Mechanism for Closed Rwanda, Former Yugoslavia Criminal Tribunals at Critical Juncture, with No More Active Trials, Appeals on Core Crimes, President Tells General Assembly
While the International Residual Mechanism for Criminal Tribunals has reached a critical juncture in its lifespan, the conclusion of its in-court activity “does not mean we are closing down”, its President said today as she briefed the General Assembly on its work over the past year.
Graciela Gatti Santana, President of the Mechanism, told delegates that for the first time since becoming operational — and indeed, for the first time since the very earliest trial proceedings began at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda — “we have no more active trials or appeals in relation to the core crimes set out in their Statutes and incorporated in the Statute of the Mechanism.”
She noted the delivery on 31 May 2023 of the Appeals Judgement in the case against Jovica Stanišić and Franko Simatović, with the Mechanism concluding its final core crimes case inherited from the Former Yugoslavia Tribunal. Turning to the International Criminal Tribunal for Rwanda-derived case against Félicien Kabuga, she said that on 7 August, the Appeals Chamber affirmed that Kabuga is not fit to stand trial. That decision triggered the Mechanism’s “truly residual mode”. “We have long aspired to become the institution that the Security Council originally designed, and, through their dedication, our Judges and staff have enabled us to finally reach this point,” she said.
The Mechanism will, however, keep fulfilling its many mandated functions, including supervising the enforcement of sentences, tracking the remaining fugitives, and responding to national requests for assistance. The Mechanism will continue to support national jurisdictions in the former Yugoslavia and Rwanda by responding to requests for assistance. But from now on, only they will be responsible for trying alleged perpetrators of crimes that took place during the Balkan conflicts of the 1990s and the 1994 Genocide against the Tutsi in Rwanda. Calling on Member States to provide additional support and cooperation in several areas of concern, she underscored the situation of the acquitted or released individuals who were relocated to Niger more than 22 months ago. Those individuals remain under de facto house arrest following Niger’s breach of its agreement with the UN.
In the ensuing discussion, many speakers underscored the crucial role played by the Mechanism and the tribunals in holding perpetrators of the most serious crimes accountable and bringing justice to victims. Several delegations stressed that Member States have the moral obligation to cooperate with the Mechanism to arrest, surrender, and execute arrest warrants without delay. Others said that the tribunals showed that even the most senior military and political leaders can be held accountable for atrocity crimes.
Latvia’s delegate, speaking on behalf of the Baltic States, commended the significant progress achieved on the appeal judgement of the Jovica Stanisic and Franko Simatovic case. Respecting the rule of law goes hand in hand with maintaining international peace and security, she said, expressing support for the establishment of a Special International Tribunal to prosecute crimes of aggression against Ukraine.
Albania’s delegate also welcomed the decision to expand the conviction for Jovica Stanisic and Franko Simatovic, two allies of former Serbian President Slobodan Milošević, rather than exonerating them. “We considered it as a milestone in the quest for justice in the Balkans,” he said. Furthermore, Serbia must cooperate with the Mechanism and execute the arrest warrants for Petar Jojic and Vjerica Radeta, he added.
The representative of the Russian Federation warned that critical international institutions had been politized and their credibility eroded. Cases of the Former Yugoslavia Tribunal had been manipulated by the West. These ad hoc tribunals should not be a substitute for existing national judicial organs.
Germany’s delegate said that protecting the “remarkable” legacy of international tribunals must remain a priority, especially at a time when current events remind the world of the importance of accountability for crimes committed during armed conflict. Currently four prison sentences imposed by the Former Yugoslavia Tribunal are being enforced under German jurisdiction. Germany will continue its support in that regard.
Rwanda’s representative said that fugitives should know: There is no expiration day for justice. The indefinite suspension of the Kabuga trial is a mockery to the victims and the survivors of the genocide against the Tutsis. Member States may not be aware that their taxpayers’ money is now paying for sustaining the well-being of former genocide convicts now in Niger. Yet no funds have ever been directed to the survivors of the genocide against the Tutsis. These former convicts in Niger or elsewhere should not continue to be a burden to the UN system. Rwanda has repeatedly said that these people are welcome home.
Justice delayed can mean justice denied, the delegate of the United States warned, urging Member States that might be harbouring Rwandan fugitives to cooperate with the Mechanism. Despite the vital work of the tribunals, however, it is national authorities that bear the primary responsibility of providing justice to victims, he added.
GRACIELA GATTI SANTANA, President of the International Residual Mechanism for Criminal Tribunals, presenting the Mechanism’s eleventh annual report, transmitted by the Secretary-General’s note (document A/78/257), said that for the first time since becoming operational — and, moreover, for the first time since the very earliest trial proceedings began at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda — there are no more active trials or appeals in relation to the core crimes set out in their Statutes. With the delivery on 31 May 2023 of the appeals judgement in the case against Jovica Stanišić and Franko Simatović, the Mechanism concluded its final core crimes case inherited from the Former Yugoslavia Tribunal. It achieved this milestone almost exactly 30 years after the Security Council created that Tribunal.
Decisive events have also taken place in the International Criminal Tribunal for the Rwanda-derived case against Félicien Kabuga, she said. On 7 August, the Appeals Chamber affirmed that Mr. Kabuga is not fit to stand trial. It remanded the matter to the Trial Chamber, which has stayed the trial proceedings indefinitely and remained seized of the issue of his provisional release. In a separate development, it has been determined that Mr. Kabuga is non-indigent and capable of funding his entire defence. The Appeals Chamber’s 7 August decision triggered the Mechanism’s truly residual mode. “We have long aspired to become the institution that the Security Council originally designed, and, through their dedication, our Judges and staff have enabled us to finally reach this point,” she noted.
“We also recognize, and underscore, that the conclusion of in-court activity does not mean we are closing down,” she said. The Mechanism will keep fulfilling its mandated functions, including supervising the enforcement of sentences, tracking the remaining fugitives of the Rwanda Tribunal and responding to national requests for assistance. She said she plans to present the Security Council with a framework of operations to complete functions during the Mechanism’s new residual phase. “I am also turning my attention to areas where portfolios could potentially be restructured and certain functions absorbed by other sections of the Mechanism,” she said. One example is the enforcement of sentences. Another priority is to promote effective leadership in the performance of mandated functions and residual activities. “It is certainly not easy to steer a downsizing organization, to keep productivity high when morale is low and to reconcile tensions between budgetary constraints and our desire to keep achieving results,” she added.
The Mechanism will continue to support national jurisdictions in the former Yugoslavia and Rwanda by responding to requests for assistance, she said. From now on, only they will be responsible for trying alleged perpetrators of crimes that took place during the Balkan conflicts of the 1990s and the 1994 genocide against the Tutsi in Rwanda. She stressed the need to make sure public judicial records are as accessible as possible. Urging for further cooperation in several areas, she underscored the situation of the acquitted or released individuals who were relocated to Niger more than 22 months ago, and who remain under de facto house arrest following Niger’s breach of its agreement with the UN.
Another area of much needed cooperation concerns the arrest and transfer of the accused persons in the contempt matter of Petar Jojić and Vjerica Radeta, which remains outstanding despite Serbia having been referred three times to the Security Council for its failure to cooperate with the Former Yugoslavia Tribunal, she said. Enforcing sentences also requires great cooperation. In recent years, there has been an increased number of convicted persons being returned to the UN Detention Unit in The Hague by States that are no longer able to enforce sentences due to legal impediments within their domestic jurisdictions. “As a result, our enforcement responsibilities are in some instances becoming long-term detention problems,” she said, encouraging other States to “come forward and volunteer to support the Mechanism with this crucial function”. Concluding, he stressed: “It now falls upon all of us to ensure that the Mechanism can carry on towards the final chapter of this historic mission and secure the precious legacies of all three institutions, for the benefit of generations to come”.
CAROLYN SCHWALGER (New Zealand), also speaking on behalf of Australia and Canada, reaffirmed support for the Mechanism which has been instrumental in fighting impunity, holding perpetrators of the most serious crimes accountable and bringing justice to victims. “As mass atrocity violence continues, the Tribunals and the Mechanism stand as a reminder that the international community can respond to crimes committed in complex conflict situations,” she said, adding they exemplify how rules-based institutions can achieve accountability. She commended the Mechanism’s dedicated work to bringing perpetrators to justice for atrocities committed in Rwanda and the former Yugoslavia and said the delivery of the appeal judgment in the case of Jovica Stanišić and Franko Simatović marks a milestone for the entity. As the final case pertaining to atrocity crimes originating from the Former Yugoslavia Tribunal, the handing down of the appeal judgment ends the important work of that court, which began over three decades ago.
She noted the decision of the Appeals Chamber in the case of Félicien Kabuga, one of the alleged architects of the Rwandan genocide, to stay trial proceedings indefinitely since he has been determined to be unfit for trial and she expressed disappointment that the proceedings could not be completed. However, the work and evidence collected by the Office of the Prosecutor and the Rwanda Tribunal constitute a valuable record of the events that occurred, she said, adding that such records are important for ensuring appropriate recognition of these atrocities. She welcomed the arrest of Fulgence Kayishema and commended the close collaboration between the Office of the Prosecutor and South African authorities, a reminder of collective obligations to improve cooperation with the Mechanism to ensure closure for victims and their communities, and achieve justice for victims of war crimes, crimes against humanity and genocide.
SANITA PAVĻUTA-DESLANDES (Latvia) speaking on behalf of the Baltic States and associating herself with the European Union, said given the essential role of a strong multilateral, inclusive and rules-based international order in maintaining global peace and security, it behoves Member States to jointly “defend and strengthen it with all possible tools”. This applies to international judicial institutions like the Mechanism. She called on all States to comply with their international obligations and fully cooperate with the entity, including in apprehending remaining fugitives at large. The Group reaffirms its continued support for its work, particularly the legacies of the ad hoc tribunals, and the Former Yugoslavia and Rwanda Tribunals. On the peaceful settlement of disputes, she expressed the Group’s delight on the significant progress it achieved last year, especially on the appeal judgement of the Stanišić and Simatović case.
Noting that the importance of the tribunals and the work of the Mechanism in the jurisprudence and practice of international criminal law and in ending impunity for the most serious crimes, she said “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”. The Group commends the focus on witness support and protection by the Mechanism as well as the attention paid to the interests of witnesses and victims when considering early-release applications but decries the several contempt of court cases where the accused have tried to interfere with witnesses. She emphasized that at the heart of the Group’s foreign policy is the rule of law and the maintenance of international peace and security. It further strongly supports the establishment of a special international tribunal to prosecute the crime of aggression against Ukraine.
SIMONA POPAN, representative of the European Union, in its capacity as observer, expressed condolences to all victims in the Middle East and their families, and went to say that with the delivery of the appeal judgment in the Stanišić and Simatović case, only one core crimes case remains on the Mechanism’s docket: the Kabuga case. This is important progress towards completing the judicial work of the Former Yugoslavia Tribunal. Regarding the Kabuga case, she noted the Appeals Chamber confirmed that he is not fit for trial. Victims and survivors of the crimes he is charged with waited long to see justice delivered, and the inability to complete the trial proceedings must be disappointing, she said, but added the essential interests of the international community to prosecute individuals charged with serious crimes must be balanced with the fundamental rights of the accused. “Justice can be delivered only by holding trials that are fair and conducted with full respect for the rights of the accused,” she said. “The ad hoc Tribunals and the Mechanism are not instruments of retribution but of justice and accountability.”
She congratulated States that played a role in the arrest of Fulgence Kayishema, one of the world’s most wanted genocide fugitives from Rwanda. “It is another affirmation that justice has a long arm,” she said. “No matter how long it takes, perpetrators of most serious crimes are ultimately held to account.” She went on to say that additional cooperation from States is required to ensure that all convictions are enforced, and that States’ cooperation is needed to solve the situation of the eight acquitted or released persons who were relocated to Niger in December 2021. She encouraged the Mechanism and the Member States to continue their efforts to find a permanent solution for these individuals.
MARIA ZABOLOTSKAYA (Russian Federation) said her country, as a co-founder of the tribunals established after the Second World War, was at the origins of international criminal justice, whose purpose it believes is not only to administer justice but also to right wrongs, to rebuild trust between peoples and to promote national reconciliation. However, in contemporary times, it has not lived up to these ideals. For 30 years, her country has witnessed a rapid erosion and politicization of relevant institutions. Highlighting cases of manipulation of the Former Yugoslavia Tribunal by the West, she said “changing the name of this tribunal from the ICTY [International Criminal Tribunal for the Former Yugoslavia] to the Residual Mechanism has not changed its nature”. She said it is particularly strange to hear about the preservation and consolidation of the so-called legacy of international tribunals which the United Nations is meant to undertake. She said these ad hoc tribunals should not be a substitute for existing national judicial organs.
ADAM KUYMIZAKIS (Malta) aligned himself with the European Union, and said the Former Yugoslavia Tribunal has helped to create a new legal culture against impunity and he commended the Mechanism’s activities and accomplishments over the past year. Restructuring and streamlining cannot wait any longer, he said, and thanked the President for her leadership and commitment. There is a need to continue its work to enforce sentences, preserve archives, protect witnesses and assist national jurisdictions, he said, and welcomed the completion of the judicial work, including the delivery of the appeal judgment in the case of Stanišić and Simatović. He noted the indefinite stay of proceedings against Félicien Kabuga and expressed support of the priorities of the Office of the Prosecutor. He applauded the arrest of Fulgence Kayishema which he said attests to the determination of the Office.
VICTOR SILVEIRA BRAOIOS (Brazil) said there must be clear timelines for the completion of the “undeniably complex task” of the Mechanism, noting that there are long-term residual functions that the Mechanism is expected to perform. Commending the arrest of Fulgence Kayishema, he reminded that three fugitives remain at large and called on the international community to support the Mechanism in tracking fugitives and executing outstanding arrest warrants and orders of surrender and relocation of acquitted or released persons. Noting the Former Yugoslavia and Rwanda Tribunals are landmarks in the history of international criminal justice, he said “it is of utmost importance to preserve their legacy.” He noted that through resolution 2637 (2022), the Security Council allowed the Mechanism to continue its work for two years. Ahead of the expiration of the current mandates of its Prosecutor and judges next June, he stressed the need to acknowledge that the Mechanism still needs time to complete mandated tasks regarding the Former Yugoslavia and Rwanda Tribunals.
CHRISTOPHER P. LU (United States) noted the importance of urgency in ensuring accountability, adding that justice delayed can mean justice denied. He urged Member States that might be harbouring Rwandan fugitives to cooperate with the Mechanism. With respect to the Former Yugoslavia Tribunal, he said that recent judgments regarding Jovica Stanišić and Franko Simatović recognized the responsibility of former Government officials for war crimes and crimes against humanity committed in Bosnia and Herzegovina and Croatia. Just over 30 years ago, the Security Council established the Former Yugoslavia Tribunal, the first international tribunal since Nuremberg to address genocide, war crimes and crimes against humanity. That tribunal demonstrated that even the most senior military and political leaders can be held accountable for atrocity crimes. He further underscored the work of the Mechanism in responding to national authorities’ requests for assistance and supporting efforts to advance justice in their own systems. However, national authorities must bear the primary responsibility of providing justice to victims, he added.
ROBERT KAYINAMURA (Rwanda) thanked the Office of the Prosecutor of his tireless efforts, in particular the arrest of Mr. Kayishema in South Africa, and he expressed hope that the trial will be as expeditious as possible. “The fugitives should know: There is no expiration day for justice,” he said. In the case of Mr. Kabuga: He was arrested in France in 2020 and brought to The Hague and then, a few years later, deemed unfit to stand trial, he said, adding Mr. Kabuga is only 88 years old, according to available records. The indefinite suspension of the trial is a mockery to the victims and the survivors of the genocide against the Tutsis, he said. It is a very dangerous precedent set by the court, he said, and expressed his dismay.
Member States may not be aware that their taxpayers’ money is now paying for sustaining the well-being of former genocide convicts who are now in Niger. Yet no funds have ever been directed to the survivors of the genocide against the Tutsis, he said. All these former convicts who are in Niger or elsewhere should not continue to be a burden to the United Nations system, he said, adding that Rwanda has repeated several times that these people are welcome home. Rwanda has sent more than 1,000 indictments to 34 countries but only received a few responses. In conclusion, he recommended that conditional release only be granted to those who have demonstrated adequate rehabilitation. He also recommended combatting genocide ideology, including by having the Mechanism step up its efforts at monitoring and addressing incidents of convicts propagating genocide denialism. He concluded by calling for increasing efforts and collaboration among States to apprehend criminals wanted by Rwanda’s justice system. “These fugitives have not left the planet,” he said.
NAGANO SHUNSUKE (Japan) welcomed the arrest of Fulgence Kayishema, who had been long sought for the alleged atrocious murder of over 2,000 Tutsi refugees and hopes that the remaining three fugitives will likewise be held accountable as soon as possible. He noted that after 30 years of its formation, the Former Yugoslavia Tribunal has finally completed the mandate given it by the Security Council. While fair and legitimate due process requires time, justice for victims and societies needs to be carried out as expeditiously as possible. His delegation therefore encourages the Mechanism to advance its proceedings under a clear and reasonable timeline, and to use its accumulated information, evidence and expertise in cooperating with national authorities to end impunity. He called on all Member States to support the Mechanism by complying with their international obligations.
ANDRIS STASTOLI (Albania) welcomed the decision to expand the conviction for Jovica Stanišić and Franko Simatović, two allies of former Serbian President Slobodan Milošević, rather than exonerating them. “We considered it as a milestone in the quest for justice in the Balkans,” he said. Member States have the moral obligation to cooperate with the Mechanism to arrest, surrender and execute arrest warrants without delay. He called on Serbia to cooperate with the Mechanism and execute the arrest warrants for Petar Jojić and Vjerica Radeta making sure that they face justice. Turning to the Russian Federation’s “unsubstantiated allegations”, he recalled that in 2011 the Parliamentary Assembly of the Council of Europe adopted the report accusing the Kosovo Liberation Army of despicable crimes. That report, in pursuit of justice, generated the establishment of Kosovo Specialist Chambers, and “even though the work is still ongoing, not a single piece of evidence or proof was ever provided regarding these allegations”. Albania is deeply concerned over attempts to deny genocide and other atrocity crimes.
MICHAEL HASENAU (Germany), associating himself with the European Union, said that it is important to note that crucial functions of the Mechanism, particularly in the form of assisting national jurisdictions and monitoring cases referred to it by national jurisdictions will continue. Currently four prison sentences imposed by the Former Yugoslavia Tribunal are being enforced under German jurisdiction. Germany emphasizes its willingness to continue to provide such enforcement assistance in the future. Germany will also continue to support the Mechanism both politically and financially in fulfilling its mandate and remaining tasks. “We urge all States, particularly those where fugitives of international justice are suspected of being at large to cooperate fully to bring an end to impunity,” he stressed. Protecting the “remarkable” legacy of international tribunals and accountability mechanisms must remain a priority, especially at a time when current events remind the world of the importance of accountability for crimes committed particularly during armed conflict, he said.
JOSEPH ARON MWASOTA (United Republic of Tanzania) noted with appreciation the Mechanism’s annual report and expressed commitment to the entity in fulfilling its United Nations mandate. International criminal justice cannot be attained without cooperation from stakeholders, including assistance in locating, arresting and surrendering fugitives, he said, and commended South Africa, Mozambique, Rwanda and Eswatini for the arrest of Mr. Kayishema who is expected to stand trial in Rwanda. He expressed gratitude to the United Nations for a three-day training course for 30 Senior Level Prison Correction Officers organized by the Mechanism, following the handover of the United Nations detention facility in Arusha and for offering more than 500 Tanzanian prison officers the chance to be in various times in the detention facility which has helped them gain more experience in discharging their duties.
JONATHAN SAMUEL HOLLIS (United Kingdom) commended the Fugitive Tracking Team and the South African authorities for arresting Fulgence Kayishema, adding that the conclusion of the final appeal on the crimes committed by Jovica Stanišić and Franko Simatović in the former Yugoslavia “marks a defining moment for the Mechanism and for international justice”. This shows that impunity will not be allowed to prevail. He said his country stands shoulder to shoulder with Rwanda in ensuring accountability for the appalling crimes committed during the genocide and in promoting continued reconciliation. The United Kingdom condemns the denial of genocide and the glorification of the perpetrators of war crimes and calls on all Member States to act similarly. It is also concerned with Serbia’s failure to cooperate with the Mechanism and the arrest and transfer of Petar Jojić and Vjerica Radeta “despite years of requests, considerations and discussions”. He urged that country to comply with the Mechanism’s order. Having completed its core trials, the Mechanism needs to supervise sentences and protect witnesses.
DIARRA DIME LABILLE (France) said that on the former Yugoslavia, the appeal judgment in the Jovica Stanišić and Franko Simatović case is a crucial step in the judicial activity of the Mechanism. “For victims, it means the victory of justice over impunity 30 years after the creation of the International Tribunal for the Former Yugoslavia,” she said. Turning to Rwanda, she encouraged the Mechanism to find the means to satisfy victims’ search for justice. France urges all States to cooperate with the Mechanism in accordance with their international obligations, and to support it in its activities to “do right” by the victims to achieve justice and reconciliation. It is essential for the remaining fugitives indicted by the Rwanda Tribunal to be brought to justice. The death of alleged perpetrators for the most serious crimes will not bring justice to the victims, she said. The Mechanism must continue to carry out its heavy responsibilities, which include primarily assisting national jurisdictions, protecting victims and witnesses, managing archives and enforcing sentences.
Right of Reply
Speaking in exercise of the right of reply, the delegate of Serbia said his country imposed severe punishments on crimes committed on the territory of the former Yugoslavia. A large number of proceedings and investigations are ongoing, and the available data clearly shows that Serbia implements a policy of punishment for committed war crimes. Serbia cannot be attributed a policy of denying crimes or glorifying crimes, she said. Regarding the case of Petar Jojić and Vjerica Radeta, Serbia’s actions do not represent a violation of international obligations but an effort to act in accordance with Security Council resolution 1966 (2010), she said, adding that after the end of the last procedure before the Mechanism, Serbia expressed an expectation and efforts to achieve effective cooperation with the Mechanism.