The UN Security Council Debate Over International Residual Mechanism for Criminal Tribunals (2020)

Updated: Aug 1

Padmja Mishra,

Research Intern,

Internationalism


Introduction


The United Nations Security Council (UNSC) is to be holding a video-conferencing to decide on the various upcoming agendas that require urgent attention. One of the agendas to be decided is on the resolution extending the operating period of International Residual Mechanism for Criminal Tribunals (IRMCT) as well as the re-appointment of its prosecutor; both of which shall expire on 30 June.


IRMCT had been established in 2010 as a small and temporary structure to replace the working of the International Criminal Tribunal for the former Yugoslavia (ICTY) as well as the International Criminal Tribunal of Rwanda (ICTR) subsequent to their respective closures. It has been under constant criticism by Russia which is more concerned about the efficiency of the tribunals rather than a pro-democratic institution. The ICTY and ICTR were mainly established to look into the matters concerning the Yugoslavian and Rwandan Genocide respectively. However, the ICTY was constantly under the radar of criticism because of its continuous anti-Serb judgments which cemented the notion of the presence of biasness in the working of these Tribunals. Russia has constantly opposed the mechanism and had also earlier opposed the appointment of the IRMCT prosecutor Serge Brammertz. Russia even threatened to stall the passing of the resolution of extending the time period of the mechanism and the prosecutor both; for lack of efficiency and concrete measures.


History of the Genocides: An International Law Perspective


The Rwandan Genocide

In 1994, a group of ethnic Hutu extremists slaughtered around 800,000 people in just 100 days. These targeted people belonged to a minority Tutsi community as well as the political opponents of these extremists irrespective of their ethnicity. These murders were said to be backed by Mr Felicien Kabuga. Mr Kabuga was a tea-trader, who was the richest man of Rwanda prior to the 1994 Rwandan Genocide and is said to have been the top sponsor of this genocide. Despite a huge bounty on this head, Mr Kabuga managed to evade law enforcement for 23 years. He was recently caught in France in May 2020 pursuant to an investigation re-launched by Serge Brammertz.


The Yugoslavian Genocide

In 1992, the Bosnian Muslims (or the Bosniaks) and the Croats voted for independence in a referendum that was boycotted by the Serbs. This led to a conflict with the country subsequently going into war with the Bosniaks and Croats on the one side and the Bosnian Serbs on the other side. This Bosnian Serb army was led by Radko Mladic who eventually went on to become the symbol of the ethnic cleansing that left tens of thousands of people dead and displaced. He has been said to have led the siege of Sarajevo and the massacre at Srebenica. He had been on the run since 1995 when he faced an indictment of war charges and was later captured in 2011 in Belgrade. Ratko Mladic hated the Bosnian Muslims and often referred to them as Turks. He saw the genocide as a means to avenge the five centuries of occupation by the Bosniaks in the region. A majority of non-Serbs were driven from their homes to create an ethnically pure Serbian nation. He is still hailed as a hero among the Serbs. He finally went to trial in 2012, wherein he was charged with genocide among other war crimes. He was later sentenced to life imprisonment on the grounds of genocide, war crimes and crimes against humanity. However, Russia criticized the judgment of the IRMCT and called it “artificial, one-sided and anti-Serb interpretation of the tragic events of the 1990s in the former Yugoslavia which undermines the restoration of mutual trust in the Balkan region”.


The Serbian Ethnic Cleansing

Following the Yugoslavian genocide, was the ethnic cleansing of the Serbs by the Croatian Government via their “Operation Storm”. The operation was said to be the largest European land offensive since World War II and is reported to have been carried out by the Croatian government to re-gain control of the Krajina region. The Croatian Army carried out summary executions and indiscriminate shelling of civilian populations during the 1995 assault. A number of Serbian civilians were killed and displaced as a result of this cleansing. An estimate of 200,000 civilians was displaced in the aftermath of this operation.


Analysis


ICTY’s judgments had been alleged to be founded on the grounds of personal and national characteristics of the accused. ICTY has been under constant criticism by Serbia because of the fact that 3 Croatian officials that were indicted by the ICTY and tried by the IRMCT were found not guilty. Russia joined Serbia in its criticism of the working of the IRMCT because of its inherent and evident biasness against the Serbs. Russia’s support to Serbia and be attributed to their friendly history during and subsequent to the existence of the USSR. The Office of Internal Oversight Services (OIOS) in its 2020 report pointed out that “the mechanism was not systematic in presenting focused projections, insofar as they declined to methodically predict the future progress of a trial or estimate a completion date at the start of proceedings”.

However, Russia stated that the same had also been mentioned in its 2018 report which was very conveniently over-looked and requested that resolution should also reflect on the short-comings of the failure rather than basking in the glory of its short-lived achievements. Russia even threatened to block the resolution if these concerns did not get immediate and serious attention.

Russia also raised the issue of the protection of detainees of the Mechanism and made a specific reference to Ratko Mladic while elaborating on access to medical care. COVID-19 pandemic raised several speculations with regards to the healthcare services of the Mechanism. Furthermore, Russia’s skepticism of the re-appointment of Serge Brammertz is well-founded on the grounds that he had been the prosecutor of ICTY during the time period 2008 to 2017. Since its inception, accusations of political bias against the Serbs in ICTY have been levied. Even though the tribunal does not provide for an inherent bias against the Serbs, however, the actors of Tribunal in their individual capacity can be held responsible for the alleged bias. The lack of accountability within the Tribunal paves the way for such bias in its working. The fact that the current prosecutor of the IRMCT was a part of the ICTY, strengthens Russia’s allegation of the bias that is quite evidently reflected in the Mechanism’s judgments and further strengthens its resolve against the extension of the Mechanism’s operating period.


Conclusions


Russia is a permanent member of the United Nations Security Council (UNSC) and thereby has the veto power at its disposal. This power gives them the authority to grant or block a resolution irrespective of the majority opinion. It forms a distinction between the permanent and non-permanent members of the UNSC since Article 27(3) of the UN Charter evidently grants them this power. Generally, the veto is used to defend national interests or to promote an issue of international importance. Russia’s threat to block the resolution of the IRMCT’s extension period is an act in furtherance of this power. The fact that the other members have consistently ignored its plea and opinion on the evident bias in the working of the tribunal makes it a power well-used by the Russian authorities. The ignorance of reflecting upon the recommendations by the OIOS reports and the lack of a strong mechanism to implement the same effectively and efficiently raises concerns over the existence and functioning of the IRMCT. Para 17 of the Resolution 1966 (2010), by which the IRMCT was adopted, states that the IRMCT was supposed to be a temporary structure with a constant further two year extension period if required unless the UNSC decides to the contrary. Russia, being a UNSC, member has the authority to vote otherwise for ceasing the work of this tribunal along with other members of the Council. Therefore, Russia’s concerns over the functioning of the IRMCT should be adequately addressed and measures should be taken to remove the suspicion of bias in the work of the Tribunal. These measures can involve the appointment of a neutral prosecutor, i.e., the appointment of a prosecutor with no history or background from the former Yugoslavia and the presence of an effective investigative mechanism in place. This shall add on to the credit-worthiness of the functioning of the Tribunal and an efficient yet democratic mechanism in place, thereby leading to the removal of allegations of the bias.

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