Statement by Deputy Permanent Representative Dmitry Chumakov at UNSC briefing on the activity of the International Residual Mechanism for Criminal Tribunals
Mme.President,
We studied carefully the reports of the President and the Prosecutor of the International Residual Mechanism for Criminal Tribunals (IRMCT) on the activities of this body in the past 6 months. The situation with the IRMCT is best characterized with a Russian proverb “there is nothing more permanent than something temporary”. In this regard, we keep tirelessly reminding the leadership of the Mechanism about UNSC resolution 1966 which envisaged that the international residual mechanism should be a “small, temporary and efficient structure, whose functions and size will diminish over time, with a small number of staff commensurate with its reduced functions”.
We see that some initial steps in the right direction have been taken, in particular the closure of the detention facility in Arusha and the office in Sarajevo, as well as some reduction of permanent and provisional jobs. However, staff reduction was even smaller than the Mechanism had initially announced to the Council. According to the plans, at least 46 further posts are to be closed by the end of 2023. We look forward to full implementation of this objective. We will continue to monitor how the Mechanism implements its commitments.
As a matter of fact, until recently, the Residual Mechanism had just one case under consideration – the case of F.Kabuga. We do not count the “contempt of court” cases here. As we repeatedly underscored, the IRMCT should not replicate such cases in order to prolong its existence. These can be effectively dealt with by judicial authorities at national levels in accordance with paragraph 4 of Article 1 of the IRMCT Statute, which stipulates that cases can be referred to States’ national authorities.
According to a recent ruling, F.Kabuga was announced unfit to stand trial due to his health status. The Trial Chamber initiated a trial of facts that will proceed without F.Kabuga’s participation. This is not going to be based on the IRMCT statutory documents, and therefore has an unclear status to us and raises questions in terms of practicality. It seems that the Mechanism invented this as another pretext to prolong its existence.
The judicial basket of the IRMCT has been almost emptied. Against this backdrop, no amount of equivocation in IRMCT reports will be able to justify the preservation of this huge bureaucratic machine of 388 staff members. Since many of the positions belong to the exorbitant staff of the Mechanism's office, we demand that its secretary make vigorous efforts to reduce the redundant staff as quickly as possible.
The intention of the IRMCT President, Judge Gatti Santana, to reform the Mechanism into a truly residual structure is absolutely right in its essence. What does surprise us is the fact that this sound thought was first expressed ten years after the IRMCT had been established. In fact, the President acknowledged that our delegation was right all this time while we were saying that the Mechanism did not meet the mandated parameters that the relevant UNSC resolution set out and that ignored what the Council prescribed in terms of its residual, temporary, and concise nature.
Since reforming of IRMCT into a “truly residual structure” falls behind schedule by at least 10 years, the current leadership of the Mechanism needs to enhance efforts in order to draw down the work of the IRMCT.
In view of the above, we call on the UN Office of Internal Oversight Services to elaborate a set of recommendations and scenarios to help the IRMCT to implement what the Security Council prescribed in resolution 1966, put up with its provisional nature, and start to wrap up more actively. Such recommendations should be primarily aimed at a drastic reduction of staff and budgetary spending.
Summing up, we look forward to receiving concrete data as to what is going to be shut down, reformed or reduced, and when this is about to happen. Also, we would like to learn when this entire structure that was designed as provisional will stop functioning.
Now we would like to comment on a few issues relating to the current activities of the Mechanism.
The question of observance of the basic rights of convicted persons remains very urgent. For example, at the previous Security Council meeting on this issue we touched upon the open letter from Serbian creative and scientific community in defense of the rights of R.Karadžić, who is serving his sentence in the United Kingdom.
We gave up waiting for the Mechanism to provide information on this and, by our own efforts, made some inquiries about the Parkhurst Prison, where Karadžić is an inmate. We found out that the prison is notorious among local human rights activists because of its conditions, which are "unacceptable and detrimental to the health of convicted persons”. A January report from a specialized governmental commission in the UK noted that Parkhurst inmates have insufficient access to medication and psychology therapists. The prison management does not even deny this, citing a lack of funding. The daughter of R. Karadžić, Sonja Karadzic-Jovic, also shed light on the conditions that her father is being held in. According to her, those are simply "inhumane": all his means of communication, books and personal records have been confiscated, he is not allowed to speak his native language for “security reasons”. Allegedly, there may be an attempt on his life by fellow Muslim inmates.
The lawyer of R.Karadžić, Mr. Goran Petrovijevic, shared similar insights. He also drew attention to the fact that the convict was not allowed to meet basic cultural and religious needs. In particular, an Orthodox priest who recently visited him was subjected to a humiliating procedure of personal inspection, where he was forced to remove his vestments. The lawyer is as well monitoring the conditions in which the other Serbs are serving their sentences. In addition to Great Britain and the Netherlands, he has put on record regular violations by Germany, Poland, France, and Estonia.
The scale of problems with the conditions of imprisonment is quite eloquently confirmed by the total number of 14 Serb convicted individuals who died in the course of ICTY and IRMCT proceedings.
We demand that the Mechanism take urgent measures to remedy this unacceptable situation and ensure proper imprisonment conditions for R.Karadžić and other convicted Serbs.
The other case I want to flag has to do with the Serb General, Mr. R.Mladic. We still cannot be certain that he receives quality medical assistance in the IRMCT penitentiary facility. Taking into account his age and health status, we remind of Article 26 of the IRMCT Statute, which enables the President to decide on pardon or commutation of sentence on the basis of the interests of justice and the general principles of law. We emphasize that in the case under consideration, not only the humanitarian component should be taken into account, but also the procedural specificities that have to do with the well-established shortcomings of the work of the IRMCT and its predecessor, the International Criminal Tribunal for the former Yugoslavia. The final ruling of the case of this Serb General took too long to arrive and came together with neglect of the basic rights of the accused person, which are stipulated by the fundamental international legal instruments for the protection of human rights, specialized UNSC resolutions and IRMCT’s Rules of Procedure and Evidence.
So far we have seen that the ICTY and IRMCT only recalled such measures as pardon or commutation of sentence that are envisaged in their statutes only when the accused or convicted individuals were literally on their deathbed. In particular, R.Brdjanin, who had a severe health condition, was granted his early release just days before his death. This is not about humanity. This is merely an attempt to evade responsibility and the uncomfortable questions regarding the improper conditions in penitentiary facilities and failure to provide medical assistance. Such practice must be reconsidered fundamentally.
We noted the growing concern regarding “glorification of war criminals” and non-recognition of ICTY and IRMCT’s decisions by all countries of the region that can be heard in addresses of the IRMCT Prosecutor. It is essential to find out why this is happening.
Reasons for Serbs’ discontent are not hard to grasp. The anti-Serb incline in ICTY and IRMCT decisions is impossible to deny, for the absolute majority of convicted persons are Serbs. For other parties to the conflict, guilty verdicts happened in the minority of all cases. For some sides, it happened on one-off basis.
Double standards and politicization in the work of international criminal justice impede the achievement of sustainable inter-ethnic reconciliation, though this is the primary task of transitional justice institutions.
In this respect, the IRMCT continues “the best traditions” of the ICTY. On 31 May, the Mechanism rejected appeals that had been filed by Serbian security service officers, Mr. Jovica Stanišić and Mr. Franko Simatović. They were found guilty of war crimes and crimes against humanity committed in 1992 in connection with the capture of the Bosanski Šamac settlement in Bosnia and Herzegovina.
Mme.President,
The trial of J.Stanišić and F.Simatović will probably go down in history as one of the longest and most controversial in international justice. It began with the indictments back in 2003. In 2013, the Trial Chamber of the ICTY fully acquitted both defendants because no direct involvement in the tragic events in the former Yugoslavia was established. Then followed the appellate proceedings, after which, on 15 December 2015, the ICTY Appeals Chamber reversed the acquittals and ordered a retrial. The Residual Mechanism took up this matter in 2017.
The verdict of the IRMCT Trial Chamber of 30 June 2021, found both men guilty on all charges, sentencing them to 12 years in prison. The lack of evidence was ignored, as if the appellate judges had not heard of the fundamental principle in criminal law that the accused has the benefit of the doubt. Instead, they eagerly applied the legal innovation that the ICTY had invented, namely the concept of a “joint criminal enterprise”. What is meant here was an alleged eviction of people who were not ethnic Serbs from the territories of Croatia, Bosnia and Herzegovina. In practical terms, this concept had already allowed the ICTY to convict those who not only had not physically committed the crimes, but who were not even aware that the crimes had been committed. As a result of this "creativity," the acquittal turned into its exact opposite. Then again came the appellate proceedings, which lasted until recently, May 31, 2023, and resulted in an increase of imprisonment for both men from 12 to 15 years. Perhaps, such a thing can only happen in the ICTY and IRMCT, where with each new trial the situation of the accused only worsens. Or is it perhaps because they have almost served their sentences (if the time spent in the detention facility is taken into account) and so someone urgently needed to add more on top of that?
We regard this verdict as a blatant mockery of the provisions of the fundamental international legal instruments for the protection of human rights, in particular the right to a speedy and fair trial, which is also reflected in the Statute of the Residual Mechanism. We are convinced that the achievement of sustainable inter-ethnic reconciliation is out of the question with decisions of this quality.
Thank you.
