Mechanism for Closed Rwanda, Former Yugoslavia Criminal Tribunals Readying Transition from Operational Court to Residual Institution, President Tells General Assembly
Nearly a dozen years after its creation by the Security Council, the International Residual Mechanism for Criminal Tribunals is ready to transition from a fully operational court to a truly residual institution, its President said today as she briefed the General Assembly on its work over the past year.
Graciela Gatti Santana, President of the International Residual Mechanism for Criminal Tribunals, told delegates that apart from one appeal, all International Criminal Tribunal for the Former Yugoslavia cases related to core crimes have been finalized. And apart from one trial, the Mechanism has disposed of all International Criminal Tribunal for Rwanda proceedings earmarked to be heard. However, not all Mechanism functions will cease with the end of in-court proceedings. “Our residual functions will remain ongoing in areas such as protecting witnesses, monitoring cases referred to national jurisdictions, preserving the archives and assisting national jurisdictions,” she explained.
The Mechanism’s first-ever female President, Ms. Santana underscored her commitment to safeguarding the efficient and fair conclusion of the remaining trial and appeal proceedings and shifting the body to a residual institution. Consolidating the achievements of the ad hoc Tribunals and the Mechanism, while enhancing coordination and collaboration, are crucial, she said. All States must provide sustainable support in two main areas - cooperation and resources, she said, appealing to them to share the burden and consider enforcing the sentences of convicted persons. Currently, 46 persons are serving their sentences across 13 enforcement States.
Many delegates at today’s session praised the Mechanism’s crucial role in deepening jurisprudence, advancing the rule of law and ensuring individuals are held accountable for the most serious international crimes committed in the former Yugoslavia and Rwanda. Several looked forward to the conclusion of the final appeal of the Jovica Stanišić and Franko Simatović case. Speakers also supported the progress in the trial against Felicien Kabuga as an important step towards justice for victims and survivors of the 1994 genocide against the Tutsi, with Albania’s delegate saying: “It conveys a strong message of hope and rehabilitation for those who suffered grave violations of human rights in Rwanda”.
The representative of the European Union, in its capacity as observer, affirmed the bloc’s unwavering support for the Mechanism as it ensures accountability and strengthens the system of international criminal justice. “Building a cohesive and inclusive society, based on justice and truth, is the best way to honour the victims of crimes of genocide, war crimes and crimes against humanity,” she said. She remained concerned with the uncertain situation of the eight acquitted or released persons in Niger and encouraged the Mechanism and Member States to find a permanent solution for these individuals.
Recognizing the Mechanism’s efforts in finding a durable solution to those individuals in Niger, Australia’s representative, also speaking for Canada and New Zealand, urged all States, especially those where fugitives are suspected of being at large, to strengthen cooperation with and provide necessary assistance to the Mechanism. “We must all continue to work in ensuring that justice can prevail for victims,” she said.
Echoing that view, Latvia’s delegate, also speaking for Estonia and Lithuania, said that in order to further strengthen international criminal justice mechanisms, a special tribunal should be created to prosecute the crime of aggression against Ukraine.
The representative of the Russian Federation, however, found fault in the Security Council’s experiment to create organs of international criminal justice, saying that system, which has been slow to conclude its work, seems to live by its own rules. He criticized the Former Yugoslavia Tribunal as a typical failed example of exercising international jurisdiction. For example, it did not investigate the bombardment of Serbia by North Atlantic Treaty Organization (NATO) countries in 1999.
The representative of the United Republic of Tanzania, where the Mechanism started operating in 2012 in its capital city of Arusha, said international criminal justice cannot be fully attained without all stakeholders’ cooperation. He called on all Member States to invoke the provisions of Article 28(2) of the Rome Statute and deliver timely, effective assistance to track and arrest all remaining fugitives. He assured the Assembly that his Government will provide all necessary assistance to maintain the trial of Mr. Kabuga. He also recommended the United Nations establish a Mechanism Museum within the Arusha branch, which could be responsible for educational and historical research on the administration of international criminal justice.
The speaker for Rwanda said some Member States’ failure to cooperate with his Government and the Mechanism amounts to active support of fugitives of genocide to escape from justice. “Pronouncements of commitment to international law and justice is not enough unless matched by direct action,” he added, welcoming recent action by the United States to extradite Beatrice Munyenyezi. The wounds of the survivors of the genocide against the Tutsi will not be healed when Member States shelter remaining fugitives. Despite the 1,145 indictments sent by Rwanda to countries around the world, requesting their cooperation in arresting and prosecuting those individuals or transferring them to Rwanda to face justice, very few countries have responded.
Also speaking today were representatives of Brazil, United States, Zimbabwe, Uruguay, Japan, United Kingdom, Türkiye and France.
The General Assembly will reconvene at 10 a.m. on Thursday, 20 October, to consider follow-up outcomes to several United Nations conferences and summits.
Opening Remarks
GRACIELA GATTI SANTANA, President of the International Residual Mechanism for Criminal Tribunals, presenting the Mechanism’s tenth annual report, transmitted by the Secretary-General’s note (document A/77/242), began by acknowledging the contribution of her predecessor, Judge Carmen Arges. Apart from one appeal, all International Criminal Tribunal for the Former Yugoslavia cases related to core crimes have been finalized, she said. Similarly, apart from one trial, the Mechanism has disposed of all International Criminal Tribunal for Rwanda proceedings earmarked to be heard. Following the Prosecution’s confirmation of the death of two high-profile fugitives, who were charged with playing key roles during the 1994 Genocide against the Tutsi, only four remain at large. The Prosecutor is working closely with Rwanda and several other States to ensure these individuals are brought to justice in Rwanda.
The coming years will see the transition of the Mechanism from a fully operational court to a truly residual institution, she continued, noting the Mechanism’s long-term commitment to gender equality. “I say this as the first-ever female President of the Mechanism,” she added. Turning to her top priorities, she underscored her commitment to ensuring the efficient and fair conclusion of the remaining trial and appeal proceedings and to transitioning the Mechanism to a residual institution. Consolidating the achievements of the ad hoc Tribunals and the Mechanism while enhancing coordination and collaboration remains crucial, she said.
Turning to the case against Félicien Kabuga, she said that due to Mr. Kabuga’s health condition, the Trial Chamber is holding court sessions three days per week for two hours each day. And while the trial is being held in The Hague, both the Arusha branch and the Mechanism’s Kigali Field Office have also been helpful. It is important to emphasize that not all Mechanism functions will cease with the end of in-court proceedings, she said. “Our residual functions will remain ongoing in areas such as protecting witnesses, monitoring cases referred to national jurisdictions, preserving the archives and assisting national jurisdictions,” she added. Currently, 46 persons are serving their sentences across 13 enforcement States. The enforcement of sentences requires full attention from the Mechanism’s President, “as I am entrusted to make determinations on all requests for pardon, commutation of sentences or early release.”
International courts and tribunals are critical to ending impunity for the most serious crimes, she continued. But the current state of world affairs demonstrates that their existence alone is not enough to advance the rule of law. Therefore, the Mechanism will continue to need all States to provide sustainable support in two main areas: cooperation and resources. She appealed to all States to share the burden and consider enforcing the sentences of convicted persons. According to its statute, the Mechanism shall consider referring contempt proceedings to national jurisdictions, considering the interests of justice and expediency. However, referral is not always possible, as seen with one case involving Serbia, where the relevant conditions were not met.
Another regrettable instance, where a State has not honoured international obligations, concerns the situation of the eight persons who were relocated to Niger. “These are free people who either have been acquitted or have served their sentences, yet, their movement is restricted,” she added, recalling that the Mechanism has taken several steps and has sought Security Council support to resolve the situation regrettably, to no avail. She urged Member States to provide the Mechanism with adequate resources as it downsizes and streamlines its activities and closed by recalling her trips to Bosnia and Herzegovina and Rwanda, where she participated in memorial services and met with survivors. “These encounters have had a profound impact on me, personally and professionally,” she added.
Statements
SIMONA POPAN, representative of the European Union, in its capacity as observer, stressing that international criminal justice cannot be effective without the full cooperation of States, welcomed the Prosecutor’s results in accounting for two major fugitives, indicted for genocide by the Mechanism, by confirming their deaths. The effective cooperation of all Member States will be essential to account for the last four fugitives at large. States must honour their legal obligations to comply with requests for assistance or orders issued by the Mechanism. Failure to cooperate undermines the effective administration of justice and breaches Council resolution 1966 (2010). She noted the lack of progress since the 11 May 2021 notification, from the Mechanism President to the Council, concerning the Petar Jojić and Vjerica Radeta case. She encouraged the Prosecutor’s Office to keep helping national judicial authorities prosecute serious international crimes and keep delivering justice for victims. Concerned with the continued uncertain situation of the eight acquitted or released persons in Niger, she encouraged the Mechanism and Member States to find a permanent solution for these individuals.
Denial of genocide, glorification of war criminals and attempts to rewrite history or to deny the Mechanism’s work do not contribute to justice or bring peace and safety to victims, she said. “Without understanding and reconciling with the past, it is difficult to build the future,” she said. Confronting past horrors and struggling with post-conflict transitional justice helps people to come to terms with the dark side of history and nationalism. “That is why increasing awareness of the legacy of the former Tribunals and the ongoing work of the Mechanism is essential,” she said. The Tribunals are instruments of justice and reconciliation, not of retribution. The European Union continues to work with the Mechanism on educating affected communities and younger generations in the region of the former Yugoslavia. She affirmed the bloc’s unwavering support for the Mechanism to ensure accountability and strengthen the system of international criminal justice. “Building a cohesive and inclusive society, based on justice and truth is the best way to honour the victims of crimes of genocide, war crimes and crimes against humanity,” she said.
ALEXANDRA HUTCHISON (Australia), speaking also on behalf of Canada and New Zealand, commended the progress made by the Mechanism over the last year in finalizing its core judicial work. She looked forward to the conclusion of the appeal in the case against Jovica Stanišić and Franko Simatović and expressed support for the progress made by the trial of Felicien Kabuga. Almost three decades on from the 1994 genocide against the Tutsi in Rwanda, the commencement of the trial is a reminder that the international community must remain steadfast to its commitment to international justice. Further, she commended efforts of the Mechanism’s staff in successfully tracking the remaining fugitives of the Rwanda Tribunal.
The Group remains committed to supporting the Mechanism in its efforts to track the remaining four fugitives indicted by the Rwanda Tribunal, she continued. It continues to urge all States, especially States where fugitives are suspected of being at large, to strengthen cooperation with and provide necessary assistance to the Mechanism. “We must all continue to work in ensuring that justice can prevail for victims,” she said. The Group recognizes the efforts of the Mechanism in finding a durable solution for eight acquitted or released persons now in Niger. She also welcomed the Prosecutor’s ongoing discussions with the Serbian authorities to improve cooperation with the Mechanism. The Mechanism’s ultimate legacy for international criminal justice is dependent, in large part, on the individual and collective efforts of Member States, she added.
ANDREJS PILDEGOVIČS (Latvia), also speaking for Estonia and Lithuania, reaffirmed their continued support for the Mechanism’s important work, which ensures that the legacies of the ad hoc tribunals, the Former Yugoslavia Tribunal and the Rwanda Tribunal, endure. As strong supporters of international criminal justice mechanisms, he said the Baltic countries believe the Mechanism and other international courts are crucial cornerstones of the international rules-based order. The Tribunals and the Mechanism have been instrumental in jurisprudence and the practice of international criminal law and in ending impunity for the most serious crimes of concern to the international community. “Together, they have added breadth and depth to international criminal law jurisprudence and administered justice in cases involving some of the most horrific crimes in recent history,” he said. Even as it reaches its final trials and appeals, the Mechanism’s assistance to national jurisdictions prosecuting international crimes committed in the former Yugoslavia and Rwanda remains invaluable.
In a world where the Russian Federation commits heinous acts on the territory of Ukraine and shows grave disrespect for the principles of international law, the Mechanism reminds the Council that it can, and should act, to ensure accountability for atrocity crimes, he said. He noted the Mechanism’s continued work during the pandemic and the positive review of its working methods and work by the Office of Internal Oversight Services (OIOS). He reiterated the importance of providing support for the Mechanism as the administration of justice is an ongoing commitment. The Baltic countries believe the international community should continue to support the Mechanism in order to bring perpetrators to justice and provide lasting and positive impacts for affected communities and victims. He appreciated the body’s focus on witness support and protection, and its attention to the interests of witnesses and victims when considering early-release applications, however said it is unfortunate that there are several contempt of court cases in which the accused tried to interfere with witnesses. “The rule of law and the maintenance of international peace and security are at the heart of our foreign policy,” he said. In order to further strengthen international criminal justice mechanisms, he strongly supported the creation of a Special Tribunal to prosecute the crime of aggression against Ukraine.
SILVEIRA BRAOIOS (Brazil) called the former Tribunals “landmarks in the history of international criminal justice”, adding that they paved the way to the Rome Statute and the creation of the International Criminal Court. It is therefore essential to allow the Mechanism to bring justice to all the cases it has the competence to adjudicate and inherited from the former Rwanda and Yugoslavia Tribunals. But despite its importance, the Mechanism was never meant to be a permanent institution. In that vein, he welcomed the conclusion of the appeal proceedings in the Fatuma case on June 29; the prospect for the conclusion of appeal proceedings in the Stanišić and Simatović case by mid-2023; and the start of the trial in the Kabuga case in late September. While States bear the primary responsibility for holding accountable those who perpetrate crimes in their territories, international tribunals must act when national institutions are unable or willing to adjudicate those crimes themselves, he noted.
ANDREW WEINSTEIN (United States) commended the Mechanism for fulfilling the goals set out by the Security Council and expressed full support to the priorities of the Office of the Prosecutor. While the Mechanism has done much in establishing the facts and clarifying the historical record, national authorities must carry on the important work of healing and reconciliation. Strong countries speak honestly about the past to meaningfully address the root causes of conflict and move forward into a peaceful, stable future, he said. The denial of historical facts and celebration of those who committed grave crimes is an affront to victims and witnesses and an insult to humanity, he added. He called on Member States which may be harbouring the remaining Rwandan fugitives to cooperate with the Mechanism. As long as countries continue to engage in the dangerous fiction of genocide denial, the world risks recurrences of those horrific crimes, he stressed. False narratives must be confronted, and the truth uncovered in Rwanda and the former Yugoslavia, he urged, while welcoming the Mechanism’s ongoing engagement with affected countries. For their part, national jurisdictions must vigorously pursue accountability, he emphasized.
PETRONELLAR NYAGURA (Zimbabwe) said the commitment to complete trials and appeals, locate and apprehend remaining fugitives and assist national jurisdictions is critical to close existing gaps and improve cooperation with States. The full and effective cooperation of Member States is essential for the Mechanism to achieve its desired results, she emphasized while thanking the Mechanism, Belgium, France, Netherlands, Rwanda, Spain, the United Kingdom and United States for ascertaining the remains of Mr Mpiranya and bringing the matter to an end. On the report’s generalization that Member States are not cooperating in advancing investigations and tracking and apprehending fugitives, she urged the President to be specific and recognize the invaluable efforts of countries which have fully cooperated. Zimbabwe will continue to cooperate with the Mechanism through its inter-departmental task force, she said as effective cooperation between States and the Mechanism is vital in fighting impunity and ensuring justice and accountability.
CARLOS AMORÍN (Uruguay) noted the Mechanism’s good work during the reporting period between July 2021 and July 2022, pointing out that the Council carried out its fourth assessment of the Mechanism’ work, which coincides with the change in leadership. The Mechanism has made progress in the past year, which has been essential for jurisprudence and putting an end to impunity. It has helped deepen jurisprudence and international criminal case law as it deals with the most serious violations and crimes. It shows how rules-based institutions can ensure accountability in cases of conflict, he said, affirming his delegation’s continued support for the Mechanism and its work as it and other tribunals are keystones of an international rules-based order. Noting the Secretary-General’s appointment of Judge Santana, he said she was a national judge in Uruguay and in the international arena for more than 29 years. He noted her distinguished career. Her recent appointment as President is a high point of her career and Uruguayans are very proud of her work and her appointment. The international community must support the Mechanism to have lasting results for communities and victims, he said, stressing that the Mechanism should have the necessary budget to meet its goals.
SHUNSUKE NAGANO (Japan) commended the Mechanism for its progress in promoting human rights, advancing the fight against impunity and implementing the rule of law. Strengthening the rule of law based on the United Nations Charter is key for the international community’s sustainable growth and effective development of the international community, he emphasized. As the lack of cooperation from Member States has caused delays in the Mechanism’s work, he called on all States to support the Mechanism. The failure of States to comply with their international obligations, including those derived from Security Council resolutions, creates problems for extraditing indicted individuals and transferring those who have been released or acquitted, he further pointed out. As the largest contributor to the International Criminal Court and an incoming Council member in January 2023, Japan will ensure that the Mechanism continues to fortify the rule of law, he said.
JONATHAN HOLLIS (United Kingdom), in noting the commencement of Félicien Kabuga’s trial, reiterated the need to ensure accountability. The trail, he said, highlights the critical role of those who enabled the genocide even if they were not directly carrying out the killings. On the conclusion of the final appeal relating to the crimes committed by Jovica Stanišić and Franko Simatović, he commended the Mechanism for showing that impunity is and will not be allowed to prevail. Despite these successes, there have been issues of cooperation, he stressed while urging Serbia to comply with the Mechanism’s order. As regional judicial cooperation in the Western Balkans remains inadequate, he called on all States to increase their efforts to provide justice. He also urged States to find a sustainable solution to the relocation of acquitted and convicted persons who have completed their sentence. Turning to the Mechanism’s legacy, he condemned the denial of genocide and glorification of war criminals and encouraged all States to do the same. Glorifying the perpetrators and instigators of heinous acts is unacceptable, increases the suffering of victims and makes reconciliation all the more distant and difficult, he emphasized.
KENNEDY GODFREY GASTORN (United Republic of Tanzania) reiterated his country’s support to the Mechanism and compliance with its obligations especially as the host country. As the administration of international criminal justice cannot be fully attained without the cooperation of all stakeholders, he called on all Member States to invoke the provisions of Article 28(2) of the Rome Statute and provide timely and effective assistance in tracking, locating and arresting all remaining fugitives. The United Republic of Tanzania will provide all the necessary assistance to facilitate the continuation of Félicien Kabuga’s trial, he said while commending the Mechanism for its continued supervision of the enforcement of sentences. Turning the Mechanism’s mandate to manage the archives and records of International Criminal Tribunals, he recommended that the United Nations establish a Mechanism Museum within the Arusha branch which would be responsible for educational and historical research on the administration of international criminal justice. On the Registry, he said his country has noted its reports and expressed interest in its activities and proposed budget.
ROBERT KAYINAMURA (Rwanda) said that the wounds of the survivors of the genocide against the Tutsi will not be healed when Member States shelter remaining fugitives instead of bringing them to justice. Despite the 1,145 indictments sent by Rwanda to countries around the world, requesting their cooperation in arresting and prosecuting those individuals or transferring them to Rwanda to face justice, very few countries have responded. “Pronouncements of commitment to international law and justice is not enough unless matched by direct action,” he added, welcoming recent action by the United States to extradite Beatrice Munyenyezi. Failure by some Member States to cooperate with Rwanda and the Residual Mechanism pursuant to Security Council resolutions, General Assembly resolutions and African Union decisions amounts to active support of fugitives that commit genocide to escape justice. Rwanda urges the continued consideration of the views of the victims before granting early release of persons convicted of genocide, crimes against humanity and war crimes, he said.
He reiterated Rwanda’s serious distress regarding the rise in genocide denial, trivialization, revisionism, and glorification of convicts or released convicts in many parts of the world. Considering the widespread presence of genocide denial, whether directly or in the form of hate speech, serious consideration must be given to its criminalization “to ensure it is repressed and doesn’t pose a continued threat to our communities”, he said. Rwanda welcomes the Prosecutor's commitment to vigorously investigate and prosecute those who interfere with witnesses with the aim to falsely undermine the established facts of the genocide committed in Rwanda. “Such contempt of court is a form of genocide denial and must be stopped,” he added. The General Assembly has a moral obligation and duty to condemn in the strongest terms genocide denial as intolerable and unacceptable.
Ms. AYDIN-GUCCIARDO (Türkiye), associating herself with the statement made by the European Union delegation, said the Mechanism continues to fulfil its critical function in ensuring individual criminal accountability for the most serious international crimes committed in Rwanda and the former Yugoslavia. Addressing impunity for such crimes is vital not only for the delivery of justice for the victims, but also for preventing the recurrence of such crimes in the future, she added. Despite continuing challenges resulting from the COVID-19 pandemic, ongoing proceedings remain on track in line with their projected timelines. Türkiye attaches great importance to increasing gender parity in international bodies of a legal nature, she said, welcoming the increased number of female judges on the Mechanism’s roster. Türkiye will continue to ensure that the legacy of the Rwanda Tribunal and the Former Yugoslavia Tribunal is preserved, she continued, reiterating support for the Mechanism to carry out its mandate by ensuring individual accountability for the most serious international crimes.
DIARRA DIME LABILLE (France) expressed her support to the Mechanism’s President and Prosecutor for their efforts to conclude trials, arrest fugitives and assist national courts in prosecuting the perpetrators of international crimes in Rwanda and the former Yugoslavia. Mr. Kabuga’s trial is an important moment for victims, survivors and international criminal justice as it demonstrates progress, she said. The close cooperation between French and international judges and with the Mechanism allowed for the Mr. Kabuga’s arrest in France, she noted. Turning to the former Yugoslavia, she deplored the continued glorification of war criminals including by national and local authorities. There must be recognition of crimes and those responsible for a lasting reconciliation to be possible, she emphasized, while calling on all relevant States to cooperate with the Mechanism. Cooperation is not an option but rather an obligation, she stressed.
GENNADY V. KUZMIN (Russian Federation) said a new appointment brings new expectations. Noting that the Mechanism has taken much time to implement its mandates, he pointed out that the Former Yugoslavia Tribunal was set up in 1993 and next year it will be marking its thirtieth anniversary as a subsidiary body of the Council. Twelve years ago, the Council set up a small, temporary and efficient structure to replace and complete the work of both the Rwanda and Former Yugoslavia Tribunals. “Yet now 2022 is slowly but surely coming to an end,” he said, adding the Assembly is considering the Mechanism’s tenth annual report. It seems once the system was launched, it lives according to its own rules and is not planning to wrap itself up, he said, adding that the Council experiment to create organs of international criminal justice has been far from ideal. The Rwanda Tribunal, with all its shortcomings, did make a useful contribution to events in that country in the early 1990s, yet the Yugoslavia legacy of the Tribunal structure is a typical failed example of exercising international jurisdiction, he said. Without any Council jurisdiction, on 24 March 1999 the air forces of numerous countries bombarded Serbia for 78 days. Civilians were killed and infrastructure destroyed. “Did any of the aggressors bear responsibility? Of course not,” he said. Though the Former Yugoslavia Tribunal had jurisdiction to consider the actions of the North Atlantic Treaty Organization (NATO) bloc, it did not. There was no accountability, he said, expressing hope that Western States would restore basic humanity. He referred to the release of Ratko Mladic, who has been hospitalized while serving a life sentence for war crimes.
ANDRIS STASTOLI (Albania) noted that the Mechanism helps national judicial bodies in fulfilling their duties in full accordance with international law. He welcomed the progress made on the Kabuga case and its impact on the life of victims of genocide and atrocious crimes, and wider reparation of justice and accountability. “It conveys a strong message of hope and rehabilitation for those who suffered grave violations of human rights in Rwanda,” he said. Albania looks forward to the completion of the Stanišić and Simatović case. This Mechanism cannot work alone, he said, adding that non-cooperation of States with a Mechanism is unacceptable as it undermines the effective administration of justice. The suffering of all innocent civilian victims of the war in the former Yugoslavia and Rwanda must be recognized. “There can be no long-lasting peace and reconciliation without the full recognition of the suffering of the victims,” he said. Judicial accountability for the war crimes is crucial. Equally crucial is the active fight against denialism of war crimes, glorification of the war criminals and any attempts for historical revisionism. “It is unacceptable to try to undermine and switch roles and confuse the victims with the aggressor,” he added.