In December the presidents and prosecutors of the International Criminal Tribunals for the former Yugoslavia and Rwanda are expected to brief the Council. The Tribunals’ progress reports were circulated to Council members in November.

The Council is also expected to adopt a resolution for each Tribunal responding to various technical requests submitted by the Tribunals’ presidents relating to extension of judges’ mandates and authorisation of ad litem judges.

Also in December, it is possible that the Council will be ready to adopt a resolution authorising the establishment of a residual mechanism to carry out a number of essential functions after the closure of the Tribunals. At press time, negotiations on a draft were ongoing in the Council’s Informal Working Group on International Tribunals, chaired by Austria.

The Working Group is also considering a request by the government of Rwanda relating to facilitation of cooperation between ICTR and national Rwandan courts in cases transferred from the ICTR. This request, which calls for the appointment of international judges to serve in Rwandan courts, would require that the Tribunal’s statute be amended, but it is unclear whether any action can be expected on this in December.
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Key Recent Developments
The presidents and prosecutors of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) last briefed the Council on 18 June. President of ICTY, Patrick Robinson, focused most of his briefing on the problem of staff attrition and its negative impact on the work of the Tribunal. He said a “very significant reason” for the slippage in the trial schedule was the departure of highly experienced staff for more secure employment elsewhere. Robinson urged the Council to acknowledge the problem. This issue was also a main focus of the briefing by the ICTR president, Dennis Byron.

ICTY Prosecutor Serge Brammertz reiterated that the arrest of the two remaining fugitives, Ratko Mladić and Goran Hadžić, remained the highest priority for his office. ICTR Prosecutor Hassan Bubacar Jallow said that in light of Kenya’s continued unwillingness to cooperate in the case of Félicien Kabuga (one of three high-ranking ICTR fugitives who remain at large), he had asked the ICTR president to formally notify the Council of Kenya’s non-compliance with the Tribunal’s requests.

On 29 June, in resolutions 1931 on ICTY and 1932 on ICTR, the Council extended the terms of office of all the permanent judges of the Tribunals’ appeals chamber until 31 December 2012 and, with a few exceptions, of the permanent and ad litem judges of the trial chambers until 31 December 2011. It also expressed its intention to extend the terms of office of the ICTY trial judges beyond that date by 30 June 2011 based on an updated trial schedule to be submitted to the Council by 15 May 2011 and amended the ICTR statute to allow the Secretary-General to appoint ad litem judges. The Council responded to the concerns regarding staff attrition by noting the importance of adequate staffing for the Tribunals to finish their work and calling on the Secretariat and “other relevant UN bodies” to address this issue. It took note of the ICTR’s notification of Kenya’s lack of cooperation in the case of Kabuga.

Following the arrest in Kampala on 30 June of Jean-Bosco Uwinkindi, the number of remaining ICTR fugitives is now down to ten. Uwinkindi is charged with three counts of genocide, conspiracy to commit genocide and extermination as a crime against humanity. (As he is not considered high-ranking, his case is earmarked for referral to a national jurisdiction. The ICTR prosecutor has applied for his case to be transferred to Rwanda.)

In the Council’s Informal Working Group on International Tribunals, negotiations have continued on the establishment of a residual mechanism to deal with unresolved issues following the closure of the Tribunals. A fourth revised draft resolution, including a revised annex on the statute for the mechanism, was circulated to Council members in July. In October a second annex was circulated that addresses transitional issues resulting from the fact that the residual mechanism will be established before the closure of the Tribunals. Austria circulated a fifth revised draft resolution at a meeting of the Working Group on 24 November.
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Key Issues
The immediate issue for the Council is responding to the various requests from the Tribunals’ presidents relating to the extension of judges’ mandates and authorisation of ad litem judges.

Another key issue is assessing the Tribunals’ progress in completing their work. (According to the November progress reports, there has been a further slippage in ICTY’s completion schedule, with the estimated conclusion date for the appeal in the Radovan Karadžić case having moved into 2015. The ICTR is still scheduled to complete all trial work in 2011 and all appeals in 2013.) Some of the continuing key challenges include the failure to arrest the remaining high-ranking fugitives, states’ lack of cooperation, obstacles to referral of cases to national jurisdiction and the staffing situation. According to ICTY’s November report , “nothing has been achieved” to solve the problem of staff attrition. (It seems that the Council’s call in June for relevant UN bodies to address this issue needs more specific follow-up, including by Council members in relevant intergovernmental organs.)

The most substantive issue currently facing the Council is whether it is now ready to adopt a resolution on a residual mechanism and the timing of such a decision.
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Options
Main options for the Council include:

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adopting technical resolutions for each Tribunal responding to the various requests submitted by the presidents;
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authorising the establishment of a residual mechanism on a specific date and also deciding on closing dates for the Tribunals;
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authorising the establishment of a residual mechanism on a specific date but leaving open when the Tribunals will close;
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authorising a residual mechanism but reserving specific dates for a later decision;
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deferring the decision on the residual mechanism and resuming negotiations in January under the new chairmanship of the Working Group; or
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laying out more precisely exactly what solutions or options the Secretariat should employ to address the staffing issues .

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Council Dynamics
It seems that ICTR President Byron’s call, in his presentation of the Tribunal’s annual report to the General Assembly on 8 October, for an early decision on the residual mechanism to ensure a timely and smooth transition phase has led to greater interest among Council members in taking such action before the end of the year. Members are also acutely aware that Austria is leaving the Council and that the current leadership momentum will inevitably be reduced after 31 December.

At press time, however, there were still a number of outstanding issues in the negotiations, and it was unclear whether agreement could be reached by the end of December. One such issue is the start date for the mechanism. It seems to be common ground that there will be one mechanism with two branches starting at different dates. There is some support for the option that the ICTR branch should commence in January 2012 and the ICTY branch in January 2014. Other issues include whether the authorisation of the mechanism should be open-ended or limited in time with the possibility of an extension and whether a final date should be established for the Tribunals to shut down. There are also remaining questions on transitional issues and budgetary aspects.

Russia wants a definite closing date for the Tribunals and a time-bound mandate for the residual mechanism, but with the possibility of an extension. Other Council members, however, including France, the UK and the US, argue that this would create problems about due process and judicial independence.