Under its completion strategy, the ICTY has concentrated on the prosecution and trial of the most senior leaders while referring other cases involving intermediate and lower-rank accused to national courts.
There are two main categories of cases that the ICTY has referred to national judiciaries in the region of the former Yugoslavia:
- A large number of files from cases that were investigated to different levels by the Tribunal’s Prosecution which did not result in the issuance of an indictment by the ICTY.
- A small number of cases in which the Tribunal issued indictments against named suspects.
ICTY prosecution refers investigative materials to national authorities
Since the creation of the ICTY in 1993, the Tribunal’s Prosecution opened investigations and collected evidence against many persons suspected of being responsible for serious violations of international humanitarian law. Later, prioritisation of some cases over others led to some investigations being discontinued.
As a result, the ICTY Prosecution was left in possession of numerous incomplete case files containing evidence against individual suspects, when it issued its last indictments at the end of 2004, the deadline accepted under the completion strategy.
The Tribunal’s Prosecution is handing over to national prosecutors such cases. It is the responsibility of the relevant organs in the national judiciaries to bring such investigations to a conclusion on the basis of the evidence received from the ICTY and raise indictments where appropriate.
No further transfers of ICTY indictments (Rule 11bis) are under consideration by the Referral Bench
A total of eight cases involving 13 persons indicted by the ICTY have been referred to courts in the former Yugoslavia, mostly to Bosnia and Herzegovina. On the basis of the ICTY indictment and the supporting evidence provided by the Tribunal’s Prosecutor, these cases are tried in accordance with the national laws of the state in question.
No further cases are currently under consideration by the Referral Bench, the three-judge panel set to consider motions for referral filed by the Prosecutor. A fact sheet outlining the status of all referral motions made so far is attached.
In the first years of the Tribunal’s existence, the ICTY Prosecutor investigated dozens of lower or intermediate level perpetrators as part of a so-called ‘pyramid indictment strategy’ that was intended over time to lead investigators up the chain-of-command to the highest level suspects.
When the completion strategy was adopted in 2003, many of the lower level accused indicted earlier by the ICTY had already been tried in The Hague. Others, however, had only been arrested or surrendered recently and were at pre-trial stage. The Security Council directed the Tribunal to transfer such persons to national jurisdictions, as it was not obligatory that their trials be held before an international court, which should use its resources to try senior leaders suspected of being most responsible for crimes within its jurisdiction.