Background

In order to achieve the aim as outlined in Resolution 1503, the ICTY not only requires enforced cooperation regarding the arrest and transfer of accused persons, but also assistance from national authorities in the actual prosecution of its own cases, most importantly cases with confirmed indictments transferred under Rule 11bis of the RoPE, but also the so called “category 2 cases”, i.e., partially investigated cases that never reached the level of a formal indictment before the ICTY.

Given that a number of cases pending before the ICTY relating to crimes committed on the territory of BiH appeared to be suitable for transfer in accordance with Rule 11bis, the BiH authorities and the Office of the High Representative for Bosnia and Herzegovina were approached by the ICTY Chief Prosecutor as early as 2001 to assist in the identification of a suitable institution within the country capable to try cases (to be) transferred by the ICTY. Against that background, the transfer of cases from the ICTY has to be considered an important aspect of cooperation with the ICTY in that it plays a significant role for the completion of the ICTY’s mandate and thereby for the overall fulfilment of the ICTY´s mandate. However, it remains doubtful whether it is appropriate to consider the taking over of cases as “cooperation obligations” in accordance with Article II.8 of the Constitution for the reasons outlined below. This aspect of the completion strategy is labelled “partnership and transition” by the ICTY itself rather than being considered in the context of “cooperation obligation”.²⁵⁵⁰