The Decisions of the ICTY Referral Bench

The ICTY Referral Bench ordered the transfer of 7 cases to the authorities of BiH.2551

The decisions of the Referral Bench address the requirements of Rule 11bis, which mainly relate to whether the accused can be expected to receive a fair trial before the domestic court(s).²⁵⁵² They do not address the question as to whether the accused is likely to be convicted by the national court and/ or whether the domestic courts are going to use all evidence considered appropriate by the OTP. The Referral Bench pointed out, given that it only had the competence to decide on the transfer to the authorities of a State and not to a specific court in accordance with Rule 11bis, that it expects the Court of BiH to be the competent court under BiH law to deal with the cases in the event they are transferred.²⁵⁵³ However, it should be noted that Article 2 of the Law on Transfer does not contain an express prohibition of further transferring ICTY cases to Entity courts.