Cooperation with the ICTY

Cooperation with the ICTY has in practice been the most problematic aspect of Article II.8. However, jurisprudence of the Constitutional Court and of other courts on that specific aspect of Article II.8 hardly exists. “Cooperation” means any form of cooperation in all matters of relevance to the tribunal and with all principal organs of the ICTY under Article 11 of the ICTY Statute (the Statute), that is, with the Chambers, the Office of the Prosecutor (OTP), and the Registry of the ICTY.

The wording of Article II.8 places particular emphasis on compliance with orders on the basis of Article 29 of the Statute, usually being the basis for requests for transfer not only of suspects and persons accused by the ICTY and for arrest warrants, but also for requests to hand over evidentiary material and for the appearance of witnesses.

Article 29 of the Statute constitutes a “novel and unique obligation” under international law²⁴⁹³ by creating an erga omnes obligation for all UN member states to cooperate with the Tribunal²⁴⁹⁴ and trumping other international legal obligations by virtue of Article 103 of the UN Charter.²⁴⁹⁵

Despite the fact that only three persons accused by the ICTY remain to be brought before it, the issues relating to the transfer of the accused and suspects should be considered in retrospect and – to the extent applicable – taken as lessons learned by BiH authorities for future cases. This particularly relates to cooperation with the International Criminal Tribunal for the former Yugoslavia, thereby considering the significant differences between the concept of complementarity as enshrined in Article 1 of the Rome Statute and the concept of primacy of the ICTY in accordance with Article 9 paragraph 2 of the ICTY Statute.²⁴⁹⁶