The International Residual Mechanism for Criminal Tribunals is to have two branches, one for the ICTY and one in Arusha for the ICTR. Each branch will have one trial court, and they will share a common appeals chamber. The ICTY branch only comes into effect in 2013, so the ICTR will pave the way with respect to the transition.
According to "transitional arrangements" annexed to Resolution 1966, the ICTY and ICTR "shall have competence to complete all trial or referral proceedings which are pending with them as at the commencement date of the respective branch of the Mechanism", i.e. July 1 for the ICTR branch. The ICTR now has only three cases remaining before the trial courts, with judgments expected in March in two of them (Nzabonimana and Nizeyimana). That leaves the case of former Planning Minister Augustin Ngirabatware, who is still presenting his defence witnesses. As for referrals, the ICTR is currently examining requests to have three individuals transferred to Rwanda for trial.
The ICTR will also have competence to conduct and complete all appeals for which notice is filed before July 1. That means it should see through at least the nine cases currently pending. These involve 19 individuals including top former military and political figures, and could thus be lengthy.
So what will the ICTR branch of the Mechanism do? With an initial four-year mandate, one of its main tasks will be to get the nine indicted persons who are still on the run arrested, and to try them, or refer them to national jurisdictions. The most wanted fugitives are alleged financier of the genocide Félicien Kabuga, former Defence Minister Augustin Bizimana and former Presidential Guard commander Protais Mpiranya. Some sources claim that Bizimana and Mpiranya are dead, although the ICTR Prosecutor denies this. The other six fugitives are seen as smaller fry and are to be referred to national jurisdictions if possible, should they be captured.
The Mechanism will handle appeals related to any first instance trials it may conduct. "But if no one is arrested, it may not try anyone," comments an ICTR defence lawyer. "How is it going to arrest indictees that the ICTR has not managed to catch for nearly 20 years? Do we really need a new UN structure to do so little?" The Mechanism is not empowered to issue any new indictments, except for contempt of court or false testimony.
The Mechanism will, however, also have other responsibilities, including protection of victims and witnesses; enforcement of sentences (imprisonment and acquittals); handling of requests for pardon or commutation of sentences; and management of the Tribunal archives. It is also to monitor cases referred to national courts by the ICTR, "with the assistance of international and regional organisations and bodies".
UN Resolution 1966 says that "in view of the substantially reduced nature of the residual functions, 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". No doubt for this reason, the Resolution provides that President, Judges, Prosecutor and Registrar of the Mechanism may also hold the same office at the ICTY or ICTR during the transitional phase. The Mechanism (both branches) has a pool of 25 non-permanent judges (apart from the President), elected by the UN General Assembly in December 2011. They will not be required to go to Arusha except in cases of necessity and at the request of the President. ICTR Registrar Adama Dieng said in February that the Arusha branch of the Mechanism will start with no more than 50 staff.
In January, UN Secretary-General Ban Ki-Moon appointed the ICTY Registrar, John Hocking of Australia, to be also the Registrar of the Residual Mechanism. Hocking is visiting the ICTR in Arusha this week as part of efforts to ensure a smooth transition between the ICTR and the Residual Mechanism.
© Hirondelle News Agency