Rule 11 of bis of the International Criminal Tribunal for the Former Yugoslavia: Referral of Indictments to National Courts

Boston College International and Comparative Law Review Volume 30 Issue 1 Sharpening the Cutting Edge of International Human Rights Law: Unresolved Issues of War Crimes Tribunals Article 9 12-1-2007 Rule 11 of bis of the International Criminal Tribunal for the Former Yugoslavia: Referral of Indictments to National Courts Susan Somers Follow this and additional works at: http://lawdigitalcommons.bc.edu/iclr Part of the Criminal Law Commons, and the International Law Commons Recommended Citation Susan Somers, Rule 11 of bis of the International Criminal Tribunal for the Former Yugoslavia: Referral of Indictments to National Courts , 30 B.C. Int'l & Comp. L. Rev. 175 (2007), http://lawdigitalcommons.bc.edu/iclr/vol30/iss1/9 This Symposium Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College International and Comparative Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact . RULE 11 BIS OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: REFERRAL OF INDICTMENTS TO NATIONAL COURTS Susan Somers* Abstract: The United Nations Security Council created the International Criminal Tribunal for the Former Yugoslavia in an effort to restore peace and security to the region. The Tribunal is an ad hoc institution and has a limited existence. A Completion Strategy was established by the U.N. Security Council to bring the work of the Tribunal to a conclusion. An important aspect of this Completion Strategy is the use of Rule 11 bis to transfer certain cases from the Tribunal to national courts. This article looks at the background, process, and judicial determination of Rule 11 bis requests. I. Background to Rule 11 bis1 Proceedings All cases indicted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) are by deªnition serious violations of international humanitarian law.2 The Tribunal’s status as an ad hoc institution established by the U.N. Security Council3 pursuant to Chapter VII,4 as a measure aimed at the restoration of peace and security to * Senior Prosecuting Trial Attorney, Ofªce of the Prosecutor, United Nation’s (U.N.) International Criminal Tribunal for the Former Yugoslavia (ICTY). The views expressed herein are those of the author alone and do not necessarily reºect the views of the International Tribunal or the U.N. in general. ICTY case names in the footnotes were shortened from their full names in the Serbo-Croatian language for standardization purposes, and they were printed without diacritic marks. 1 Int’l Criminal Trib. for the Prosecution of Persons Responsible for Serious Violations of Int’l Humanitarian Law Committed in the Territory of the Former Yugo. Since 1991, Rules of Procedure and Evidence, at 8–9, ICTY Doc. IT/32/Rev. 39 (Sept. 22, 2006), available at http://www.un.org/icty/legaldoc-e/index.htm (Rule 11 bis, Referral of the Indictment to Another Court) [hereinafter R. P. & Evid.]. 2 As reºected in the ofªcial title of the Tribunal, as set forth in footnote 1, and established by authorizing resolution. S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993). 3 Id. 4 Id.; see Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 40 (Oct. 2, 1995) (“[T]he Appeals Chamber considers that the International Tribunal has been lawfully established as a measure under 175 176 Boston College International & Comparative Law Review [Vol. 30:175 the region, therefore has a ªnite existence. A Completion Strategy—a schedule—was put in place with targeted deadlines for the discharge of the various stages of the Tribunal’s mandate.5 Requests under Rule 11 bis to transfer certain cases indicted at the Tribunal to national courts offer one means of furthering implementation of the Completion Strategy. A. The Process of Winding Down Security Council Resolutions 1503 and 1534 direct the ICTY to concentrate on the prosecution of the senior leaders under indictment6 and to refer the indictments of lower and intermediate level accused to national courts.7 The selection by the Prosecutor for referral of cases does not minimize the seriousness of the crimes, but rather reºects the reality of the time limits. This requires determination of cases in which the level of the accused, i.e. lower or intermediate, and the gravity of the crimes alleged do not demand that the case be tried before the Tribunal.8 B. A Retreat from Primacy Referral under Rule 11 bis represents a retreat from the Tribunal’s exercise of primacy as to certain cases for which it had already conªr- Chapter VII of the Charter.”); see also id. ¶ 36 (“In sum, the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41.”). 5 See S.C. Res. 1503, ¶ 7, U.N. Doc. S/RES/1503 (Aug. 28, 2003) (“Calls on the ICTY and ICTR to take all possible measures to complete investigations by the end of 2004, to complete all trial activities at ªrst instance by the end of 2008, and to complete all work in 2010 (the Completion Strategies) . . . .”); see also S.C. Res. 1329, U.N. Doc. S/RES/1329 (Nov. 30, 2000) (initiating steps toward determining the temporal existence of the ICTY). 6 See S.C. Res. 1503, supra note 5, pmbl. (“Recalling and reafªrming in the strongest terms the statement of 23 July 2002 made by the President of the Security Council (S/PRST/2002/21), which endorsed the ICTY’s strategy for completing investigations by the end of 2004, all trial activities at ªrst instance by the end of 2008, and all of its work in 2010 (ICTY Completion Strategy) (S/2002/678), by concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, as well as the strengthening of the capacity of such jurisdictions . . . .”). 7 S.C. Res. 1534, ¶ 6, U.N. Doc. S/RES/1534 (Mar. 26, 2004). 8 Prosecutor v. Rajic, Case No. IT-95-12-PT, Prosecutor’s Further Submissions Pursuant to Referral Bench’s Decision of 8 September 2005, ¶ 4 (ªled on Sept. 14, 2005) (“While these crimes are serious, the Prosecutor submits that they do not demand to be tried at the International Tribunal, and that the gravity is compatible with referral.”). 2007] Referral of Indictments to National Courts 177 med an indictment.9 The Appeals Chamber stated, “It is axiomatic under Article 9 of the Statute that it was never the intention of those who drafted the Statute that the Tribunal try all those accused of committing war crimes or crimes against humanity in the Region.”10 At this stage of the Tribunal’s existence, the decision by the ICTY not to assert primacy with respect to indictments meeting the criteria of (...truncated)