Compliance by BiH Authorities

7 cases have been transferred by the ICTY to BiH authorities in accordance with Rule 11bis. As the decision of the ICTY Referral Bench to transfer a case is made in the form of an order pursuant to Rule 11bis, the national authorities do not have any meaningful discretion as to whether to accept the case or not once that decision is made. It follows that the Government of BiH indicated both its willingness and ability to accept all relevant cases that the OTP had requested to be transferred in its submissions in the context of the proceedings before the Referral Bench. Only in the case against Dragomir Milošević, requested to be transferred by the OTP, did the Government of BiH maintain that it did not consider it suitable for transfer given the status of the perpetrator and the seriousness of the crimes involved, but, however, the BiH Government indicated its willingness and preparedness to prosecute the case should the Referral Bench decide to transfer it regardless.²⁵⁵⁴ In the case against Milan and Sredoje Lukić the Appeals Chamber of the ICTY held that Milan Lukić’s alleged crimes in conjunction with his role as a paramilitary leader made the case unsuitable for transfer under Rule 11bis.²⁵⁵⁵

The national authorities complied with the orders for transfer by immediately taking custody of accused persons transferred to BiH and processing the cases in accordance with domestic criminal procedure law, with the assistance of the international community in the fulfilment of cooperation obligations (or rather “commitments”) in the area of the transfer of cases. The European Convention on Mutual Assistance in Criminal Matters or other rules of interstate cooperation in criminal matters applicable in a horizontal relationship between States do not automatically apply to aspects of cooperation between the ICTY and domestic authorities since it refers to the relationship of signatory States with each other, and not to the rather unique case of the relationship between an international court and a State.²⁵⁵⁶

The Registry for Section I and Section II of the Criminal and Appellate Divisions of the Court of BiH and of the Special Departments for War Crimes and Organized Crime, Economic Crime and Corruption of the Prosecutor’s Office of BiH, was established on the basis of the Agreement between the High Representative and Bosnia and Herzegovina²⁵⁵⁷ and fulfilled the relevant obligations of the national authorities. However, the transition aspect already built into the Agreement establishing the Registry in 2004 was further defined by a new Agreement between the same parties in September 2006²⁵⁵⁸ reflecting a clear expectation on the side of the International Community and a corresponding obligation of the national authorities to fully take over such responsibilities with the closure of the Registry, planned to take place in December 2009.