The Rules of the Road Review Process

The Rules of the Road process, based on the Rome Agreement of February 1996 signed by the parties to the conflict, was an important process aiming to prevent arbitrary arrests on the basis of war crimes allegations. It required the parties to the Agreement to submit war crimes case files to the ICTY-OTP for clearance prior to proceeding with them at the domestic level. Initially the Agreement did not constitute an aspect of cooperation with the ICTY in accordance with Article II.8 of the Constitution of BiH as the ICTY-OTP had only subsequently “accepted” to carry out the review functions agreed upon in the Rome Agreement and to establish a “Rules of the Road Unit” for that purpose. However, the Rome Agreement required transfer of cases to the ICTY for clearance prior to any arrest warrants issued at the domestic level (on the basis of a category A clearance) and therefore effectively became an aspect of cooperation with the ICTY. During its existence the Unit had reviewed 900 investigation files,²⁵⁶⁶ involving a total of 5,789 persons suspected of war crimes.²⁵⁶⁷ The ICTY Chief Prosecutor gave approval for 848 persons to be arrested on war crimes charges; however, in many cases arrests still took place in violation of the Rules of the Road.²⁵⁶⁸ The Rules of the Road Unit was closed in September 2004 and transferred its competencies to the Prosecutor’s Office of BiH established in 2002.

Article 1.7 of the Election Law of Bosnia and Herzegovina stipulates compliance with the Rome Agreement as a requirement for barring persons from registration to vote or from standing as a candidate or holding any public office in the territory of Bosnia and Herzegovina in cases where they are serving a sentence of any court in BiH or they failed to comply with an order of the courts for serious violations of international humanitarian law. The clearance of their case with so-called “category A” clearance of the ICTY Rules of the Road Unit is a requirement, i.e., sufficient evidence had to exist for the processing of the case against them. The reference to review by the ICTY became redundant with the effective abandonment of the Rome Agreement in September 2004, when the Prosecutor’s Office of BiH took over the functions of the Rules of the Road Unit. The relevant safeguards that the Rules of the Road aimed to provide are now enshrined in the relevant BiH criminal procedure code and require the Prosecution to establish sufficient evidence prior to arrests taking place, be it at the pre- or post-indictment stage. Also the judicial review system guarantees due process rights for persons accused and/or arrested by national authorities.