The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From ‘No Peace without Justice’ to ‘No Peace with Victor's Justice’?

Leiden Journal of International Law

Volumn 18, Issue 4, 2005, Pages 829-869

  Rojo, Enrique Carnero ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

Author keywords

admissibility; complementarity; fair trial; International Criminal Court; international justice; primacy; sham trials; unwillingness

Indexed keywords

EID: 85011427101     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S092215650500302X     Document Type: Article

References (181)

1. R. H. Jackson, ‘The Rule of Law among Nations’, speech delivered on 13 April 1945, (1945) 31 American Bar Association Journal 290, available at http://www.roberthjackson.org/theman2-7-7-1.asp.
2. On the unfairness of trials before ordinary Rwandan courts, see Amnesty International, ‘Rwanda: Unfair Trials, Justice Denied’, 8 April 1997, AFR 47/08/97, and ‘Rwanda: The Troubled Course of Justice’, 26 April 2000, AFR 47/10/00, 3-5. On the unfairness of Gacaca trials, see Amnesty International, ‘Gacaca: A Question of Justice’, 17Dec. 2002, AFR 47/007/2002, 34-40; and GjilanDistrictCourt (Kosovo),Decision on Extradition Request, Case No. P.H.H. 2/2001, 6 June 2001 (on file with author) (Rwandan request for extradition of a member of the personnel of UNMIK denied on the grounds inter alia that the extradition could result in an infringement on the part of UNMIK authorities of Art. 6 of the European Convention on Human Rights, by exposing the individual in question to inadequate guarantees for a fair trial in Gacaca proceedings), affirmed by the same district court sitting in panel, Case No. KP. 66/01, 11 June 2001 (on file with author).
3. See Human Rights Watch, ‘Justice Denied for East Timor: Indonesia's Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of UN Action’, 20 Dec. 2002, available at http://www.hrw.org/backgrounder/asia/timor/etimor1202bg.htm; and UNHCHR, Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World: Situation of Human Rights in Timor-Leste, Report of the United Nations High Commissioner for Human Rights, 4 March 2003, UN Doc. E/CN.4/2003/37, paras. 52-55.
4. J. Hongju Koh, ‘The Case against Military Commissions’, (2002) 96 AJIL 337, at 338-9; J. Fitzpatrick, ‘Jurisdiction of military commissions and the ambiguous war on terrorism’, (2002) 96 AJIL 345, at 351-2; Amnesty International, ‘A Deepening Stain on US Justice’, 19 Aug. 2004, AMR 51/130/2004.
5. Amnesty International and Judicial System Monitoring Programme, ‘Indonesia & Timor-Leste: Justice for Timor-Leste: The Way Forward’, 1 April 2004, ASA 21/006/2004, at 38, 43 and 47. For similar cases in Croatia, see Amnesty International, ‘A Shadow on Croatia's Future: Continuing Impunity for War Crimes and Crimes against Humanity’, 13 Dec. 2004, EUR 64/005/2004, 12. For Bosnia, see OSCE, ‘War Crimes Trials before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles’, March 2005, available at http://www.oscebih.org/documents/1407-eng.pdf (hereafterWar Crimes Trials before the Domestic Courts of BiH), 37.
6. A. Obote-Odora, ‘Competenceof theInternational CriminalTribunal forRwanda’, (1999)6MurdochUniversity Electronic Journal of Law 3, available at http://www.murdoch.edu.au/elaw/issues/v6n3/obote-odora63.html, paras. 85-89.
7. ‘War Crimes Trials before the Domestic Courts of BiH’, ‘Competenceof theInternational CriminalTribunal forRwanda’ note 6, at 4.
8. OSCE, ‘Supplementary Report: War Crime Proceedings in Croatia and Findings from Trial Monitoring’, 22 June 2004, available at http://www.osce.org/documents/mc/2004/06/3165 en.pdf, 14. For particular cases, see Amnesty International, ‘Short-changing Justice: War Crimes Trials in Former Yugoslavia’, December 1998, EUR 64/10/98 (Mirko Graorac case); and ‘Short-changing Justice: the ‘Šodolovci’ Group’, 1 Dec. 1999, EUR 64/06/99 ('Šolodovci Group’ case).
9. OSCE, ‘Review of the Criminal Justice System: 1 February 2000-31 July 2000’, available at http://www. osce.org/kosovo/documents/reports/justice/criminal justice.pdf, 66-9. See also ‘Kosovo'sWarCrimesTrials’, OSCE note 2, at 54, where it is shown that panels composed only of local judges found the accused guilty as charged in 89 per cent of the cases they decided between July 2000 andMay 2002, whereas panels composed of international judges found the accused guilty in only 15 per cent of the cases they decided during that time.
10. Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9, 17 July 1998, corrected by procè sverbaux of 10Nov. 1998, 12 July 1999, 30Nov. 1999, 8May 2000, 17 Jan. 2001 and 16 Jan. 2002 (hereafter Rome Statute or Statute), available at http://www.un.org/law/icc/statute/english/rome statute(e).pdf.
11. For the consideration of these circumstances as related to the ‘inability’ of a state genuinely to investigate or prosecute (Art. 17(3) of the Rome Statute), see S. Zappala’, Human Rights in International Criminal Proceedings (2003), 6.
12. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 6 Sept. 1995, UN GAOR, 50th session, Supp. No. 22, UN Doc. A/50/22 (1995) (hereafter 1995 Report of the AdHoc Committee), para. 29; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I (Proceedings of the Preparatory Committee during March-April and Aug. 1996), 13 Sept. 1996, UN GAOR, 51st session, Supp. No. 22, UN Doc. A/51/22 (1996) (hereafter 1996 Preparatory Committee Report, I), para. 153.
13. For the view that complementarity can also play a role in relation to the so-called ‘internationalized’ criminal jurisdictions, see M. Benzing and M. Bergsmo, ‘Some Tentative Remarks on the Relationship between Internationalized Criminal Jurisdictions and the International Criminal Court’, in C. P. R. Romano, A. Nollkaemper, and J. K. Kleffner (eds.), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (2004), 407 at 412; and F. Pocar, ‘The Proliferation of International Criminal Courts and Tribunals: A Necessity in the Current International Community’, (2004) 2 Journal of International Criminal Justice 304, at 306.
14. J. Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, (1995) 89 AJIL 404, at 414-15; M. M. El Zeidy, ‘The Principle of Complementarity: A NewMachinery to Implement International Criminal Law’, (2002) 23 Michigan Journal of International Law 869, at 896.
15. W.W. Burke-White, ‘ACommunity of Courts: Toward a System of International Criminal Law Enforcement’, (2003) 24Michigan Journal of International Law 1, at 89; and H. Olá solo, ‘The Prosecutor of the ICC before the Initiation of Investigations:AQuasi-JudicialoraPolitical Body?’, (2003)3InternationalCriminalLawReview87, at 97, prefer to use the term ‘subsidiarity’, in the consideration of the ‘unwillingness’ or ‘inability’ of the state concerned.
16. J. L. Bleich, ‘The International Criminal Court: Report of the ILA Working Group on Complementarity’, (1997) 25 Denver Journal of International Law and Policy 281, at 281.
17. ICC-OTP, ‘Experts Group Reflection Paper for theOffice of the Prosecutor: The Principle of Complementarity in Practice’, 2003, available at http://www.icc-cpi.int/library/organs/otp/complementarity.pdf, para. 18.
18. Rome Statute, Art. 17(1)(a) and (b) ('Issues of admissibility').
19. Rome Statute., Art. 17(2).
20. Rome Statute., Art. 20(3) ('Ne bis in idem').
21. Rome Statute, Art. 5 ('Crimes within the jurisdiction of the Court').
22. Rome Statute., Art. 11 ('Jurisdiction ratione temporis').
23. Rome Statute., Arts. 12(2) ('Preconditions to the exercise of jurisdiction') and 124 ('Transitional Provision').
24. Rome Statute., Arts. 17(2)(b)(c) and 20(2)(b).
25. Rome Statute, Art. 21(1) ('Applicable law').
26. W. A. Schabas, An Introduction to the International Criminal Court (2001), at 74. See also ‘The Principle of Complementarity in Practice’, Rome Statute note 18, Annex 2.
27. Vienna Convention on the Law of Treaties (hereafter Vienna Convention), 23 May 1969, 1155 UNTS 331, 340, Art. 31(1) ('General Rule of Interpretation').
28. Vienna Convention on the Law of Treaties (hereafter Vienna Convention)., Art. 32 ('Supplementary means of interpretation').
29. The Oxford English Dictionary (2001) explains the phrase ‘bring someone to justice’ as ‘arrest and try someone in court for a crime’.
30. See, e.g., the French ('l'intention de traduire en justice la personne concerné e') and Spanish ('la intenció n de hacer comparecer a la persona de que se trate ante la justicia') versions of Article 17(2)(b) and (c).
31. Merriam-Webster's Dictionary of Law (1996) defines ‘justice’ inter alia as ‘fair, just, or impartial legal process’ and as ‘the administration of law; especially: the establishment or determination of rights according to law or equity’ (citations omitted).
32. The Oxford English Dictionary (2001). Black's Law Dictionary (1999) defines ‘genuine’ inter alia as ‘authentic or real; something that has the quality of what it is purported to be or to have’.
33. ‘The Principle of Complementarity in Practice’, The Oxford English Dictionary note 18, Annex 2, para. 23 ('It was extremely important to many States that proceedings cannot be found “non-genuine” simply because of a comparative lack of resources or because of a lack of full compliance with all human rights standards. The issue is whether the proceedings are so inadequate that they cannot be considered “genuine” proceedings').
34. Doctrinal writings indicate that the ‘context’ for interpretation under Art. 31 of the Vienna Convention is the treaty as awhole, not merely a paragraph, an article, a section, or a part of the treaty. See Sir I. Sinclair, The Vienna Convention on theLawofTreaties (1984), 127;D.Nguyen Quoc, P.Daillier, and A. Pellet, Droit international public (1992), 252-3.
35. Rome Statute, Preamble, paras. 5 and 9.
36. Rome Statute, Arts. 8(2)(a)(vi) (war crime of denying a fair trial in the context of an armed conflict of international character), and 8(2)(c)(iv) (war crime of sentencing or execution without due process in the context of an armed conflict not of an international character), based on Art. 129 in fine of Geneva Convention III, Art. 147 of Geneva Convention IV and Art. 85(4)(e) of Additional Protocol I. See also Rome Statute, Arts. 7(1)(h) (crime against humanity of persecution), and 7(1)(j) (crime against humanity of apartheid); and United States of America v. Alstötter et al. ('Justice trial'), Judgment, 3 Dec. 1948, (1948) 3 TWC 1, 6 LRTWC 1, 14 ILR 278.
37. Rome Statute, Preamble, para. 10.
38. Vienna Convention, Rome Statute note 29, Art. 32 ('Supplementary means of interpretation').
39. Report of the International Law Commission on the Work of the Second Part of its Seventeenth Session, 4 May-19 July 1966, ILC Yearbook 1966, Vol. II, Draft Articles on the Law of Treaties, UN Doc. A/CN.4/SER.A/1966/Add.1, paras. 219-220.
40. Report of the International Law Commission on theWork of Its Forty-Fifth Session, 3May-23 July 1993, UN GAOR,48th session,Suppl.No. 10,UNDoc.A/48/10 (1993),Annex,SectionB,Draft statute foraninternational criminal tribunal and commentaries thereto (hereafter 1993 ILC draft statute).
41. Report of the International Law Commission on the Work of Its Forty-Sixth Session, 2 May-22 July 1994, UN GAOR, 49th session, Supp. No. 10, UN Doc. A/49/10 (1994), Part II.B.I.5, Draft Statute for an International Criminal Court (hereafter 1994 ILC draft statute).
42. Report of the International Law Commission on the Work of Its Forty-Sixth Session., Arts. 35 and 42(2). Article 42 was an almost verbatim copy of Article 45 ('Double jeopardy (non bis in idem)') of the 1993 ILC draft statute, Report of the International Law Commission on the Work of Its Forty-Sixth Session note 43, at 121-2.
43. 1994 ILC draft statute, Report of the International Law Commission on the Work of Its Forty-Sixth Session note 44, at 106, para. 91.
44. ILC draft statute., preamble, paras. 2 and 4 (emphasis added).
45. ILC draft statute., 119, para. 91. The commentary on Article 45 of the 1993 ILC draft statute, ILC draft statute note 43, at 121, argued the need for this provision by reference to some of the war crimes trials in national courts after the First and SecondWorldWars. The commentary on Article 12 of the 1996 draft Code of Crimes against the Peace and Security ofMankind ('Non bis in idem'), equally drafted on the basis ofArticle 10 of the ICTY Statute, conveyed the same idea as Article 42(2) of the 1994 ILC draft statute. See Report of the International Law Commission on theWork of Its Forty-Sixth Session, 2 May-22 July 1994, UN GAOR, 49th session, Supp. No. 10, UN Doc. A/49/10 (1994), Part II.B.II, Draft Code of Crimes against the Peace and Security of Mankind, 180, para. 160; and Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996, UN GAOR, 51st session, Supp. No. 10, UN Doc. A/51/10 (1996), Part II.D, Draft Code of Crimes against the Peace and Security of Mankind, available at http://www.un.org/law/ilc/reports/1996/chap02.htm, 67, para. 50.
46. 1994 ILC draft statute, ILC draft statute note 44, at 117, para. 91.
47. Statute of the International Criminal Tribunal for the former Yugoslavia, UN Security Council Resolution 827 (1993), 25 May 1993, UN Doc. S/RES/827 (1993) (hereafter ICTY Statute), available at http://www.un.org/icty/basic/statut/stat11-2004.htm, Art. 10(2)(b).
48. In favour of this interpretation see Lawyers Committee for Human Rights, ‘Prosecuting War Crimes in the Former Yugoslavia: the International Tribunal, National Courts and Concurrent Jurisdiction: A Guide to Applicable InternationalLaw,National Legislation and itsRelation to InternationalHumanRights Standards (IV)’,May 1995, which suggests ‘guidelines according to which national war crimes trials should be carried out inorder to assess whether there are reasons for deferral to the competence of theTribunal or for the retrial of the case by the Tribunal’, cited in D. Beane, ‘The Yugoslav Tribunal and Deferral of National Prosecutions ofWar Criminals’, ASIL Insight, Sept. 1996, available at http://www.asil.org/insights/insight4.htm.
49. Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993, UN Doc. S/25704, 17, para. 66.
50. Recommendations of the Organisation of the Islamic Conference on the establishment of an ad hoc InternationalWar Crimes Tribunal for the territory of the former Yugoslavia, 5 April 1993, UN Doc. A/47/920*, S/25512*, Annex, Art. III(9); United States Draft charter of the international tribunal for violations of international humanitarian law in the former Yugoslavia, 12 April 1993, UN Doc. S/25575, Annex II, Art. 12.
51. Provisional verbatim record of the three thousand two hundred and seventeenth meeting, 25May 1993, UN Doc. S/PV.3217, at 11 (statement by France), 16 (United States of America), 18-19 (United Kingdom) and 46 (Russian Federation).
52. UN General Assembly Resolution 49/53, 9 Dec. 1994, UN Doc. A/RES/49/53, para. 2.
53. Comments of Governments on the Report of the Working Group on a Draft Statute for an International Criminal Court, 18 Feb. 1994, UN Doc. A/CN.4/458/Add.1, at 9 (New Zealand); 11 March 1994, UN Doc. A/CN.4/458/Add.2, at 20 (Yugoslavia); 25 March 1994, UN Doc. A/CN.4/458/Add.3*, at 2-3 (Chile), and 9 (Germany).
54. Report of the International LawCommission on theWork of Its Forty-Sixth Session (1994), Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during Its Forty-Ninth Session, Addendum, 22 Feb. 1995, UN Doc. A/CN.4/464/Add.1, paras. 8, 159-60.
55. Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53 on the Establishment of an International Criminal Court, Report of the Secretary-General, 20March 1995, UN Doc. A/AC.244/1, at 10-11 (China); 30March 1995, UN Doc. A/AC.244/1/Add.1, at 4 (Czech Republic), and 6 (Sudan).
56. Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53, Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53 on the Establishment of an International Criminal Court note 59, UN Doc. A/AC.244/1, at 18 (Switzerland); 31 March 1995, UN Doc. A/AC.244/1/Add.2, at 10 (United States); 3 April 1995, A/AC.244/1/Add.3, at 3 (Libya); and Summary of observationsmade by the Representative of theUnited Kingdom of Great Britain and Northern Ireland on 3, 4, 5, 6 and 7 April 1995, 7 April 1995, Press Release No. 32/95 (on file with author), at 9.
57. Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53, Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53 note 60, UN Doc. A/AC.244/1/Add.2, at 21-2.
58. Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53., at 5.
59. Summary of the Proceedings of the AdHoc Committee during the Period 3-13 April 1995, 21 April 1995, UN Doc. A/AC.244/2, paras. 48, 88 and 106.
60. 1995 Report of the Ad Hoc Committee, Summary of the Proceedings of the AdHoc Committee during the Period 3-13 April 1995 note 13, paras. 41, 43, 45, 162, 177 and 180.
61. UN General Assembly Resolution 50/46, 11 Dec. 1995, UN Doc. A/RES/50/46, para. 2.
62. UN General Assembly Resolution 51/207, 17 Dec. 1996, UN Doc. A/RES/51/207, para. 4.
63. 1996 Preparatory Committee Report, I, UN General Assembly Resolution 51/207 note 13, para. 8.
64. United Kingdom, Discussion Paper, International Criminal Court: Complementarity, 29 March, para. 16, revised draft Art. 35(1) (original capitals in themargins) (on file with author).
65. United Kingdom., paras. 2 and 18.
66. United Kingdom., para. 16.
67. For a summary of these meetings, see ‘Preparatory Committee on International Criminal Court Discusses ComplementaritybetweenNational, International Jurisdictions’,1April 1996,UNPressRelease L/2771; ‘Jurisdiction of Proposed International Criminal Court Discussed in Preparatory Committee onIts Establishment’, 2 April 1996, UN Press Release L/2772; ‘Preparatory Committee on International Criminal Court Continues ConsideringComplementarity betweenNational, International Jurisdictions’, 2April 1996,UNPress Release L/2773. These press releases are available online at http://www.un.org/News/Press/archives.htm.
68. Proceedings of the PreparatoryCommittee during the Period 25March-12April 1996, Draft Summary, 4April 1996,UNDoc.A/AC.249/CRP.4 (on filewith author).The draftwas elevated to definitive without amendment and included in Summary of the Proceedings of the Preparatory Committee during the Period 25 March-12 April 1996, 7 May 1996, UN Doc. A/AC.249/1, paras. 109-138. The latter summary was subsequently included in the 1996 Preparatory Committee Report, I, For a summary of these meetings note 13, paras. 153-174 (where only paragraphs 159 and 160 are new additions).
69. 1996 Draft Summary, Proceedings of the PreparatoryCommittee during the Period 25March-12April 1996 note 73, paras. 7, 10 and 11.
70. Draft Summary., paras. 6 and 18.
71. Draft Summary., para. 12.
72. Canada, Issues of Admissibility, 1 April 1996 (on file with author), Art. 35(d). The proposals were compiled in an annex to the draft summary. See Complementarity: A compilation of concrete proposals made in the course of discussion for amendment of the ILC draft statute, 8 April 1996, UN Doc. A/AC.249/CRP.9/Add.1 (on file with author).
73. Canada., para. 19.
74. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. II (Compilation of proposals), 13 Sept. 1996, UN GAOR, 51st session, Supp. No. 22, UN Doc. A/51/22 (1996) (hereafter 1996 Preparatory Committee Report, II), at 202, Art. 42(2 bis)(3).
75. United States of America, Proposed Amendments Pertaining to Principle of Complementarity: ILC Draft Statute for International Criminal Court, April 1996 (on file with author), para. G.
76. The Working Group on General Principles of Criminal Law did not consider the issue of ne bis in idem in relation to decisions of national courts. The procedural aspects of complementarity were discussed in the Working Group on Procedural Matters. See 1996 Preparatory Committee Report, II, United States of America note 79, at 86 (Art. D) and 159 (Art. 35), respectively.
77. Proposal by Japan on Article 35, 5 Aug. 1997, Non-Paper/WG.3/No.2 (on file with author); Canadian-German draft proposal on complementarity, 5 Aug. 1997, Non-Paper/WG.3/No.3 (on file with author); Draft Proposal by Italy on Article 35, 5 Aug. 1997, Non-Paper/WG.3/No.4 (on file with author); Draft Proposal by Singapore on Article 35-Addition to the United Kingdom Formulation, 5 Aug. 1997, Non-Paper/WG.3/No.5 (on file with author); Draft Proposal by Republic of Korea on Article 35, 5 Aug. 1997, Non-Paper/WG.3/No.6 (on file with author).
78. J. T.Holmes, ‘The Principle of Complementarity’, in R. S. Lee (ed.), The InternationalCriminalCourt: TheMaking of the Rome Statute: Issues, Negotiations, Results (1999), 41 at 50.
79. Draft Proposal by Italy on Article 35, ‘The Principle of Complementarity’ note 82, Art. 35(2)(ii) (emphasis added).
80. Article 35: Issues of admissibility, 13 Aug. 1997, UN Doc. A/AC.249/1997/WG.3/CRP.2 (on file with author), Art. 35(3) (footnotes omitted).
81. Holmes, Article 35: Issues of admissibility note 83, at 50.
82. Williams, Holmes note 36, at 394. However, the Commission of Inquiry on Darfur seems to include these instances within the ‘inability’ of states genuinely to investigate or prosecute. See Report of the International Commission of Inquiry on Darfur to the Secretary-General Pursuant to Security Council resolution 1564 (2004) of 18 Sept. 2004, 1 Feb. 2005, UN Doc. S/2005/60, para. 586.
83. Holmes, Williams note 83, at 50.
84. Holmes., at 51.
85. Decisions Taken by the Preparatory Committee at Its Session Held from 4 to 15 Aug. 1997, 14 Aug. 1997, UN Doc. A/AC.249/1997/L.8/Rev.1, Annex I, at 2.
86. Report of the Inter-Sessional Meeting from 19 to 30 Jan. 1998 in Zutphen, the Netherlands, 4 Feb. 1998, UN Doc. A/AC.249/1998/L.13 (hereafter 1998 Zutphen Draft Statute), Art. 11[35].
87. Holmes, Report of the Inter-Sessional Meeting from 19 to 30 Jan. 1998 in Zutphen note 83, at 56.
88. 1998 Zutphen Draft Statute, Holmes note 92, Art. 13[42], at 47.
89. Draft Statute for the International Criminal Court: Part 2. Jurisdiction, admissibility and applicable law, Article 13. Ne bis in idem, 31 March 1998, UN Doc. A/AC. 249/1998/CRP.20 (on file with author), Art. 13(3) (footnotes omitted).
90. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, Draft Statute for the International Criminal Court, 14 April 1998, UN Doc. A/CONF.183/2/Add.1, Arts. 15 and 18.
91. UN General Assembly Resolution 52/160, 28 Jan. 1998, UN Doc. A/RES/52/160, para. 3.
92. Revised Proposals Submitted by Mexico, 24 June 1998, UN Doc. A/CONF.183/C.l/L.14/Rev.l (on file with author), at 2. The proposal was included in Discussion Paper Bureau, Part 2. Jurisdiction, Admissibility and Applicable Law, 6 July 1998, UN Doc. A/CONF.183/C.1/L.53, Art. 15(3)(c); and Bureau Proposal, Part 2. Jurisdiction, Admissibility and Applicable Law, 10 July 1998, UN Doc. A/CONF.183/C.1/L.59, Art. 15(3)(c).
93. Holmes, Revised Proposals Submitted by Mexico note 83, at 53-4.However, the reference to the ‘principles of due process’ has also been read as expanding the scope of Article 17. SeeM. A. Newton,'Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’, (2001) 167 Military Law Review 20, at 66, who argues that this expression gives a wide margin of discretion to the prosecution to meet the admissibility criteria. Similarly, Schabas, Revised Proposals Submitted by Mexico note 28, at 68, argues that this expression suggests an assessment of the quality of justice from the standpoint of procedural and even substantive fairness.
94. Revised Proposals Submitted byMexico, Holmes note 98, at 2.
95. Holmes, Revised Proposals Submitted byMexico note 83, at 59.
96. Rectification of the Statute and transmission of the relevant procè s-verbal, Depository Notification C.N.577.1998.TREATIES-8, 10Nov. 1998 (correctionmade to the English version of Article 20); DepositoryNotification C.N.604.1999.TREATIES-18, 22 July 1999 (corrections made to the English version of Article 20 and totheFrenchversion of Articles17and20);DepositoryNotificationC.N.1075.1999.TREATIES-28,30Nov.1999 (corrections made to the Spanish version of Article 20); Depository Notification C.N.266.2000.TREATIES-8, 8May 2000 (corrections made to the Spanish version of Article 17). These documents are available online at http://www.un.org/law/icc/statute/99 corr/corr.html.
97. Holmes, Rectification of the Statute and transmission of the relevant procè s-verbal note 83, at 50. For examples of this situation see the so-called ‘suicide tactics’ in BiH, UNMBIH, Judicial System Assessment Programme (JSAP), Political Influence: The Independence of the Judiciary in Bosnia and Herzegovina, Thematic Report IX, Nov. 2000, available at http://www.esiweb.org/bridges/ bosnia/JSAP RepIX.pdf, at 26, 37-8, 50, and 65.
98. Note by the Secretariat, containing the report of the ‘Informal inter-sessional meeting of the SpecialWorking Group on the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at PrincetonUniversity,New Jersey,United States, from 21 to 23 June 2004’, 13Aug. 2004, ICC Doc. ICC-ASP/3/SWGCA/INF.1, available at http://www.icc-cpi.int/library/statesparties/ICC-ASP-3-SWGCAINF. 1-crime of aggression-English.pdf, para. 25. The report is also reproduced in Official Records of the Assembly of States Parties to theRomeStatute of the International Criminal Court,Third Session,TheHague, 6-10 Sept. 2004, ICC Doc. ICCASP/3/25 (Advanced copy), Proceedings, Annex II, available at http://www.icccpi. int/library/statesparties/ICC-ASP-3-25-Annexes English.pdf.
99. M. Rwelamira, ‘The Assembly of the States Parties to the International Criminal Court: Special Attention to the Crime of Aggression’, Supranational Criminal Law Lecture, TMC Asser Institute, The Hague, 21 Oct. 2004 (on file with author).
100. Rome Statute, Art. 14 ('Referral of a situation by a State Party').
101. Rome Statute., Art. 15 ('Prosecutor').
102. Sir H. Lauterpacht, The Development of International Law by the International Court (1958), at 227.
103. For an application of this reasoning in another context, see Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment of 15 Feb. 1995, Dissenting Opinion of Judge Shahabuddeen, [1995] ICJ Rep. 6, available at http://www.icjcij. org/icjwww/idocket/iqb/iqbjudgments/iqbtocjudgment(s).htm, para. IV(i). The parties had agreed under the DohaMinutes on the possibility of submitting their dispute to the Court, but the Court could not make the agreement more effective by recognizing a right of unilateral application on which the parties had not agreed.
104. For an analysis of provisions similar to Articles 17 and 20 of the Rome Statute in the legal systems of ‘internationalized’ criminal jurisdictions, see J. K. Kleffner and A. Nollkaemper, ‘The Relationship between Internationalized Courts and National Courts’, in Romano et al., For an application of this reasoning in another context note 14, 359 at 373-6.
105. ICTY Statute, Art. 9(2); Statute of the International Criminal Tribunal for Rwanda, UN Security Council Resolution 955 (1994), 8 Nov. 1994, UN Doc. S/RES/955 (1994) (hereafter ICTR Statute), available at http://www.ictr.org/ENGLISH/basicdocs/statute.html, Art. 8(2). See also Arbour and Bergsmo, For an analysis of provisions similar to Articles 17 and 20 of the Rome Statute in the legal systems of ‘internationalized’ criminal jurisdictions note 36, at 131; and Brown, For an analysis of provisions similar to Articles 17 and 20 of the Rome Statute in the legal systems of ‘internationalized’ criminal jurisdictions note 36, at 397.
106. M. Boot, Nullum Crimen sine Lege and the SubjectMatter Jurisdiction of the International Criminal Court (Genocide, Crimes against Humanity,War Crimes) (2002), at 61; El Zeidy, ICTY Statute note 15, at 885.
107. ICTY Statute, Art. 10(2). The wording of Art. 9(2) of the ICTR Statute is the same except for the reference to the International Tribunal.
108. ICTY Rule 9. The wording of ICTR Rule 9 was the same until 5 June 1997, when it was completely redrafted to redirect the action of the tribunal to the key figures in the genocide. See J. R.W. D. Jones and S. Powles, International Criminal Practice (2003), paras. 5.57-5.59.
109. Although ICTY primacy was never intended to preclude or prevent the exercise of jurisdiction by national courts (see Report of the Secretary-General, ICTY Rule 9 note 59, para. 64), it has sometimes resulted in persons being shielded from domestic prosecution. See, e.g., Decision on the Prosecutor's Request for Deferral and Motion for Order to the Former Yugoslav Republic of Macedonia, Case No. IT-02-55-MISC.6, 4 Oct. 2002, para. 38; and Prosecutor v. Deronjić, Plea Agreement, Case No. IT-02-61-PT, 29 Sept. 2003, para. 11(e). Cited ICTY motions, decisions, orders, transcripts and plea agreements are available online at http://www.un.org/icty/cases/indictindex-e.htm, unless otherwise indicated.
110. Even in the Ndindiliyimana case, Although ICTY primacy was never intended to preclude or prevent the exercise of jurisdiction by national courts note 118, decided at a time where ICTR Rule 9(iii) had already been amended, the Prosecutor's request was granted on the basis of the said rule.
111. Brown, Even in the Ndindiliyimana case note 36, at 396-7.
112. See, for all, Application by the Prosecutor for a Formal Request for Deferral by the Kingdom of Belgium in Respect of Colonel Thé oneste Bagosora, Case No. ICTR-96-7-D, 15May 1996, paras. 3.1 and 3.2.
113. Prosecutor v.Mrkšić, Radić and Šljivančanin,Transcriptof9Dec.1998,CaseNo. IT-95-13-D, at22-3.TheChamber eventually granted the request but only on the basis of Rule 9(iii). See Jones and Powles, for all, Application by the Prosecutor for a Formal Request for Deferral by the Kingdom of Belgium in Respect of Colonel Thé oneste Bagosora note 115, para. 5.72.
114. Prosecutor v. Tadić, Decision on the DefenceMotion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 Oct. 1995, para. 58.
115. Rome Agreement, 18 Feb. 1996, available at http://www.ohr.int/ohr-dept/hr-rol/thedept/war-crimetr/ default.asp?content id=6093.
116. Rome Agreement.,Art. 5. Though the review of domesticwar crimes prosecutions is not strictlywithin the mandate of the Prosecutor, the first Prosecutor of the ICTY, Richard Goldstone, agreed to administer the operation of Art. 5. On 1Oct. 2004, the review ofwar crimes caseswas taken over by the BiH Prosecutor'sOffice. SeeWar Crimes Trials before the Domestic Courts of BiH, Rome Agreement note 6, at 6 and 47.
117. TheHumanRightsChamberwasestablishedbyArt. IIofAnnex6(AgreementofHumanRights)oftheGeneral Framework Agreement for Peace in Bosnia and Herzegovina (known as the ‘Dayton Peace Agreements') of 14 Dec. 1995, available at http://www.ohr.int/dpa/default.asp?content id=374, as part of a Commission on Human Rights, also composed by the Office of the Ombudsman, which was to assist the Republic of Bosnia and Herzegovina, the Federation of Bosnia i Herzegovina and the Republika Srpska (Art. I) in securing to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to the Annex (Art. II.1). International judges were the majority in the Chamber (Art. VII). The mandate of the HRC ended on 31 Dec. 2003 and since then the Constitutional Court of BiH has become the principal court to adjudicate on human rights applications (Art. XIV).
118. V.č. v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, Decision on Admissibility and Merits, CaseNo. CH/98/1366, 9March 2000, para. 75. The plenary Chamber implicitly endorsed this opinion when it confirmed the Second Panel's finding that a violation of the ‘Rules of the Road’ must be understood as a violation of Art. 6 of the European Convention on Human Rights (right to a fair trial). See V.č. v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, Decision on Review, Case No. CH/98/1366, 9 Nov. 2000, para. 18. For an example of the role of the Rules of the Road in preventing biased prosecutions, see Velimir Pržulj v. the Federation of Bosnia and Herzegovina, Decision on Admissibility and Merits, Case No. CH/98/1374, 13 Jan. 2000, paras. 132 and 135. Cited HRC decisions are available online at http://www.hrc.ba/database/searchForm.asp.
119. V.č. v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, Decision on Request for Review, CaseNo. CH/98/1366, 12May 2000, para. 19 ('Accordingly, the power of the ICTY to examine the impartiality and independence of criminal proceedings before courts in the Federation is of a different nature and serves a completely different purpose than that of the Chamber and can in no way conflict with the Chamber's jurisdiction’.). In para. 20, the HRC went on to state, ‘Nor has it been submitted that the ICTY has been examining the impartiality and independence of the Cantonal Court in Sarajevo in the applicant's trial. Accordingly, even if the Chamber's jurisdiction could in the abstract concur with the jurisdiction of the ICTY, it certainly does not so in the case at hand’.
120. The ICTY OTP has, however, monitored some trials in the former Yugoslavia where it has provided evidence to domestic authorities. For the case of Mirko Norac, convicted in Croatia for war crimes inMarch 2003, see ICTY Outreach Programme, ‘Trial against Mirko Norac’, View from The Hague, 2 June 2004, 6, available at http://www.un.org/icty/bhs/outreach/articles/eng/Art.-040602e.htm.
121. Prosecutor v. Goran Vasić, Appeal decision, Federation of BiHSupreme Court, Kž-106/02, 29May 2003, cited in ‘War Crimes Trials before the Domestic Courts of BiH’, The ICTY OTP has, however, monitored some trials in the former Yugoslavia where it has provided evidence to domestic authorities note 6, at 49.
122. As aminor exception, in the Request for Deferral to the Former Yugoslav Republic ofMacedonia, Prosecutor v. Goran Vasić note 54 and corresponding text note 116, the Prosecutor argued that itwould be more appropriate to conduct the investigations and proceedings at the ICTY becauseMacedonian national law, by contrast to the Rules of the Tribunal, does not provide for the protection of witnesses (paras. 13 and 18), an aspect which is related to the fairness of the proceedings.
123. UN Security Council Resolution 1503 (2003), As aminor exception note 133; ICTY President completion strategy II, As aminor exception note 133, para. 20; ICTY President completion strategy III, As aminor exception note 133, para. 6; ICTY OTP completion strategy III, As aminor exception note 133, para. 27.
124. See Statement by the President of the Security Council, UN Doc. S/PRST/2002/21, 23 July 2002; UN Security Council Resolution 1503, UN Security Council Resolution 1503 note 133, para. 7; and UN Security Council Resolution 1534, UN Security Council Resolution 1503 note 133, para. 3. According to the schedule explained in these documents, all trial activities at first instance should be completed by the end of 2008 and the tribunals should finish all of their work by the end of 2010. As planned in the schedule, investigations at both tribunals were concluded by 31 Dec. 2004.
125. Address byMs Carla del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, to the UN Security Council, 8 Oct. 2003, UN Doc. S/PV.4838, at 10, also included in ICTY press release JL/P.I.S./791-e; ICTY OTP completion strategy IV, Statement by the President of the Security Council note 133, para. 15. Cited ICTY press releases are available online at http://www.un.org/icty/latest/latenews-e.htm.
126. ICTY OTP completion strategy III, Address byMs Carla del Ponte note 133, para. 11; Address byMs Carla del Ponte, Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, to the UN Security Council, 29 June 2004,UNDoc. S/PV.4999, at 14, also included in ICTY press release CT/PIS/863e;War Crimes Trials before the DomesticCourts of BiH, Address byMs Carla del Ponte note 6, at 10; ICTYOTP completion strategy IV, Address byMs Carla del Ponte note 133, paras. 12 and 14. At the time of writing, one case involving one accused has been referred to Bosnia and Herzegovina and seven cases involving 14 accused are being considered for referral by specially appointed trial chambers. See infra notes 172 and 174.
127. Addressby Judge TheodorMeron, Presidentof theInternational CriminalTribunal for theFormerYugoslavia, to the UN Security Council, 23 Nov. 2004, UN Doc. S/PV.5086, at 29, also included in ICTY press release JP/P.I.S./918-e; and 13 June 2005,UNDoc. S/PV.5199, at 8, also included in ICTY press release TM/MOW/976e.
128. ICTR completion strategy V, Addressby Judge TheodorMeron, Presidentof theInternational CriminalTribunal for theFormerYugoslavia, to the UN Security Council note 133, paras. 7 and 37; Address by Mr. Hassan Bubacar Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda, to theUNSecurity Council, 13 June 2005,UN Doc. S/PV.5199, at 15.
129. Address byMr Hassan Bubacar Jallow, 13 June 2005, ICTR completion strategy V note 139, at 15.
130. ICTR completion strategy I, Address byMr Hassan Bubacar Jallow note 133, para. 28; ICTR completion strategy II, Address byMr Hassan Bubacar Jallow note 133, para. 28; Address byMr Hassan Bubacar Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda, to the UN Security Council, 29 June 2004, UN Doc. S/PV.4999, at 18. At the time of writing, there are no applications for transfer before any chamber.
131. Address byMr Hassan Bubacar Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda, to theUNSecurity Council, 23Nov. 2004,UNDoc. S/PV.5086, at 14 and 31; Comments byMrHassan Bubacar Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda, to the UN Security Council, 13 June 2005, UN Doc. S/PV.5199, at 39.
132. ICTR completion strategy V, Address byMr Hassan Bubacar Jallow note 133, paras. 7 and 37; Address by Mr Hassan Bubacar Jallow, 13 June 2005, Address byMr Hassan Bubacar Jallow note 139, at 15.
133. Address byMr Hassan Bubacar Jallow, 13 June 2005, ICTR completion strategy V note 139, at 15.
134. ICTY OTP completion strategy II, Address byMr Hassan Bubacar Jallow note 133, para. 30; ICTY OTP completion strategy III, Address byMr Hassan Bubacar Jallow note 133, para. 12; ICTR completion strategy IV, Address byMr Hassan Bubacar Jallow note 133, para. 36; ICTR completion strategy IV, Address byMr Hassan Bubacar Jallow note 133, para. 37.
135. Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, adopted on 11 Feb. 1994 (hereafter ICTY Rule(s)), as amended through 11 Feb. 2005,UNDoc. IT/32/Rev.34 (2005), Rule 11 bis;Rules of ProcedureandEvidence of the International CriminalTribunal forRwanda, adoptedon29 June 1995(hereafterICTRRule(s)), asamendedthrough21May2005,UNDoc.ITR/3/Rev.15(2005),Rule11bis. ICTR Rule 11 bis does not limit the referral to cases for which a trialhas not started at the ICTR. Cited ICTYand ICTR Rules and their amendments are available online at http://www.un.org/icty/legaldoc/procedureindex.htm and http://www.ictr.org/ENGLISH/rules/index.htm, respectively.
136. ICTY Rule 11 bis ('Suspension of Indictment in case of Proceedings before National Courts'), as adopted on 12 Nov. 1997, UN Doc. IT/32/Rev.12 (1997).
137. SeeAddressbyJudgeClaudeJorda, Presidentof theInternationalCriminalTribunal for theformerYugoslavia, to the UN Security Council, 23 July 2002, ICTY press release JDH/P.I.S./690-e; and Statement by the President of the Security Council, ICTY Rule 11 bis note 135.
138. ICTR Rule 11 bis, as adopted on 6 July 2002, UN Doc. ITR/3/Rev.12 (2002); ICTY Rule 11 bis, as revised on 30 Sept. 2002, UN Doc. IT/32/Rev.25 (2002).
139. ICTY Rule 11 bis (F). A similar paragraph was already included in the previous version of ICTY Rule 11 bis in order to revoke an order for the suspension of the ICTY indictment pending proceedings at the national level. The content of current ICTR Rule 11 bis (F) is identical in substance to the ICTY one.
140. ICTY Rule 10(A). ICTR Rule 9(A) uses a stricterwording and mandates the Trial Chamber to issue the request for deferral if ‘paragraphs (i), (ii) or (iii) of Rule 9 are satisfied’.
141. CommentsbyMrHassanBubacar Jallow, ChiefProsecutorof theInternational CriminalTribunal forRwanda, to the UN Security Council, 29 June 2004, UN Doc. S/PV.4999 (Resumption 1), at 18.
142. War Crimes Trials before the Domestic Courts of BiH, CommentsbyMrHassanBubacar Jallow note 6, at 10.
143. Address by Judge Claude Jorda, 23 July 2002, War Crimes Trials before the Domestic Courts of BiH note 148; Address by Judge Claude Jorda, President of the International Criminal Tribunal for the Former Yugoslavia, to the UN General Assembly, 28 Oct. 2002, ICTY press release JDH/P.I.S./707-e and to theUNSecurity Council, 29 Oct. 2002, ICTY press release JDH/P.I.S./708-e; C. Jorda, ‘TheMajorHurdles and Accomplishments of the ICTY: What the ICC Can Learn from Them’, (2004) 2 Journal of International Criminal Justice 572, at 576.
144. Statement by President Meron on Establishment of Special War Crimes Chamber in Bosnian State Court, 13 June 2003, referred to in ICTY press release JL/P.I.S./761-e; Address by Judge TheodorMeron, President of the International Criminal Tribunal for the Former Yugoslavia, to the UN Security Council, 29 June 2004, UN Doc. S/PV.4999, at 6, also included in ICTY press release JL/PIS/862e.
145. Address by Judge Claude Jorda, 23 July 2002, Statement by President Meron on Establishment of Special War Crimes Chamber in Bosnian State Court note 148; Raab, Statement by President Meron on Establishment of Special War Crimes Chamber in Bosnian State Court note 133, at 94-5;War Crimes Trials before the Domestic Courts of BiH, Statement by President Meron on Establishment of Special War Crimes Chamber in Bosnian State Court note 6, at 10.
146. ICTY OTP completion strategy III, Address by Judge Claude Jorda note 133, para. 32. For the relationship between the BiH Prosecutor and Bosnian local courts, seeWar Crimes Trials before the Domestic Courts of BiH, Address by Judge Claude Jorda note 6, at 17.
147. See, e.g., ICTY President completion strategy II, ICTY OTP completion strategy III note 133, para. 29; Address by Judge Theodor Meron, 29 June 2004, ICTY OTP completion strategy III note 155, at 6.
148. Address by Judge Theodor Meron, 29 June 2004, ICTY President completion strategy II note 155, at 5. See also K. Zoglin, ‘The Future ofWar Crimes Prosecutions in the Former Yugoslavia: Accountability or Junk Justice?’, (2005) 27 Human Rights Quarterly 41, at 72.
149. See Obote-Odora, Address by Judge Theodor Meron note 7, paras. 89 and 91.
150. See ICTR completion strategy III, Obote-Odora note 133, para. 38; Address by Mr Hassan Bubacar Jallow, 29 June 2004, Obote-Odora note 141, at 19; and ICTR completion strategy V, Obote-Odora note 133, para. 39. The ICTR Prosecutor has proposed the establishment of a domestic court that will handle the cases when they are transferred, and is waiting for reforms in respect of guaranteeing fair trials. See Address byMr Hassan Bubacar Jallow, 23 Nov. 2004, Obote-Odora note 142, at 31; and 13 June 2005, Obote-Odora note 139, at 15-16.
151. Address by JudgeNavanethem Pillay, President of the International Criminal Tribunal for Rwanda, to theUN General Assembly, 26 Nov. 2001, UN Doc. A/56/PV.62, at 19; and to the UN Security Council, 27 Nov. 2001, available at http://www.ictr.org/ENGLISH/speeches/pillay271101sc.htm; ICTR completion strategy I, ICTR completion strategy III note 133, para. 28.
152. Address by JudgeNavanethem Pillay, President of the International Criminal Tribunal for Rwanda, to theUN General Assembly, 28 Oct. 2002, available at http://www.ictr.org/ENGLISH/speeches/pillay281002ga.htm; and to the UN Security Council, 29 Oct. 2002, available at http://www.ictr.org/ENGLISH/speeches/ pillay291002sc.htm. The ICTR Prosecutor has already identified seven national jurisdictions other than Rwanda as potential recipients of cases, three of them European. See Address by Mr Hassan Bubacar Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda, to the UN Security Council, 29 June 2004, Address by JudgeNavanethem Pillay note 141, at 18; and 13 June 2005, Address by JudgeNavanethem Pillay note 139, at 15.
153. ICTY completion strategy I, Address by JudgeNavanethem Pillay note 133, para. 32; ICTY President completion strategy II, Address by JudgeNavanethem Pillay note 133, para. 22; ICTY President completion strategy IV, Address by JudgeNavanethem Pillay note 133, para. 13; ICTR completion strategy III and IV, Address by JudgeNavanethem Pillay note 133, para. 39; ICTR completion strategy V, Address by JudgeNavanethem Pillay note 133, para. 40.
154. Address by Judge Claude Jorda, President of the International Criminal Tribunal for the Former Yugoslavia, to theUNGeneral Assembly, 27Nov. 2001, ICTY press release JDH/P.I.S./641-e;Address by Judge Claude Jorda, 29 Oct. 2002, ICTY completion strategy I note 154; Address by Judge TheodorMeron, 29 June 2004, ICTY completion strategy I note 155, at 6, and 23Nov. 2004, ICTY completion strategy I note 138, at 30; Comments byMr Hassan Bubacar Jallow, 29 June 2004, ICTY completion strategy I note 152, at 18.
155. Address by Judge Claude Jorda, President of the International Criminal Tribunal for the former Yugoslavia, to the UN General Assembly, 26 Nov. 2001, UN Doc. A/56/PV.62, at 7, also included in ICTY press release JDH/P.I.S./640-e.
156. ICTY completion strategy I, Address by Judge Claude Jorda note 133, para. 40. See alsoAddress byMsCarla del Ponte, 8Oct. 2003, Address by Judge Claude Jorda note 136, at 10.
157. ICTY Rule 11 bis (B) in fine, as amended on 10 June 2004, UN Doc. IT/32/Rev.31 (2004). In April 2004 the ICTR judges had already included as a requirement in ICTR Rule 11 bis that the Chamber could ‘satisfy itself that the accused will receive a fair trial with due process in the courts of the State concerned’ (UN Doc. ITR/3/Rev.14, 24 April 2004). In May 2004, the ICTY President had already reported that ‘Although not explicitly mentioned in the Rule, the ability of the accused to receive a fair trial in accordance with due process and international human rights norms is a significant additional factor. Trial Chambers are unlikely to refer cases to jurisdictions in which the accused might not be accorded a fair trial. The Tribunal is of course committed to supporting the achievement of credible war crimes trials that meet international norms of due process in all States of the former Yugoslavia’. See ICTY President completion strategy II, ICTY completion strategy I note 133, paras. 22-23. The need for assurances that the death penalty will not be imposed or carried outwas introduced in ICTR Rule 11 bis (C) in 2005 (UN Doc. ITR/3/Rev.15, 21May 2005).
158. Address by Judge Theodor Meron, 29 June 2004, ICTY Rule 11 bis (B) in fine note 155, at 5. Similar comments were made by the ICTR President, JudgeMøse, and the ICTR Prosecutor, MrHassan Bubacar Jallow, on the same date. The latter also made the transfer conditional on the accused not suffering a greater penalty than he would otherwise have been exposed to at the tribunal itself. See ICTY Rule 11 bis (B) in fine note 141.
159. See C. Del Ponte, ‘Prosecuting the Individuals Bearing the Highest Level of Responsibility’, (2004) 2 Journal of International Criminal Justice 516, at 518-19; ICTY OTP completion strategy II, Address by Judge Theodor Meron note 133, para. 30; Comments byMr Hassan Bubacar Jallow, 29 June 2004, Address by Judge Theodor Meron note 152, at 18.
160. Prosecutor v. Stanković, Decision on Referral of Case under Rule 11 bis (Partly Confidential and Ex Parte), Case No. IT-96-23/2-PT, 17 May 2005, paras. 27-29 and 67 (ethnic bias); 77 (undue delay) and 86 (availability of witnesses). At the time of writing the decision is under appeal.
161. Prosecutor v. Stanković., paras. 67-68. The Referral Bench ordered the Prosecutor to ensure that international monitoring of the domestic proceedings takes place and that the reports from the monitoring organisation are made available to the Bench on a regular basis.
162. As of 1 July 2005, Prosecutor's requests for referral under Rule 11 bis are under consideration in seven cases: Prosecutor v. Mejakić, Gruban, Fuštar and Knežević, Case No. IT-02-65; Prosecutor v. Ademi and Norac, Case No. IT-04-78; Prosecutor v. Janković and Zelenović, Case No. IT-96-23/2; Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-I; Prosecutor v. Rašević and Todović, Case No. IT-97-25/1; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1; and Prosecutor v. Sredoje Lukić and Milan Lukić, Case No. IT-98-32. On 9 Feb. 2005, the Prosecutormoved to have the case of Prosecutor v.Mrkšić, Radić and Šljivančanin, Case No. IT-95-13/1, referred to the authorities of Croatia or of Serbia and Montenegro, but on 30 June 2005 the Referral Bench granted the Prosecutor's motion to withdraw the request for referral of the indictment. For the reasons of the withdrawal, see Address byMs Carla del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, to the UN Security Council, 13 June 2005, UN Doc. S/PV.5199, at 13, also included in ICTY press release CDP/MOW/977-e.
163. Prosecutor v. Mejakić, Gruban, Fuštar and Knežević, Decision for Further Information in the Context of the Prosecutor's Request under Rule 11 bis (with confidential annex), CaseNo. IT-02-65-PT, 9 Feb. 2005, paras. II.1 (Bosnian Government), II.2 (Prosecutor) and II.1 (Defence); Prosecutor v. Ademi and Norac, Order for Further Information in the Context of the Prosecutor's Request under Rule 11 bis, Case No. IT-04-78-PT, 20 Jan. 2005, paras. 2 (Croatian government), and 2 (Prosecutor); Prosecutor v. Janković and Zelenović, Decision for Further Information in the Context of the Prosecutor's Motion under Rule 11 bis, Case No. IT-96-23/2-PT, 15 April 2005, paras. II.1 (Bosnian government), II.1 (Prosecutor) and II.2 (Defence); Prosecutor v. Rašević and Todović, Decision for Further Information in the Context of the Prosecutor'sMotions under Rule 11 bis, Case No. IT-97-25/1, 14 April 2005, paras. II.1 (Bosnian government), II.1 (Prosecutor), and II.1 and 2 (Defence).
164. Prosecutor v. Rašević and Todović, Prosecutor v. Mejakić note 175, paras. II.2 (Bosnian government), II.2 (Prosecutor), and II.1 and 3 (Defence).
165. Prosecutor v. Ademi and Norac, Prosecutor v. Rašević and Todović note 175, paras. 7 (Croatian government), 8 (Prosecutor) and 7 (Defence).
166. Prosecutor v. Mejakić, Gruban, Fuštar and Knežević, Prosecutor v. Ademi and Norac note 175, paras. 6 (Bosnian government) and 5 (Defence); Prosecutor v. Ademi and Norac, Prosecutor v. Ademi and Norac note 175, paras. 6 (Croatian government), 8 (Prosecutor) and 4-6 (Defence); Prosecutor v. Janković and Zelenović, Prosecutor v. Ademi and Norac note 175, para. II.6 (Defence); Prosecutor v. Rašević and Todović, Prosecutor v. Ademi and Norac note 175, para. II.7 (Defence).
167. Prosecutor v. Mejakić, Gruban, Fuštar and Knežević, Prosecutor v. Mejakić note 175, para. 7 (Bosnian government); Prosecutor v. Janković and Zelenović, Prosecutor v. Mejakić note 175, para. II.5 (Defence); Prosecutor v. Rašević and Todović, Prosecutor v. Mejakić note 175, para. II.6 (Defence).
168. Prosecutor v. Mejakić, Gruban, Fuštar and Knežević, Prosecutor v. Mejakić note 175, paras. 4 (Prosecutor) and 3 (Defence); Prosecutor v. Ademi and Norac, Prosecutor v. Mejakić note 175, paras. 6 (Prosecutor) and 3 (Defence); Prosecutor v. Janković and Zelenović, Prosecutor v. Mejakić note 175, para. II.4 (Defence); Prosecutor v. Rašević and Todović, Prosecutor v. Mejakić note 175, para. II.5 (Defence).
169. Prosecutor v.Mejakić, Gruban, Fuštar and Knežević, Transcript of 3March 2005, CaseNo. IT-02-65-PT, at 157-59, 167-9 and 182-3.
170. Prosecutor v. Ademi and Norac, Transcript of 17 Feb. 2005, Case No. IT-04-78-PT, at 27.
171. Prosecutor v. Vladimir Kovačević, Order on the Prosecutor's Request for Referral to National Authorities under Rule 11 bis, Case No. IT-01-42/2-I, 20 Jan. 2005, paras. 2(b) (Prosecutor) and 2 (Defence).
172. ICTY OTP completion strategy III, Prosecutor v. Vladimir Kovačević note 133, para. 27; Prosecutor v. Ademi and Norac, Request by the Prosecutor under Rule 11 bis (Partly Confidential: Attached Schedules to Annex I Filed Confidential), Case No. IT-04-78-PT, 2 Sept. 2004, para. 15.On19May 2005,OSCEagreed to co-operate with theOTP in monitoring cases transferred to the countries of the former Yugoslavia. See ICTY OTP completion strategy IV, Prosecutor v. Vladimir Kovačević note 133, para. 11.
173. See Address by Judge Theodor Meron, 29 June 2004, ICTY OTP completion strategy III note 155, at 6, and 23 Nov. 2004, ICTY OTP completion strategy III note 138, at 30. For the same opinion, see Mundis, ICTY OTP completion strategy III note 133, at 158. See also ICTR completion strategy IV, ICTY OTP completion strategy III note 133, paras. 38 and 39; and ICTR completion strategy V, ICTY OTP completion strategy III note 133, para. 40. The ICTR Prosecutor will make alternative proposals to the Security Council if it is eventually not possible to transfer cases to national jurisdictions.
174. ICTY President completion strategy II, Address by Judge Theodor Meron note 133, para. 29; ICTY OTP completion strategy II, Address by Judge Theodor Meron note 133, para. 32.
175. Current state of the International Criminal Tribunal for the Former Yugoslavia: future prospects and reform proposals, Report submitted by Judge Claude Jorda, President, on behalf of the judges of the Tribunal, 14 Sept. 2000, UN Doc. A/55/382-S/2000/865, paras. 53 and 56.
176. See ‘Consultants’ Report to the OHR: The Future of Domestic War Crimes Prosecutions in Bosnia and Herzegovina’, May 2002, at 10-12, cited in Bohlander, Current state of the International Criminal Tribunal for the Former Yugoslavia: future prospects and reform proposals note 133, at 70. See also ‘The Principle of Complementarity in Practice’, Current state of the International Criminal Tribunal for the Former Yugoslavia: future prospects and reform proposals note 18, para. 33.
177. According to data received by ICG, in Jan. 2002 therewere some5,500 individuals under investigation for war crimes in the Federation of Bosnia and Herzegovina, while 278 had actually been accused. In the Republika Srpska, approximately 700 new investigations were under way. See International Crisis Group, ‘Courting Disaster: The Misrule of Law in Bosnia&Herzegovina’, ICGBalkans ReportNo. 127, 25March 2002, available at http://www.icg.org/library/documents/report archive/A400592 25032002.pdf, at 31.
178. UNSecurity Council Resolution 827 (1993), According to data received by ICG note 50; ICTY President completion strategy III, According to data received by ICG note 133, para. 6; Jorda, According to data received by ICG note 154, at 575.
179. See, e.g., Annex 6 of the ‘Dayton Peace Agreements’, UNSecurity Council Resolution 827 note 126, whereby an ‘Agreement on Human Rights’ was concluded in order to ensure inter alia that the right to a fair trial could be enjoyed without discrimination. See also Security Council Resolution 1315 (2000), 14 Aug. 2000, UN Doc. S/RES/1315 (2000), on the establishment of the Special Court for Sierra Leone, where the Council reaffirmed that ‘persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law’ (emphasis added).
180. Rome Statute, Preamble, para. 3.
181. See Borek, Rome Statute note 36, at 78; Burke-White, Rome Statute note 16, at 92; Benvenuti, Rome Statute note 36, at 32; and Broomhall, Rome Statute note 36, at 104.