That Someone Guilty Be Punished - International Center for ...

a. Rule 11 bis cases
While Rule 11 bis cases transferred to Bosnia have been few in number, they have had a broad
impact on the country’s new system for prosecuting war crimes. As noted earlier, Rule 11 bis
provides that the ICTY Referral Bench may transfer indictments to a domestic court only if it
is satisfied that the accused will receive a fair trial, though this is hardly the only reason the
war crimes chamber would be bound to meet international standards. Pursuant to the Dayton
Agreement, Bosnia is bound to apply the European Convention on Human Rights, and the
country’s Constitutional Court has ensured that it does so. 794
More significantly, Rule 11 bis provides for further assurances once a confirmed indictment
has been transferred. The ICTY prosecutor can designate observers to monitor domestic
cases that originated in an ICTY indictment on his or her behalf, 795 and the Tribunal can recall
a transferred case if local proceedings fall short of international standards. 796 The prosecutor
requested the Organization for Security and Co-operation in Europe (OSCE) to perform an
ongoing trial monitoring role on its behalf in BWCC cases arising out of Rule 11 bis transfers
and it agreed to do so. 797 Although the OSCE’s writ on behalf of the ICTY prosecutor extends
to these cases only, its Judicial and Legal Reform Unit in Sarajevo monitors all of the chamber’s
cases and the mission would almost certainly have monitored 11 bis cases on its own
initiative to the greatest extent possible within its regular monitoring capacities even without
being asked to do so by the ICTY prosecutor. Even so, a formalized relationship with the ICTY
enabled the OSCE Bosnia mission to establish a specialized section to focus on the 11 bis cases
as its main priority. 798
Its capacity to monitor these cases comprehensively has had a knock on effect: The
OSCE’s detailed critiques of the national court proceedings addressed systemic concerns early
on, preparing the fledgling chamber to perform at a higher level as it has taken on other cases.
For example, the OSCE’s monitoring reports in the initial Rule 11 bis cases flagged problems
relating to the manner in which ICTY detention orders were reviewed by the Court of BiH.
By the time the third indictment was transferred, the court’s practice changed. 799 Other issues
flagged by the OSCE in its 11 bis monitoring reports—relating for example to protection of witnesses,
pretrial custody, and the rights of witnesses to request compensation from the accused
through the criminal proceedings—have either been addressed by the court and prosecutor or
have at least raised awareness about the need to resolve them comprehensively. 800 The OSCE
unit notes that its reporting has not been the sole reason for these improvements; it has often
“worked in synergy with the efforts of numerous actors.” 801 Yet its 11 bis monitoring role doubtless
contributed to positive change.
This is not to suggest that the procedures put in place by the ICTY and OHR to govern
11 bis cases have invariably enhanced trial proceedings before the BWCC. In its initial report
on the first 11 bis trial before the BWCC, the OSCE’s Bosnia Mission identified a number of
gaps and ambiguities in the Law on the Transfer of Cases, 802 which was enacted to provide a
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