posted on Fri 2 Sep 2016 2:13 PM
Resolution Amending the Statute of the International Criminal Tribunal for the former Yugoslavia

On Tuesday (6 September), the Security Council is expected to vote on a resolution amending the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) regarding the appointment of ad hoc judges. The draft resolution circulated by Uruguay, penholder and chair of the Informal Working Group on International Tribunals, was put in blue yesterday (1 September).

The ICTY currently has one remaining case at trial concerning Ratko Mladić and one case before the Appeals Chamber, concerning six accused, with judgements expected in November 2017, resulting in the final closure of the tribunal. The need to adopt the resolution arose from a 5 August letter to the President of the Security Council from the Secretary-General, transmitting a 29 July letter from the president of ICTY, Judge Carmel Agius, concerning the composition of the Appeals Chamber of the ICTY (S/2016/693).

The letter notes that there are seven permanent judges remaining at the ICTY, four are assigned to the Appeals Chamber and three to the court’s last remaining trial in the Mladić case. Therefore, in the event of an interlocutory appeal from the Mladić trial, it would not be possible to compose an appellate bench of five judges as required by Article 12, paragraph 3, of the Statute of the ICTY because the judges assigned to the Mladić trial would be conflicted. (An interlocutory appeal is an appeal of a ruling that is made before all claims are resolved.) To address this problem, Judge Agius proposes in his letter that the Security Council consider authorising the ad hoc and temporary assignment of Judge Burton Hall (The Bahamas) to the Appeals Chamber of the ICTY for the purposes of any interlocutory appeals from the Mladić trial. Judge Hall was a permanent judge of the ICTY and currently sits on the bench of the International Residual Mechanism for Criminal Tribunals (the Mechanism) also based in The Hague. According to Judge Agius’s letter, this would be the simplest and most cost-neutral way to resolve the matter.

The Statute of the ICTY in its current form does not provide for the appointment of ad hoc judges. It requires in Article 13 that permanent and ad litem judges (judges appointed to sit on a specific trial) be elected by the General Assembly from a list submitted by the Security Council based on nominations by member states. The draft resolution set for adoption on Tuesday, which takes note of the 5 August letter, decides to amend the Statute of the ICTY by adding a subparagraph to Article 13. The amendment would allow the Secretary-General, at the request of the president of the ICTY and after consultation with the president of the Security Council, to appoint a former judge of the ICTY or the International Criminal Tribunal for Rwanda who is also a judge of the Mechanism, as a judge of the ICTY, to be assigned on an ad hoc and temporary basis to the Appeals Chamber. Thus, while the resolution does not specifically appoint Judge Hall, it sets out the necessary conditions in the Statute for the Secretary-General to do so.

Delays in the ICTY’s completion of its activities have been a source of some tension in the Council. According to the relevant Council resolutions, the ICTY was expected to complete its caseload in 2010 or, failing that, by the end of 2014. Currently, the ICTY expects completion in late 2017. The most recent ICTY resolution, adopted in December 2015, extended ICTY judges’ and the prosecutor’s terms to no later than 31 December 2016. As it did in previous years, Russia abstained, commenting that the situation regarding the tribunal’s exit strategy had not improved and that costly trial delays continued. Russia is also critical of the ICTY’s jurisprudence, arguing that it has not done justice on behalf of Serbian victims of the Yugoslav conflict. However, at press time, it seemed that Russia was willing to support the resolution on Tuesday and no abstentions are expected. The Council last met on the issue on 8 June, for the semi-annual debate with the next debate scheduled in December, when the Council will have to consider requests for extension of the terms of ICTY judges.