By H.E. Mrs. Graciela Gatti, President of the United Nations International Residual Mechanism for Criminal Tribunals
When the United Nations Security Council established the International Criminal Tribunals for the former Yugoslavia and for Rwanda in 1993 and 1994 respectively, it marked a significant expression of the international community’s commitment to the rule of law and an effort to restore human dignity in the aftermath of the mass atrocities of the early 1990’s. These ad hoc Tribunals, which were later succeeded by the International Residual Mechanism for Criminal Tribunals (commonly referred to as “the Mechanism”), achieved ground-breaking results.
They authoritatively interpreted and gave concrete effect to the Genocide Convention and international humanitarian law. In relation to nearly 200 indictees, these courts held accountable those most responsible for genocide, war crimes, and crimes against humanity committed in Rwanda and the former Yugoslavia, through trials and appeals adhering to the highest standards of fairness.
While the Mechanism has entered its “sunset phase”, it still carries real responsibilities to real people – obligations entrusted to the institution by the Security Council to ensure justice remains fair, effective, and durable. These include judicial oversight of protective measures granted to approximately 3,200 victims and witnesses and ensuring due process and effective implementation of sentences for the 38 convicted persons incarcerated under the Mechanism’s authority. Other important residual functions are the Prosecution’s assistance to national jurisdictions and the management of the archives of the ad hoc Tribunals and the Mechanism.
As the institution has evolved and its mandate has narrowed, the question of how its remaining functions should be managed — whether through continuation, transfer, or termination — has become increasingly important. In the current biennial review of the Mechanism’s progress and work, the Security Council will soon consider two reports by the Secretary-General on the possible transfer of functions and is expected to take decisions on the future jurisdiction of the Mechanism. I consider that there are clear options for the responsible transfer and termination of certain functions and other changes to the Mechanism’s mandate will allow it to become a very small, purely judicial institution, carrying out only limited, non-resource-intensive judicial functions essential to the completion of the justice cycle.
The most pertinent proposals made by the Secretary-General are as follows: The Mechanism’s Prosecution currently provides extensive assistance to various domestic prosecution efforts aimed at closing the impunity gap for fugitives and accused suspected of committing international crimes in the former Yugoslavia and during the 1994 Genocide against the Tutsi in Rwanda. However, this technical assistance to national jurisdictions, as well as the Registry’s management of the archives, which is vital to preserving an accurate historical record to support research and counter revisionism and genocide denial, do not need to remain embedded within a judicial institution and could instead be transferred to the UN Secretariat. Furthermore, under appropriate circumstances, some administrative functions related to the day-to-day supervision of conditions of imprisonment could also be transferred to States, if compliance with minimum international standards is ensured.
However, the Secretary-General’s reports recognize that a limited number of judicial functions must remain at the international level in order to best ensure due process and the interests of justice. I will address the two most critical ones in turn:
First, the judicial authority to vary protective measures for victims and witnesses. Protective measures assured these individuals’ anonymity in proceedings before the ad hoc Tribunals and the Mechanism based on objective safety concerns. Many witnesses continue to fear retaliation or re-traumatization if their identities or testimony are disclosed; nevertheless, their evidence may be critical to key domestic accountability processes and allowing access to it may be necessary to avoid a miscarriage of justice in national cases. International judges are uniquely placed to impartially balance these competing interests and make determinations on varying protective measures fairly and consistently. Witnesses and victims who testified against those responsible for mass atrocities relied on assurances of international judicial protection. Preserving that guarantee is essential not only to the legacy of our work, but also to maintaining confidence in witness protection in future international criminal proceedings.
Second, the authority to designate enforcement States and to decide on pardon, commutation of sentence, or early release. Retaining this function at the international level ensures the most fair and uniform treatment of convicted persons regardless of where imprisonment takes place. Considering that the numerous States enforcing sentences under the authority of the Mechanism have varying early release and sentence remission practices, the transfer of this function to States creates credible risks of arbitrary, disparate and unequal treatment of prisoners.
The Mechanism is working diligently towards its ultimate closure. While the Mechanism’s residual judicial functions do not garner the same publicity as the capture of fugitives and the issuance of verdicts, this does not make these processes less important to the justice cycle. Hastily terminating or transferring critical judicial functions risks disparate and arbitrary application of the law, as well as irreparable damage to the entire accountability process.
The Mechanism remains committed to guaranteeing the international community’s substantial investment in justice and will continue to uphold the more than three decades of groundbreaking advancements in human rights and international criminal law.
