¹ See, eg my article in 14 Criminal Law Forum (2003) 59, and Raab, ‘Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their Tribunals’ (2005) 3 Journal of International Criminal Justice 82.

² ICTY Rule 11bis, as of 28 July 2004:

Rule 11 bis: Referral of the Indictment to Another Court

(A) If an indictment has been confirmed, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a Trial Chamber for the purpose of referring a case to the authorities of a State:

(i) in whose territory the crime was committed; or

(ii) in which the accused was arrested; or

(iii) having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should forthwith refer the case to the appropriate court for trial within that State

(B) The Trial Chamber may order such referral proprio motu or at the request of the Prosecutor, 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.

(C) In determining whether to refer the case in accordance with paragraph (A), the Trial Chamber shall, in accordance with Security Council resolution 1534 (2004), consider the gravity of the crimes charged and the level of responsibility of the accused.

(D) Where an order is issued pursuant to this Rule:

(i) the accused, if in the custody of the Tribunal, shall be handed over to the authorities of the State concerned;

(ii) the Chamber may order that protective measures for certain witnesses or victims remain in force;

(iii) the Prosecutor shall provide to the authorities of the State concerned all of the information relating to the case which the Prosecutor considers appropriate and, in particular, the material supporting the indictment;

(iv) the Prosecutor may send observers to monitor the proceedings in the national courts on her behalf.

(E) The Trial Chamber may issue a warrant for the arrest of the accused, which shall specify the State to which he is to be transferred to trial.

(F) At any time after an order has been issued pursuant to this Rule and before the accused is found guilty or acquitted by a national court, the Trial Chamber may, at the request of the Prosecutor and upon having given to the State authorities concerned the opportunity to be heard, revoke the order and make a formal request for deferral within the terms of Rule 10.

(G) Where an order issued pursuant to this Rule is revoked by the Trial Chamber, the Chamber may make a formal request to the State concerned to transfer the accused to the seat of the Tribunal and the State shall accede to such a request without delay in keeping with Article 29 of the Statute. The Trial Chamber or a Judge may also issue a warrant for the arrest of the accused.

³ ICTR Rule 11bis, as of 24 Apr 2004.

⁴ Although it may be fair to say that if faced with this problem under the previous law, the ICTY would have resorted to the pervasive inherent powers doctrine which it has used as a catch-all principle whenever there was a lacuna in the RPE that needed to be closed.

⁵ It is important to note that the ICTR Rule 11bis does not contain the restriction with respect to the death penalty, apparently a diplomatic move to appease Rwandan concerns, where the death penalty is still available for certain offences. The question of whether it is acceptable UN practice to allow the imposition of the death penalty as long as it is not carried out cannot be answered here.

⁶ Jones, John RWD and Powles, StevenInternational Criminal Practice(3rd ednOUP Oxford 2003) para 5.88.Google Scholar

⁷ For an overview of the current state of the law see Bantekas, Ilias and Nash, SusanInternational Criminal Law (2nd ednCavendish London 2003) ch 8.Google Scholar

⁸ Such as, for example, the Soering principle, see Soering v UK ECtHR (Application no 14038/88) Decision of 7 July 1989.

⁹ Application no 51891/99, Decision on inadmissibility of 4 May 2000, 1.b):

‘The Court recalls that exceptionally, an issue might be raised under Article 6 of the Convention by an extradition decision in circumstances where the applicant risks suffering a flagrant denial of a fair trial. However, it is not an act in the nature of an extradition which is at stake here, as the applicant seems to think. Involved here is the surrender to an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence.’

¹⁰ Very instructive on Resolution 1422 Mokhtar ‘The fine art of arm-twisting: The US, Resolution 1422 and Security Council deferral power under the Rome Statute’ (2003) 3 International Criminal Law Review 295.

¹¹ It is, in my view, still questionable whether the Security Council had the power to create subsidiary organs that were not only independent within the UN administrative system, but were independent in their judicial function with regard to individual persons and States outside that structure. In fact, both the ICTY and ICTR have acquired the status of partial principal judicial organs apart from the ICJ, because the Security Council can no longer interfere with the actions of its subsidiary organs, short of closing them down or amending their Statutes, and, indeed, both Tribunals have repeatedly held that they are not bound by the decisions and views of, for example, the ICJ. See the decision of the ICTY Appeals Chamber of 24 May 2001 inProsecutor v Kvaocka et al at paras 16 et seq <http://www.un.org/icty/kvocka/appeal/decision-e/ 10525JN315907.htm>. However, one may argue that this point is now moot, as the UN and the international community by their acquiescence appear to have accepted the interpretation adopted by the ICTY Appeals Chamber which affirmed such a power in the Tadic Jurisdiction Decision of 2 Oct 1995; see <http://www.un.org/icty/tadic/appeal/decision-e/51002.htm>. For an in-depth analysis of the issues involved see Sarooshi ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 British Yearbook of International Law 413, and id ‘The United Nations and the Development of Collective Security—The Delegation by the UN Security Council of its Chapter VII Powers’ (1999) 86 et seq. Sarooshi affirms the power of the Security Council to delegate its Chapter VII powers to the ICTY and ICTR, albeit under the admission (96–8) that the Security Council itself does not have any judicial powers it could delegate as such. It is, however, open to question whether one can, as a matter of common logic, create a judicial body by delegation and invest it with a power that one does not have.

¹² See my article in 12 Criminal Law Forum (2001) 91, for a critique of the—prevailing— contrary view.

¹³ See the decisions of the Federal Constitutional Court (Bundesverfassungsgericht ) in Amtliche Sammlung der Entscheidungen des Bundesverfassungsgerichts (BVerfGE) vol 40, 237 (248 et seq); vol 49, 89 (126); vol 95, 267 (307), and BVerfGE vol 47, 46 (79); vol 83, 130 (140) and BVerfGE vol 68, 1 (86), as well as the judgment in the case 1 Bv 1640/97 (14 July 1998) on the reform of the rules of spelling and orthography <http//www.bundesverfassungsgericht.de> in the folder ‘Entscheidungen’.

¹⁴ With the possible exception of human rights law.

¹⁵ Financing 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, First performance report of the International Tribunal for the Former Yugoslavia for the biennium 2004–5, Report of the Secretary-General (2 Nov 2004) United Nations Doc No A/59/547, Annex III.

¹⁶ Of course, given the secrecy that surrounds the plenary of the judges when they deliberate amendments to the RPE, they may well have consulted them.

¹⁷ Another question, which has to do more with procedural issues, is if the judges were right in assigning to themselves the power to decide propio motu whether to refer a case or not. Some may see this as an infringement of the position of the Prosecutor, but I cannot support that view.

¹⁸ Case No. IT-96–23/2-AR11bis 1.

¹⁹ ICTY Press Release CT/MO/1008.