As discussed in Post I and Post II, the primary goals of a consolidated single residual mechanism are to contribute to global justice and accountability, and to identify and increase the monetary, administrative, or other efficiencies inherent in consolidation which might encourage States to invest in a permanent residual mechanism.
A successful permanent entity that consolidates the core residual functions of current and future ad hoc and hybrid tribunals could take a number of different forms. The final post of this symposium discusses three institutional designs for a single residual mechanism that aim to capitalize on the benefits for efficiency and justice, to address the relevant questions of scope, mandate, and administrative support, and to garner sufficient political backing to be feasible.
The structure and feasibility of any single residual mechanism is inevitably informed by the five current international hybrid or ad hoc tribunals. As outlined in our introductory post, we supplemented research into these entities with interviews conducted with a number of experts in the field of international criminal law. Our discussions have yielded three possible institutional models for a single residual mechanism. In descending order of institutional autonomy, power, and complexity, these are:
- a Standalone Residual Mechanism with an independent and “full time” mandate to prosecute apprehended indictees;
- an Office of Residual Tribunal Affairs under the United Nations Secretariat that would provide staff and resources to conduct trials under the tribunals’ charters using an “accordion model” that can expand personnel and capabilities as needed for prosecutions; and
- a purely administrative Residual Affairs Oversight Division that would undertake only the tribunals’ core residual functions.
We explore each of these models below.
| Model | Key Features | Means of Establishment | Staff | Key Considerations |
|---|---|---|---|---|
| Standalone Residual Mechanism (SRM) | Prosecutions for individuals indicted by pre-transitioned tribunals; sentencing appeals; contempt proceedings; victim/witness protection; external outreach to communities; archival maintenance. SRM could either adopt existing tribunal structures, or harmonize structures to one model upon transfer. | UNSC resolution under Chapter VII powers if absorbing the IRMCT and STL, plus amendments (via Chapter VII resolution for IRMCT and STL) to pre-existing tribunals’ constituting documents; or UNGA resolution if IRMCT and STL are excluded. | Registrar; Offices of the Prosecutor and the Defense; standing roster of judges; victim-/witness-protection unit; archivists. | Pros: Coordination with other UN agencies could lower costs; reliable funding ensured through UN budget. Cons: Political pushback and/or stonewalling from UNSC or UNGA members at time of establishment. |
| Office of Residual Tribunal Affairs (ORTA) | Prosecutions for individuals indicted by pre-transitioned tribunals; sentencing appeals; contempt proceedings; victim/witness protection; external outreach to communities; archival maintenance. Substantive law would come from tribunals’ statutes; procedural rules would be uniform. Prosecutions would be facilitated through as-needed hiring off of standing rosters (“accordion model”), and might only be possible if the transferring tribunal retains a prosecutorial mandate under its statute. | Established under the UN Secretariat’s Office of Legal Affairs (OLA); this may require authorization by either UNSC or UNGA resolution, as well as possible amendments to pre-existing tribunals’ constituting documents prior to transfer. | Permanent: Victim-/ witness- protection unit; archivists. “Accordion” staff (roster-based, hired as needed): Registrar; Offices of the Prosecutor and the Defense; judges. | Pros: Establishment within OLA means potentially fewer political (voting) roadblocks; benefits from stable financing through OLA budget; “accordion model” saves costs of maintaining active trial staff. Cons: UNSC or UNGA may still need to grant Secretariat authority to establish ORTA and facilitate “accordion model”; funding of “accordion model” could stress Secretariat’s budget; indictees may make jurisdictional and/or due-process challenges. |
| Residual Affairs Oversight Division | Sentencing appeals; contempt proceedings; victim/witness protection; external outreach to communities; archival maintenance. | Division under UN umbrella. | Victim-/ witness- protection unit; archivists. | Pros: Least politically controversial option, given lack of prosecutorial powers. Cons: Apprehended indictees would have to be transferred to national jurisdictions for trial. |
1 – Standalone Residual Mechanism
The first and most institutionally complex proposal is a standalone international organization, which we refer to as the Standalone Residual Mechanism (SRM). The SRM would have an independent legal status under its charter, a bespoke organizational structure, and an institutional budget. Most importantly, alongside fulfilling the core residual functions of the tribunals it succeeds, the SRM would have an independent prosecutorial mandate to hold trials or appeals of indictees that are captured after the relevant tribunals have transferred their residual functions to the SRM. To facilitate this mandate, the SRM would have a Registrar, Offices of the Prosecutor and of the Defense, a victim and witness protection unit, and a standing roster of judges on a permanent basis, in similar form to the underlying tribunals.
Formation. The SRM could be established through a U.N. General Assembly resolution. However, an SRM’s delegation of authority or mandate could only be established via a General Assembly resolution if the SRM is a type of subsidiary organ that the General Assembly is empowered to create – namely, a subsidiary organ designed to maintain international peace and security, as well as to uphold human rights and fundamental freedoms. Moreover, because the International Residual Mechanism for Criminal Tribunals (IRMCT) and the Special Tribunal for Lebanon (STL) were established through U.N. Security Council resolutions under the Security Council’s Chapter VII powers, these tribunals cannot be easily transitioned to the proposed SRM model without corresponding Security Council action, which, as discussed previously, could prove difficult politically.
Administration. The SRM would ideally be created within the U.N. system as a specialized agency to lower the administrative costs of establishing a new international organization. This would allow the SRM to be funded with contributions assessed to all member States, in addition to voluntary contributions. All five of the existing ad hoc and hybrid tribunals examined in our previous posts (the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and Special Tribunal for Lebanon (STL)) were created under the aegis of the U.N., demonstrating that the U.N. could lend operational expertise, archival systems, and real estate to support the tribunals’ residual functions through the SRM. The SRM’s professional staff also could be supplied through the protocols and processes established by the U.N.
Consolidation vs. Flexibility. The SRM’s constituting instrument would need to find balance between building enough flexibility to accommodate the unique features of the hybrid or ad hoc tribunals it would succeed and ensuring sufficient standardization to justify the tribunals’ consolidation and facilitate smoother operations. For instance, the SRM could adopt a branch model like the IRMCT (which has consolidated residual activities of ICTR and ICTY) and open a new branch each time it absorbs a new tribunal to preserve the procedures, staff, and original tribunal’s proximity to the conflict zone. Or, the SRM could have a single seat with an independent operational structure, rules and procedures, and archival system. Both options require amending the charters of the existing tribunals. The latter requires more significant changes, raises further legal complexity, and could make it significantly more difficult for the SRM to conduct outreach to the impacted communities for education and legacy-promotion purposes. Meanwhile, the former may not create cost efficiencies that would help justify the establishment of the SRM in the first place.
2 – Office of Residual Tribunal Affairs
The second proposed institutional design envisions a department or office established under the U.N. Secretariat, which we refer to as the Office of Residual Tribunal Affairs (ORTA). This model aims to maintain flexibility in its duties while minimizing the political and legal roadblocks in its creation. Similar to the SRM, the ORTA would take on all the core residual functions of its predecessor tribunals. The ORTA would also have a permanent staff that negotiates the transition of tribunals into the ORTA, coordinates staff and resources, and establishes on-site presence to protect victims and witnesses and promote the legacies of the tribunals. Distinct from the SRM model, the ORTA would use an “accordion model,” by which it could expand as needed to provide the necessary staff and resources for the trials of any captured indictees under the transferred tribunals’ jurisdiction, or for other reasons as needed.
Unlike the SRM model, the ORTA’s accordion model is not envisioned to take on the jurisdiction and prosecutorial mandate of a tribunal. Instead, should the need arise, the ORTA would merely fund and coordinate staffing for the (likely minimal) prosecutorial activity remaining under any given tribunal’s mandate, operating in accordance with that tribunal’s own mandate. The ORTA would do so by providing a location, resources, and staff for trials to be held under the tribunals’ original charters. This model requires the ORTA to have a permanent staff for core residual functions; a roster of judges who could be “called up” as needed to preside over trials, reflecting the appointment requirements under the tribunals’ charters; and associations of prosecutors and defense counsel who can monitor ongoing cases and address any sentencings, appeals, and (if necessary) trials of defendants.
Formation. The ORTA would be established under the U.N. Secretariat, potentially as part of the Office of Legal Affairs (OLA), which would provide it with the administrative and budgetary support needed to efficiently begin operations under the purview of the Secretary General. Given the diversity of duties the Secretary General undertakes, and their role in the establishment of ad hoc and hybrid tribunals, the Secretary General would be well-suited to work on the creation of the ORTA. However, a key legal question is whether the Secretary General has the authority to establish such an organization without the direction of a General Assembly or Security Council resolution. Even if the Secretary General cannot establish the ORTA in its full scope without a specific mandate and political backing from member States, the Secretary General likely could appoint a minimal number of staff to an office or division assigned to develop the ORTA model, which could lay the political and administrative groundwork necessary to garner sufficient political support for establishing a larger future office.
Administration. Under this model, the ORTA would have a constituting instrument – bylaws, rules, or a statute – that would outline its duties, organizational structure, and jurisdictional mandate. Although the tribunals’ individual statutes would supply the substantive law applied in any trials, all staffing, resources, and logistics would be coordinated by the ORTA. The U.N. Secretariat would provide a budget and administrative resources to the ORTA. While conducting core residual functions, the budget of the ORTA is expected to be modest. However, the ORTA’s budget could rapidly expand, should a trial be scheduled and staff hired under the accordion model. The uncertainties surrounding how much a trial might cost, due to such ad hoc hiring and subsequent operations, might cause political friction in funding the ORTA. At worst, such political friction over the ORTA’s budget might de facto prevent trials from being scheduled, which would stabilize budgeting but weaken the ORTA’s mandate.
Jurisdictional Challenges. One of the advantages of the accordion model is that it permits the ORTA to maintain the prosecutorial mandates of tribunals under their individual statutes, which allows the ORTA to act as a staffing bureau rather than an organization with an independent mandate to prosecute individuals. The ORTA would maintain a lean team to advance core residual functions the majority of the time, while keeping the prosecutorial mandate of the tribunals alive for any future trials. The lack of independent prosecutorial powers could also make the ORTA model more politically appealing. However, it is unclear whether the ORTA would ultimately have the legal authority to oversee trials under different tribunals’ statutes. Could an ad hoc or hybrid tribunal continue to exist only in its charter without a continuous staff and court dedicated to its functioning, or is this a kind of unlawful amendment in effect? Additionally, would the due-process and jurisdictional challenges of transferring the tribunal’s prosecutorial functions to a shared organization be insurmountable? These issues would have to be resolved, through careful legal assessments by OLA, discussions with relevant U.N. member States, and consultations with experts and other stakeholders, before the ORTA could proceed with prosecutions under the transferred tribunals’ charters.
3 – Residual Affairs Oversight Division
The third institutional design, referred to as the Residual Affairs Oversight Division (Oversight Division), would only manage the non-prosecutorial, core residual functions of the ad hoc and hybrid tribunals. It would be a solely administrative entity created under the U.N. umbrella that would build a consolidated archival system for all current and future tribunals when they enter their residual phase, provide headquarters and resources for all operating residual mechanisms, and absorb key personnel to continue the residual work of tribunals. The Oversight Division could enter discussions and negotiations with the residual mechanisms and tribunals to best address their needs while finding efficiencies where possible. In that sense, the Oversight Division would not succeed the tribunals but rather consolidate some of their core residual duties, following which the tribunals could be closed.
Although this model would likely be the least politically controversial, several aspects of the model draw legitimate concern. First, any apprehended indictee under this model would need to be transferred to a national jurisdiction or another prosecuting body for trial. In the case of a transfer to a national jurisdiction, due process issues could arise if the national legal system could not or would not provide a fair trial, or if the post-conflict peace is fragile. Second, given that the existing residual mechanisms are already in the process of scaling down, the efficiency rationale for consolidation may not be as strong if the only support would be administrative. However, this model’s benefits could increase over time, as it supports the creation of new ad hoc and hybrid tribunals, builds a unified archival management system, and keeps the legacy of current and future tribunals’ work alive on a permanent basis.
Looking Forward
A perfect model for a permanent single residual mechanism may not exist, and it remains debatable whether a single residual mechanism is ultimately a necessary or helpful tool for the promotion and efficiency of international criminal justice. The purpose of this symposium is not to endorse the creation of a single residual mechanism, or any specific approach to its creation, but rather to explore and consider the potential opportunities and possible models for creating a single residual mechanism, should the international community pursue this route. As the articles within this symposium demonstrate, creating a single residual mechanism could be worthwhile, but complex legal and policy-related questions abound. Any future work on this issue therefore must take into account the pragmatic realities of what can realistically be accomplished to best achieve the international community’s desired goals. It is our hope that this research and analysis will be a fruitful starting point for future discussions on the wisdom, efficacy, and political and administrative feasibility of consolidating existing and future residual mechanisms.