Mechanism for Rwanda, Former Yugoslavia Tribunals Fully in Residual Phase, Its President Tells Security Council, Calling International Criminal Justice ‘Long-Term Investment’
The court set up to carry out remaining functions of the criminal tribunals that investigated and prosecuted serious crimes committed during the Yugoslav wars and the 1994 Rwanda genocide has finally transitioned to its truly residual phase, its President said today as she detailed plans to restructure and streamline its internal framework, while speakers underscored that the conclusion of the latest trials in no way diminishes its relevance.
Graciela Gatti Santana, President of the International Residual Mechanism for Criminal Tribunals, said that the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia held to account hundreds of high-profile offenders, many of whom at the time were beyond the reach of national justice.
“Securing international criminal justice is a lengthy and painstaking journey, a long-term investment that necessitates support well beyond the delivery of a judgment,” she said, noting that the international community underestimated the importance of the end-of-justice cycle and underlining States’ pivotal role in countering the ever-growing trends of genocide denial and the glorification of war criminals. She pointed to Serbia’s failure to execute the arrest warrants and orders for transfer of the accused in the Jojić and Radeta contempt case, which weakens the judicial process before the Mechanism.
Serge Brammertz, the Mechanism’s Prosecutor, reported that, with the completion of its mandate, his Office is now focused on its remaining residual functions. He cited its assistance to national authorities in Rwanda, which still seeks to bring to justice more than 1,200 fugitive genocidaires, and former Yugoslavia, with over 1,000 suspected war criminals to investigate and, where warranted, prosecute. Expressing “immense dissatisfaction” that Félicien Kabuga will not face judgment for his role in the suffering of the Rwandan people, he said: “it is within our power to ensure other criminals do”. In this regard, he recalled that Fulgence Kayishema was arrested on 24 May and remains in detention in South Africa.
Detailing assistance provided by his Office to its national partners, he pointed to its evidence collection, which constitutes the most thorough repository of evidence concerning crimes committed in Rwanda and the former Yugoslavia. His Office further assists across a broad range of legal, evidentiary, prosecutorial and strategic matters, and offers expert support to national prosecutors concerning fugitives from justice in Rwanda and the countries of the former Yugoslavia. “There is no expiration date for the international community’s obligation to prosecute genocide crimes,” he added.
In the ensuing discussion, speakers highlighted the Mechanism’s immense contribution to the rule of law and its pivotal role in ensuring accountability, noting that its crucial functions — including monitoring the implementation of sentences, assisting national authorities and tracking down fugitives — demand strong support from the Council.
The representative of Gabon, speaking in his capacity as Chair of the Working Group for International Tribunals, described the Mechanism as “a moral bulwark against arbitrariness and mass atrocities” and praised its swiftness in carrying out judicial proceedings and ensuring witness protection. Expressing support for its strategy to recruit skilled personnel, strengthen cooperation and prioritize existing tools for an effective transition, he underscored the importance of ongoing efforts in arresting fugitives.
Recognizing the Mechanism’s tremendous work in delivering justice for some of the gravest crimes of the past century, the representative of the United States drew attention to the arrest of Fulgence Kayishema, who — accused of genocide and crimes against humanity — had evaded arrest for 20 years. Similarly, the Former Yugoslavia Tribunal has consistently demonstrated that even the most senior military and political leaders can be held accountable for atrocity crimes, as reflected in the Stanišić and Simatović case.
The representative of the Russian Federation, meanwhile, warned against the creation of new reasons for extending the Mechanism’s existence, noting the lack of rational explanation for such an unusually long life of the ad hoc Tribunal. The temporarily established structure expects to continue until 2055. Also, the conditions for the Serbs are in sharp contrast to the regime created for Kosovo Albanians, she said, urging the Mechanism to consider the option of transferring Ratko Mladic to Serbia to serve his sentence.
Rwanda’s delegate, noting that his country needs the support of the Prosecutor’s Office in addressing more than 1,000 genocide fugitives, said ensuring justice for the victims and survivors of the genocide against the Tutsi is “fundamentally about securing timely justice”. Stressing that “each delay in this process equates to a denial of justice”, he described the ruling on Félicien Kabuga’s unfitness to continue standing trial as “deeply disheartening”.
The speaker for Bosnia and Herzegovina emphasized that “around 3,000 suspected perpetrators of war crimes, crimes against humanity and genocide committed in the former Yugoslavia are yet to face justice”. On the escape of accused Novak Djukic to Serbia, he said the Serbian judicial authorities never acted on the verdict of the Court of Bosnia and Herzegovina. “This […] perpetuates narratives that go against every civilized norm and principle of humanity, justice and the rule of law,” he asserted.
Croatia’s delegate highlighted the clear link between the top Serbian leadership and the atrocity crimes committed in Croatia and Bosnia and Herzegovina, established by the verdict against Jovica Stanišić and Franko Simatović. Noting that his country is still waiting for Serbia’s response to its invitation to the fourth and final round of negotiations for a bilateral agreement on processing war crimes, he said the ongoing disrespect for the legal qualifications of the Tribunals and the Mechanism is “devastating”.
The representative of Serbia, rejecting the complaints about Serbia’s denial of crimes and glorification of convicts, called on the Mechanism to allow the cases of Petar Jojić and Vjerica Radeta for contempt of court to be referred to the Serbian judicial authorities and requested to return comprehensive documentation previously submitted to the Mechanism. He also underlined his country’s preparedness to enforce prison sentences handed down by the Former Yugoslavia Tribunal and the Mechanism under its supervision.
INTERNATIONAL RESIDUAL MECHANISM FOR CRIMINAL TRIBUNALS
Briefings
GRACIELA GATTI SANTANA, President of the International Residual Mechanism for Criminal Tribunals, said that the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia showed that, for the first time since Nuremberg, society’s opprobrium for hate crimes and its desire for fairness in ascertaining responsibility in the aftermath of conflict were not mere aspirations. These pioneering ad hoc Tribunals held to account hundreds of high-profile offenders, many of whom at the time were beyond the reach of national justice. “We continue to show that justice will be delivered when the international community makes a collective commitment to do so,” she stressed, adding that the Mechanism has finally transitioned to its truly residual phase, as it has no more active trials and appeals related to core crimes following the indefinite stay of proceedings in the case against Félicien Kabuga in September. On 15 November, it announced the death of fugitive Aloys Ndimbati, who was first indicted in 1995 and whose case had been referred to Rwanda. She informed that only two fugitives remain, both of whom are expected to be tried in Rwanda, while the Mechanism is focused on planning for the future and ultimately winding down its operations.
“I presented to the Informal Working Group on International Tribunals a draft ‘Framework of Operations to Complete Functions’, in line with my first priority,” she said. “My second priority is effective leadership and good governance,” she added, pledging to demonstrate the value of transparency and responsibility and show that a resource-constrained institution can still maintain the highest standards of performance. She said her third priority is to ensure that the shared legacy in the context of accountability is preserved and sends a strong message of deterrence. The Mechanism is working to identify areas where efficiencies can be increased by merging, restructuring and streamlining its internal framework and processes. She trusted that the information and proposals presented will form a useful basis for the Council’s decision-making on the future of the Mechanism’s operations. The entity is responding to national requests for assistance, monitoring referred cases, managing the archives, ensuring ongoing protections for victims and witnesses and performing other continuous judicial functions.
“We have seen that securing international criminal justice is a lengthy and painstaking journey, a long-term investment that necessitates support well beyond the delivery of a judgement,” she emphasized, adding that in the rush to commence investigations and prosecutions, the international community underestimated the importance of the end-of-justice cycle for the integrity of the entire project. She noted that several convicted persons have been returned to the United Nations Detention Unit in The Hague by States that are unable to keep enforcing the relevant sentences, thereby burdening both the Mechanism and the host State and essentially rendering the Unit a prison. The Mechanism urgently needs additional States to volunteer to assist with this mandated function or existing enforcement States to take on more convicted persons, she said, paying tribute to the 12 enforcement States.
Turning to the seven relocated persons in Niger, she underscored that 27 December will mark two years since they were placed under de facto house arrest. This unacceptable situation could easily have been avoided had Niger respected the agreement it made with the United Nations to host them, she said. Referring to the ever-growing trends of genocide denial and revisionism, as well as the glorification of war criminals, she said States play a pivotal role in countering these narratives. “I mention Serbia’s ongoing failure to execute the arrest warrants and orders for transfer of the accused in the Jojić and Radeta contempt case,” she said, adding that such behaviour seeks to weaken the judicial process before the Mechanism and challenges the authority of the Council. “We call on your help,” she said.
SERGE BRAMMERTZ, Prosecutor of the International Residual Mechanism for Criminal Tribunals, focusing his briefing on recent developments, reported that his Office has completed its mandate to prosecute the final cases of the Rwanda and Former Yugoslavia Tribunals. On 31 May, the Appeals Chamber issued its judgment in the Stanišić and Simatović case. The Appeals Chamber accepted his Office’s arguments that Stanišić and Simatović are criminally liable as participants in a joint criminal enterprise to ethnically cleanse large areas of Croatia and Bosnia and Herzegovina. The crimes were committed by senior officials at the apex of power who incited hatred and fear, who unleashed unspeakable violence to achieve their political goals. “It’s not Serbs, Croats or Bosniaks who are guilty,” he said, adding that the crimes were the work of individuals.
Voicing “immense dissatisfaction” that trial proceedings in the Kabuga case have come to an end, he said the victims and survivors of Félicien Kabuga’s crimes did not receive the justice they deserve. While Mr. Kabuga will not face judgment for his role in the suffering of the Rwandan people, “it is within our power to ensure other criminals do”, he asserted. Fulgence Kayishema was arrested on 24 May and remains in detention in South Africa pending his initial transfer to Arusha. Having announced the death of Aloys Ndimbati on 14 November, his Office anticipates that it will account for its final two fugitives in the next year.
With the completion of its trials and appeals, his Office is now firmly focused on its remaining residual functions, he noted. The most important of these is assistance to national authorities continuing the accountability process for crimes committed in Rwanda and the former Yugoslavia. Rwandan authorities are still seeking to bring to justice over 1,200 fugitive genocidaires. Likewise, prosecutors in the former Yugoslavia still have over 1,000 suspected war criminals to investigate and, where warranted, prosecute. Domestic authorities in third-party Member States, particularly in Europe and North America, also have cases to process. In Rwanda, interlocutors have emphasized their focus on bringing to justice those who committed crimes during the 1994 genocide against the Tutsi. To achieve their objective, they have requested intensified support from his Office, he said. Similarly, in the former Yugoslavia, all war crimes prosecutors from the region and his Office recently held an annual conference to discuss the implementation of their national war crimes strategies and solutions for how to overcome challenges.
He went on to detail assistance provided by his Office to its national partners, including access to information contained within its evidence collection, which totals more than 11 million pages, thousands of hours of audiovisual material and physical artefacts — the most thorough repository of evidence concerning crimes committed in Rwanda and the former Yugoslavia. Further, utilizing its developed expertise, the Office provides assistance across a broad range of legal, evidentiary, prosecutorial and strategic matters, including through the preparation of investigative dossiers for national prosecutors concerning priority accountability gaps. His Office also offers expert support upon request to national prosecutors concerning fugitives from justice in Rwanda and the countries of the former Yugoslavia.
“There is no expiration date for the international community’s obligation to prosecute genocide crimes,” he said, noting that while international trials for the crimes in Rwanda and the former Yugoslavia have now concluded, national prosecutors — with his Office’s support — are continuing the work in their courts. Additionally, with thousands of perpetrators from Rwanda and the former Yugoslavia still to be prosecuted, every Member State has the responsibility and opportunity to play their part by providing full cooperation. “We must also recognize that denial is the last resort of genocide ideology,” he said, noting that “denial seeks to erase both the victims and the crimes”. Relatedly, he cited the need to ensure that the truth is defended and promoted as “the ultimate responsibility that the Genocide Convention places on us, if we are to truly prevent and repress the ‘crime of crimes’”.
Statements
MICHEL XAVIER BIANG (Gabon), speaking in his capacity as Chair of the Working Group for International Tribunals, commended the spirit of compromise that allowed the adoption of resolution 2637 (2022) on appointment of the Mechanism’s Prosecutor. Recognizing the thirtieth anniversary of the creation of the Former Yugoslavia and Rwanda Tribunals, he emphasized their essential role in fighting impunity for international peace and security. Despite challenges faced by the Mechanism, he praised the swiftness of judicial proceedings, protection of fundamental rights and witness protection. He expressed support to the Mechanism’s strategy’s focus on recruiting skilled personnel, strengthening cooperation and prioritizing existing tools for effective transition. Highlighting the importance of ongoing efforts in arresting fugitives, he welcomed progress in significant cases, expressing hope for justice in the Balkans. The Mechanism is “a moral bulwark against arbitrariness and mass atrocities”, he said, adding: “The Mechanism is both a noble duty and a major asset in the fight against impunity.”
DOMINGOS ESTÊVÃO FERNANDES (Mozambique) said his country strongly supports the work of the Mechanism in the pursuit of international justice, as ethnic cleansing, genocide and crimes against humanity are abhorrent. “It is our collective responsibility to honour the victims and survivors by holding accountable all those responsible for the atrocities committed against them,” he stressed, encouraging efforts to transition to a truly residual “small, temporary and effective” Mechanism as originally envisioned. The situation of the acquitted and released persons who were relocated to Niger is concerning and also requires the Council’s attention, he said, particularly after the 26 July coup d’état in Niger, as these people had already served their respective sentences and deserve their freedom. “Justice is best served locally,” he stressed, calling for the combined efforts of national and international judicial institutions.
CHANAKA LIAM WICKREMASINGHE (United Kingdom) said the Mechanism’s work has continued effectively and efficiently over the past six months, including the confirmation of the death of the fugitive Aloys Ndimbati. The arrest of the remaining two Rwandan fugitives must be done as soon as possible. The Mechanism’s work remains critical, he said, as there are heightened ethno-national tensions and hate speech in the Western Balkans. He welcomed progress in the Mechanism’s discussions with Croatia on the establishment in Zagreb of an Information Centre on the Former Yugoslavia Tribunal. Noting several outstanding issues impacting the Mechanism’s ability to deliver its mandate, he expressed disappointment by reports of some States blocking cooperation in the Western Balkans and called on Serbia to fulfil its obligation to arrest and transfer Petar Jojić and Vjerica Radeta to the Mechanism. He also expressed concern over the Rwandan individuals relocated to Niger who have been rendered stateless since 2022 and remain under house arrest.
MARK A. SIMONOFF (United States), highlighting the Mechanism’s tremendous work in delivering justice for some of the gravest crimes of the past century, recalled that, in May, South African authorities arrested Fulgence Kayishema, who had evaded arrest for 20 years. Mr. Kayishema is accused of genocide and crimes against humanity for his alleged role in the brutal murders of 2,000 Tutsi men, women and children at the Nyange Church. In June, the Appeals Chamber found that Félicien Kabuga, captured 26 years after he was indicted, is not competent to stand trial. “The decision to cease Kabuga’s trial cannot restore what was lost,” he noted. Turning to the Former Yugoslavia Tribunal, he said it has consistently demonstrated that even the most senior military and political leaders can be held accountable for atrocity crimes. Spotlighting the Tribunal’s “immense contribution to the rule of law”, he said the Stanišić and Simatović case recognizes the responsibility of these former Government official for war crimes and crimes against humanity, thus closing an important chapter in the history of international criminal justice. Further, he welcomed the Mechanism’s efforts to help counter genocide denial and to enhance cooperation with the affected States...
https://press.un.org/en/2023/sc15524.doc.htm
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