The Mechanism for International Criminal Tribunals: A Unique Model and Some of Its Distinctive Challenges

In 2008, the United Nations Security Council acknowledged the need to establish a mechanism to carry out essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) after their closure.[1] The Security Council underscored that impunity for individuals indicted by the Tribunals and still at large would be unacceptable, recognized the critical importance of continuing witness protection, and stressed that the archives of the Tribunals are UN property and should be kept under its control.[2]

An agreement on the exact nature and mandate of the new entity was eventually reached on December 22, 2010, when the Security Council adopted Resolution 1966 (2010). The Resolution establishes the Mechanism for International Criminal Tribunals (Mechanism or MICT) as a subsidiary organ of the Council with the mandate to continue the jurisdiction, rights and obligations, and essential functions of the ICTR and ICTY.

This Insight provides a brief overview of the Mechanism's unique structure and functions, as well as its distinctive challenges.

Structure

At the onset of discussions on the Mechanism's structure, representatives of the ICTR and the ICTY advocated the establishment of two separate residual bodies, with a common appeals chamber and possibly some common administrative management.[3] The concept of a single institution with two seats, however, prevailed as a compromise between financial and political considerations[4] and to balance the requirements of cost effectiveness and equal recognition of the work of both Tribunals. As a result, the Mechanism comprises a branch in Arusha, responsible for matters arising from ICTR cases, and one in The Hague, responsible for matters arising from ICTY cases.

The creation of the Mechanism was also influenced by the Security Council's desire to bring to a close the Tribunals in the face of delays in meeting their completion deadlines.[5] It was thus agreed in Resolution 1966 that—in order to further pressure the ICTR and the ICTY to finalize their work[6]—the Mechanism would start its operations before the Tribunals' closing. As a result, the Arusha branch commenced functioning on July 1, 2012 and The Hague branch began its operations on July 1, 2013.

The Security Council further decided that, as in the case of the ICTR and the ICTY, the Mechanism should consist of a three-judge Trial Chamber and a five-judge Appeals Chamber,[7] and that its leadership should comprise a president, a prosecutor, and a registrar common to both branches.

In addition, the Security Council emphasized the fact that the Mechanism should be a "small, temporary and efficient structure, whose functions and size will diminish overtime, with a small number of staff commensurate with its reduced functions."[8] Judges of the Mechanism, for instance, are elected by absolute majority by the UN General Assembly from a list submitted by the Security Council—similarly to the Tribunals. However, all the Mechanism's judges—with the exception of the president—are placed on a roster and remunerated exclusively for days of actual work. In addition, judges are requested to be at the seats of the Mechanism only as required by the president and are expected to exercise their functions remotely, insofar as possible. Also, the Mechanism's staffing structure follows an "accordion" system in which ad hoc posts can be recruited for limited periods of time and linked to the performance of specific, time-limited functions. Rosters can further be used to respond rapidly to changes in staffing demands. Moreover, the Mechanism's Transitional Arrangements[9] provide that its president, judges, prosecutor, registrar, as well as staff members, can "double-hat," or serve as principals and staff of the ICTR and ICTY, and vice-versa, to avoid duplication of functions and contain costs.

Functions

In its initial consultations on the Mechanism's functions, the Security Council noted that ICTR and ICTY high level fugitives should not be "rewarded" for evading apprehension until the Tribunals' closure.[10] In 2009, there remained fifteen fugitives. In 2010, when the Mechanism was brought into being, nine ICTR indictees[11] were still at large, as well as two high-level ICTY indictees (Mladić and Hadžić).[12] The Mechanism was therefore envisaged first and foremost as an instrument to avoid impunity by tracking individuals still at large and bringing them to trial, once arrested. In addition, by December 2008, the Security Council considered that the Mechanism's functions should further include the protection of witnesses who testified before the Tribunals, as well as the management of their archives.[13] The Tribunals also identified other essential functions for the Council's consideration.[14]

Following lengthy discussions, the Security Council agreed that the Mechanism's functions should include both continuing and ad hoc functions. Under the first category are the functions that reflect long-term responsibilities of the Mechanism, independent of the level of judicial activity, such as:

• Protection of victims and witnesses;
• Supervision of enforcement of sentences;
• Assistance to national jurisdictions; and
• Preservation and management of ICTR, ICTY and MICT archives.

The second category includes functions related to ICTR and ICTY cases, which are temporary and limited in scope, such as:

• Tracking and prosecution of remaining fugitives;
• Conduct of judicial proceedings resulting from ICTR and ICTY cases; and
• Monitoring of cases referred to national jurisdictions.

Challenges

Since the establishment of its branches, the Mechanism has assumed exclusive competence over the protection of thousands of ICTR and ICTY witnesses, the supervision of forty sentences[15] across two continents, and the monitoring of cases transferred to national jurisdictions. The Mechanism has also set up a tracking team to seek the apprehension of the eight ICTR indictees still at large. Following the closing of the ICTR in December 2015, the Mechanism has assumed responsibility for all residual ICTR matters, including the management of the UN Detention Facility in Arusha, Tanzania, and the management of the safe house for thirteen[16] ICTR acquitted and released persons awaiting relocation.

In addition, the Mechanism's Archives and Records Section (MARS) has assumed responsibility for the preservation and management of the ICTR archives, which include over 2.5 million pages of judicial records and 300,000 pages of exhibits, while the transfer of ICTY records, including almost 6 million pages of judicial records and over 1.5 million pages of exhibits, is underway. Furthermore, the Mechanism has begun to adjudicate matters in cases transferred from the Tribunals. In December 2014, the Mechanism issued its first appeal judgment in the Ngirabatware case. In December 2015, the Mechanism assumed jurisdiction in the Stanišić and Simatović case following the decision of the ICTY Appeals Chamber to quash the ICTY Trial Chamber's judgment and order a retrial of the accused. Pursuant to its Transitional Arrangements, the Mechanism also assumed jurisdiction over the appeals in the Karadžić and Šešelj cases during the course of 2016.

Despite these remarkable accomplishments, the Mechanism will face challenges in the coming months that could impact its capacity to meet the Security Council's vision of a lean and cost-effective institution. These challenges include: a) the adequacy of the judges' roster system in reconciling efficiency and integrity of the judicial process; and b) the ability to enforce financial restraint once the support and double-hatting services of the ICTY come to an end.

The Viability of the Roster System

To contain costs and enhance efficiency, the UN Security Council determined that MICT judges shall be placed on a roster and shall not receive any remuneration or other benefits for being on such roster.[17] Except for the president, the judges thus serve on an as-needed basis and are remunerated for days of actual work. In addition, the Council decided that "in so far as possible, and as decided by the President, the functions may be exercised remotely, away from the seats of the branches of the Mechanism."[18]

This model's vulnerability was dramatically exposed by the sudden arrest of a MICT judge on September 21, 2016. Since then, Judge Aydin Sefa Akay, a Turkish national, has been detained in Turkey by Turkish authorities without formal charges in relation to the July 2016 coup attempt—despite the United Nations' assertion of Judge Akay's diplomatic immunity and request for his immediate release.[19] At the time of arrest, Judge Akay was part of an appeals bench assigned to review the judgment in the Ngirabatware case. Consequently, proceedings in that case have notably slowed down.

As noted by the MICT president in his recent remarks to the UN Security Council, safeguarding "judicial independence is a cornerstone of the rule of law."[20] It is for this reason that the MICT Statute grants diplomatic immunity to judges when engaged on the business of the Mechanism.  Nevertheless, the absence of a strong guarantee that such immunity will be respected, combined with the fact that MICT judges are entitled to diplomatic immunity only when formally assigned to Mechanism's business (rather than on a continuous basis throughout their tenure, as it happened at the ICTR and ICTY) and are expected to serve away from the MICT official seats—where Host State Agreements explicitly protect their immunities and privileges—could leave judges in a vulnerable position and call into question the fairness of the legal proceedings. A structural novelty aimed at fostering the careful use of judicial resources could therefore open the way to undue delays and unwarranted pressure on judges.      

The Enforcement of Financial Restraint

Since its establishment, the Mechanism has operated at each branch in close cooperation with the ICTR and the ICTY, as most principals and staff of those organizations worked under double-hatting arrangements. Moreover, certain administrative functions, for example, financial processing and management, have been centralized in The Hague, where the ICTY continues to provide support to both branches of the Mechanism. While these arrangements have been instrumental in ensuring the smooth transition of functions from the ICTR and the ICTY to the MICT and in maximizing efficiencies, they have also made less evident what the actual financial and staffing needs will be for the Mechanism as a self-standing organization.

In 2016–2017, the MICT budget submission, for instance, amounts to USD 140,905,300, with 176 authorised regular posts and 159 temporary assistance posts.[21] However, this budget does not include resources for key services such as court management or general services, which in the past were provided by ICTY staff double-hatting for the MICT.[22] In addition, in numerous other areas, including victims and witnesses support, security, budget, finance, and communication, a limited number of MICT staff have been substantially aided by the ICTY component in the performance of their functions.

The imminent closure of the ICTY—and the consequent disappearance of the significant financial and human resources support that it has provided—together with an intense period of MICT judicial activity in 2017 will inevitably result in an increase of the MICT's budgetary requirements. The MICT's capacity to rely on best practices, adopt and develop measures to enhance flexibility, and achieve greater cost efficiencies than its predecessors will then come under intense scrutiny.

Conclusion

Since its inception, the Mechanism has become fully operational and has strived to implement the Security Council's vision of a small, temporary, and efficient organisation. Much has been achieved, and the Mechanism's leadership has repeatedly expressed its commitment to developing the organisation as a new effective and efficient body.   

It is clear, however, that the Mechanism's capacity to live up to expectations in the long run and set itself apart from the criticism faced by the Tribunals crucially depends on the effective conduct of its forthcoming trial and appeal proceedings, despite the potential weakness of the judges roster model, as well as in its ability to enforce financial restraint once the support and double-hatting services of the ICTY comes to an end.

About the author: Giorgia Tortora is the MICT External Relations Officer at its branch in The Hague. She previously served in New York as Liaison Officer of the Special Tribunal for Lebanon. The author also worked on the establishment of the Special Court for Sierra Leone, first as an adviser to the Mission of Sierra Leone to the United Nations, and later as part of the Special Court's initial staff in Freetown and as its first representative in New York. The views expressed herein are those of the author alone and do not necessarily reflect the views of the Mechanism for International Criminal Tribunals or the United Nations in general.