Getting to closure: winding up the international and hybrid criminal tribunals.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Thursday, March 25 by its moderator, Valerie Oosterveld, of the University of Western Ontario, who introduced the panelists: Huw Llewellyn, of the United Nations Office of Legal Affairs; Anne Joyce, of the U.S. Department of State; Giorgia Tortora, of the Special Tribunal for Lebanon; and Kelly Askin, of the Open Society Justice Initiative. *

* Kelly Askin did not submit remarks for the Proceedings.

INTERNATIONAL LAW AND THE CLOSURE OF THE INTERNATIONAL AND HYBRID CRIMINAL TRIBUNALS

The Special Court for Sierra Leone is the first time-limited international or hybrid criminal tribunal slated to close. It will do so soon after the conclusion of any appeal in its final ongoing case, that of the former President of Liberia, Charles Taylor. (1) The International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR respectively) will also close not long after that--the latest estimates point to the closure of the ICTY and ICTR in 2014. (2) It was originally estimated that the proceedings at the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon would take approximately three years, putting their potential closure dates at 2012, but these dates are likely to be extended. (3)

The closure of these international and hybrid criminal tribunals raises a number of legal and practical issues, such as who or what mechanism will conduct trials of outstanding fugitives who may be arrested; provide oversight with respect to proceedings that have been referred to national authorities; monitor and review the sentences of convicted persons; enforce and revise judicially ordered protective measures for victims and witnesses; and secure, maintain, and provide controlled access to court records and archives. The legacy and judicial integrity of the time-limited international and hybrid criminal tribunals depend on these residual functions being addressed effectively. Failure to do so could have drastic consequences; for example, witnesses might be killed if adequate protection regimes are not in place following the closure of the tribunals, or individuals may be targeted with threats or physical violence if confidential witness information is not properly secured in the tribunal archives.

Post-closure trial of fugitives is an important residual function that must be put into place in order to avoid impunity. Thus, the residual mechanisms created to address the tribunals' continuing obligations must be able continually to track fugitives, seek cooperation from states and organizations for the arrest and transfer of fugitives, and expand relatively quickly into functioning criminal tribunals to try high-level accused or to refer cases to, and track referred cases within, domestic jurisdictions. The ICTY and ICTR have identified five high-level accused who must be tried at the international level if captured after the closure of those tribunals. (4) These include both remaining ICTY fugitives--Ratko Mladic and Goran Hadzic--and three of the 11 remaining ICTR fugitives--Augustin Bizimana, Felicien Kabuga, and Protais Mpiranya. (5) The cases involving the remaining ICTR fugitives may be considered for referral to the national authorities of a state in the territory of which the crimes were committed, or in which the accused was arrested, or which has jurisdiction and is willing and adequately prepared to accept the case. (6) The ICTR's prosecutor intends to seek the referral of those fugitives not deemed necessary to try at the international level, but has "indicated difficulties in finding States willing and adequately prepared to accept these cases." (7) The Special Court for Sierra Leone has one indictee who has not yet been brought to justice--Johnny Paul Koroma. Koroma was the former leader of the Armed Forces Revolutionary Council, one of three main warring parties in the Sierra Leone conflict. (8) While Koroma is suspected to have died in Liberia in 2003, his indictment remains open absent proof of his death. (9) In May 2008 the Special Court's judges amended the Rules of Procedure and Evidence to allow the case of an indictee (such as Koroma) to be referred for trial in another jurisdiction, incorporating similar rules adopted earlier by the ICTY and ICTR. (10)

Residual mechanisms will also be needed to continue to monitor and review the sentences of individuals convicted by the international and hybrid criminal tribunals. The ICTY, ICTR, and Special Court for Sierra Leone have agreements with various states for the enforcement of sentences. (11) The statutes of these tribunals provide that sentences of imprisonment are served in accordance with the applicable law of the state in which the convicted person is imprisoned, subject to the supervision of the tribunals. (12) This residual function will need to continue for quite some time: for example, the Special Court for Sierra Leone has sentenced Issa Hassan Sesay to 52 years of imprisonment. (13)

Ongoing victim and witness protection is another important residual function. The gains made by the international and hybrid criminal tribunals in bringing individual accountability and eliminating impunity could be erased if, after the tribunals close, victims and witnesses fell prey to retaliatory harassment, injury, or even death as a result of their cooperation with the tribunals. Thus, the residual mechanisms of the tribunals will need to ensure seamless continuation of victim and witness protection in the future and, under certain circumstances, perhaps also of the victims' and witnesses' dependents. (14) This protection includes keeping track of protected victims and witnesses, informing them of the release of convicted persons against whom they testified or sought protective measures, and ensuring a contact point for protected victims and witnesses who need additional support or who wish to have their protective measures amended. (15) In addition, such protection includes monitoring and assessing ongoing threats to ensure that the protective measures for specific victims and witnesses remain effective, reviewing the ongoing necessity of relocation, and ensuring victim and witness protection in any residual proceedings (whether trials of fugitives, or review or other proceedings). (16) A great majority of tribunal witnesses are subject to some form of protection: for example, as of May 2009, 1,400 ICTY and 2,300 ICTR witnesses were subject to protective orders. (17) Thus, it is clear that victim and witness protection will need to be a central focus for the residual mechanisms of the international and hybrid tribunals.

Finally, securing, maintaining, and providing controlled access to court records and archives is another key residual function. (18) The records of the tribunals exist in various formats: paper, electronic, audiovisual, and physical (e.g., artifacts). (19) They also fall into three main categories: judicial records relating to the cases, records which are not part of the judicial records stricto sensu but are generated in connection with the judicial process, and administrative records. (20) Some of the records within these categories are confidential due to judicial orders, such as transcripts of closed trial sessions and documents (i.e., exhibits, statements, and Chambers' decisions) identifying information related to protected witnesses. (21) As well, "a significant part of the records at the Office of the Prosecutor comprise documents that have been provided to the Prosecutor on a confidential basis," and these "documents cannot be disclosed without the consent of the person or entity providing the initial information." (22) Thus, management of the tribunals' archives will be a complex task, simultaneously preserving the documents for future use by officials and staff within the tribunals' residual mechanism, as well as providing for future (controlled) consultation by others, such as individuals from affected countries, for research, educational, and memory purposes. (23)

There has been much thinking done to date on winding up the international and hybrid criminal tribunals. For example, in 2009 the United Nations Secretary-General issued a report that examined possible options for residual issues and residual mechanisms for the ICTY and ICTR. (24) There have been, and are currently, discussions on ICTY and ICTR residual issues within the Security Council's Informal Working Group on International Tribunals. (25) There was also a 2009 Arria Formula Meeting at the United Nations in New York chaired by Austria on the subject of tribunal closure. (26) A Security Council Presidential Statement was issued in 2007 on the occasion of the Council's discussion with officials of the Special Court for Sierra Leone. (27) In addition, there have been a number of conferences and expert group meetings on tribunal legacy, residual issues, and...

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