President, Prosecutor Report on Progress While Raising Alarm over Reports of Genocide Denial by Convicts Released Early
Delegates in a Security Council debate underlined today the importance of completing, expeditiously but diligently, the work of the mechanism created to carry out the remaining functions of the international criminal tribunals trying crimes committed in the territories of Rwanda and the former Yugoslavia.
In the debate that followed briefings by the institution’s President and Prosecutor speakers highlighted ‑ in addition to the timely conclusion of cases taken over by the International Residual Mechanism for International Tribunals ‑ the importance of apprehending fugitives still at large, replacing judges in a timely manner, harmonizing procedures, resettling convicts released after serving their sentences, reconsidering the practice of early release for convicted individuals, and cementing the legacy of the tribunals in the effort to end impunity. Many delegates underlined their concern over recent denials of war crimes following the release of certain individuals from the former Yugoslavia.
Ahead of that debate, Theodor Meron, President of the Residual Mechanism, and Serge Brammertz, Prosecutor, briefed on its progress in the last six months, providing updates on the cases against Ratko Mladic and Radovan Karadzic in The Hague, as well as pending cases in the new Abuja facility in Nigeria, where remaining cases from the Rwanda genocide are being adjudicated.
Judge Meron, noting that today’s appearance is his final one in his current capacity, said that during the reporting period, the Mechanism continued to make significant progress towards the completion of its mandate despite budgetary challenges, from providing vital assistance to national jurisdictions to methodically preserving archives to sustainably protecting victims and witnesses while enforcing sentences across two continents. He welcomed the Council’s efforts to ensure that the current vacancies on the Mechanism’s judicial roster are filled expeditiously. He expressed regret, however, that he will not see the conclusion of the Karadzic case during his term, that harmonization of the procedures applied in The Hague and Abuja, as well as resettlement arrangements, have not been completed, and that the early release of some individuals has caused concern for victims and communities. He nevertheless expressed pride that the Mechanism is passing on advances in international justice to future generations. Noting that he might be the last Holocaust survivor to address the Council, he said: “The Mechanism itself, as it carries forward the invaluable legacies of the ad hoc Tribunals, is a symbol of the lessons learned by past generations [in] respect for the rule of law, fundamental fairness and justice and adherence to the highest principles and to our obligations arising thereunder.”
Prosecutor Brammertz, providing further details of ongoing procedures, said the Mechanism has strengthened efforts to locate and arrest the remaining eight fugitives indicted by the International Criminal Tribunal for Rwanda by restructuring the tracking team, adopting a more proactive approach and temporarily increasing resources. As for the former Yugoslavia, he said the Mechanism deeply regrets the glorification of war criminals and the denial of crimes, calling upon authorities in the western Balkans region to take concrete remedial steps.
Following the briefings, most Council members paid tribute to the outgoing President and to the entirety of the Mechanism’s work, while noting the remaining challenges. Most also urged greater cooperation on the part of Member States in apprehending fugitives still at large, with many others echoing the concern expressed by the two officials in relation to the negative effects of early release and to the denial of crimes by those released early.
The Russian Federation’s representative, however, said it appears that the Mechanism’s work has largely stalled, likening it to the International Criminal Tribunal for the Former Yugoslavia in “the bleakest hour of its existence”. The regrettable shuffling of judges and “other chaos”, have roots in the poor handling of the Karadzic and Mladic cases, he added, calling for the latter’s transfer out of The Hague if the city cannot make adequate medical care available to him. He called upon the Mechanism to stop diverting resources to unassigned tasks and to complete its mandate in a more expeditious manner.
Following the remarks by Council members, Serbia’s Minister for Justice, alongside representatives of Bosnia and Herzegovina, Croatia and Rwanda, detailed their national cooperation with the Residual Mechanism and outlined their concerns.
Justice Minister Nela Kuburović of Serbia, expressing regret that the Mechanism has not provided answers to many important questions, called for allowing convicted Serbian nationals to serve the remainder of their sentences in their home country. In that regard, she pledged Serbia’s willingness to accept strict international monitoring, while guaranteeing that sentenced persons will not be released without a decision by the Mechanism.
The representative of Bosnia and Herzegovina, citing a significant backlog of war crimes cases under national jurisdiction, highlighted the need for better regional cooperation among national prosecutors.
Croatia’s representative, echoing the need for regional cooperation, said the Prosecutor should squarely focus on mandated cases and tasks in order to end delays. He also expressed deep concern over denial of past wrongdoing.
Rwanda’s representative said the recent early release of more than 2,000 inmates is evidence of her country’s choice to pursue restorative rather than retributive justice. Recommending the conditional early release of eligible convicts, alongside the creation of programmes to combat genocide and genocide denial, she also called for relevant convicts to serve the remainder of their sentences in Rwanda.
Also speaking today were representatives of Peru, United Kingdom, Sweden, Kazakhstan, France, Netherlands, Kuwait, China, United States, Equatorial Guinea, Bolivia, Poland, Ethiopia and Côte d’Ivoire.
The meeting began at 10:05 a.m. and ended at 12:46 p.m.
THEODOR MERON, President of the International Residual Mechanism for Criminal Tribunals, noted that this is his final appearance before the Council in that position and expressed appreciation for its support. He went on to report that in the last six months, notwithstanding a challenging budgetary situation, the Residual Mechanism has continued to make significant progress towards the completion of its mandate, “from provision of vital assistance to national jurisdictions to methodical preservation of archives and from sustained protection of victims and witnesses to the enforcement of sentences across two continents”. Among the milestones achieved in the reporting period was the adoption of rules of detention for both Arusha and The Hague that can serve as models for courts in other jurisdictions, he added.
He reported that the first judicial hearing in the new Arusha courtroom was held in September, with the initial appearance of the five individuals accused in the new contempt case Turinabo et al. Welcoming the cooperation extended by the Government of Rwanda in carrying out the arrest and transfer of the accused, he described that development as an important demonstration of the Mechanism’s readiness in the event that the remaining indicted fugitives are apprehended. Expressing regret that he will not see the case against Radovan Karadžić to its conclusion due to changes to the composition of the bench, he said the appeals judgement in that case is expected in the first quarter of 2019. Briefing has recently concluded in the case of Ratko Mladić, which is still projected to be completed by the end of 2020, he added.
Meanwhile, proceedings in the review of the case against Augustin Ngirabatware have been delayed due to the appearance of new material, he reported. As for ongoing cases, he thanked the Council for its efforts to ensure that the current vacancies on the Mechanism’s judicial roster will be filled expeditiously. Saying he anticipates a smooth transition to the upcoming presidency of Carmel Agius, he expressed regret, however, that a sustainable solution to the question of resettling released persons in Arusha has not been found, calling for continued focus by the Council and for the cooperation of key Member States in order to resolve that issue. He emphasized the need to harmonize practices and procedures across the Mechanism’s two branches, saying it is inevitable that some judicial rulings may be met with controversy, while affirming that his own practice has been guided solely by law and evidence. At the same time, he expressed further regret that some rulings on such matters as early release have caused pain or concern for victims and their communities, while noting efforts to mitigate those effects.
A final regret is that a better solution to the situation of his colleague, Judge Aydin Sefa Akay, was not found, he said, while affirming, however, that for all his regrets, he remains exceptionally proud of the Mechanism’s accomplishments under strict accountability over the past seven years. Reviewing the establishment of procedures, the new facility in Arusha and contributions to institutions in The Hague, he said the priority is building “an exemplary United Nations institution and a model of what an international criminal judicial institution can and should be”. Noting that he might be the last survivor of the Holocaust during the Second World War to appear before the Council, he said “the Mechanism itself, as it carries forward the invaluable legacies of the ad hoc Tribunals, is a symbol of the lessons learned by past generations”. He added: “It is a symbol of what we hold dear: respect for the rule of law, fundamental fairness and justice and adherence to the highest principles and to our obligations arising thereunder.”
SERGE BRAMMERTZ, Prosecutor of the International Residual Mechanism for Criminal Tribunals, said the institution has finished presenting all witnesses except one in the Stanišić and Simatović retrial. Regarding the Karadžić appeal, the Mechanism continues to litigate a high volume of motions, including one to disqualify judges from the case. On 29 November, the Mechanism completed the preparations of written appeal arguments in the Mladić case and litigated several other matters, including motions to disqualify judges, he said. With respect to Rwanda, the Mechanism filed a confidential indictment charging five suspects with three counts of contempt of court and incitement to commit contempt of court on 14 June, he reported. The contempt proceeding, Prosecutor v. Turinabo, et al., arose out of the review proceedings in the Ngirabatware case, he said, explaining that the Mechanism alleges four of the accused interfered with witnesses who gave given evidence in the Ngirabatware trial and in the ongoing review proceeding, and that two others violated court orders protecting witnesses. The purpose of the alleged contempt of court was to overturn the final conviction of Augustin Ngirabatware, thereby undermining the facts of the genocide, he said.
He went on to report that the Mechanism has strengthened efforts to locate and arrest the remaining eight fugitives indicted by the International Criminal Tribunal for Rwanda by restructuring the tracking team, adopting a more proactive approach, and temporarily increasing resources. He said that, on the strength of some actionable leads, he travelled to Harare earlier in 2018 to seek the cooperation of Zimbabwean authorities, who assured him of their commitment and adherence to their international legal obligations. To coordinate further investigative activities in locating a fugitive in Zimbabwe, the Mechanism created a joint task force, he said, adding that it recently provided a report demonstrating its pursuit of several promising leads. He went on to state that an urgent request for assistance to South African authorities, which he submitted on the basis of information obtained by the Mechanism and confirmed by the International Criminal Police Organization (INTERPOL) National Central Bureau in that country, has not yet been answered.
Regarding the countries of the former Yugoslavia, he said the Mechanism deeply regrets the continuing glorification of war criminals and the denial of crimes. Some political leaders in the region are working to overcome the legacy of the recent past, but irresponsible comments by other officials undermine their efforts, portraying as heroes men who committed the most serious violations of international law, he noted. The Mechanism calls upon authorities in the region to take concrete steps to remedy the situation by halting political interference in the justice process and allowing judiciaries to carry out their responsibilities in accordance with the rule of law and European standards, he stressed. On missing persons, he said about 25,000 have been found, although more than 10,000 families are still unaware of the fate of their loved ones. In strengthening the search, the Mechanism signed a memorandum of understanding with the International Committee of the Red Cross (ICRC) to promote cooperation, he said, adding that it continues to provide national authorities with access to its records and expertise. In recent months, the Mechanism hosted working visits by the Serbian Missing Persons Commission and gave extensive operational support to the Missing Persons Institute of Bosnia and Herzegovina, he reported.
GUSTAVO MEZA-CUADRA (Peru), underscoring the Mechanism’s importance in ensuring access to justice and promoting international law, noted that whereas it is a temporary and small structure whose functions and size will diminish in time, it serves as an important deterrent of atrocity crimes. Commending the expeditious and transparent way in which it has discharged its judicial mandates, especially in the intense activity of the last six months, he noted its use of remote hearings, and applauded the cooperation of various African and European Governments. However, he expressed regret that some people who benefited from early release have not expressed remorse for their crimes.
SUSAN JANE DICKSON (United Kingdom), noting the significant challenges confronting the Mechanism, including its reduced budget and staff, commended its determination to fulfil its mandate on time. Highlighting its various initiatives, including its expenditure reduction plan, she said that such steps enable the Mechanism to reduce its general operating costs and deliver the core elements of its mandate. The United Kingdom will continue to support the Mechanism for the remainder of its mandate, she said, calling upon other Member States to support it financially and logistically. Noting the Mechanism’s efficiency in dealing with complex and challenging cases, she said remote judging has worked effectively so far. She expressed concern, however, about genocide denial in Rwanda.
IRINA SCHOULGIN NYONI (Sweden), while expressing satisfaction with the gender balance achieved among professional staff, said the continuing lack of gender parity among judges and the absence of female candidates in the upcoming election of judges is disappointing. She also expressed concern about the strained budgetary situation, cautioning that it could contribute to the loss of institutional memory. It is regrettable that international criminal tribunals face hostile rhetoric and increased pressure despite their important role in the fight against impunity for the most horrendous crimes, she stated. Yet, it demonstrates that the courts and tribunals are doing their work well, she added, recalling that they were established to serve justice, not the interests of any country.
JOANNA WRONECKA (Poland) noted the Mechanism’s significant progress, including the expeditious completion of judicial proceedings, and commended its efforts to provide protection and support services for victims and witnesses. Poland notes the resource‑related challenges confronting the Mechanism, she said, calling upon all States to extend their full cooperation and render all necessary assistance, especially in terms of locating, arresting and surrendering all remaining fugitives as soon as possible. International criminal justice institutions such as the Mechanism play a crucial role in upholding accountability, thereby deterring atrocity crimes, she emphasized, adding that Poland stands ready to support that endeavour.
SHERAZ GASRI (France), paying tribute to Judge Meron’s contribution to criminal justice, said her delegation continues to follow developments in the remaining cases, reiterating the need for cooperation in apprehending fugitives still at large. Reporting on progress in two cases referred to France’s jurisdiction, she affirmed that the Wenceslas Munyeshyaka and Bucyibaruta cases are being handled with due diligence and rigour. She underlined the need for full cooperation from countries of the former Yugoslavia in order successfully to complete the Mechanism’s work, while expressing concern over the denial of crimes and responsibility voiced by certain released individuals. The matter of early release must be discussed further in that light, she emphasized.
KAREL JAN GUSTAAF VAN OOSTEROM (Netherlands) said any action that puts the safety and security of witnesses and victims at risk should be condemned. Emphasizing that the protection of witnesses is a key residual responsibility of the Mechanism, he urged Member States to provide it with resources reflecting its increasing workload. He urged Croatia, Serbia as well as Bosnia and Herzegovina to strengthen their cooperation with the Mechanism so as to help bring suspected war criminals to justice, emphasizing that it is disturbing that national authorities in the western Balkans organize or consent to the glorification of war criminals. Describing denial of the Srebrenica genocide by parliamentarians of the Republika Srpska and leading politicians in Serbia as reprehensible, he called upon Governments to stop public denials and glorification of atrocities and send a clear message that their armed forces must reaffirm the need fully to respect international humanitarian law.
TAREQ M. A. M. ALBANAI (Kuwait), expressing gratitude for Judge Meron’s hard work, stressed that peace does not mean simply ending armed conflict; it must also entail the delivery of justice to victims of genocide, war crimes and ethnic cleansing. Highlighting the need to document the experiences of the former Yugoslavia and Rwanda Tribunals, he said the lessons learned from will serve as a robust basis for the future. Noting the surge in the Mechanism’s judicial activity and the General Assembly’ non‑approval for its budget, he commended its passing of final sentences ahead of deadline in certain cases.
LIU YANG (China) took note of various decisions issued by the Mechanism, highlighting the recommendations made by the Office of Internal Oversight Services (OIOS) and expressed the hope that the Mechanism will take further effective measures to expedite its legal proceedings and comply effectively with the instruction to be small, temporary and efficient. Expressing deep appreciation to Judge Meron, he also thanked Peru for leading the informal working group on tribunals, and for coordinating between the Council and the Mechanism.
JONATHAN R. COHEN (United States) described the Mechanism as a model of staffing expectations regarding gender parity and commended its impressive volume of work despite its lean operations. Highlighting the strong cooperation between the Mechanism and the authorities in Rwanda, he called for continued efforts to protect the thousands of witnesses who bravely provided testimony. He also praised the efforts of Prosecutor Brammertz to build capacity in Africa and in the former Yugoslav countries. Encouraging the Mechanism to respond to concerns about early release, he noted that some individuals released early have denied responsibility for their crimes, thereby undermining accountability, whereas thousands of people remain missing.
ANATOLIO NDONG MBA (Equatorial Guinea), paid tribute to the Mechanism’s work and Judge Meron’s leadership, welcoming the institution’s progress despite the challenges it faces. Expressing hope that further consideration of early release will overcome opposition to such practices, he emphasized the need for further consultation with affected countries and communities. He also commended the Mechanism’s efforts towards gender parity, stressing the need for more women in senior positions. Calling also for greater cooperation by States in resettling released individuals, he commended those that have already agreed to do so. He also welcomed the Mechanism’s assistance in building national capacity, praising its efforts to implement the recommendations of the OIOS. He concluded by stressing the importance of apprehending fugitives remaining at large, and affirming the Mechanism’s role in the maintenance of international peace and security.
RICARDO JOSÉ MIRANDA RIVERO (Bolivia) affirmed his delegation’s full support for the Mechanism and paid tribute to Judge Meron. Calling for further improvement of the Mechanism’s effectiveness and method of referring cases to national jurisdictions, he stressed the importance of preserving collective memory through information centres. He commended remote hearings, saying the practice must be further refined to overcome inherent risks. Harmonizing the practices of Arusha and The Hague is also necessary, as is cooperation in apprehending remaining fugitives, he said, underlining that responsibility for crimes must be borne by individuals and not communities. He went on to call for measures to resolve controversies created by the early release of individuals who go on to deny their crimes. Stressing the need to implement all OIOS recommendations, he called upon the Mechanisms to continue its judicial activities in the most efficient manner and in recognition of the its temporary nature.
GENNADY V. KUZMIN (Russian Federation) said it appears that the Mechanism’s work has largely stalled, recalling the International Criminal Tribunal for the Former Yugoslavia in “the bleakest hour of its existence”. Expressing regret over the shuffling of judges and “other chaos”, he said such problems have roots in the handling of the Karadžić and Mladić cases. In paying attention to procedural issues, the court lost sight of the fate of the humans involved, who were expecting timely justice, he noted, adding that new judges might not have enough time to familiarize themselves with the cases. However, the Russian Federation hopes expeditious justice will nevertheless ensue, he said. Expressing his delegation’s continuing alarm over the health of Mr. Mladić, he reiterated calls for adequate medical treatment, emphasizing that if treatment is not available in The Hague, Mr. Mladić must be transferred to Serbia or to the Russian Federation. He went on to question the handling of cases referred to national jurisdictions, calling upon the Mechanism to halt improper expenditures and use of staff, while maintaining that attention is being diverted to tasks not assigned to the Mechanism. Instead, it must expeditiously complete tasks under its mandated responsibility, he underlined.
DIDAR TEMENOV (Kazakhstan) welcomed the Mechanism’s significant progress in establishing itself as “a small temporary and effective structure”, despite resource constraints, and commended its expenditure reduction plan. While the code of professional conduct formulated for the Mechanism’s judges represents a progressive step towards strengthening transparency in its functions and internal policies, there is always room for improvement, he said, urging the Mechanism to take all necessary measures to build accountable partnerships with its stakeholders. Noting the Prosecutor’s proactive efforts in the context of the Mechanism’s task of locating and arresting eight fugitives, he welcomed its strengthened cooperation with Rwandan authorities.
YANIT ABERA HABTEMARIAM (Ethiopia) welcomed the Mechanism’s efforts to further enhance efficiency and build national capacity in criminal justice despite tight resources, expressing concern over the General Assembly’s decision not to approve its 2018/2019 budget. She also reaffirmed the critical need for cooperation between relevant States and international organizations in apprehending at‑large fugitives, as well as the importance of consultation between the President of the Mechanism and Rwanda on issues involving early release of convicted persons, particularly the implications for victims and communities. Reiterating the need for continued Council support for the Mechanism in fulfilment of its mandated functions, she encouraged Member States also to strengthen their support, not only in tracking fugitives, but also in addressing budgetary issues.
KACOU HOUADJA LÉON ADOM (Côte d’Ivoire), Council President for December, thanked Judge Meron and Prosecutor Brammertz, going on to welcome the Mechanism’s progress in a range of fields, from judicial issues to archival management. Encouraging the Mechanism to meet the recommendations set out by OIOS, he expressed alarm about persistent challenges relating to judicial cooperation among countries of the former Yugoslavia. Underscoring the importance of cooperation by Member States in locating, arresting and transferring fugitives, he called upon all national Governments to participate proactively in improving accountability.
NELA KUBUROVIĆ, Minister for Justice of Serbia, expressed regret that the Mechanism did not provide answers to many important questions, while highlighting her country’s cooperation with the Mechanism, including the Prosecutor’s offer of free access to all evidence, archives and witnesses. She recalled that Serbia launched an initiative 10 years ago to have its citizens sentenced by the International Criminal Tribunal for the Former Yugoslavia serve their sentences within the country, noting that “it can hardly be expected that the purpose of the punishment will be achieved if these persons serve their sentences in faraway countries”. Spotlighting the situation of Serbian nationals Milan Martić and Dragomir Milošević, who are serving their sentences in Estonia, she called upon the Secretary‑General to instruct the Mechanism to assess the initiative and make it possible for the Council to consider the current practice relative to enforcement of the sentences. Serbia is ready to accept strict international monitoring and guarantees that the sentenced persons will not be released without decisions by the Mechanism, she pledged.
IVICA DRONJIĆ (Bosnia and Herzegovina) said that his country’s Government has cooperated fully and steadfastly with the Former Yugoslavia Tribunal and remains committed to helping the Mechanism accomplish its mission. In the fight against impunity, trusted independent judicial institutions are a precondition for prosecuting and punishing war criminals, as well as for pursuing reconciliation among a country’s constituent peoples, he emphasized. Citing a significant backlog of war crimes cases, he said Bosnia and Herzegovina attaches great importance to stronger and more coordinated regional cooperation among national prosecutors, adding that cooperation between his country’s State Prosecutor’s Office and Serbia’s War Crimes Prosecutor’s Office is productive in delivering justice for victims, “the true strength of reconciliation”. He went on to note improvement in national war crimes prosecutions, with 16 new indictments filed during the reporting period and more expected by year’s end. Implementation of the National War Crimes Strategy is essential to bringing those responsible for atrocities to justice, he said, urging the continued support of the European Union, the Organization for Security and Cooperation in Europe (OSCE) and the United Nations Development Programme (UNDP).
VLADIMIR DROBNJAK (Croatia) emphasized that his country did its part to ensure accountability for the war crimes committed within the region in the 1990s, some of which have yet to be fully investigated or prosecuted. Croatia expects all remaining cases before the Mechanism to be completed within a reasonable period and without delay, he stated, emphasizing that lessons must be drawn from the International Criminal Tribunal for the former Yugoslavia in that regard. The Prosecutor should focus squarely on the cases and tasks assigned to him, as per the Mechanism’s agenda and mandate, he said. Pointing out that there is no alternative to cooperation among concerned States and with the Mechanism, he stressed that meaningful regional cooperation implies that all States demonstrate willingness and sincere commitment to prosecuting all war crimes, without double standards or exemptions. He expressed deep concern about the spreading denial of past wrongdoings, warning of its destructive effects on regional stability. Giving assurances that the issue of missing persons remains atop Croatia’s agenda, he said that Serbia still does not demonstrate readiness to open its archives, which would be a crucial step forward.
VALENTINE RUGWABIZA (Rwanda) said that her country’s Government granted early release to more than 2,000 inmates in September, further evidence of its choice to pursue restorative rather than retributive justice. Noting the seventieth anniversary of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide, she recalled that it was not the absence of legal frameworks that led to the 1994 genocide against the Tutsi in Rwanda. Rather, institutions and people do, she said, emphasizing that frameworks are only frameworks and do not implement themselves. Moving on to other matters, she noted today marks the final briefing by Judge Meron as President of the Residual Mechanism. The point of transition provides an opportunity to take stock, she said, adding that of pivotal importance is the expectation that the next President will improve the Mechanism’s working methods, making it more transparent, accountable and inclusive. The point is that common sense has eluded the Mechanism over the past few years, not least in the treatment of early‑release and genocide convicts, she noted. Describing lack of transparency as the widest avenue to partiality, she asked why the Mechanism would by so trepid about it. In that vein, she made four recommendations: strengthen the force of international criminal law by instituting a comprehensive provision for the conditional early release of eligible genocide convicts; combat genocide ideology in all its manifestations and forms, including genocide denial; step up efforts and collaboration among States; and send genocide convicts still in custody to serve the remainder of their sentences in Rwanda.