On the completion strategy see D. Raab, 'Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their Tribunals', 3 JICL (2005) p. 82; D.A. Mundis, 'The Judicial Effects of the "Completion Strategy" on the Ad Hoc International Criminal Tribunals', 99 AJIL (2005) p. 142; L.D. Johnson, 'Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity', 99 AJIL (2005) p. 158; D.A. Mundis, 'Completing the Mandates of the Ad Hoc International Criminal Tribunals: Lessons from the Nuremberg Process?', 28 Fordham ILJ (2005) p. 591.
Cf., 'Assessment and Report of Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, Provided to the Security Council Pursuant to Paragraph 6 of Council Resolution 1534 (2004)', UN Doc. S/2006/353 (Annex I), 31 May 2006, para. 50: 'If all of these cases are referred, 10 cases will be removed from the International Tribunal's docket. However, no other cases are currently earmarked for referral as they do not involve intermediate or lower level accused. This was a limitation placed on referrals by the Security Council in resolution 1503 (2003). However, it may be possible for the International Tribunal to make further use of the referral process if the Security Council determines it necessary to meet Completion Strategy dates.' For the restrictions placed on the recourse to back-referrals, see infra section 2.2.
Cf., E. Lambert-Abdelgawad, 'Le dessaisissement des tribunaux nationaux au profit des tribunaux pénaux internationaux: un encadrement abusif de l'exercice de la compétence judiciaire interne?', 108 RGDIP (2004) p. 407 at p. 431 (where the author defines back-referrals as a 'produit juridique du pragmatisme judiciaire et financier du Conseil de sécurité'); S. Williams, 'ICTY Referrals to National Jurisdictions: A Fair Trial or a Fair Price?', 17 Criminal Law Forum (2006) p. 177 at p. 214 ('The process of referral of cases to national courts has arisen from the need to end the judicial activities of the ICTY, not due to a sense of the benefits of trial before national courts').
Assessment and Report, supra n. 2, at para. 56.
'Assessment and Report of Judge Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia, Provided to the Security Council Pursuant to Paragraph 6 of Security Council Resolution 1534 (2004)', UN Doc. S/2005/343, 25 May 2005, para. 12.
F. Kimenyi, 'Rwanda: ICTR Rejects Bagaragaza Transfer', The New Times (Kigali), 22 May 2006.
'Completion Strategy of the International Criminal Tribunal for Rwanda', UN Doc. S/2006/358 (enclosure), 1 June 2006, para. 41. Nonetheless, the Prosecutor has made public that he intends to request the transfer of seventeen accused (five detainees and twelve indictees at large) to national jurisdictions (ibidem, at para. 39).
Prosecutor v. Bagaragaza, Decision on the Prosecution Motion for Referral to the Kingdom of Norway (Rule 11bis of the Rules of Procedure and Evidence), Case No. ICTR-2005-86- R11bis, Trial Chamber III, 19 May 2006, para. 7. The Prosecutor curiously added that, even if the fair-trial requirement were met in Rwanda, 'strong public policy reasons favour the involvement of other countries in the prosecution of the Accused because it would be a manner of educating people in other countries on the lessons to be learned from the Rwandan genocide and would promote the development of ideas to prevent future similar tragedies' (ibidem).
See infra section 2.2.1.
M. Bohlander, 'Last Exit Bosnia - Transferring War Crimes Prosecutions From the International Tribunal to Domestic Courts', 14 Criminal Law Forum (2003) p. 59 at p. 68.
'Assessment of Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Provided to the Security Council Pursuant to Paragraph 6 of the Security Council Resolution 1534', UN Doc. S/2006/353 (Annex II), para. 12.
Assessment and Report, supra n. 2, at para. 39.
Rule 11bis (B) of ICTY's RPE; Rule 11bis (C) of ICTR's RPE.
Cf., Rule 11bis (A)(iii) of ICTY's and ICTR's RPE. See also infra sections 2.2.1 and 2.2.2.
See infra sections 2.2.1 and 6.
See infra section 6.
See infra section 5.
The case law is chronicled in D.A. Mundis and F. Gaynor, 'Current Developments at the Ad Hoc International Criminal Tribunals', 3 JICJ (2005) p. 1134 at pp. 1157-1158; Id., 'Current Developments at the Ad Hoc International Criminal Tribunals', 4 JICJ (2006) p. 623 at pp. 654-658. For a brief comment of the first decision rendered under Rule 11bis see R. Digon, 'The Stankovic Decision of the International Criminal Tribunal for the Former Yugoslavia', 31 Yale JIL (2006) p. 281. For an analysis of the drafting history of Rule 11bis of the ICTY's RPE, see Bohlander, supra n. 10 (passim); Williams, supra n. 3, at pp. 177-186.
Rule 11bis (A). Rule 11bis (H) states that a Referral Bench 'shall have the powers of, and insofar as applicable shall follow the procedures laid down for, a Trial Chamber under the Rules'
Rule 11bis (A) of the ICTR's RPE.
Rule 11bis (A) of the ICTY's RPE.
Rule 11bis (A) of the ICTR's RPE omits the words 'prior to the commencement of trial'.
Rule 11bis (B).
Prosecutor v. Mrksic, Radic and Sljivancanin, Decision on Prosecutor's Motion to Withdraw Motion and Request for Referral of Indictment Under Rule 11bis, Case No. IT-95-13/1-PT, Referral Bench, 30 June 2005 (not paragraphed).
Rule 11bis (A).
Rule 11bis (E). On state-to-state transferrals, see M. Bohlander, 'Referring an Indictment from the ICTY and ICTR to Another Court - Rule 11bis and the Consequences for the Law of Extradition', 55 ICLQ (2006) p. 219.
Rule 11bis (I). A notice of appeal must be filed within 15 days running from the date of the decision or, in cases where the accused was absent or not represented when the decision was rendered, from the date on which the accused is notified of the decision.
See Prosecutor v. Mejakic, Gruban, Fustar and Knezevic, Decision on Joint Defence Appeal Against Decision on Referral Under Rule 11bis, Case No. IT-02-65-AR11bis.1, Appeals Chamber, 7 April 2006, para. 10: '[A] Trial Chamber exercises discretion in different situations. A decision on whether or not a case should be referred to the authorities of a State which meets the requirements set out in Rule 11bis of the Rule is such a discretionary decision. Accordingly, the party challenging a decision pursuant to Rule 11bis of the Rules must show that the Referral Bench misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of its discretion, or that the Referral Bench gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.' See also Prosecutor v. Rasevic and Todovic, Decision on Savo Todovic's Appeals Against Decisions on Referral Under Rule 11bis, Cases Nos. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Appeals Chamber, 4 September 2006, para. 8.
Prosecutor v. Todovic, Decision on Rule 11bis Referral, Case No. IT-97-25/1-AR11bis.1, Appeals Chamber, 23 February 2006, para. 18.
See infra section 3.
Rule 11bis (D)(iii).
Rule 11bis (D)(ii).
Also some commentators have questioned the legitimacy of Rule 11bis. See, e.g., G.P. Lombardi, 'Legitimacy and the Expanding Power of the ICTY', 37 New England L Rev. (2003) p. 887 at p. 896: 'There is no statutory basis for this procedure. [T]here is no provision authorizing the Trial Chamber to suspend an indictment and to transfer a case back to a national court. Perhaps for this reason, the Judges of the Tribunal, meeting in an extraordinary Plenary on 23 April 2002, declined to amend Rule 11bis outright and mandated the President to take the matter to the Security Council.' On the Plenary of 23 April 2002, see infra text at nn. 41-42.
Cf., P. Gaeta, 'Inherent Powers of International Courts and Tribunals', in L.C. Vohrah, et al., eds., Man's Inhumanity to Man. Essays on International Law in Honour of Antonio Cassese (The Hague, Kluwer Law International 2003) pp. 353-372.
Prosecutor v. Stankovic, Decision on Rule 11bis Referral, Case No. IT-96-23/2-AR-11bis. 1, Appeals Chamber, 1 September 2005, para. 14.
UN Doc. IT/32/REV.12, 12 November 1997.
UN Doc. S/RES/1503, 28 August 2003; S/RES/1534, 26 March 2004.
Whether in such circumstances the state concerned has, under general international law or treaty law, a duty to prosecute is obviously a different matter.
Emphasis added.
Rule 11bis (A)(iii). See also infra section 2.2.
Bagaragaza case, supra n. 8, at para. 9.
Rule 11bis (D)(iv).
Rule 11bis (F) and (G).
Prosecutor v. Stankovic, Decision on Referral of Case Under Rule 11bis, Case No. IT-96-23/2-PT, Referral Bench, 17 May 2005, para. 93. In subsequent decisions, the term 'remedies' was replaced with 'precautions': see Prosecutor v. Jankovic, Decision on Referral of Case Under Rule 11bis, Case No. IT-96-23/2-PT, Referral Bench, 22 July 2005, para. 102; Prosecutor v. Rasevic and Todovic, Partly Confidential Decision on Referral of Case Under Rule 11bis, Case No. IT-97-25/1-PT, Referral Bench, 8 July 2005, para. 110; Prosecutor v. Mejakic, Gruban, Fustar and Knezevic, Decision on Prosecutor's Motion for Referral of Case Pursuant to Rule 11bis, Case No. IT-02-65-PT, Referral Bench, 20 July 2005, para. 134.
Prosecutor v. Ademi and Norac, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11bis, Case No. IT-04-78-PT, Referral Bench, 14 September 2005, para. 57 (emphasis added).
Stankovic case, supra n. 37, at para. 50.
For a different view, see Williams, supra n. 3, at p. 219.
Rasevic and Todovic case, supra n. 30, at para. 105. See also Stankovic case, supra n. 37, at para. 51.
Stankovic case, supra n. 37, at para. 40.
See infra section 6.
Bagaragaza case, supra n. 8, at para. 12.
Prosecutor v. Bagaragaza, Decision on Rule 11bis Appeal, Case No. ICTR-05-86-AR-11bis, 30 August 2006, para. 16 (emphasis added).
Mejakic at al. case, supra n. 30, at para. 60 (emphasis added).
Rule 11bis (B) of the ICTR's RPE.
A hidden-agenda reading of that clause would imply that the final destination of the accused, via a third state, could be Rwanda.
The Judges of the ICTR perhaps feared that a hypothetical decision that explicitly qualified certain genocidal crimes as being less grave than others would have irritated the Rwandan government. On the other hand, if the ICTR had so qualified some of the crimes committed by the Rwandan Patriotic Front - if and when these crimes are made the object of an indictment (see L. Reydams, 'The ICTR Ten Years On: Back to the Nuremberg Paradigm', 3 JICJ (2005) p. 977) -, it would have exposed itself to the charge of bias in favour of the victors.
UN Doc. S/RES/1534, 26 March 2004, para. 6.
UN Doc. S/RES/1503, 28 August 2003, 7th recital (which calls on the ICTY to concentrate 'on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY's jurisdiction and [transfer] cases involving those who may not bear this level of responsibility to competent national jurisdictions').
Rules of Procedure and Evidence, UN Doc. IT/32/REV.26, 12 December 2002.
Cf., Statement by the President of the Security Council, UN Doc. S/PRST/2002/21, 23 July 2002.
Report, supra n. 41, at para. 42.
Art. 1 of the ICTY Statute; Art. 1 of the ICTR Statute.
Cf., Williams, supra n. 3, at p. 202.
See Prosecutor v. Lubanga Dyilo (Situation in the Democratic Republic of the Congo), Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of Case against Mr Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Pre-Trial Chamber I, 24 February 2006, paras. 55-63.
Stankovic case, supra n. 49, at para. 18.
Ademi and Norac case, supra n. 50, at para. 28.
Prosecutor v. Ljubicic, Decision to Refer the Case to Bosnia and Herzegovina Pursuant to Rule 11bis, Case No. IT-00-41-PT, Referral Bench, 12 April 2006, para. 18. See also Mejakic et al. case, supra n. 49, at para. 21; Kovacevic case, supra n. 56, at para. 20.
Jankovic case, supra n. 49, at para. 19.
Prosecutor v. Dragomir Milosevic, Decision on Referral of Case Pursuant to Rule 11bis, Case No. IT-98-29/1-PT, Referral Bench, 8 July 2005, para. 24.
Ademi and Norac case, supra n. 50, at para. 29.
Ljubicic case, supra n. 85, at para. 19.
Ademi and Norac case, supra n. 50, at paras. 29-30. See also Kovacevic case, supra n. 56, at para. 20 ('while the Accused may have been in command of others, this was at a battalion level, whereas the military operation in the Dubrovnik area was carried out by a much larger force of the [Yugoslav Peoples' Army]. Two other individuals, each more senior in military rank than the Accused, have already been convicted for their role in the attack on Dubrovnik').
Mejakic et al. case, supra n. 49, at para. 26.
Jankovic case, supra n. 49, at para. 19.
Milosevic case, supra n. 87, at para. 22.
Mejakic et al. case, supra n. 49, at para. 24.
Cf., Milosevic case, supra n. 87, at para. 11.
Conversely, the fact that the ICTY has had no opportunity to take cognizance of the facts underlying the case to be referred is irrelevant for purposes of referral, as the Appeals Chamber made clear in Rasevic and Todovic II (supra n. 30, at paras. 28-30).
Mrksic et al. case, supra n. 24 (not paragraphed).
See infra sections 6 and 7.
Mejakic et al. case, supra n. 49, at para. 40.
Jankovic case, supra n. 49, at para. 23; Mejakic et al. case, supra n. 49, at para. 39.
Williams, supra n. 3, at pp. 194-201.
Mejakic et al. case, supra n. 49, at para. 40. The Prosecutor put forward the same argument, without success, in the Ljubicic case, supra n. 85, at para. 25.
Ljubicic case, supra n. 85, at para. 28. See also Mejakic et al. case, supra n. 49, at para. 40.
Ljubicic case, supra n. 85, at para. 28 (emphasis added).
Mejakic et al. case, supra n. 49, at para. 41 (emphasis added).
Hypothesis III retains some plausibility only if one is ready to admit that the Referral Bench, in the cases so far decided, has always implied that jurisdictional considerations weighed so much in favour of Bosnia and Herzegovina as to render the assessment of other factors dispensable within the context of a balancing exercise.
Jankovic case, supra n. 49, at para. 26 (emphasis added). See also Mejakic et al. case, supra n. 49, at para. 42; Rasevic and Todovic case, supra n. 49, at para. 33; Ljubicic case, supra n. 85, at para. 27.
Art. 14(5) ICCPR.
Art. 14(4) ICCPR.
Art. 14(7) ICCPR.
See supra text at n. 112.
Art. 4(1) of Protocol 7 stipulates that '[n]o one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State'.
See supra text at n. 112.
Rule 11bis (F) (emphasis added).
Advisory Opinion of 20 December 1980, ICJ Rep. (1969) p. 73, para. 37.
See, recently, A. Reinisch, 'The Changing International Legal Framework for Dealing with Non-State Actors', in P. Alston, ed., Non State-Actors and Human Rights (Oxford, Oxford University Press 2005) p. 37 at p. 46; K. Wellens, Remedies Against International Organisations (Cambridge, Cambridge University Press 2002) p. 1; V.-D. Degan, 'On the Sources of International Criminal Law', 4 Chinese JIL (2005) p. 45 at pp. 82-83; C.F. Amerasinghe, Principles of the Institutional Law of International Organisations (Cambridge, Cambridge University Press 2005) p. 400; G. Werle, Principles of International Criminal Law (The Hague, T.M.C. Asser Press 2005) p. 42.
On the status of the ad hoc Tribunals within the UN, see Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, Appeals Chamber, 2 October 1995, para. 15.
For an extensive treatment of the issue and further references, see L. Gradoni, 'International Criminal Courts and Tribunals: Bound by Human Rights Norms. or Tied Down?', 19 LJIL (2006) p. 847.
Barayagwiza v. Prosecutor, Decision, Case No. ICTR-97-19-A, Appeals Chamber, 3 November 1999, para. 40.
Kajelijeli v. Prosecutor, Judgement, Case No. ICTR-98-44A-A, 23 May 2005, Appeals Chamber, para. 209.
Human Rights Committee, Cox v. Canada, Communication No. 539/1993, UN Doc. CCPR/C/52/D/539/1993, 9 December 1994, Individual Opinion of Mrs. Rosalyn Higgins, cosigned by Messers. Laurel Francis, Kurt Herndl, Andreas Mavrommatis, Birame Ndiaye and Waleed Sadi (dissenting), appended to the Committee's Decision on Admissibility of 3 November 1993. The decisions of the HRC are available at < www.unhchr.ch/tbs/doc.nsf >.
Kindler v. Canada, Communication No. 470/1991, UN Doc. CCPR/C/48/D/470/1991, 18 November 1993, para. 6.2. On the HRC's jurisprudence concerning prospective-victim violations see, inter alia, W.A. Schabas, 'Soering's Legacy: The Human Rights Committee and the Judicial Committee of the Privy Council Take a Walk Down the Death Row', 43 ICLQ (1994) p. 913; M. De Merieux, 'Extradition as a Violation of Human Rights: The Jurisprudence of the International Covenant on Civil and Political Rights', 14 Netherlands Quarterly of Human Rights (1996) p. 23; F. Pocar, 'Patto internazionale sui diritti civili e politici ed estradizione', in F. Salerno, ed., Diritti dell'uomo, estradizione ed espulsione (Padova, Cedam 2003) p. 79; W. Kälin, 'Limits to Expulsion under the International Covenant on Civil and Political Rights', ibidem, at p. 143, esp. at pp. 154 et seq.; W.A. Schabas, 'From Kindler to Burns: International Law Is Nourishing the Constitutional Living Tree', in G. Cohen-Jonathan and W. Schabas, eds., La peine capitale et le droit international des droits de l'homme (Paris, Panthéon-Assas 2003) p. 143.
Judge v. Canada, Communication No. 829/1998, CCPR/C/78/D/829/1998, 20 October 2003, para. 10.4.
Text at n. 127 (emphasis added). The ECtHR similarly held that 'in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant Convention guarantee' (Soering v. United Kingdom, Judgment of 7 July 1989, para. 85). The judgment of the ECtHR can be found at < http://cmiskp.echr.coe.int/tkp197/default.htm >.
See, e.g., J. Dugard and C. Van den Wyngaert, 'Reconciling Extradition With Human Rights', 92 AJIL (1998) p. 187 at p. 204 ('The conduct of criminal proceedings is accepted as a matter falling within the domaine réservé of states. While there is a near consensus that certain forms of treatment and punishment are contrary to international norms, there is less agreement about the international norms of fairness in criminal trials because criminal proceedings are essentially the product of a nation's history, traditions and legal culture. Consequently, requested states will normally accord a wide margin of appreciation to the requesting state when accusations are levelled at its standards of criminal justice, and courts of the requested state will probably refuse extradition only where there is clear evidence of a flagrant and systematic denial of fair trial rights in the requesting state'). In the authors' view, requests for assurances and the making of arrangements for post-extradition monitoring are 'less judgmental' of the requesting state's criminal justice system 'than outright refusal of the extradition request' (ibidem, at p. 208).
Supra n. 133, at p. 210. Cf., S. Zühlke and J.C. Pastille, 'Extradition and the European Convention - Soering Revisited', 59 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1999) p. 749 at p. 783 ('all rights of the Convention must apply in the context of extradition and expulsion because of their structural and legal equality. However. [t]he legitimate interests of the state must be held directly against the freedoms the individual derives from every provision. This is. where the two polarities of the Soering judgment are reconciled: Foreseeable extraterritorial effects of extradition are imputed to the State and described in terms of all the Conventional freedoms, but may be justified by the interests of the State pertaining to extradition and expulsion. In other words: The Court expanded the scope of the Convention into extradition, but contained the expansion by directly balancing the State's interest against those of the individual'). Also see the concurring opinion of Judge Matscher in ECtHR, Drodz and Janousek v. France and Spain, Judgment of 26 June 1992 ('According to the Court's case law, certain provisions of the Convention do have what one might call an indirect effect, even where they are not directly applicable. Thus, for example, a State may violate [Article 6] of the Convention by ordering a person to be extradited or deported to a country. where he runs a real risk of suffering treatment contrary to [that provision]. This must clearly be a flagrant breach of Article 6. or, to put it differently, Article 6. has in its indirect applicability only a reduced effect, less than that which it would have if directly applicable').
Kindler case, supra n. 127, at para. 6.2. See also Ng case, supra n. 134, at para. 6.2.
Cf., Kindler case, supra n. 127, at para. 6.2 ('For example, a State party would itself be in violation of the Covenant if it handed over a person to another State in circumstances in which it was foreseeable that torture would take place').
G.T. case, supra n. 128, at para. 5.13. See also A.R.J. case, supra n. 128, at para. 4.12.
Soering case, supra n. 130, at para. 113. On the Soering case, see C. Van den Wyngaert, 'Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?', 39 ICLQ (1990) p. 757; F. Sudre, 'Extradition et peine de mort: Arrêt Soering de la Cour européenne des droits de l'homme du 7 juillet 1989', 94 RGDIP (1990) p. 103; W.J. Ganshof Van der Meersch, 'L'extradition et la Convention européenne des droits de l'homme', 1 Revue trimestrielle des droits de l'homme (1990) p. 5; R.B. Lillich, 'The Soering Case', 85 AJIL (1991) p. 128, esp. p. 131 (European Commission's practice prior to Soering); V. Starace, 'Convenzione europea dei diritti dell'uomo ed estradizione', in Salerno, supra n. 127, at p. 97.
A.R.J. case, supra n. 128, at para. 6.15.
Cf., S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and Political Rights. Cases, Materials and Commentary (Oxford, Oxford University Press 2004) p. 94.
Mamatkulov and Abdurasulovic v. Turkey, Judgment of 6 February 2003, para. 67.
Mamatkulov and Askarov v. Turkey, Judgment of 4 February 2005, Joint Partly Dissenting Opinion, para. 14.
Mamatkulov and Askarov case, supra n. 147, at para. 91 ('there is not sufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice').
Bader and Others v. Sweden, Judgment of 8 November 2005, paras. 42-47, esp. para. 42 ('in the instant case, it transpires from the Syria judgment that no oral evidence was taken at the hearing, that all the evidence was submitted by the prosecutor and that neither the accused nor even his defence lawyer was present at the hearing').
Öcalan v. Turkey, Judgment of 12 March 2003, para. 212, confirmed by Judgment of 12 May 2005 (Grand Chamber), para. 174.
Tomic v. United Kingdom, Decision on Admissibility of 14 October 2003 (not paragraphed): 'The Court does not exclude that an issue might exceptionally be raised under Article 6 by an expulsion decision in circumstances where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country, particularly where there is the risk of execution.'
Rasevic and Todovic case, supra n. 49, at para. 36.
Idem, at para. 49 ('Article 4a was enacted in 2004 and had no comparable counterpart in the [Criminal Code of the Socialist Federal Republic of Yugoslavia]. Whether it would apply retroactively, and if so, how it should be interpreted and applied would be matters for the State Court of Bosnia and Herzegovina to determine if the case is referred. If Article 4a is applied retroactively, consideration would need to be given to whether the acts alleged in the Indictment were criminal at the time of commission according to general principles of international law'). See also Stankovic case, supra n. 49, at para. 45; Jankovic case, supra n. 49, at para. 41; Mejakic et al. case, supra n. 49, at para. 62.
See Jankovic case, supra n. 49, at para. 41; Stankovic case, supra n. 49, at para. 45; Rasevic and Todovic case, supra n. 49, at para. 49; Mejakic et al. case, supra n. 49, at para. 62.
Mejakic et al. case, supra n. 49, at para. 109.
See, e.g., Stankovic case, supra n. 49, at para. 53.
See, e.g., Ljubicic case, supra n. 85, at paras. 45-48.
Stankovic case, supra n. 49, at para. 34 (emphasis added). See also Ljubicic case, supra n. 85, at para. 47; Prosecutor v. Ljubicic, Decision on Appeal Against Decision on Referral Under Rule 11bis, Case No. IT-00-41-AR1bis.1, Appeals Chamber, 4 July 2006, para. 43.
Cf., Art. 12(2)(d) of the International Covenant on Economic, Social and Cultural Rights.
Kovacevic case, supra n. 56, at para. 50.
A. Cassese, 'Procès équitable et juridictions pénales internationales', in M. Delmas-Marty, H. Muir Watt and H. Ruiz Fabri, eds., Variations autour d'un droit commun. Premières rencontres de l'UMR de droit comparé de Paris (Paris, Société de législation comparée 2002) p. 245
Ademi and Norac case, supra n. 50, at para. 56.
Organization for Security and Co-operation in Europe Mission to Croatia, 'Background Report: Domestic War Crimes Trials', 26 April 2005, p. 3. Compare the Decision of the ECtHR in the Tomic case, supra n. 152 (not paragraphed): 'Although concerns have been expressed in the past as to the arbitrary arrest of suspected war criminals and the fairness of certain mass trials and trials of persons in absentia, it is apparent that steps have been taken recently by the Croatian authorities to introduce measures to check abuses. It is also apparent that the numbers of arrests of returnees on charges of war crimes and the numbers of those in detention pending trial are relatively small, with monitoring by various international organisations to verify fairness of procedures. Nor can it be regarded as insignificant in the circumstances of this case that Croatia is a Contracting State which has accepted obligations to provide procedural guarantees and effective remedies in respect of breaches of the European Convention of Human Rights. Against this background and given the lack of any concrete indication that this applicant is likely to be arrested as a suspected perpetrator of war crimes, the Court does not find that the risk of arbitrary or unfair procedures reaches the flagrant level necessary for the threatened expulsion to raise issues under Articles 5 or 6.'
Background Report, supra n. 169, at pp. 4-5.
OSCE Mission to Croatia, 'Background Report on Domestic War Crimes Prosecutions, Transfer of ICTY Proceedings and Missing Persons', 12 August 2005, p. 6.
OSCE Mission to Croatia, 'Supplementary Report: War Crime Proceedings in Croatia and Findings from Trial Monitoring', 22 June 2004, p. 14 (in the English translation provided by the OSCE, the sentencing decision reads: '[I]n the first place. this criminal offence was committed during the war that was imposed on us. This was a defensive and just war, the war for Croatian independence. All three defendants took active part in the defence and, together with many known and unknown defenders, defended Gospic and prevented its fall. So the circumstance that was particularly considered as a special mitigating circumstance is their contribution to the Croatian War of Independence').
Ademi and Norac case, supra n. 50, at para. 53.
See HRC, 'General Comment No. 31: Nature of the General Legal Obligation Imposed on State Parties to the Covenant', UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 18 ('Where. investigations. reveal violations of certain Covenant rights, State Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment. summary and arbitrary killing. and enforced disappearances.'). At the regional level, the leading case is Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, Judgment of 29 July 1988, 28 ILM (1989) p. 291. See also, among many others, ECtHR, Yaman v. Turkey, Judgment of 2 November 2004, para. 53 ('Where an individual has an arguable claim that he has been tortured or subjected to serious ill-treatment by agents of the State, the notion of an "effective remedy" entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible'). Cf., C. Tomuschat, 'Reparation for Victims of Grave Human Rights Violations', 10 Tulane J of Int'l & Comp. L (2002) p. 157 at p. 166 ('Only where the life and personal integrity, or the freedom of a victim has been injured can it be deemed to be compulsory to institute criminal proceedings'). For a comprehensive treatment of the subject-matter, see F. Bestagno, Diritti umani e impunità: obblighi positivi degli Stati in materia penale (Milan, Vita e Pensiero 2003) esp. pp. 45-73, 90-146, 251-260.
See supra section 2.2.1.
See supra section 4.
See supra n. 5.
OSCE Mission to Bosnia and Herzegovina, 'War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles', March 2004, p. 6. In October 2004, the ICTY Prosecutor handed over the monitoring task to the state authorities in Bosnia and Herzegovina. Under national law, the latter may approve prosecutions at the cantonal or district level on condition that 'the evidence is sufficient by international standards to provide reasonable grounds for the belief that [person concerned] may have committed. serious violations of international humanitarian law' (ibidem).
The possibility of invoking financial distress as a circumstance precluding the wrongfulness of an international organisation's act is considered under the heading of force majeure in G. Gaja, 'Fourth Report on Responsibility of International Organisations', UN Doc. A/CN.4/564, 28 February 2006, p. 11, para. 31.
Assessment and Report, supra n. 2, at para. 38 (emphasis added).
See, e.g., Stankovic case, supra n. 49, at para. 56; Ademi and Norac case, supra n. 50, at para. 55.
Mejakic et al. case, supra n. 49, at para. 79.
Stankovic case, supra n. 49, at paras. 56-65; Mejakic et al. case, supra n. 49, at paras. 69-78; Rasevic and Todovic case, supra n. 49, at paras. 73-82; Kovacevic case, supra n. 56, at paras. 69-79.
See supra section 3.
Mejakic et al. case, supra n. 49, at para. 91.
Jankovic case, supra n. 49, at para. 77 (emphasis added).
Rasevic and Todovic case, supra n. 49, at para. 91.
Mejakic et al. case, supra n. 30, at para. 64.
Mejakic et al. case, supra n. 49, at para. 81: 'This observation is unaffected by the 2003 Report of "War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles" published by the Organisation for Security and Cooperation in Europe Mission to Bosnia and Herzegovina ("OSCE Report"). The Referral Bench notes that its focus is on the obstacles faced by the judiciary, until recently, within the entities of Bosnia and Herzegovina in hearing war crime cases, but does not comment on the functioning of the newly created War Crimes Chamber of the State Court. Further in this context, the OSCE Report submits that the ultimate success for prosecuting war crimes in Bosnia and Herzegovina will depend upon, inter alia, an effective War Crimes Chamber of the State Court.' See also Ljubicic case, supra n. 163, at para. 43 ('particularly in light of the uncertainty about when the new prison discussed above will be completed, the Appeals Chamber expects that the Prosecution will mention in its reports to the Referral Bench any serious issues with regard to the conditions of pre-trial or post-conviction detention').
Stankovic case, supra n. 37, at para. 52. See also Rasevic and Todovic II case, supra n. 30, at para. 83.
Mejakic et al. case, supra n. 49, at para. 113 ('It is not apparent, in this hypothetical situation, why present defence counsel would not efficiently pass to the new attorney the work product of the case').
Prosecutor v. Rasevic and Todovic, Decision on Rule 11bis Referral, 31 May 2006 (unpublished).
'Court of Bosnia and Herzegovina Renders First Judgement in a Case Transferred by the Tribunal', Press Release No. JP/MOW/1126e, 14 November 2006.
The same Article also stipulates that '[i]f the criminal offense concerned the criminal offense of the terrorism, it shall be considered that there is assumption, which could be disputed, that safety of public and property is threatened'.
Rasevic and Todovic II case, supra n. 30, at para. 117.
See supra section 6.
Rasevic and Todovic II case, supra n. 30, at para. 110.
