Contempt Jurisdiction of the Residual Mechanism

As many know the United Nations ad hoc international criminal tribunals that were created in the 1990’s to prosecute international crimes committed during the Yugoslav wars and the Rwandan genocide are scheduled to complete their work in the near future. However, the judicial work of the tribunals is not finished just because the courts have completed the task of adjudicating allegations of international crimes.[1] There will still be outstanding protective measures for victims and witnesses that will need enforcing. At the same time, it will be necessary for a forum to exist to authorize the publication of information from the trials (confidential exhibits) and the modification of the above-mentioned protective measures. Judges will need to sworn and authorized to rule on these issues and enforce them where necessary. For this reason, the United Nations created the Residual Mechanism on 22 December 2010 and judges were sworn thereafter to hear issues that arise in the future.[2]

The scope of the Residual Mechanism’s jurisdiction on work has already been the subject of argument and decision at the International Criminal Tribunal for the former Yugoslavia (ICTY). On 27 September 2013, Radovan Karadžić (on trial before the tribunal) filed a request with the Tribunal’s president, Judge Theodor Meron, for a special chamber to be formed to consider to appointment of a special prosecutor to investigate the filing of contempt charges against former prosecutor Carla Del Ponte.[3]

The special chamber, consisting of Judges Flügge, Moloto and Hall, noted that the Residual Mechanism’s statute provides that it has jurisdiction over “any person who knowingly and wilfully (sic) interferes or has interfered with the administration of Justice by the Mechanism or the Tribunals, and to hold such person in contempt.”[4] They also noted that according to the transitional arrangements, the Mechanism is the proper forum for contempt proceedings where the indictment is confirmed after the effective date of the mechanism. Considering that The Hague branch of the mechanism is already active, the chamber held that the Mechanism, and not the ICTY, has jurisdiction to entertain the issue of the appointment of a special prosecutor.[5]

This decision is problematic for several reasons, some legal and some based merely in common sense. I shall turn to the latter first.

Common sense dictates that Karadžić’s motion be filed with the appropriate person, whether that be the president of the ICTY or that of the Mechanism. However, in this specific case, Judge Meron is both the president of the ICTY and the Mechanism. Furthermore, the current Registrar of the ICTY also holds the same position at the Mechanism. The proper person received the request and assuming for the moment that the special chamber is correct – and the Mechanism is the proper forum – it should have been within the purview of the Judge Meron to sua sponte correct that error. He did not consider that there was an error and so the matter should have been considered as already decided. Alternatively, as president of the Mechanism, Judge Meron’s choice to appoint those currently sitting international judges to consider the issue should have been valid, especially considering that all the judges on the panel are also serving judges of the residual mechanism. The decision as written does nothing more than unnecessarily prolong the matter by passing the buck back and forth based on a presumed procedural anomaly.

From a legal point of view, the reasons for the special chamber’s decision also show that it is not necessarily correct. It is true that the Mechanism is to have jurisdiction to try those who are on trial for contempt of the tribunal based on indictments confirmed after the start date of the Mechanism.[6] However, no indictment has yet been issued so that the Mechanism does not yet have the competence to hear the issue – outside of independently considering the issuance of an indictment itself.

Furthermore, and here assuming that the Mechanism would have jurisdiction to consider the issuing of a contempt indictment at this point, the jurisdiction of this institution does not itself preclude the jurisdiction of the ICTY to issue the indictment that will result in a trial before the Mechanism. The ICTY is just prevented from carrying out the contempt trial. This could simply be a case of concurrent jurisdiction on the matter. It is proper that the tribunal whose orders were allegedly violated is a better forum to consider the issuance of an indictment for contempt – especially when such power is not statutory but an inherent component of the judicial function.

This, however, is not the understanding of the Mechanism itself. Both the appeals chamber and a single judge have ruled that the Mechanism has the sole authority to consider accusations of contempt before the two ad hoc tribunals.[7] These decisions effectively subtracted from the tribunals the ability to enforce their decisions and order and for reasons not required by the text of the statute and rules.

Given the legal and common sense possibilities of considering the issue of an indictment at the ICTY, there was no reason for the special chamber to decline jurisdiction. By deciding not to decide the substantive issue, the judges of the chamber have done nothing more than delay the issue.


[1] When the tribunals close, the ICTY will no longer have any outstanding indictments. This is not so of the ICTR.

[2] Cite to UNSC Res. 1966 (2010).

[3] ICTY, Prosecutor v. Karadžić, Decision on Jurisdiction Following the Assignment of a Specially Appointed Chamber, IT-95-5/18-T, IT-02-54-T, p. 2 (18 October 2013).

[4] Ibid. citing, article 1(4)(a) of the Statute of the Residual Mechanism.

[5] Ibid.

[6] See, Article 4(2) of the transitional provisions annexed to the statute of the Residual Mechanism.

[7] In re. Deogratias Sebureze & Maximmilien Turinabo, MICT-13-40-A R90 & MICT-13-41-AR90, Decision on Deogratias Sebureze and Miximilien Turinabo’s Motions on the Legal Effect of the Contempt Decision and Order Issued by the ICTR Trial Chamber (20 March 2013) and its subsequent tacit approval on appeal.

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