The ICTY and the ICTR further interpreted the provisions above in their subsequent decisions granting or denying referrals. First, regarding the substantive aspect of the case, “the level of responsibility” is interpreted to include both military rank and the accused’s actual role in the commission of crimes.8 Second, in determining the appropriate State receiving a referral, the ICTY and the ICTR have further read a general competency requirement into the requirements for national jurisdiction,9 requiring that the transfer State has a legal framework which “criminalizes the alleged conduct of the accused and provides an adequate sentencing structure.”10 The State must criminalize the alleged conduct as an international crime rather than an “ordinary” crime11 —the international crimes in the State’s legal framework need not be identical to those listed in the ICTY and the ICTR, but should be “similar in substance.”12 The State’s penalty structure must also provide “an appropriate punishment for the offense for which the accused is charged, and conditions of detention must accord with internationally recognized standards.”13 Third, if the transfer State meets the competency requirement, the Trial Chamber must then satisfy itself that “the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out.”14 The “fair trial” element turns on whether the accused will be accorded the rights set out in Article 20 of the ICTY and the ICTR Statutes,15 which lists the defendant’s rights.16 Equal access to and the protection of witnesses are also relevant factors to be considered.17 Finally, regarding the monitoring mechanism after a case has been transferred, the ICTY Referral Bench sees the monitoring mechanism as “primarily created to ensure that a case would be diligently prosecuted once it had been referred.”18

B. Application of the Rules

Although the ICTY and the ICTR have very similar referral requirements, the two tribunals’ application of these requirements has been quite different. In the Rwanda context, from 1994 to 2009, the ICTR did not grant a single referral despite Rwanda’s repeated efforts of legal reform.19 In November 2010, the Prosecutor launched a second round of referral requests, and the ICTR finally approved the requests in the last two years of its operation.20 In contrast, the ICTY granted case referrals to Bosnia and Herzegovina (BiH) right after the War Crimes Chamber was created, with the earliest one issued in September 2005.21

1. The Case of Rwanda

The Rwanda government created several new laws related to accepting case referrals from the ICTR to the Rwanda national courts. Most notably, Rwanda implemented Organic Law No. 11/2007 (Transfer Law) and Organic Law No. 31/2007 (Death Penalty Abolition Law) in 2007, which encouraged the Prosecutor to make the first attempt at requesting case referrals to Rwanda.22

However, despite the Rwanda government’s efforts, the ICTR remained doubtful about the reforms’ practical effects, particularly their implications for the defendant’s fair trial rights, for a long time. All five case referral requests initiated by the Prosecutor in 2007 were subsequently denied.23 The decisions were largely based on concerns regarding the practical application of the new laws,24 even though prior jurisprudence from ICTY Referral and Appeals Chambers established that referrals to national courts were permissible so long as the legal framework protecting the defendant’s fair trial rights existed in the referral state.25

In response to the ICTR’s denials and its concern about the law in practice, the Rwanda government continued to implement deeper and more comprehensive reforms. With regard to legislative reform, Rwanda amended the Transfer Law and the Abolition of the Death Penalty Law in 2008 and 2009 respectively, addressing specifically the concerns expressed by the ICTR about solitary confinement, immunity and protection for witnesses and defense teams, and alternatives to live testimony.26 Rwanda also took substantial steps to modify its Penal Code, Code of Criminal Procedure, and Genocide Ideology Law.27 These revisions greatly modernized Rwanda’s criminal laws, reduced the range of criminal sentences, enhanced witness protections, and gave the High Court in Rwanda the discretion to allow foreign and international judges to sit on the panel of any referred cases.28

Legislative reforms were also accompanied by institutional infrastructure improvements. Rwanda established a new witness protection unit, state-of-the-art detention facilities, video-link units, and legal assistance programs that better facilitated foreign lawyers’ secure admission to the Rwandan bar and appear as defense counsel before domestic courts.29

In the process, Rwanda engaged in extensive interactions with the ICTR Prosecutor, Registry, and Chambers to adopt best practices.30 The ICTR provided training to Rwandan legal professionals and shared information about its cases with both the Rwanda government and the public in general.31 Many Rwandans who worked at the ICTR also returned to Rwanda over the years and assumed posts in the national government, bringing in ICTR experience and practices to further promote integration of international standards into Rwanda’s practice.32

With these reforms, the Prosecutor launched a second round of referral requests in November 2010, and all eight requests were subsequently approved.33 In these requests, the Prosecutor employed an evidence-based approach and presented objective evidence of Rwanda’s practical ability to receive the cases.34 The evidence was obtained primarily through and cross-checked among interviews with responsible officials, reviews of records in domestic and other international cases, official interactions between Rwanda and the ICTR and between Rwanda and other countries, and reports from third-party observers and the media.35 The Prosecutor also appreciated and overcame differences between the civil (Rwandan) and common (ICTR) law systems in crafting his approach.36 Additionally, the Prosecutor took into account the post-referral monitoring mechanism before he launched his second round of referral requests. He identified a well-recognized regional commission that possessed all of the attributes to serve as the monitor in any referred cases, and the ICTR subsequently agreed to let this organization serve as the ICTR’s monitor.37 As such, the ICTR was satisfied with the capacity of the Rwanda national courts in trying war crimes and granted the Prosecutor’s second round of referral requests in the last two years of its operation.38

2. The Case of Bosnia and Herzegovina

Similar to Rwanda, BiH adopted new laws and created new institutions to build its capacity to receive cases transferred from the ICTY. Initially, BiH did not have a functioning judiciary at the State level.39 In 2000, the Law on the Court of Bosnia and Herzegovina created the State Court of Bosnia and Herzegovina (SCBiH) which became operational in 2003.40 A new criminal code and a new criminal procedure code were also introduced in 2003.41 However, at the time, the SCBiH only had limited criminal jurisdiction that did not include jurisdiction over war crimes.42 In an effort to open up State-level prosecution of war crimes and in response to the ICTY’s Completion Strategy, BiH amended the criminal code and the criminal procedure code and established a hybrid court, the War Crimes Chamber (WCC), as a branch of the SCBiH.43

The WCC was originally staffed with both international and domestic prosecutors, judges (some provided by the ICTY), and administrative personnel, and gradually transitioned to a completely domestic court with only national personnel over the course of seven years.44 For instance, from 2005 to 2008, each of the WCC’s trial panels and the appellate panel had two international judges and one national judge.45 Afterward, the composition was reversed, with two national judges and one international judge.46 Since 2009, all WCC trial panel judges were BiH nationals, and only four international judges remained in the appellate division in 2012.47 Today, the WCC judges are all BiH nationals.48

The WCC also directly benefited from the work of the ICTY. The WCC was allowed to use evidence gathered and facts adjudicated by the ICTY, which saved a lot of judicial time and resources.49 The WCC also relied on ICTY jurisprudence regarding issues of substantive law and referred to ICTY decisions to justify procedural decisions.50 The ICTY also provided training and legal assistance.51

When referring cases to such a hybrid national court, the ICTY did not seem particularly concerned about the practical application of BiH ’s laws related to domestic prosecution of war crimes and mostly focused only on BiH ’s legal framework on paper. For instance, with regard to fair trial rights and the defendant’s access to witnesses, the ICTY held that the laws of BiH conformed with the requirements of Rule 11 bis, and the ICTY did not have an obligation to investigate whether the defendant’s access to witnesses was in fact guaranteed in practice.52 Moreover, the ICTY held that, in addition to other findings regarding fair trial protections, the monitoring and revocation provisions can constitute part of the guarantee of a defendant’s fair trial rights.53 Hence, it is observed that:

[W]hile defendants have repeatedly made allegations that Bosnia’s laws are not implemented in practice, that they would risk receiving victor’s justice, and that monitoring and revocation are insufficient safeguards due to the fact that only the Prosecutor can recommend monitoring and revocation, the Tribunal has only thus far implemented a strict procedural application of the 11 bis ICTY transfer rule.54

3. The Reason for the Discrepancies between the Practices of the ICTR and ICTY

The seemingly disparate practices between the ICTR and the ICTY likely stem from the differences between the post-conflict situations in Rwanda and BiH, particularly from the different statuses of national institutions and justice systems and the different prospects of domestic peace and stability.

In the wake of the 1994 genocide, Rwanda’s legal system was severely insufficient to prosecute war crimes.55 Only fifty-three judges were available for the prosecution of serious crimes, and the numbers of prosecutors, police officers, registrars, and defense lawyers were similarly scarce.56 Meanwhile, there were more than 120 thousand people detained and accused of war crimes.57 Moreover, before the ICTR’s denials of the Prosecutor’s first round of requests, Rwanda did not receive much international support for developing its judicial capacity regarding war crimes; strong partnerships with other States, international and regional authorities, and NGOs did not occur until after the setback of the first round of referrals.58 Despite Rwanda’s initial legal reforms, it would clearly take some time to rebuild an adequate justice system that could ably process the vast number of cases.

More generally, the prospect of peace and reconciliation was very uncertain, especially during the first decade after the genocide. The United Nations and other States did not provide much help throughout the conflict, and the conflict was largely resolved by internal forces—the genocide in Rwanda mostly ended because the Rwandan Patriotic Front (RPF) eventually defeated the government forces.59 Yet, even then, casualties continued to increase as RPF also killed many people, and génocidaires regrouped along the Rwandan border in Congo, resulting in the First (1996–1997) and Second (1998–2003) Congo Wars.60 With ethnic divide still a serious problem, the risk of selective prosecution was high, and referring cases to Rwanda’s domestic courts may further inflame domestic conflicts, jeopardizing both domestic stability and the safety of individual national judges and other legal professionals. Therefore, the ICTR was initially reserved about the Rwandan national courts’ ability to properly prosecute war crimes.

In contrast, as described above, the WCC in BiH received a lot of international support in building its judicial capacity and preserving the uniformity of national and international jurisprudence and norms.61 The WCC saw extensive international collaboration since its genesis. Support for substantive legal practices as well as administrative infrastructure and organization was provided.62 Transfer of knowledge was further expanded through regular communication between the ICTY and the WCC.63 Moreover, the hybrid nature of the BiH justice system extended beyond the WCC to other key institutions including other SCBiH chambers, the High Judicial and Prosecutorial Council (in charge of appointing and disciplining judges and prosecutors), the Constitutional Court, and the now-extinct Human Rights Commission.64 This approach of creating and enhancing national institutions with initial hybrid composition greatly facilitated the development of national judicial capacity.65 It also ensured greater ownership over the “rule of law” reform process.66

Additionally, the military presence of the EUFOR multinational force,67 the drive towards membership in the European Union,68 and the Office of High Representative’s additional source of international presence69 all created strong incentives for State cooperation. Therefore, the ICTY was much more trusting in referring cases to the WCC and started doing so shortly after the WCC was established.

In sum, the seeming discrepancy between the ICTR and the ICTY actually stems from similar concerns about a State’s judicial capacity in prosecuting war crimes and the prospects of domestic peace and stability. The ICC should also consider these elements in its decisions regarding case referrals because they are directly connected to fair trial issues and the sustainability of ensuring fair trials. Specific suggestions are discussed in Part IV.

It should be noted, however, that these concerns are not an exhaustive list. The ICC may encounter new challenges and problems in future conflict situations. The lesson here is that each situation is different, and the ICC should stay attuned to the particularities of each situation and act accordingly.

III. The Logistics of a Transfer

While the substantive determination of whether to refer a case to national courts is the primary concern of international tribunals and courts regarding case referrals, the logistic part also plays an important role in the delivery of justice. Past experiences of the ICTR and the ICTY show that legal professionals encountered difficulties in the transfer of case files and other information after a referral had been approved, which bogged down domestic prosecutions and led to unnecessarily repetitive work and inefficiencies.

While the interaction between the ICTY and the WCC had been relatively smooth, the process was hindered by problems related to the access of confidential information. For example, ICTY trial records can be important for the WCC in investigating facts and identifying witnesses for prosecution at the WCC. However, many of the written ICTY trial records were not in Bosnian, Croatian, and Serbian languages and must be transcribed through audio recordings.70 Oftentimes, the audio recordings failed to redact confidential information and can be obtained only through an additional layer of special request requirements.71 The inability to directly access these records inevitably delays the process at the WCC.72

A similar problem exists in witness protection. The WCC did not necessarily know whether the witnesses it sought to interview was under any protective measures by the ICTY.73 In order to obtain such information, the WCC needed to take the time to check with the ICTY regarding each individual witness, which again caused serious delays.74 Moreover, upon obtaining information about protective measures, the WCC had to then apply for variances or rescissions of such measures every time the WCC found a need to do so, thus creating another source of substantial delay.75

Moreover, certain information not used in ICTY investigations and trials can be hard to obtain. For example, evidence and witness statements held by the ICTY Prosecutor and not used in ICTY proceedings were not inherently open to the WCC.76 Protected materials provided by third party States were also not readily available to national courts outside those States.77

At the domestic level, BiH courts also suffered from difficult evidence sharing and duplicated investigation because of the great amount of information and because of the disorganized nature of information collection and storage.78 Repetitive investigation not only wasted resources but also undermined the prosecutors’ credibility with witnesses, survivors, and investigators.79

In sum, the logistics of case transfers still have room for improvement, and this is worth the ICC’s attention and consideration because the flow of case-relevant information is also important to effective prosecutions and the delivery of justice.

IV. Lessons from the ICTY and the ICTR

As evidenced by the ICTY and the ICTR experiences, the issue of referring cases to national courts is two-fold. The ICC needs to:

1. make the substantive determination of whether to refer a case and

2. facilitate the flow of relevant information from the international tribunals to domestic courts after a case is referred.

Regarding the first prong, the ICC should set out a well-established strategy early on for building domestic judicial capacity in post-conflict situations. Although the task of building domestic judicial capacity was not the first and foremost mission of the two international tribunals and was largely prompted by the pressing need to close the tribunals several years after the conflict, the fact that international tribunals had to close—and, for the ICC, that prosecution has to stop—at some point means capacity-building efforts cannot be spared. Moreover, international assistance and support are particularly important in the context of conflicts and war crimes, because most domestic courts are either completely non-existent after a conflict or very inexperienced in the prosecution of war crimes, thus very much in need of international guidance. Additionally, the strategy should be set out at the very beginning: because judicial-capacity building is largely inevitable and takes time to complete, it is more in the interest of the ICC to take this task into consideration early on, rather than dodging it in the beginning and scrambling in reaction to the need to cease international prosecution much later.

In crafting this strategy, the ICC could examine the national judicial systems in question and identify areas that need improvements or reform. This can be very helpful to domestic authorities and other sources of international assistance as it enables them to focus strategically on certain aspects, as evidenced by the experience of the ICTR and ICTY. For instance, the ICTR Prosecutor mentioned that his work in helping Rwanda meet the ICTR’s referral standards was “somewhat lightened because Article 20 of the ICTR Statute identified particular areas of national practice that needed to be assessed and evaluated.”80

In the strategy, the ICC could also set out specific forms of assistance to national courts in building their capacity to try war crimes and establishing standards that conform to international requirements. Articulating these plans in detail can help the ICC coordinate with national courts and facilitate the sharing of expert knowledge. As some have observed, the close and early interaction between the ICTY and the WCC had been sustainable mostly due to the existence of a detailed vision and plan of transition that greatly facilitated an effective exchange of knowledge between international and national experts.81

Although being addressed and described in detail early on, judicial capacity building strategies should stay flexible to the practical changes and be adjusted along the way if needed. Both the Prosecutor and the national courts can be informed by the ICC’s case referral decisions and further sharpen or shift their focus. For instance, the ICTR Prosecutor made use of the first round of referral decisions and identified issues of particular concern.82 With a more targeted focus, the ICTR Prosecutor, as well as other actors, was able to better plan training programs that addressed specific areas of need.83 The ICTY and the WCC also modified their strategy and extended the duration of having international legal professionals in the WCC from five to seven years, because further international assistance was needed.84 The ICC and the national courts could similarly stay flexible and adapt to changes in focus areas and new, emerging needs.

Moreover, the ICC could bring in other sources of international assistance to restore judicial capacity in post-conflict regions. In the ICTR context, the Prosecutor facilitated the formation of partnerships between Rwanda and other States, international and regional authorities, and NGOs. In the ICTY context, some international judges in the WCC were brought in from other States. The ICC could also function as a referral point and invite other parties to work closely with the targeted national justice systems. As the ICTR Prosecutor observed, “embedded teams or co-locations whereby international and national staff work side-by-side” can greatly further knowledge transfer,85 and bringing in additional resources outside the ICC could help achieve this, especially when the ICC does not alone have the human and financial resources to do so.

Finally, the ICC strategy may need to pay special attention to certain aspects. For one, the departure of international assistance should be taken into account when forming capacity-building strategies. In the ICTY context, the departure of international personnel and funding put pressure on the WCC —when the international staff and funding first extracted, BiH legislative failed to approve the necessary budget, and the entire SCBiH had to operate on interim funding;86 investigations, witness support, criminal defense, and daily operations were the most affected areas.87 The WCC struggled in adjusting to the new situation in part because a strategy regarding this aspect was not thought out in advance. The ICC should learn from this experience and pay attention to getting domestic financial and personnel support that can ensure the quality and quantity of work after international assistance leaves. It is true that domestic support partly depends on the political will of national authorities, and the ICC may not alone be able to incentivize national authorities to generate that will. Still, taking such factors into consideration can inform the ICC’s strategic planning and help identify possible solutions to solve or at least mitigate the problem of the lack of domestic support. To do so, the ICC could bring in other international resources to help national authorities reconcile ethnic divides or overcome other difficulties. Particularly regarding referral cases, the ICC could also make use of the monitoring and revocation mechanism to ensure fair trials and can sometimes appoint other trusted, impartial regional organizations to act as the monitoring organ on behalf of the ICC. For instance, the ICTR, in its first decision granting a referral to Rwanda, appointed the African Commission on Human and People’s Rights as the monitoring organ.88

Another important aspect of consideration is to avoid creating double standards for war crimes cases originated in domestic courts and those referred from international courts. Rwanda’s reforms started from laws specifically governing transferred cases from the ICTR but later successfully expanded the improvements to all domestic cases. The WCC, as a branch specifically created for the domestic prosecution of war crimes, applied the same standards to both domestic and ICTY referral cases and has continued to prosecute war crimes domestically under these standards after the ICTY closed.89 While initial reforms may be motivated by transferred cases, the ICC should also encourage the extension of these reforms to all domestic cases.

Regarding the second prong, systematic compilation and storage of data is critical for ensuring smooth case transfers and efficient prosecutions, and the ICC should adopt multiple measures to facilitate the flow of information. For example, the ICC should make sure that written records in languages of the accused are available, or at least that the audio records in those languages are properly redacted, so that they can be easily accessed, transcribed, and used locally. Similarly, a centralized confidential database of protected witness information and other evidence not used in ICC trials should also be in place.90 As for third-party materials, a mechanism for acquiring release consents swiftly may be needed.

More specifically, in compiling data, the ICC could learn from the experience of David Schwendiman, the head of the WCC prosecutor office in 2007. Schwendiman undertook a detailed inventory task and developed a policy based on a “situation-event-act-actor approach.” Instead of compiling files on a case-by-case basis focusing on individual complaints:

This policy encouraged prosecutors to broadly look at situations that occurred during the war and progressively narrow it down to events within the situation, criminal acts as a result of the events and actors involved.91

Schwendiman also set up a digital archive to “recover and digitally capture all the records held by different authorities throughout BiH related to the forensic aspects of the location and identification of mortal remains.”92 These measures aimed at avoiding repetitive investigations in different jurisdictions and increased the efficiency of prosecution at different levels.93 This idea of centralizing and sharing data and making use of digital technology could be used by the ICC in future situations. The ICC could set up digital databases compiling evidence it gathered and similarly organize the information based on broader situations and events that can be narrowed down to the actors involved. The ICC could then grant access to national courts through secured channels. Data sharing across domestic courts could adopt a similar approach as well.

V. Conclusion

The experience of the ICTR and the ICTY shows that transferring cases to national courts has two prongs. The first one is the substantive determination of whether to grant transfers. In making this determination, the ICTR and the ICTY were primarily concerned about whether the national justice systems have the willingness and competence to ensure effective prosecutions and fair trials. They also took into account the prospects of domestic stability and the potential disruptive effects that immature transfers of cases may have on peace and justice. The ICC should similarly consider these factors and address them early on through comprehensive and flexible strategies that help build domestic judicial capacities. The second prong is the logistics of case transfers. The ICC should pay attention to the way data is compiled and shared, and how it could best facilitate information sharing and effective prosecutions.

In addition, the ICC should stay alert to new challenges that were not presented to the ICTR and the ICTY, because each conflict situation is different. New risks may require new solutions, and the ICC should stay open and adaptable.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   (This comment primarily focuses on the national courts in States where the conflict happened). ↩

2. 2.

   See Jesse Melman, The Possibility of Transfer(?): A Comprehensive Approach to the International Criminal Tribunal For Rwanda’s Rules 11 bis to Permit Transfer to Rwandan Domestic Courts, 79 Fordham L. Rev. 1271, 1298–99 (2010), available online;

   (“[T]he ICTY and ICTR share an Appeals Chamber and, importantly, the ICTR’s Rule 11 bis was taken virtually verbatim from the Yugoslav Tribunal’s Rules of Procedure and Evidence. Further, UN Security Council Resolution 1503 urges the ICTR to model its completion strategy on that of the ICTY, specifically in facilitating the transfer of cases to national jurisdictions.”).

   (The ICTY and the ICTR are grouped together because the two tribunals largely operated on the same rules). ↩

3. 3.

   See The International Tribunal for Former Yugoslavia, Rules of Procedure and Evidence, IT/32/Rev.50, Rule 11 bis (Jul. 8, 2015), available online, archived; The International Tribunal for Rwanda, Rules of Procedure and Evidence, UN Doc. ITR/3/Rev.23, Rule 11 bis (May 13, 2015) [hereinafter ICTR Rule 11 bis], available online; Erik Møse, President of the ICTR, Completion Strategy of the International Criminal Tribunal for Rwanda, delivered to UN Security Council, UN Doc. S/2006/358, ¶ 39 (Jun. 1, 2006), available online

   (“The decision to transfer cases to national jurisdictions is a judicial one in cases where indictments exist”.).

   Erik Møse, The International Criminal Tribunal for Rwanda, in International Criminal Justice: Law and Practice from the Rome Statute to Its Review 79, 97 (Roberto Bellelli ed., Nov. 18, 2016), available online;

   (“Such transfers [of non-indicted suspects] depend on prosecutorial discretion and are administrative in nature, based on cooperation between the ICTR Prosecutor and national prosecuting authorities.”). ↩

4. 4.

   ICTR Rule 11 bis, supra note 3, at art. (C). ↩

5. 5.

   Id. at art. (A)(i-iii). ↩

6. 6.

   Id. at art. (D)(iv). ↩

7. 7.

   Id. at art. (F). ↩

8. 8.

   The Prosecutor v. Rahim Ademi and Mirko Norac, IT-04-78-PT, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11 bis, ¶ 29 (ICTY RB, Sep. 14, 2005), available online. ↩

9. 9.

   See The Prosecutor v. Ildephonse Hategekimana, ICTR-00-55B-R11 bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11 bis, ¶ 4 (ICTR AC, Dec. 4, 2008), available online

   (“Rule 11 bis of the Rules allows a designated Trial Chamber to refer a case to a competent national jurisdiction for trial”).

   The Prosecutor v. Gaspard Kanyarukiga, ICTR-2002-78-R11 bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11 bis ¶ 4 (ICTR AC, Oct. 30, 2008), available online; The Prosecutor v. Yussuf Munyakazi, ICTR-97-36-R11 bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11 bis, ¶ 4 (ICTR AC, Oct. 8, 2008), available online. ↩

10. 10.

    The Prosecutor v. Laurent Bucyibaruta, ICTR-2005-85-I, Decision on the Prosecutor’s Request for the Referral of Laurent Bucyibaruta’s Indictment to France, ¶ 8 (ICTR TC, Nov. 20, 2007), available online; The Prosecutor v. Wenceslas Munyeshyaka, ICTR-2005-87-I, Decision on the Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s Indictment to France, ¶ 8 (ICTR TC, Nov. 20, 2007), available online; The Prosecutor v. Michel Bagaragaza, ICTR-2005-86-11 bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, ¶¶ 9–12 (ICTR TC III, Apr. 13, 2007), available online; Prosecutor v. Hategekimana, supra note 9, ¶ 4; Prosecutor v. Kanyarukiga, supra note 9, ¶ 4; Prosecutor v. Munyakazi, supra note 9, ¶ 4;

    (Courts apply the same general competency test to analyze whether states have jurisdiction and are “adequately prepared” for the purposes of Rule 11 bis (A)(iii)). ↩

11. 11.

    See Prosecutor v. Bucyibaruta, supra note 10, ¶ 8.

    (“A case can be referred to the national courts of a State only where the State concerned will charge and convict the persons responsible for those international crimes listed in the Statute as opposed to ordinary law crimes.”).

    Prosecutor v. Bagaragaza, supra note 10, ¶ 11.

    (“The Tribunal only has authority to refer cases where the State ‘will charge and convict [or acquit] only for those international crimes listed in its Statute’ as opposed to ‘ordinary crimes’ such as homicide.”).

    Prosecutor v. Hategekimana, supra note 9, ¶¶ 6–12

    (analyzing whether Rwandan law adequately criminalizes the charged crimes in accordance with Rule 11 bis). ↩

12. 12.

    The Prosecutor v. Jean-Baptiste Gatete, ICTR-2000-61-R11 bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, ¶ 21 (ICTR TC, Nov. 17, 2008), available online

    (finding Rwandan law sufficiently similar to the Statute’s definition of criminal responsibility). ↩

13. 13.

    Prosecutor v. Hategekimana, supra note 9, ¶ 4; Prosecutor v. Kanyarukiga, supra note 9, ¶ 4; Prosecutor v. Munyakazi, supra note 9, ¶ 4. ↩

14. 14.

    ICTR Rule 11 bis, supra note 3, at art. (C). ↩

15. 15.

    Prosecutor v. Hategekimana, supra note 9, ¶ 4.

    (“The Trial Chamber must also consider whether the accused will receive a fair trial”).

    Prosecutor v. Kanyarukiga, supra note 9, ¶ 4; Prosecutor v. Munyakazi, supra note 9, ¶ 4. ↩

16. 16.

    Statute for the International Tribunal for Rwanda, S.C. Res. 955 Annex, UN Doc. S/RES/955, Art. 20 (Nov. 8, 1994) [hereinafter ICTR Statute], available online;

    (In its entirety, Article 20 provides for the equality of all persons before the Tribunal; the right to a fair and public hearing; the presumption of innocence; the right to be informed of the nature and cause of the charges; adequate time and access to facilities to prepare a defense; the right to communicate with an attorney of one’s own choosing; the right to be tried without undue delay; the right to be tried in one’s own presence; the right to representation of an attorney, to be informed of this right, and, if indigent, to be provided with one free of charge; the right to examine and cross-examine witnesses for the prosecution and defense under equal conditions; the provision of an interpreter free of charge; and the right not to testify against oneself or be compelled to confess guilt). ↩

17. 17.

    Id. at arts. 20(4)(e), 21.

    (“The [ICTR] shall provide […] for the protection of victims and witnesses.”). ↩

18. 18.

    Prosecutor v. Ademi and Norac, supra note 8, ¶ 57. ↩

19. 19.

    See Hassan B. Jallow, ICTR Prosecutor, Statement to United Nations Security Council (Jun. 3, 2015), available online;

    (The ICTR Prosecutor, under his independent authority to transfer non-indicted suspects, has successfully referred fifty suspects to Rwanda and one to Belgium. However, with regard to the referral of indicted suspects, which need the ICTR’s approval, all requests were denied).

    International Federation for Human Rights, The Issues at Stake in the Closure of the International Criminal Tribunals for the Former Yugoslavia and Rwanda 6–7 (Apr. 2009), available online

    (mentioning that the Prosecutor submitted five cases to the Trial Chambers for consideration for transfer to Rwanda, that all requests were denied, and that three of those five were subsequently heard and denied on appeal).

    Møse, supra note 3, at 672; Dennis Byron, President of the ICTR, Report on the Completion Strategy of the International Criminal Tribunal for Rwanda, delivered to UN Security Council, UN Doc. S/2009/247, ¶ 50 (May 14, 2009), available online. ↩

20. 20.

    Office of the Prosecutor, ICTR, Complementarity in Action: Lessons Learned from the ICTR Prosecutor’s Referral of International Criminal Cases to National Jurisdictions for Trial 2, 27–28 (Feb. 2015) [hereinafter Complementarity in Action], available online. ↩

21. 21.

    Court of Bosnia and Herzegovina, 10th Anniversary of Section I for War Crimes at the Court of Bosnia and Herzegovina 20 (Dec. 2, 2015) [hereinafter 10th Anniversary], available online. ↩

22. 22.

    Complementarity in Action, supra note 20, at 14. ↩

23. 23.

    Id. at 16. ↩

24. 24.

    Id. at 16; see Melman, supra note 2, at 1293–98, 1303–05

    (detailing Rwanda’s legal reform and the ICTR’s denial of referrals). ↩

25. 25.

    See e.g., The Prosecutor v. Željko Mejakić, Momčilo Gruban, Dušan Fuštar, and Duško Knežević, IT-02-65-AR11 bis.1, Decision on Joint Defence Appeal Against Decision on Referral Under Rule 11 bis, ¶ 69 (ICTY AC, Apr. 7, 2006), available online.

    (“The Referral Bench correctly considered whether it was satisfied that the Appellants would receive a fair trial by establishing that the legislation in BiH allows for adequate time and facilities for the preparation of their defence. That was all it is required to do pursuant to Rule 11 bis of the Rules.”).

    (This seems to mean that, if the legal framework existed, there was no need for a referral chamber to look further by considering, for instance, how the rights were implemented in practice). ↩

26. 26.

    Complementarity in Action, supra note 20, at 18–21. ↩

27. 27.

    Id. at 22–23. ↩

28. 28.

    Id. ↩

29. 29.

    Id. at 23–24. ↩

30. 30.

    Id. at 24. ↩

31. 31.

    Id. at 24–25. ↩

32. 32.

    Id. at 25. ↩

33. 33.

    Id. at 27. ↩

34. 34.

    Id. at 32. ↩

35. 35.

    Id. at 32–43. ↩

36. 36.

    Id. at 28–29. ↩

37. 37.

    Id. at 49.

    (“Considering that an independent monitor could not serve both the prosecutor and chambers at the same time, the prosecutor thereafter decided to appoint a respected national judge, with substantial criminal law experience in the region, as his own monitor.”).

    (Before this appointment, however, due to the lack of funding, the ICTR appointed its staff as interim monitors while a lengthy process was undertaken to find pro bono monitoring services for the ICTR). ↩

38. 38.

    Id. at 2. ↩

39. 39.

    See Organization for Security and Cooperation in Europe, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles 3, 85 (Mar. 2005) [hereinafter OSCE Report], available online.

    (The 1995 Dayton Peace Agreement provided for a territorial settlement between the Muslim-Croat Federation of Bosnia and Herzegovina (FBiH) and the Serb-dominant Republika Srpska (RS). These two entities together form a federation (i.e., a State), but each entity has its own independent justice ministry and court systems. In the FBiH and the RS, there are multi-tiered court systems. Municipal courts in the FBiH and Basic Courts in the RS are the courts of first instance. Cantonal courts in the FBiH and District Courts in the RS are at the middle tier and Entity Constitutional Courts provide final appellate review. In addition, both entities have a series of minor offense courts outside the normal judiciary. The criminal laws of these two entities are also different. For example, basic Courts in the RS have jurisdiction in criminal cases up to a maximum 20-year sentence and Cantonal courts in the FBiH have criminal jurisdiction up to a 10-year sentence). ↩

40. 40.

    Law on Court of Bosnia and Herzegovina, Official Gazette of BiH, No. 29/00, art. 13(1) (Nov. 12, 2000), available online. ↩

41. 41.

    Lilian A. Barria & Steven D. Roper, Judicial Capacity Building in Bosnia and Herzegovina: Understanding Legal Reform Beyond the Completion Strategy of the ICTY, 9 Hum. Rts. Rev. 317, 324 (Jan. 8, 2008), available online, doi. ↩

42. 42.

    See Law on Court of Bosnia & Herzegovina, Official Gazette of BiH, No. 16/02, arts. 13–15 (Jun. 25, 2002), available online. ↩

43. 43.

    See Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Division of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia & Herzegovina, Official Gazette of BiH, No. 16/02 (Dec. 1, 2004), available online. ↩

44. 44.

    William W. Burke-White, The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina, 46 Colum. J. Transnat’l L. 279, 338–41 (2008), available online; Olga Martin-Ortega, Prosecuting War Crimes at Home: Lessons from the War Crimes Chamber in the State Court of Bosnia and Herzegovina, 12 Int’l Crim. L. Rev. 589, 594 (2012), available online, doi. ↩

45. 45.

    Bogdan Ivanišević, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court, ICTJ, 7 (2008) [hereinafter From Hybrid to Domestic Court], available online. ↩

46. 46.

    Id. ↩

47. 47.

    Martin-Ortega, supra note 44, at 596. ↩

48. 48.

    Background Information, Court of Bosnia and Herzegovina, available online (last visited Feb. 16, 2020). ↩

49. 49.

    Organization for Security and Cooperation in Europe, The Processing of ICTY Rule 11 bis Cases in Bosnia and Herzegovina: Reflections on Findings from Five Years of OSCE Monitoring 25 (Jan. 2010), available online; Tarik Abdulhak, Building Sustainable Capacities—From an International Tribunal to a Domestic War Crimes Chamber for Bosnia and Herzegovina, 9 Int’l Crim. L. Rev. 333, 350 (2009), paywall, doi. ↩

50. 50.

    From Hybrid to Domestic Court, supra note 45, at 25. ↩

51. 51.

    Burke-White, supra note 44, at 341–42. ↩

52. 52.

    See e.g., The Prosecutor v. Mitar Rašević and Savo Todović, IT-97-25/1-AR11 bis.1, IT-97-25/1-AR11 bis.2, Decision on Savo Todović’s Appeals Against Decisions on Referral Under Rule 11 bis, ¶ 63 (ICTY AC, Sep. 4, 2006), available online.

    (“The Referral Bench was only required to ascertain whether the provisions concerning the measures which may be ordered by the State Court of [Bosnia and Herzegovina] for the protection of witnesses, do not unfairly impinge upon the Appellant’s right to a fair trial.”). ↩

53. 53.

    See id. ¶¶ 82–84.

    (“[The Referral Bench did not err in] satisfying itself that the appellants would receive a fair trial in part on the basis of Rule 11 bis (D)(iv) monitoring and the Rule 11 bis (F) revocation mechanisms”).

    The Prosecutor v. Gojko Janković, IT-96-23/2-AR11 bis.2, Decision on Rule 11 bis Referral, ¶¶ 55–57 (ICTY AC, Nov. 15, 2005), available online; The Prosecutor v. Radovan Stanković, IT-96-23/2-AR11 bis.1, Decision on Rule 11 bis Referral, ¶ 52 (ICTY AC, Sep. 1, 2005), available online.

    (“The Appellant is […] wrong to suggest that it was improper for the Referral Bench to have satisfied itself that the Appellant would receive a fair trial in part on the basis [of the] monitoring and the […] revocation mechanism.”).

    (In contrast, the ICTR held that the monitoring and revocation mechanism was not necessarily enough).

    See Prosecutor v. Hategekimana, supra note 9, ¶ 29

    (failing to consider certain monitoring mechanisms was inconsequential because “these procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses” and that monitoring and revocation “lie within the sole discretion of the Prosecution”).

    Prosecutor v. Kanyarukiga, supra note 9, ¶ 38.

    (“[T]hese procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses [and] the decision to send monitors and the right to request […] revocation lie within the sole discretion of the Prosecution.”).

    Prosecutor v. Gatete, supra note 12, ¶ 94.

    ([A]lthough the monitoring system in place “has led to the rejection of some of the objections against transfer […] monitoring will not […] solve the problems relating to availability and protection of witnesses”). ↩

54. 54.

    Melman supra note 2, at 1299–300. ↩

55. 55.

    Complementarity in Action, supra note 20, at 2. ↩

56. 56.

    Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda 12 (Jul. 25, 2008), available online. ↩

57. 57.

    Background Information on the Justice and Reconciliation Process in Rwanda, UN, available online (last visited Feb. 16, 2020). ↩

58. 58.

    Complementarity in Action, supra note 20, at 18. ↩

59. 59.

    Rwandan Genocide, History (Sep. 30, 2019), available online (last visited Feb. 16, 2020). ↩

60. 60.

    See United Nations High Commissioner for Refugees, The Rwandan Genocide and Its Aftermath in The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action 245 (Oct. 6, 2000), available online. ↩

61. 61.

    Burke-White, supra note 44, at 338–44. ↩

62. 62.

    Id. at 339. ↩

63. 63.

    From Hybrid to Domestic Court, supra note 45, at 26.

    (“Judges have traveled on two occasions to The Hague and discussed concrete matters of substantive and procedural law with ICTY counterparts. Not surprisingly there is regular communication between the ICTY prosecutor and the Special Department for War Crimes, mainly in relation to the Rule 11 bis and Category II cases transferred to Bosnia.”). ↩

64. 64.

    Martin-Ortega, supra note 44, at 594. ↩

65. 65.

    Id. at 594. ↩

66. 66.

    Id. at 594. ↩

67. 67.

    From Hybrid to Domestic Court, supra note 45, at 39. ↩

68. 68.

    Id. at 4. ↩

69. 69.

    Id. at 39. ↩

70. 70.

    Abdulhak, supra note 49, at 351. ↩

71. 71.

    Id. at 351–52. ↩

72. 72.

    Id. ↩

73. 73.

    Id. at 352. ↩

74. 74.

    Id. ↩

75. 75.

    Id. at 353

    (explaining that, until 2007, the ICTY did not have provisions for national courts’ requests for variance or rescission of ICTY witness protection orders, and the later amended rule requires application to the ICTY to have the protective measures varied). ↩

76. 76.

    Id. at 354. ↩

77. 77.

    Id. at 355. ↩

78. 78.

    Martin-Ortega, supra note 44, at 612. ↩

79. 79.

    Id. at 613. ↩

80. 80.

    Complementarity in Action, supra note 20, at 27. ↩

81. 81.

    Abdulhak, supra note 49, at 346. ↩

82. 82.

    Complementarity in Action, supra note 20, at 57. ↩

83. 83.

    Id. ↩

84. 84.

    Martin-Ortega, supra note 44, at 595–96. ↩

85. 85.

    Complementarity in Action, supra note 20, at 57. ↩

86. 86.

    Martin-Ortega, supra note 44, at 596. ↩

87. 87.

    Id. ↩

88. 88.

    The Prosecutor v. Jean-Bosco Uwinkindi, ICTR-2001-75-R11 bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, ¶ 35 (ICTY RC, Jun. 28, 2011), available online. ↩

89. 89.

    See generally 10th Anniversary, supra note 21; OSCE Report, supra note 39, at 6; See also Organization of Security and Cooperation in Europe, Moving Towards a Harmonized Application of the Law: Applicable in War Crimes Cases Before the Courts of Bosnia and Herzegovina 8, 14–20 (Aug. 2008), available online;

    (In BiH, domestic prosecution of war crimes at the entity level remains problematic. The political and judiciary structure was such that prosecutors at the entity level were mostly of the same ethnicity and had jurisdiction only over those of their own ethnicity, thus there was little incentive to prosecute “one of their own.” The unusual institution structure of the BiH also made it difficult to unify judiciary practice at the entity level because there are multiple different sets of criminal law, entity courts do not have specialized personnel or resources in prosecuting and adjudicating war crimes, and there is no hierarchy between the State and the entity level institutions. The ethnic divides, political pressure, and institutional tension between the State and the entities are beyond the scope of this comment, but this does not mean that it is not important for the ICC, as well as other international entities and organizations, to further explore solutions to reconcile post-conflict domestic divisions and minimize their effect on war crimes prosecution and adjudication). ↩

90. 90.

    Abdulhak, supra note 49, at 352–53. ↩

91. 91.

    Martin-Ortega, supra note 44, at 613. ↩

92. 92.

    Id. ↩

93. 93.

    Id. at 612–14. ↩