“ By establishing the Mechanism, the Council has helped to guarantee that the closure of the two pioneering ad hoc tribunals does not open the way for impunity to reign once more ”
The Mechanism for International Criminal Tribunals (the MICT) was established by the United Nations Security Council on 22 December 2010 to carry out a number of essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), after the completion of their respective mandates.
The establishment of the Mechanism is a key step of the Completion Strategies of the two Tribunals. It is a new small, temporary and efficient body, tasked with continuing the “jurisdiction, rights and obligations and essential functions” (UNSC Resolution 1966) of the ICTR and the ICTY; and maintaining the legacy of both institutions.
The MICT comprises two branches. One branch covers functions inherited from the ICTR and is located in Arusha, Tanzania. It commenced functioning on 1 July 2012. The other branch is located in The Hague and inherited functions from the ICTY. It commenced functioning on 1 July 2013.
The first years of work of the Mechanism imply a temporal overlap with the ICTR and the ICTY, as these institutions complete outstanding work on any trial or appeal proceedings which were pending as of the commencement dates of the respective branches of the MICT.
Resolution 1966 of the UN Security Council envisages that the Mechanism’s “functions and size will diminish over time, with a small number of staff commensurate with its reduced functions”. The Security Council determined that the Mechanism will continue to operate until it decides otherwise, but further provided that the progress of the work of the Mechanism will be reviewed in 2016 and every two years thereafter.
The Mechanism shall perform a number of essential functions previously carried out by the ICTR and the ICTY. Securing the arrest, transfer and prosecution of the eight remaining fugitives still wanted for trial by the ICTR is a top priority for the Mechanism. Other functions of the Mechanism are set out below.
Ad hoc functions
The tracking, arrest and prosecution of the eight remaining fugitives still wanted for trial by the ICTR is a top priority for the MICT. As of December 2015, eight accused indicted by the ICTR for their participation in the genocide in Rwanda in 1994 remain at large.
Under Article 6(3) of its Statute, the Mechanism shall only retain jurisdiction over those individuals considered to be the most responsible for committing the gravest crimes. In accordance with this Article, the ICTR Prosecutor requested referrals to Rwanda in the cases of six fugitives:
Fulgence Kayishema (referred 22 February 2012); Charles Sikubwabo (referred 26 March 2012); Ladislas Ntaganzwa (referred 8 May 2012); Aloys Ndimbati (referred 25 June 2012); Ryandikayo (referred 20 June 2012); Pheneas Munyarugarama (referred 28 June 2012).
The Mechanism has jurisdiction over the following three accused:
With the arrest and transfer in 2011 of the last two fugitives for the ICTY, Ratko Mladić and Goran Hadžić, what was originally envisaged as a function of the MICT – trial of the ICTY’s remaining fugitives - is being completed by the ICTY.
The two branches of the Mechanism will conduct and complete all appelate proceedings for which the notice of appeal against the judgement or sentence is filed after the start date of the respective branch.
For cases at the ICTR for which notice of appeal was filed on or after 1 July 2012, the appeals shall be handled by the Mechanism. Likewise, the Mechanism shall handle all appeals for ICTY cases for which notice was filed on or after 1 July 2013.
On that basis, the ICTR branch of the Mechanism will conduct any appeals that may arise in the cases of the outstanding fugitives and the ICTY branch will conduct any appeals that may arise in the cases of Radovan Karadžić, Ratko Mladić and Goran Hadžić.
Retrials of ICTR indictees ordered by the Appeals Chamber on or after 1 July 2012 shall be conducted by the Mechanism.
Retrials of ICTY indictees ordered by the Appeals Chamber 6 months or less before the start date of the ICTY branch of the MICT, 1 July 2013, shall be conducted by the MICT.
Retrials ordered by the Mechanism’s Appeals Chamber shall be conducted by the Mechanism.
The MICT has the jurisdiction to conduct investigations, trials and appeals in cases of contempt of court and false testimony committed in the course of proceedings before the MICT.
This jurisdiction also extends to contempt cases and false testimony cases arising from proceedings before the ICTR and ICTY for which the indictment is confirmed after the start date of the respective branch of the MICT.
If a new fact, not known at the time of the trial or appeal proceedings, is discovered, and the majority of the Chamber accepts that such fact, if proven, could have been a decisive factor in reaching the judgement, a final judgement can be reviewed.
The Mechanism has jurisdiction to conduct review proceedings arising from its own judgements, and shall have jurisdiction to conduct review proceedings of ICTR and ICTY judgements where the application for review is filed on or after the start date of the respective branch of the MICT.
The continuity of the tasks related to the protection of victims and witnesses is of crucial importance. Since 1 July 2012 for the ICTR and 1 July 2013 for the ICTY, the MICT assumes these tasks both for ongoing cases before the Mechanism and for completed cases from the two Tribunals and the Mechanism. The ICTR and the ICTY remain responsible for the protection of victims and witnesses in cases ongoing before both Tribunals.
Persons convicted by the ICTR and the ICTY do not serve their sentences in the detention facilities of the two Tribunals as they are not penitentiaries, but in one of the countries that has signed an agreement on enforcement of sentences.
Since 1 July 2012 for ICTR cases and 1 July 2013 for ICTY cases, the MICT has jurisdiction to designate enforcement States, including for persons thereafter convicted by the two Tribunals. In addition, the President of the Mechanism has jurisdiction to supervise the enforcement of sentences and to decide on requests for pardon or commutation of sentence, including for convicted persons already serving their sentences – a role previously performed by the Presidents of the ICTR and the ICTY.
As the ICTR and the ICTY complete their mandates, the number of those answering charges before local judiciaries in Rwanda and in the former Yugoslavia is on the rise. Consequently, the number of requests for assistance from the courts, prosecutors and defence lawyers in support of national investigations and prosecutions has been growing.
Since 1 July 2012 for requests to the ICTR and 1 July 2013 for requests to the ICTY, the Mechanism responds to requests for assistance from national authorities (not restricted to Rwanda and the former Yugoslavia) in relation to national investigations, prosecutions and trials. This function comprises the provision of assistance to national courts conducting related proceedings, which includes transferring dossiers, responding to requests for evidence, variation or rescission of protective measures for witnesses and responding to requests to question detained persons.
The Mechanism is responsible for the preservation and management of the ICTR and ICTY’s archives. The Tribunals’ archives document their investigations, indictments and court proceedings, their work relating to the detention of accused persons, the protection of witnesses and enforcement of sentences, and their relationships with States, other law enforcement authorities, international and non-governmental organisations and the general public.
The archives consist of documents, maps, photographs, audiovisual recordings and objects. The Mechanism will preserve these materials and facilitate the widest possible access to them while ensuring the continued protection of confidential information.
The Arusha branch of the Mechanism is home to the ICTR’s archives, which holds nearly 900,000 pages of transcripts and audio and video recordings of more than 6,000 trial days, as well as more than 10,000 interlocutory decisions and the judgements of all persons accused at the Tribunal. The ICTY’s archives are located at the Hague branch of the Mechanism.
Organisation of the Mechanism
The Mechanism has a permanent President, Prosecutor and Registrar, common to both branches.
A roster of 25 independent judges covers both ICTR and ICTY branches. When electing judges, particular account was taken of candidates’ experience as judges of the ICTR or the ICTY. The judges shall come to The Hague only when necessary and at the request of the President. In so far as possible, and as decided by the President, the judges will carry out their functions remotely.
The Office of the Prosecutor and the Registry shall maintain a roster of qualified potential staff, preferably from among persons with experience at the ICTY or the ICTR, to enable it to recruit additional staff rapidly as may be required to perform its functions. A roster of Defence counsel will be added to ensure conditions for conducting fair trials are met.