Statement by Deputy Permanent Representative Maria Zabolotskaya at UNSC briefing on the activities of the International Residual mechanism for Criminal Tribunals
Mr.President,
At the outset, let me thank the leadership of IRMCT for briefing the Council, and also thank the delegation of Gabon for chairing the UNSC Informal Working Group on International Tribunals.
UNSC resolution 1966 designed the International Residual Mechanism for Criminal Tribunals to be “a small, temporary and efficient structure, whose functions and size will diminish over time”.
With the judicial basket of the IRMCT emptied, efforts of its leadership should be directed towards winding down the Mechanism’s activities, as mandated by the Security Council. This is what the reports of the President and Prosecutor of the Residual Mechanism should emphasize.
However, time and again, the Council receives multi-page documents that provide more justifications for extending the existence of the Mechanism.
The latest 6-month reports speak of some steps in the right direction, for example closure of the Arusha detention facility, the IRMCT Office in Sarajevo, some staff reductions and the planned closure of the Mechanism's Kigali office in 2024. However, there is still no holistic picture in sight. There is no specific date for the winding down of the Mechanism, only plans for termination of some its functions. Timelines for that are truly odious - almost until 2055. This is despite the fact that the international criminal tribunals, to which the Mechanism is the successor, were established 30 years ago. Thus, the anticipated life cycle of the structures is 60 years. There can be no rational explanation for such abnormally long life of the ad hoc tribunals. We would like to recall that the Nuremberg Tribunal, which dealt with a no less serious category of crimes, was all done after 1.5 years, having transferred its archives to the International Court of Justice. And, as we know, no residual mechanisms were established.
We also recall that resolution 1534 (2004) instructed the International Criminal Tribunal for the Former Yugoslavia to take all necessary measures to complete the investigation by 2004, the trials by the end of 2008 and the work as a whole by 2010. The ICTY failed to meet the deadline. Hopes that its replacement, the Residual Mechanism, would compensate for the red tape of its predecessors did not come true. After 13 years, not only does it still exist, but, as we already understand, plans to carry on until at least 2055.
We have noticed that paragraph 109 of the President's report makes a passing reference to the possibility of the Mechanism initiating new appeal proceedings in the case of Fulgence Kaishema. We would like to recall that in 2012 the Rwanda Tribunal decided to refer the case to the Rwandan courts. We see no possibility of revisiting that decision after 12 years.
We are wary of the ongoing attempts to artificially increase the number of so-called "contempt of court" cases. Proceedings in this category have a secondary character. They do not involve the prosecution of persons suspected of having committed serious crimes under international law. "Contempt of court" charges can be dealt with by national courts. We consider the use of the Mechanism's resources for that purpose (even given that its judicial basket is empty) as an artificial prolongation of the mandate. It is getting absurd. The Mechanism considers launching a new “contempt case” based on circumstances arising in the context of the recently frozen case of Félicien Kabuga. In other words, there will be no main trial, but the ancillary trial is still to be handled by the Mechanism. Are we the only delegation who sees that this is a very questionable scheme?
The Mechanism does not, however, approach all of its functions with the same zeal as in “contempt cases”. For example, the IRMCT continues to overlook the disregard of the rules and minimum standards of confinement conditions for a certain category of convicted individuals, namely Serbs.
For example, former President of Republika Srpska, Radovan Karadzic, according to his daughter, was unable to get the authorities of the British White Prison to equip his cell with proper lighting. Former head of the Republika Srpska Krajina (Croatia), Milan Martić, and general of the army of the Republika Srpska, Dragomir Milošević, have been held in isolation in an Estonian prison for years. They are allowed contact with only a few prisoners. They are deprived of proper medical care.
IRMCT refuses to apply the practice of early release to Serbs after serving two thirds of their sentence. Vlastimir Djordjević and Radivoje Miletić have had their respective appeals denied.
In our view, these conditions of detention for Serbs stand in stark contrast to the regime that was created for Kosovo Albanians accused of committing serious crimes during the armed conflict of 1998-1999. For a long time these people remained at large without anyone even looking for them. The ICTY did not see anything reprehensible in their actions at all.
It was not until the publication of the famous Marti report about the many atrocities that they had committed, including torture, murders, trafficking in human beings and body organs that the so-called Kosovo Specialist Chambers (instituted by the European Union) became concerned about those offenses. The pre-trial detention regime that the Chambers ordered for eight Kosovo Albanians, including so-called former Kosovo President, Hashim Thaci, is as mild as possible. It includes the right to use the gym, library and prayer room, to walk in the designated area, and to pay for goods and services with money from a special account. The sanctions for violating the regime rules are very mild too: a warning, a monetary fine, temporary deprivation of some privileges. The "extreme measure" is a two-week placement in a solitary confinement, but without a ban on phone calls. Also, in 2022 alone, those arrested individuals were allowed 880 visits (by family members and others). Moreover, in late May and early September 2023, Hashim Thaçi was allowed to visit Kosovo to see his ailing parents. That is despite some high-profile scandals involving intimidation of witnesses in his case. In other words, we see a glaring difference in the conditions of detention between Serb and Kosovo Albanians convicts. We believe that ‘discrimination’ is the right word to describe this situation. We demand that the Mechanism take measures to eliminate it and ensure that Serb convicts are provided with adequate conditions for serving their sentences.
In view of the fact that Ratko Mladić's health condition remains extremely grave, we remind of article 26 of the IRMCT Statute. It authorizes the President to decide on pardon or commutation of sentences in the interests of justice and the general principles of law. The need for such a decision is objectively dictated by the circumstances of Ratko Mladić's case, namely his advanced age and poor state of health. We would like to emphasize that in the case of Félicien Kabuga, the Mechanism took into account similar circumstances by freezing the proceedings and starting to consider his release on medical grounds. We expect the Mechanism to be consistent and apply the same approach to R. Mladić as it did to F. Kabuga. As a last resort, the Mechanism should consider the option of transferring R. Mladić to Serbia to serve his sentence or discharging him on medical grounds.
Mr.President,
The upcoming 2024 regular review of the Residual Mechanism needs to provide clarity on the timeline for the termination of its work. Endless promises and vague projections of the past 30 years have only prolonged the process. The instructions of the Security Council must be implemented. That is an imperative. Moreover, the judicial basket is empty and the main trials are over. All the remaining issues can be resolved by national law enforcement agencies and the UN Secretariat.
In the next report, we expect to see a detailed description of concrete and realistic options for the transfer of the remaining functions that will enable the Mechanism to complete its activities within a specific time.
Thank you.
