Completion strategies – ICTR/ICTY expiry date approaching

As stated by the UN Security Council in its resolutions 1503 and 1534, the two UN backed ad hoc tribunals, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY), are supposed to complete all activities at first instance by the end of this year. Whereas all investigations ended by the end of 2004 already, the courts’ are moreover supposed to end all activities in 2010, i.e. including all possible appeals. This completion strategy obviously has its justification (inter alia) in the financial burden caused by the two courts (the annual budget for each court is appr. $90 million).

But the two courts’ efficiency is also highly debated, not at least by the public. Since its creation, the ICTR tried “merely” 35 people, and cases with regard to another 27 suspects are still ongoing. The ICTY still has another 26 individuals at trial, 9 cases on appeal and still 11 individuals are awaiting trial. Furthermore, four main suspects are still at large, namely Ratko Mladiæ, Radovan Karadžiæ, Goran Hadžiæ and Stojan Župljanin. With regard to this deflating record, it is unlikely that either of the two courts will be able to actually finish its material work until the end of 2010. So what “exit strategies” are thinkable to deal with the remaining workload?

One possibility (and perhaps the only realistic one) is of course to simply release the individuals that are not convicted by the end of 2008/2010. This would obviously be highly unsatisfying from the perspective of international law and politics, and most certainly be detrimental to the public processing of the experience of the respective conflict during the 1990s.

Referring the cases to the International Criminal Court, which is an idea that might come to mind considering the overall objective of that court (namely to “end impunity for the perpetrators” of the most serious crimes) is not an option, inter alia due to the jurisdiction ratione temporis of the ICC (see Art. 11 Rome Statute of the International Criminal Court).

One possibility would be, however, to refer all pending cases to the respective national jurisdictions (this would in fact be in line with the complementary nature of the ICC as well). While this possibility has the obvious advantage of assuring that the relevant individuals are tried by a court at all, this would undoubtedly raise important issues as to the impartiality of national courts, witness protection and guarantees of fair trial. Are there, e.g., international standards in this regard that might/should influence the national proceedings? Are the relevant criminal provisions rooted in international criminal law at all included in the relevant municipal orders or would international criminal law have to be applied directly? Moreover, the question of the financial problem caused by the processing of these cases would not be entirely solved with regard to the international community either, as national courts are unlikely to have available the financial resources necessary to shoulder this burden on their own.