The ICTY's Referral Practice: A Brief Review of Rule 11 Bis Jurisprudence - Commentary on the Mejakic et al Case

Abstract

The Appeals Chamber Decision in the Mejakić et al. referral proceedings, subject of the present commentary, is the third in a line of referral practice that has originated within the framework of the ICTY’s completion strategy. Pursuant to a desire to ‘finish up’ its work, the ICTY, in accordance with Security Council Resolutions, has decided to further shift its focus to those ‘most responsible’ for the crimes committed in the former Yugoslavia and consequently, to refer certain cases to domestic jurisdictions. The present Decision builds on the Janković and Stanković jurisprudence, in which a large number of issues surrounding this matter have already been resolved or at least adjudicated upon, including the alleged lack of legal basis for the Rule and the relevance of the gravity of the applicant's crimes and his individual criminal responsibility. These matters will be summarily discussed, while the novel issues that arose will be accorded greater attention. This includes primarily the applicability of international law on extradition, as well as the relation of Rule 6(D) ICTY RPE, which provides that a change in the rules may not prejudice the accused, to the issue of referrals under Rule 11 bis.

Keywords: International Criminal Law, International Criminal Proceedings, ICTY, Referral Practice, Rule 11 bis, Completion Strategy, Rights of the Accused