The United Nations (International Residual Mechanism for Criminal Tribunals) Order 2018

The Prosecutor shall be appointed by the Security Council on nomination by the Secretary-General. He or she shall be of high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases. The Prosecutor shall serve for a four-year term and be eligible for reappointment. The terms and conditions of service of the Prosecutor shall be those of an Under-Secretary-General of the United Nations.

5

The Office of the Prosecutor shall retain a small number of staff commensurate with the reduced functions of the Mechanism, who shall serve at the seats of the branches of the Mechanism. The Office 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. The staff of the Office of the Prosecutor shall be appointed by the Secretary-General on the recommendation of the Prosecutor.

Article 15: The Registry

1

The Registry shall be responsible for the administration and servicing of the branches of the Mechanism.

2

The Registry shall consist of a Registrar, an officer in charge at the seat of each branch of the Mechanism designated by the Registrar, and such other qualified staff as may be required in accordance with paragraph 4 of this Article. The Registrar shall be present at either seat of the branches of the Mechanism as necessary to exercise his or her functions.

3

The Registrar shall be appointed by the Secretary-Generalfor a four-year term and be eligible for reappointment. The terms and conditions of service of the Registrar shall be those of an Assistant Secretary-General of the United Nations.

4

The Registry shall retain a small number of staff commensurate with the reduced functions of the Mechanism, who shall serve at the seat of the respective branches of the Mechanism. 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. The Staff of the Registry shall be appointed by the Secretary-General on the recommendation of the Registrar.

Article 16: Investigation and Preparation of Indictment

1

The Prosecutor shall have the power to conduct investigations against persons covered by Article 1 of this Statute. The Prosecutor shall not have the power to prepare new indictments against persons other than those covered by Article 1 of this Statute.

2

The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.

3

If questioned, the suspect shall be entitled to be assisted by Counsel of his or her own choice, including the right to have legal assistance assigned to the suspect without payment by him or her in any such case if he or she does not have sufficient means to pay for it, as well as necessary translation into and from the language he or she speaks and understands.

4

Upon a determination that a prima faciecase exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to the duty judge or a Single Judge designated by the President.

Article 17: Review of the Indictment

1

The indictment shall be reviewed by the duty judge or a Single Judge designated by the President. If satisfied that a prima faciecase has been established by the Prosecutor, he or she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.

2

Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.

Article 18: Commencement and Conduct of Trial Proceedings

1

The Single Judge or Trial Chamber conducting a trial shall ensure that the trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

2

A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the Mechanism, be taken into custody, immediately informed of the charges against him or her and transferred to the Mechanism.

3

The Single Judge or judge of the Trial Chamber designated by the President shall read the indictment, ensure that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Single Judge or Trial Chamber shall then set the date for trial.

4

The hearings shall be public unless the Single Judge or Trial Chamber decides to close the proceedings in accordance with its Rules of Procedure and Evidence.

Article 19: Rights of the Accused

1

All persons shall be equal before the Mechanism.

2

In the determination of charges against him or her, the accused shall be entitled to a fair and public hearing, subject to Article 20 of the Statute.

3

The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.

4

In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality—

• (a) to be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her;

• (b) to have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;

• (c) to be tried without undue delay;

• (d) to be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it;

• (e) to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

• (f) to have the free assistance of an interpreter if he or she cannot understand or speak the language used in the Mechanism;

• (g) not to be compelled to testify against himself or herself or to confess guilt.

Article 20: Protection of Victims and Witnesses

The Mechanism shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses in relation to the ICTY, the ICTR, and the Mechanism. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.

Article 21: Judgments

1

The Single Judge or Trial Chamber shall pronounce judgments and impose sentences and penalties on persons covered by Article 1 of this Statute who are convicted by the Mechanism.

2

All judgments shall be delivered in public and shall be accompanied by a reasoned opinion in writing. Judgments by a Chamber shall be rendered by a majority of the judges, to which separate or dissenting opinions may be appended.

Article 22: Penalties

1

The penalty imposed on persons covered by paragraphs 2 and 3 of Article 1 of this Statute shall be limited to imprisonment. The penalty imposed on persons covered by paragraph 4 of Article 1 of this Statute shall be a term of imprisonment not exceeding seven years, or a fine of an amount to be determined in the Rules of Procedure and Evidence, or both.

2

In determining the terms of imprisonment, the Single Judge or Trial Chamber shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia and in those of Rwanda, respectively.

3

In imposing the sentences, the Single Judge or Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

4

In addition to imprisonment, the Single Judge or Trial Chamber may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

Article 23: Appellate proceedings

1

The Appeals Chamber shall hear appeals from convicted persons or from the Prosecutor on the following grounds—

• (a) an error on a question of law invalidating the decision; or

• (b) an error of fact which has occasioned a miscarriage of justice.

2

The Appeals Chamber may affirm, reverse or revise the decisions taken by the Single Judge or Trial Chamber.

Article 24: Review Proceedings

Where a new fact has been discovered which was not known at the time of the proceedings before the Single Judge, Trial Chamber or the Appeals Chamber of the ICTY, the ICTR, or the Mechanism and which could have been a decisive factor in reaching the decision, the convicted person may submit to the Mechanism an application for review of the judgment. The Prosecutor may submit such an application within one year from the day that the final judgment was pronounced. The Chamber shall only review the judgment if after a preliminary examination a majority of judges of the Chamber agree that the new fact, if proved, could have been a decisive factor in reaching a decision.

Article 25: Enforcement of sentences

1

Imprisonment shall be served in a State designated by the Mechanism from a list of States with which the United Nations has agreements for this purpose. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the Mechanism.

2

The Mechanism shall have the power to supervise the enforcement of sentences pronounced by the ICTY, the ICTR or the Mechanism, including the implementation of sentence enforcement agreements entered into by the United Nations with Member States, and other agreements with international and regional organisations and other appropriate organisations and bodies.

Article 26: Pardon or Commutation of Sentences

If, pursuant to the applicable law of the State in which the person convicted by the ICTY, the ICTR or the Mechanism is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the Mechanism accordingly. There shall only be pardon or commutation of sentence if the President of the Mechanism so decides on the basis of the interests of justice and the general principles of law.

Article 27: Management of the Archives

1

Without prejudice to any prior conditions stipulated by, or arrangements with, the providers of information and documents, the archives of the ICTY, the ICTR and the Mechanism shall remain the property of the United Nations. These archives shall be inviolable wherever located pursuant to Section 4 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946.

2

The Mechanism shall be responsible for the management, including preservation and access, of these archives. The archives of the ICTY and the ICTR shall be co-located with the respective branches of the Mechanism.

3

. In managing access to these archives, the Mechanism shall ensure the continued protection of confidential information, including information concerning protected witnesses, and information provided on a confidential basis. For this purpose, the Mechanism shall implement an information security and access regime, including for the classification and declassification as appropriate of the archives.

Article 28: Cooperation and Judicial Assistance

1

States shall cooperate with the Mechanism in the investigation and prosecution of persons covered by Article 1 of this Statute.

2

States shall comply without undue delay with any request for assistance or an order issued by a Single Judge or Trial Chamber in relation to cases involving persons covered by Article 1 of this Statute, including, but not limited to—

• (a) the identification and location of persons;

• (b) the taking of testimony and the production of evidence;

• (c) the service of documents;

• (d) the arrest or detention of persons;

• (e) the surrender or the transfer of the accused to the Mechanism.

3

The Mechanism shall respond to requests for assistance from national authorities in relation to investigation, prosecution and trial of those responsible for serious violations of international humanitarian law in the countries of former Yugoslavia and Rwanda, including, where appropriate, providing assistance in tracking fugitives whose cases have been referred to national authorities by the ICTY, the ICTR, or the Mechanism.

Article 29: The Status, Privileges and Immunities of the Mechanism

1

The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the Mechanism, the archives of the ICTY, the ICTR and the Mechanism, the judges, the Prosecutor and his or her staff, and the Registrar and his or her staff.

2

The President, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilitiesaccorded to diplomatic envoys, in accordance with international law. The judges of the Mechanism shall enjoy the same privileges and immunities, exemptions and facilities when engaged on the business of the Mechanism.

3

The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1 of this Article.

4

Defence counsel, when holding a certificate that he or she has been admitted as counsel by the Mechanism and when performing their official functions, and after prior notification by the Mechanism to the receiving State of their mission, arrival and final departure, shall enjoy the same privileges and immunities as are accorded to experts on mission for the United Nations under Article VI, Section 22, paragraphs (a) to (c), and Section 23, of the Convention referred to in paragraph 1 of this Article. Without prejudice to their privileges and immunities, it is the duty of defence counsel enjoying such privileges and immunities to respect the laws and regulations of the receiving State.

5

Other persons, including the accused, required at the seats of the Mechanism, shall be accorded such treatment as is necessary for the proper functioning of the Mechanism.

Article 30: Expenses of the Mechanism

The expenses of the Mechanism shall be expenses of the Organisation in accordance with Article 17 of the Charter of the United Nations.

Article 31: Working languages

The working languages of the Mechanism shall be English and French.

Article 32: Reports

1

The President of the Mechanism shall submit an annual report of the Mechanism to the Security Council and to the General Assembly.

2

The President and Prosecutor shall submit six-monthly reports to the Security Council on the progress of the work of the Mechanism.

Signed

Richard Tilbrook — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order enables the United Kingdom to cooperate with the International Residual Mechanism for Criminal Tribunals in the investigation and prosecution of persons accused of Mechanism crimes and the punishment of persons convicted of such crimes. The Mechanism was established by United Nations Security Council resolution 1966 (2010) to complete the tasks of the international criminal tribunals for the former Yugoslavia and Rwanda.

Footnotes

[^f00001]: 1946 c. 45. Section 1(2) was amended by: the Statute Law (Repeals) Act 1995 (c.44), Schedule 1, para 2; the Burma Independence Act 1947 (c.3), Schedule 2, Part 1; and the Zimbabwe Act 1979 (c.60), section 6(3) and Schedule 3. Section 1(4) was amended by the Scotland Act 1998, Schedule 8, para 6. There have been other amendments, but none are relevant to this Order.

[^f00002]: 2001 c. 17. Part II, as amended by SI 2014/2706, article 2, Schedule, para.1. There are other amendments, but none relevant to this Order.

[^f00003]: S/RES/1966 (2010).

[^f00004]: 1952 c. 52. There are amendments, but none relevant to this Order.

[^f00005]: 1989 c. 45, as amended by the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9), section 22. There have been other amendments, but none are relevant.

[^f00006]: 1953 c. 18 (N.I.), as amended by S.I. 2010/976, articles 1(2) and 6(1).

[^f00008]: 2006 c. 52. There are amendments, but none are relevant to this Order.

[^f00009]: 2003 c. 41. Section 21 as amended by the Anti-social Behaviour, Crime and Policing Act 2014 (c.12), Schedule 11(4), paras. 105(2) and (3), and both section 21 and section 92, as amended by the Police and Justice Act 2006 (c.48), Schedule 13(1), para. 16(2); the Constitutional Reform Act 2005 (c. 4), section 40(4) and Schedule 9, paragraph 81, the Police and Justice Act 2006 (c. 48), section 42 and Schedule 13, paragraphs 1-3, 5, 8, 13-19, 25-26, the Policing and Crime Act 2009 (c.26), sections 70, 71, 73-76, 78, the Crime and Courts Act 2013 (c. 22), section 50 and Schedule 20, paragraphs 4-6, 10-13, 15, the Anti-Social Behaviour, Crime and Policing Act 2014 (c. 12), sections 160-164, 167, 169, and S.I. 2015/992, article 3(10)-(15). There are other amendments, but none relevant to this Order

[^f00010]: 1960 c. 65, as amended by the Criminal Appeal Act 1968 (c. 19), section 54 and Schedule 7, the Access to Justice Act 1999 (c. 22), section 63(1), the Courts Act 2003 (c. 39), sections 88(3) and 110(1), and the Constitutional Reform Act 2005 (c. 4), sections 40(4) and Schedule 9, Part 1, para. 13, 146(1) and 148(1). There have been other amendments not relevant to this Order.

[^f00011]: 1976 c. 63. Section 4 is amended by the Magistrates’ Courts Act 1980 (c. 43), section 154(1) and Schedule 7, para. 145, the Criminal Justice Act 1991 (c. 53), section 100 and Schedule 11, para. 21, and the Extradition Act 2003 (c. 41), section 198(5). Section 2(2), as amended by the Extradition Act 2003 (c. 41), section 198(3). Section 8, as amended by the Courts Act 2003 (c.39), Schedule 8, para. 186(2), Schedule 10, para. 1, and the Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013/602, Schedule 2(1), para. 13.

[^f00012]: 1984 c. 60. Part II is amended by the Public Order Act 1986 (c. 64), Schedule 2, para. 7, the Immigration and Asylum Act 1999 (c. 33), section 169(1) and Schedule 4, para. 80, the Criminal Justice and Police Act 2001 (c. 16), section 86(1) and Schedule 2, Part II, para. 13, the Courts Act 2003 (c. 39) sections, 65, 109, 110, Schedule 4, para. 5, and Schedule 8, para. 281, the Criminal Justice Act 2003 (c. 44), sections 2, 12, 336 and Schedule 1 paragraphs 3 and 4, the Serious Organised Crime and Police Act 2005 (c. 15), sections 111, 113, 114, and Schedule 7, Part 3, para.43, S.I. 2005/3495, article 2, and S.I. 2005/3496, articles 7 and 8. There are other amendments, but none are relevant.

[^f00013]: S.I. 1989/1341 (N.I. 12), as amended by S.I. 2007/288 (N.I.2), articles 1(2), 7, 9, 10, 12, 13, 14, and S.I. 2008/1216 (N.I.1), article 1(3) and 86.

[^f00014]: 2002 c. 29. There have been amendments, but none relevant to this Order.

[^f00015]: 1947 c. 44, as amended by S.I. 1968/1656, article 3(2). There are other amendments, but none relevant to this Order.

[^f00016]: 1857 c. 44, as amended by the Customs and Excise Act 1952 (c. 44), Schedule 10, Part I, the Crown Estate Act 1956 (c. 73), section 1(7), the Crown Estate Act 1961 (c. 55), Schedule 2 paragraph 4(1), the Defence (Transfer of Functions) Act 1964 (c. 15), section 3(2), and the Post Office Act 1969 (c. 48), Schedule 11, Part II.

[^f00017]: 2003 c. 32

[^f00018]: S.I. 1974/1261, as amended by S.I. 1975/1209.

[^f00019]: S/RES/827 (1993).

[^f00020]: S/RES/955 (1994).

[^f00021]: 1985 c. 23. There are amendments to section 16, but none relevant to this Order.

[^f00022]: 2012 c.10. There are amendments, but none relevant to this Order.

[^f00023]: 1986 c. 47, as amended by the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), sections 64, 65, 77 and 82, and the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), sections 5, 7 and Schedule 4 paragraph 63.

[^f00024]: 1995 c. 21. There are amendments, but none relevant to this Order.

[^f00025]: 1992 c. 16. There are amendments to section 92, but none relevant to this Order.

[^f00026]: 1968 c. 59.