and its attention to human rights issues, such as the relocation of former prisoners, he called upon the Council and all stakeholders to provide adequate support to enable the Mechanism to complete its work according to the timeline agreed in resolution 2529 (2021).
The representative of the United Kingdom welcomed the Mechanism’s renewed drive to build upon the success of Félicien Kabuga’s arrest to bring the remaining alleged genocidaires to justice. “We are pleased to see legal proceedings against Kabuga are being taken forward, working closely with the Government of Rwanda,” she said. However, regional judicial cooperation in the Western Balkans remains inadequate, she noted, reiterating the Prosecutor’s call to countries in the former Yugoslavia to register criminal convictions entered by the International Criminal Tribunal for the Former Yugoslavia into domestic criminal records. She went on to express deep concern that the glorification of war criminals and genocide denial continue in the Balkans. It is reprehensible that individuals and groups continue to deny those events, and in some cases to glorify the perpetrators and instigators of those heinous acts, she stressed.
The representative of South Africa, while commending the Mechanism’s operations during the pandemic, said his country has made great efforts to cooperate with it, but has encountered a number of challenges in regard to one of the fugitives in question. The South African authorities are exploring additional ways to obtain information to ensure his arrest, he added, emphasizing that his country stands ready to continue to assist the Mechanism in any way possible, and determined to continue all efforts to trace and surrender fugitives from justice.
Cedomir Backovic, Assistant Minister for Justice of Serbia, reported that his country has adapted its cooperation with the Mechanism to the circumstances of the pandemic. Describing extensive activities in that regard, as well as prosecution in domestic proceedings, he said those surrendered for prosecution include many former officials, something not required from other States. However, with respect to the request that Serbia surrender Vjerica Radeta and Petar Jojić for obstruction of justice, he reiterated that an independent court in Serbia has rejected the request in a legally valid manner. That decision must be respected, he emphasized, pointing out that the crime alleged does not fit within the scope of the Tribunal and the Mechanism.
With the extension of the Mechanism, all unaddressed key issues regarding Serbia’s cooperation must be resolved, he continued. Among them are unacceptable interference by the Office of the Prosecutor in requesting changes in the Mechanism’s rules of procedure and evidence, including those dealing with conditional release. Serbia has done its best to provide information in matters concerning the early release of its citizens, but the Mechanism has not made progress in considering the issue, he noted, adding that no concrete reply has been received to Serbia’s requests for the due return of documents. He stressed that the jobs of the Tribunal and the Mechanism are completed once a judgment is passed and a sentence served, and therefore the discussion of “denial and glorification of war crimes” is not under the Mechanism’s field of competence, as it is replete with political messages, he said. It is hard to understand why Serbia’s efforts to resolve open issues are met with official indifference, he said, emphasizing that the only way to bridge the differences and overcome the impasses is for the Security Council be actively engaged.
The representative of Rwanda noted Mr. Kabuga’s transfer to the Mechanism and said Rwanda expects the trial to begin and conclude swiftly in order to render final justice — 26 years after the genocide against the Tutsi in Rwanda and 23 years after Mr. Kabuga was inducted by the International Criminal Tribunal for Rwanda in 1997. All the Mechanism’s reports to the Council over the last two years have consistently demonstrated a lack of cooperation with the Office of the Prosecutor on the part of some Member States in apprehending remaining genocide fugitives, although the Council mandated that the Tribunal bring them to justice, she noted. “It is quite troubling that some Member States continue to fail to honour their legal obligations to cooperate with the Mechanism in bringing to justice genocide fugitives.” The Office has struggled to obtain the cooperation of Member States in apprehending fugitives, even with clear leads and evidence of their presence in those countries, she said, emphasizing that pronouncements of commitment to international law and justice are not credible unless matched by action. Rwanda expects the Council to send a clear and unequivocal message to remind States of their obligation, she added.
Two other issues call for the Council’s attention, she continued, recalling that the Office of the Prosecutor has called for the Council’s urgent attention to regular reports of genocide denial. The Council must act to condemn it and hold cases of contempt, as well as attempts to revise witness testimonies, to account. She went on to express Rwanda’s disagreement with the report’s characterization regarding the resettlement of nine acquitted and released persons. The report states that “the resettlement of the nine acquitted and released persons, who are presently residing in Arusha, and are unable or afraid return to their country of citizenship remains unresolved, and the present dilemma constitutes a humanitarian crisis that profoundly affects their rights”, she noted. The qualification of “humanitarian crisis” to refer to nine free men, living comfortably in villas paid for by the international community, in a residential area of the touristic town of Arusha, with cleaning, cooking, communication and all accommodation services, with freedom of movement and visits, is abusive, she said, adding that the situation does not sound like a humanitarian crisis. Yemen might be a humanitarian crisis, but not this situation, she stressed.
She reminded the Council that, in all meetings with Tribunal Principals, the Government of Rwanda has consistently made it clear that the nine Rwandans acquitted and released by the Tribunal are free to return and live in Rwanda if they wish to do so. They would not be the first Rwandans to return home and live side by side with all other Rwandans and enjoy their full rights, she pointed out. Hundreds of thousands of Rwandans, former refugees, combatants or former genocide convicts today live peacefully side by side with genocide survivors, a testament to the success of Rwanda’s unity and reconciliation. It is these men’s decision to return to Rwanda, she said, adding that, if they wish to live in other countries, that is their full right and they should apply for asylum in their country of choice, as is the case for every asylum seeker. “What we find highly questionable is why these nine free persons, who are today free men, and have no ongoing proceedings with the Mechanism, should continue to be the burden of the international community.”
The representative of Croatia said it is extremely important that judgments in both the Stanišić and Simatović trial, as well as the Mladić case not be delayed any further. The trial of Slobodan Milošević lasted so long that he died before a verdict could be rendered and contributed to better understanding of his regime’s dominant role in conflicts and atrocity crimes committed in the former Yugoslavia. “Verdicts in the Stanišić and Simatović and Mladić cases are last opportunities to make it up to the extent possible,” he said. Emphasizing that the Tribunal’s latest decision in the contempt of court proceedings against Petar Jojić and Vjerica Radeta is clear, he said Serbia must execute the arrest warrants and related transfer orders against the accused. Croatia remains committed to continuing cooperation with other countries in the region on matters related to war crimes, he said, pointing out that cooperation between his country and Bosnia and Herzegovina resulted in the transfer of some cases to the Croatian judiciary. Hopefully, the same progress can be made with Serbia. Croatia is still waiting for Serbia’s response to an invitation from September 2019, to the fourth and final round of negotiations, which would result in the final draft text of a bilateral agreement on processing war crimes, he said, adding that the invitation was renewed in November 2020.
The representative of Bosnia and Herzegovina emphasized the critical importance of a successful conclusion of the Mechanism’s mandate in an efficient manner and within a reasonable time frame. Noting that COVID-19 has significantly affected the country’s judicial work, he said the Council of Ministers adopted a revised strategy in September to make additional efforts on all war crimes cases. Implementation of that revision will send a strong message that impunity is not allowed, he added. He went on to express appreciation for the support of the European Union, the Organization for Security and Co-operation in Europe (OSCE) and the United Nations Development Programme (UNDP) in strengthening the human and material resources of judicial institutions processing war crimes and in general capacity-building. Reiterating the importance of consistent cooperation among the prosecutors’ offices and the relevant authorities of Bosnia and Herzegovina and neighbouring Croatia and Serbia, he emphasized that Sarajevo remains committed to investigating, prosecuting and punishing all persons responsible for war crimes, regardless of their nationality or political or other affiliation. Protecting witnesses is of the utmost importance for all judicial institutions in Bosnia and Herzegovina, and for reconciliation and a path towards European Union membership.