I.Referring an indictment from the ICTY and ICTR to another court—Rule 11bisand the consequences for the law of extradition

Abstract

In the wake of their so-called ‘completion strategies’,1both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), creations of the UN Security Council under Chapter VII of the UN Charter, have for some time grappled with the question of how to unclog their congested dockets and dispose of those accused which are generally viewed as ‘small fry’. The fact that many of the accused have had to spend very long, some say excessively long, times in the custody of the Tribunals prior to and during trials, led the Tribunals to devise a mechanism for the transfer of cases to national jurisdictions, preferably those of the national States of the defendants, which were mostly identical to the post-conflict countries. The mechanism was an amendment of Rule 11bisof their Rules of Procedure and Evidence (RPE) which allowed the Tribunals to refer cases to the national courts under certain circumstances. It is helpful to trace the history of the Rule. For the sake of simplicity, only the ICTY2will be looked at here, as there are no real differences in substance with regard to the ICTR as far as the latest version of the Rule3is concerned.