Case No. IT-96-23/2-PT
IN A SPECIALLY APPOINTED CHAMBER
Judge Alphons Orie, Presiding
Judge O-Gon Kwon
Judge Kevin Parker
Mr. Hans Holthuis
9 February 2005
DECISION FOR FURTHER INFORMATION IN THE CONTEXT OF THE PROSECUTOR’S REQUEST UNDER RULE 11BIS
The Office of the Prosecutor:
Carla del Ponte
Counsel for the Accused:
The Government of Bosnia and Herzegovina
per: The Embassy of Bosnia and Herzegovina to The Netherlands, The Hague
THIS SPECIALLY APPOINTED CHAMBER ("the Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991;
NOTING the "Request by the Prosecutor under Rule 11bis for Referral of the Indictment to the State of Bosnia and Herzegovina," filed on 21 September 2004 whereby the Prosecution requests that a Trial Chamber order the referral of the case against Mr. Radovan Stankovic ("the Accused") to the authorities of Bosnia and Herzegovina (the "Request");
NOTING the President’s "Order Appointing a Trial Chamber for the Purposes of Determining Whether the Indictment Should Be Referred to Another Court under Rule 11bis", filed on 5 October 2004, whereby the President appointed this Chamber to determine whether the case against the Accused shall be referred to the authorities of Bosnia and Herzegovina pursuant to Rule 11bis of the Rules of Procedure and Evidence ("the Rules");
NOTING the Status Conference held on 9 November 2004, where the Defence opposed the Request;
NOTING the "Defence’s Motion in Accordance Rule 11bis(B)," filed on 22 December 2004 whereby the Defence raises a number of objections relating to a possible referral of the case to the authorities of Bosnia and Herzegovina;
CONSIDERING that the crimes charged in the Indictment were allegedly committed in Bosnia and Herzegovina and that the referral requested falls within the scope of Rule 11bis(A)(i) of the Rules;
NOTING that, under Rule 11bis(B) of the Rules, "[t] he Trial Chamber may order such referral […] after having given to the Prosecutor and, where applicable, the Accused, the opportunity to be heard and after being satisfied that the Accused will receive a fair trial and that the death penalty will not be imposed or carried out;"
NOTING that Rule 11bis(C) of the Rules provides that "SinC determining whether to refer the case in accordance with paragraph (A), the Trial Chamber shall, in accordance with the Security Council Resolution 1534 (2004) of 26 March 2004, consider the gravity of the crimes charged and the level of responsibility of the accused;"
NOTING that Security Council Resolution 1534 (2004) refers to "the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions;"
NOTING that Security Council Resolution 1503 (2003) recommended that the ICTY concentrate "on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and StransferC cases involving those who may not bear this level of responsibility to competent national jurisdictions;"
CONSIDERING that the evaluation of whether a case should be referred to the authorities of a State is therefore a two-step process, requiring consideration of (1) whether the gravity of the crimes charged and the level of responsibility of the Accused renders the case appropriate for referral because it involves intermediate or lower-rank accused, and (2) whether the State to which the Prosecution seeks to refer the case is a competent national jurisdiction whose legal system is compatible with the requirements of Rule 11bis(B);
CONSIDERING that the Indictment charges the Accused with all forms of individual criminal responsibility referred to in Article 7(1) of the Statute in relation to the crimes of enslavement and rape as crimes against humanity and rape and outrages upon personal dignity as violations of the laws or customs of war in relation to nine identified and a number of unidentified women;
CONSIDERING that although the Prosecution’s Request discusses the gravity of the alleged offences and the level of responsibility of the Accused in this case, the Chamber would benefit from detailed submissions on these matters from the Parties and the Government of Bosnia and Herzegovina, including whether the "level of responsibility" in Rule 11bis(C) refers to the role of the Accused in the commission of the alleged offences, or to the position and rank of the Accused in the civil or military hierarchy, or both; and whether special weight should be given to any particular considerations relating to the gravity of the alleged offences or the level or responsibility of the Accused;
CONSIDERING that the Chamber wishes to obtain both submissions on the issue of the gravity of the crimes and the level of responsibility, and submissions by the Government of Bosnia and Herzegovina and the Parties on the compatibility of the legal system of Bosnia and Herzegovina with Rule 11bis(B);
FOR THE FOREGOING REASONS,
PURSUANT TO Rules 11bis and 54 of the Rules,
I. ORDERS the Parties and INVITES the Government of Bosnia and Herzegovina to file submissions by 21 February 2005 on the following questions, including the weight to be given to each of them:
II. In relation to the compatibility of the legal system of Bosnia and Herzegovina with Rule 11bis(B), INVITES the Government of Bosnia and Herzegovina to provide the following documents, in English if possible, by 21 February 2005:
FURTHER INVITES the Government of Bosnia and Herzegovina to file written submissions by 21 February 2005 on the following matters:
ORDERS the Prosecution to file further submissions on the following matters by 21 February 2005:
ORDERS the Defence to provide written submissions on the following aspects by 21 February 2005:
ORDERS the Parties and INVITES the Government of Bosnia and Herzegovina to be prepared to make oral submissions on the Prosecution’s request for referral.1
REQUESTS the Registrar to transmit this order immediately to the Government of Bosnia and Herzegovina.
Done in English and French, the English text being the authoritative.
Done on this ninth February 2005
At The Hague,
Judge Alphons Orie, Presiding Judge
[Seal of the Tribunal]