* This article was written in a personal capacity and does not necessarily reflect the position of the Government of the Netherlands. I wish to thank Professor Niels Blokker for his comments on an earlier draft.

1 S.C. Res. 1757 (2007), 30 May 2007 (hereinafter “Resolution

2 See <http://www.nytimes.com/2005/02/15/international/middleeast/151ebanon.html.>

3 S.C. Res. 1595 (2005), 7 Apr. 2005

4 S.C. Res. 1748 (2007), 27 Mar. 2007. On November 13, 2007 the Secretary-General informed the Security Council of his plan to appoint the Canadian Daniel Bellemare as the next head of the IIIC. See UN News Centre, 14 December 2007.

5 U.N. Doc. S/2005/775 (12 Dec. 2005).

6 U.N. Doc. S/2005/783 (13 Dec. 2005).

7 S.C. Res. 1644 (2005), 15 Dec. 2005.

8 U.N. Doc. S/2006/1760 (21 Mar. 2006).

9 sc. Res. 1 6 6 4 (2006), 29 Mar. 2006.

10 U.N. Doc. S/2006/893, (15 Nov. 2006), Annex I; also annexed to the Resolution, supra n. 1.

11 23 January and 6 February 2007 respectively.

12 See U.N. Doc. S/2007/281, at Annex (16 May 2007).

13 The resolution was adopted by a vote of 10 in favour to none against, with five abstentions (China, Indonesia, Qatar, Russian Federation and South Africa).

14 Resolution, supra n.1 at o.p. 1(a).

15 Resolution, supra n. 1, at Attachment, Art. 1 (hereinafter “Statute“).

16 Id., at Art. 2.

17 Id., at Art. 4.

18 Id., at Art. 6.

19 Id., at Art. 22.

20 Id., at Art. 7.

21 Id., at Art. 8.

22 Agreement at Art. 5, annexed to the resolution, supra n. 1.

23 Agreement at Art. 8, annexed to the resolution, supra n. 1. In this regard the Secretary-General wrote to the Prime Minister of the Netherlands inviting his Government to consider hosting the Special Tribunal. In a letter dated 14 August 2007, the Prime Minister of the Netherlands responded that his Government was favourably disposed towards hosting the Special Tribunal. See Report of the Secretary-General submitted pursuant to Security Council resolution 1757 (2007) of 30 May 2007, U.N. Doc. S/2007/525 (4 Sept. 2007), at para. 6.

24 The International Criminal Tribunal for the former Yugoslavia (hereinafter “ICTY“) was established pursuant to Security Council resolution 827 (1993).

25 The International Criminal Tribunal for Rwanda (hereinafter “ICTR“) was established pursuant to Security Council 955 (1994).

26 U.N. Doc. SC/9029, 30 May 2007.

27 The Special Court for Sierra Leone (hereinafter “SCSL“) was Established by Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000 (“hereinafter SCSL Statute“). See www.sc-sl.org/scsl-statute.html

28 This is the case for the SCSL, see id.. This was one of the difficult issues during the negotiations for the Extraordinary Chambers of the Courts of Cambodia (hereinafter “ECCC“) and it was eventually decided to have a majority of Cambodian judges. See Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of the Democratic Kampuchea (hereinafter “ECCC Agreement“), signed 6 June 2003, entered into force 29 April 2005, at Art. 2. Available at <http://www.eccc.gov.kh/english/agreement_image.aspx>. The ECCC were established after the Cambodian National Assembly passed a law in 2001 to create a court to try serious crimes committed during the Khmer Rouge regime from 1975-1979. The Cambodian Government sought the assistance and participation of the international community in conducting trials in the ECCC. In 2003 an agreement was reached with the United Nations detailing the basis for such international participation. The ECCC remains, however, a chamber within the Cambodian national judiciary. The ICTY and ICTR only have international judges.

29 SCSL Statute, supra note 27, at Art. 10. See also ECCC Agreement, supra n. 28 at Art. 11, although formulated differently.

30 SCSL Statute, supra n. 27, at Art. 8.

31 Unlike the other Chapter VII tribunals, which are funded by compulsory contributions, the Tribunal, similar to the SCSL and ECCC, is funded by voluntary contributions.

32 See Report of the Secretary-General on Khmer Rouge trials, U.N. Doc. A/57/769 (31 Mar. 2003) noting that if the ECCC were to be financed from voluntary contributions, the process of establishing it could only be initiated once sufficient money was in place to fund the necessary personnel and the operations of the Chambers for a sustained period of time.

33 The ICTY has its seat in the Netherlands, as does the Appeals Chamber which the ICTR shares with the ICTY. The rest of the ICTR has its seat in Tanzania. Alternatively, the ECCC has its seat in Cambodia and the SCSL has its seat in Sierra Leone, with the exception of the Charles Taylor trial which was moved to the Netherlands for security reasons.

34 The ECCC has jurisdiction over genocide, crimes against humanity and grave breaches of the Geneva Conventions, as defined in relevant international treaties, as well as other crimes defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001. See ECQC Agreement, supra n. 27 at Art. 9. Similarly, the SCSL has jurisdiction over crimes against humanity, violations of Common Article 3 to the Geneva Conventions and Additional Protocol II, other serious violations of international humanitarian law, as well as certain crimes under Sierra Leonean law. See Statute of the SCSL, supra n. 27 at Arts. 2-5. The ICTY and ICTR only have jurisdiction over international crimes: genocide, crimes against humanity and war crimes. See ICTY Statute, supra n. 24 at 2-5, ICTR Statute, supra n. 25 at Arts. 2-4.

35 The SCSL does not conduct trials in absentia. See SCSL Statute, supra n. 27 at Art. 17(d). The ECCC Agreement does not explicitly mention the right to be present as one of the rights of the accused, but it provides that the rights of the accused enshrined in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights shall be respected, and Article 14 of this document enunciated the right of the accused to be present. See ECCC Agreement, supra n. 28, at Art. 13.

36 The ICTY, ICTR and SCSL all have a provision stating that: “The official position of any accused person, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” ICTY Statute, supra note 24, at art. 7(2); ICTR Statute, supra note 25, at art. 6(2); and SCSL Statute, supra note 27, at art. 6(2).

* This text was reproduced and reformatted from the text appearing at the United Nations Security Council website <http://www.un.org.>

* Saira Mohamed works for the U.S. Department of State. The views expressed in this Introductory Note are those of the author, and do not necessarily reflect those of the U.S. Department of State or the U.S. Government.