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

cially the prosecutorial office of the Hague Tribunal. If we ask for something today, it’s
possible to get it the next day. 824
While the comparatively small number of Rule 11 bis transfers played an outsized role
in shaping the BWCC and its early docket, the chamber’s caseload is far more extensive than
that generated by such referrals—and so, too, is the ICTY’s role. A second category of cases
prosecuted by the SDWC grew out of investigations instituted by the ICTY prosecutor that did
not lead to indictments by the time the Tribunal had to conclude its investigations. Known as
“Category II” cases in recognition of the fact that “Rule 11 bis cases were the first priority” in
the ICTY’s completion strategy, what was transferred to the Bosnian State Court was more
accurately described as “collections of materials associated with particular crimes” 825 than a
trial-ready case file.
ICTY prosecutors transferred fourteen Category II cases involving approximately 40
suspects for transfer to Sarajevo826 in the hope that their investigatory work would not “simply
be left on the proverbial wayside.” 827 In an effort to narrow the gap between the raw evidence
in Category II files and a criminal case, an OTP Transition Team prepared “a summary of the
‘case,’ outlining the principal factual and legal issues as well as an accompanying analysis.” 828
A third category of the SDWC’s prosecutions has a different connection with the ICTY.
These are cases “already cleared in accordance with the Rules of the Road procedure in The
Hague” 829 and not referred for prosecution by a cantonal or district court. As noted earlier,
the ICTY prosecutor transferred her office’s Rules of the Road files to Bosnian authorities
beginning in October 2004. At this time, the SDWC began receiving electronic copies of the
877 files that had been given an “A” marking, 830 signifying that the ICTY OTP believed that
there was sufficient evidence in the file submitted by Bosnian prosecutors to support war
crimes charges. For these cases, the SDWC undertook a review during the first half of 2005
to determine which cases it would retain for prosecution itself—a total of 202 files831 —and
which, instead, it would refer for investigation by cantonal and district prosecutors pursuant
to the process outlined below. 832
If, as noted earlier, the Rules of the Road process played a key role in stabilizing post-war
Bosnia, it is less clear how helpful the ICTY review process was for Bosnian prosecutors who
received stale files years after they were submitted to the Hague Tribunal for its review. (This
is not surprising, as the OTP review was intended to assess sufficiency, and not completeness,
of the evidence in the files.) According to then SDWC head David Schwendiman, “The ICTY
Rules of the Road files have not proven to be reliable except as starting points for [essentially
new] domestic investigations. They do not translate immediately into prosecutable cases, partly
because they are old, but mostly because they were and are incomplete” 833 —even when deemed
by the ICTY to contain sufficient evidence to support an indictment. 834
The fourth and final category of cases prosecuted by the SDWC comprises cases initiated
in Bosnia that did not flow through the Rules of the Road process. When interviewed in
122 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS