United Nations Mechanism for International Criminal Tribunals: necessary or avoidable? An analysis of the different options for the residual functions of the ad hoc International Criminal Tribunals

When closing ad hoc Tribunals, the Security Council is faced with the problem of how to deal with the residual functions that need to be carried out after the Tribunals’ closure. In the cases of the ICTY, ICTR and SCSL, the Security Council established the UN Mechanism for International Tribunals and the Residual Special Court for Sierra Leone to solve that issue. Tis thesis discusses the question of whether it was necessary to establish the UN Mechanism for International Tribunals or whether another solution might have been preferable. Obviously, this question was considered by scholars at the time when the Residual Mechanism was established. This thesis reconsiders the question in light of the case law and practice of the Residual Mechanism. The Residual Mechanism was established to operate for an initial period of four years. Unless the Security Council decides otherwise after reviewing the Residual Mechanism’s work, it continues to operate for subsequent periods of two years. This thesis constitutes the first research of the entire legal framework and the case law of the Residual Mechanism. It is a contribution to legal literature and history. It provides an examination of different options for dealing with the residual functions, because it would still be possible to transfer those. One option would be to transfer the functions back to the domestic authorities of the affected countries. But, although judicial capacities have improved, issues still exist. Transferring these functions to other states would be difficult, because states are not willing or able to take over the Tribunals’ functions. The option of an international body, such as the ICC taking over the functions would be impracticable because it would require amendments to the Rome Statute. Therefore, in order to demonstrate that the international legal system is working and to achieve a deterrent effect the Residual Mechanism is necessary. But this thesis also points out that it would have been a better option to create a joint mechanism including the ICTY, ICTR, and SCSL. Future ad hoc criminal tribunals requiring mechanisms with functions similar to those of the Residual Mechanism could be appended to it.