Decision on Referral of Case Under Rule 11 bis

The Referral Bench of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seized of the “Motion by the Prosecutor Under Rule 11 bis With Annexes I, II, III and Confidential Annexes IV and V” (“Motion for Referral”), filed by the Office of the Prosecutor (“Prosecution”) on 29 November 2004 in the case of Gojko Jankovic (“the Accused”) and Dragan Zelenovic.
Rule 11 bis of the Tribunal’s Rules of Procedure and Evidence (“Rules ”), entitled “Referral of the Indictment to Another Court”, was adopted on 12 November 1997 and revised on 30 September 2002.¹ Revision was necessary in order to give effect to the broad strategy endorsed by the Security Council for the completion of all Tribunal trial activities at first instance by 2008.² This completion strategy was subsequently summarised in Security Council Resolution 1503 as one of “concentrating on the prosecution of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate […].”³
Since the 30 September 2002 revision of Rule 11 bis, there have been three amendments – one of 10 June 2004, one of 28 July 2004, and one of 11 February 2005. In its current form,⁴ the Rule provides that:

(A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State :

(i) in whose territory the crime was committed; or

(ii) in which the accused was arrested; or

(iii) having jurisdiction and being willing and adequately prepared to accept such a case,

so that those authorities should forthwith refer the case to the appropriate court for trial within that State.

(B) The Referral Bench may order such referral proprio motu or at the request of the Prosecutor, after having given to the Prosecutor and, where applicable, the accused, the opportunity to be heard and after being satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out.

(C) In determining whether to refer the case in accordance with paragraph (A), the Referral Bench shall, in accordance with Security Council resolution 1534 (2004), consider the gravity of the crimes charged and the level of responsibility of the accused.

(D) Where an order is issued pursuant to this Rule:

(i) the accused, if in the custody of the Tribunal, shall be handed over to the authorities of the State concerned;

(ii) the Referral Bench may order that protective measures for certain witnesses or victims remain in force;

(iii) the Prosecutor shall provide to the authorities of the State concerned all of the information relating to the case which the Prosecutor considers appropriate and, in particular, the material supporting the indictment;

(iv) the Prosecutor may send observers to monitor the proceedings in the national courts on her behalf.

(E) The Referral Bench may issue a warrant for the arrest of the accused, which shall specify the State to which he is to be transferred to trial.

(F) At any time after an order has been issued pursuant to this Rule and before the accused is found guilty or acquitted by a national court, the Referral Bench may, at the request of the Prosecutor and upon having given to the State authorities concerned the opportunity to be heard, revoke the order and make a formal request for deferral within the terms of Rule 10.

(G) Where an order issued pursuant to this Rule is revoked by the Referral Bench, it may make a formal request to the State concerned to transfer the accused to the seat of the Tribunal and the State shall accede to such a request without delay in keeping with Article 29 of the Statute. The Referral Bench or a Judge may also issue a warrant for the arrest of the accused.

(H) A Referral Bench shall have the powers of, and insofar as applicable shall follow the procedures laid down for, a Trial Chamber under the Rules.

(I) An appeal by the accused or the Prosecutor shall lie as of right from a decision of the Referral Bench whether or not to refer a case. Notice of appeal shall be filed within fifteen days of the decision unless the accused was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the accused is notified of the decision.

II. PROCEDURAL HISTORY
The original indictment against Gojko Jankovic (“Accused”) was confirmed on 26 June 1996⁵ and included seven other persons.⁶ An amended indictment was confirmed against the Accused and four of the original indictees on 7 October 1999 (“Indictment”).⁷
While the Accused was still at large, on 29 November 2004, the Prosecution filed this Motion for Referral.⁸ On 1 December 2004, the President of the Tribunal transferred the Motion to the Referral Bench to consider whether the case should be referred.⁹ For practical purposes, the Referral Bench will restrict its consideration of the Motion for Referral to the Accused who is in the custody of the Tribunal.
The Accused was transferred to the Tribunal from Banja Luka in Bosnia and Herzegovina on 14 March 2005. At the initial appearance on 18 March 2005, the Accused declined to enter a plea. A further initial appearance was held on 15 April 2005 during which the Accused pleaded not guilty.
On 15 April 2005, the Referral Bench issued a decision ordering the parties and inviting the Government of Bosnia and Herzegovina to submit responses to specific questions.¹⁰ The Government of Bosnia and Herzegovina filed a response on 26 April 2005,¹¹ the Prosecution on 5 May 2005,¹² and counsel for the Accused (“Defence”) on 6 May 2005.¹³
On 6 May 2005, the Government of Serbia and Montenegro, at the instigation of the Defence, filed a submission requesting referral of the case to its authorities and that it be invited to participate in an upcoming oral hearing.¹⁴ On 10 May 2005, the Prosecution requested that the Trial Chamber strike out Serbia and Montenegro’s submission¹⁵ and sought leave to file a reply to the Defence’s Second Submissions.¹⁶ The Trial Chamber on 11 May 2005 decided that representatives of Serbia and Montenegro could attend the forthcoming hearing.¹⁷
The motion hearing was held by the Referral Bench on 12 May 2005 with the parties present, along with the Governments of Bosnia and Herzegovina and of Serbia and Montenegro.¹⁸ For reasons of judicial economy, the Motion Hearing was held jointly for the instant case and the case of Prosecutor v. Mitar Rasevic and Savo Todovic¹⁹, with counsel for Savo Todovic also representing the Accused.
Following the hearing, further written submissions were received relating to issues discussed at the hearing. The Defence²⁰ and the Government of Bosnia and Herzegovina²¹ filed submissions on 19 and 20 May 2005 respectively. The Defence, without leave, replied to Bosnia and Herzegovina’s submissions on 24 May 2005.²²
By agreement of the parties, and to avoid unnecessary repetition, the Referral Bench has extended its consideration of matters in this case to the submissions of the parties in other cases before the Bench.²³ All relevant written submissions were provided to the Defence, and the Defence observed motion hearings in the other cases considered.²⁴ The Prosecution was a party to the other cases.

III. THE ACCUSED AND THE CHARGES
According to the Indictment, the Accused, Gojko Jankovic, was born on 31 October 1954 in the village of Trbusce in the municipality of Foca, Bosnia and Herzegovina. Prior to 1992, he was a permanent resident of Foca, although he had also lived for a period of time in Montenegro.²⁵ His nationality was, however, a subject of some dispute at the hearing in this case, as the Defence contended that the Accused was a national of Serbia and Montenegro.²⁶ At the hearing, the Trial Chamber found that there was insufficient evidence to prove that claim, but allowed the Defence the opportunity to provide further evidence on the matter.²⁷ The Defence subsequently submitted that it was not in possession of such further evidence.²⁸ The Trial Chamber will therefore regard the Accused to be a national of Bosnia and Herzegovina only.
The Indictment alleges that, between July 1992 and October 1992, the Accused participated in a persecutorial campaign against the non-Serb, primarily Bosnian Muslim civilian population of the town of Foca and its surroundings. The Accused is charged on the basis of individual criminal responsibility under Article 7(1) of the Statute of the Tribunal (“Statute”)²⁹ with seven counts of crimes against humanity (three counts of torture under Article 5(f) and four counts of rape under Article 5(g)) and seven counts of violations of the laws or customs of war (three counts of torture and four counts of rape under Article 3).³⁰ In addition, the Accused is charged on the basis of superior criminal responsibility under Article 7(3) of the Statute with two counts of crimes against humanity (torture under Article 5( f) and rape under Article 5(g)) and two counts of violations of the laws or customs of war (torture and rape under Article 3).³¹
The Prosecution alleges that in 1992, the Accused was a sub-commander of the military police and one of the main paramilitary leaders in Foca. According to the Indictment, the Accused was in charge of a group of soldiers who on 3 July 1992 arrested a group of women, transported them to a location identified as Buk Bijela, where they were interrogated and raped. It is alleged that the Accused personally participated in the interrogation and the rapes. Between 3 July 1992 and 13 August 1992, when this group of women was detained in the Foca High School and the Partizan Sports Hall, the Indictment alleges that the Accused, and soldiers subordinate to him, sexually assaulted the women in these detention facilities. The Accused is furthermore accused of having raped four young girls and women, together with two other participants, in an apartment near the Foca Fish Restaurant on 30 October 1992. It is also alleged that the Accused knew or had reason to know that soldiers subordinate to him sexually assaulted women and girls during or immediately following interrogations.³²

IV. REFERRAL OF THE CASE PURSUANT TO RULE 11 BIS

A. Gravity of crimes charged and level of responsibility of Accused

1. Submission
In the context of Rule 11 bis (C), the Prosecution submits that while the charged crimes are serious, in light of the “Completion Strategy” of the UN Security Council, they are not of such gravity as to demand trial at the Tribunal.³³ The Prosecution further submits that the level of responsibility of the Accused is compatible with the referral of this case to the authorities of Bosnia and Herzegovina.³⁴ It is accepted that the Accused, as a sub-commander of the military police, held a position of command over a number of others, which distinguishes him from lower level accused who had no such authority. Notwithstanding this, the Prosecution submits that the Accused does not belong to that small group of “military, civilian or paramilitary leaders” referred to by the Security Council Resolution, who bear the main responsibility for the criminal events in the former Yugoslavia during the relevant time. It characterises the Accused as falling within the category of intermediate level perpetrators.³⁵
The Defence agrees with the Prosecution’s assessment that the crimes charged are serious, and for this reason submits that the case should not be referred to a State under Rule 11 bis.³⁶ The Defence submits that the level of the responsibility of the Accused, both in the light of his alleged role in the commission of the offences charged and his alleged position in the military police and as a paramilitary commander is not compatible with referral of the case to the authorities in Bosnia and Herzegovina under Rule 11 bis. In support of these arguments, the Defence emphasises that the Accused is partly charged with superior responsibility under Article 7(3) of the Statute,³⁷ and that the Indictment refers to him as one of the main paramilitary leaders in Foca³⁸.
The Government of Bosnia and Herzegovina submits that the crimes, while grave, are suitable for referral because they are alleged to have occurred within a short timeframe and in a limited geographic area. It is further submitted that the Accused, in comparison with others, would fall into the category of intermediate and lower -level perpetrators.³⁹

2. Discussion
In evaluating the level of responsibility of the Accused and the gravity of the crimes charged, the Referral Bench will consider only those facts alleged in the Indictment – they being the essential case raised by the Prosecution for trial – in arriving at a determination whether referral of the case is appropriate.
The Accused is charged in the Indictment with incidents of torture and rape involving sixteen females and within a time frame of four months in 1992. All offences charged are alleged to have occurred in and around Foca. It must be readily accepted that these charges allege serious offences. In the context of the offences dealt with by this Tribunal, however, the factual basis for the alleged crimes is limited in scope, both geographically and temporally, and also in terms of the number of victims affected. While the Accused is said to have been one of the main paramilitary leaders in Foca, and a sub-commander of the military police there, it is not suggested that the Accused had any political role. The fact that the Accused may have been in command of others on a local level is, in the opinion of the Referral Bench, not a sufficient basis to characterise him as a “leader” for the purposes of Rule 11 bis.⁴⁰

3. Conclusion
The Referral Bench is satisfied that the gravity of the crimes charged and the level of responsibility of the Accused are not ipso facto incompatible with referral of the case to the authorities of a State meeting the requirements of Rule 11 bis (A).

B. Determination of the State of Referral

1. Submission
The Prosecution submits that the case should be referred to the authorities of Bosnia and Herzegovina, and not to Serbia and Montenegro.⁴¹ Foremost, the Prosecution contends that the criteria in Rule 11 bis (A) reflect a preferential ordering among competing States which gives the greatest weight to the State in whose territory the crime was committed under Rule 11 bis (A )(i), that being Bosnia and Herzegovina.⁴² The Prosecution submits that the case should not be referred to Serbia and Montenegro pursuant to Rule 11 bis (A), as the crimes were not committed in Serbia and Montenegro and neither was the Accused arrested in Serbia and Montenegro nor is he a national of Serbia and Montenegro.⁴³
The Defence submits that the Accused had initially voluntarily surrendered to the authorities of Serbia and Montenegro, but, as part of a joint effort of Serbia and Montenegro and Republika Srpska of Bosnia and Herzegovina, he was transferred to the Tribunal from Banja Luka. Furthermore, the Defence contends that the Accused’s permanent residence in 1990 was in Herceg-Novi, Montenegro, and that that residence was never revoked; finally, that the Accused meets all the requirements which would enable him to obtain citizenship of Serbia and Montenegro.⁴⁴

2. Discussion
As a procedural matter, the Referral Bench notes that the Motion, in which the Prosecution requests the referral of the case to Bosnia and Herzegovina, is the only formal request before the Referral Bench. The Defence and Serbia and Montenegro are not in a position to file a formal request for referral to Serbia and Montenegro pursuant to Rule 11 bis. At the same time, this does not bind the Referral Bench to consider only Bosnia and Herzegovina as a possible state of referral; the Referral Bench may order referral to a State proprio motu pursuant to Rule 11 bis (B) of the Rules.
In the present case, the crimes are alleged to have been committed in Bosnia and Herzegovina, against persons living in Bosnia and Herzegovina, and by the Accused who, both at the time of the alleged crimes and now, is a citizen of Bosnia and Herzegovina. In the view of the Referral Bench, those considerations weigh heavily in favour of referral being to Bosnia and Herzegovina, if referral is found to be appropriate in this case and if there are no reasons which weigh significantly against referral to Bosnia and Herzegovina. By contrast, the only apparent nexus between the Accused or his alleged crimes and Serbia and Montenegro is that in 1990, prior to the charged timeframe, his permanent residence was in Montenegro and that under the domestic regulations of Serbia and Montenegro, he meets all requirements for citizenship.⁴⁵
In the view of the Referral Bench, the nexus with Serbia and Montenegro is much weaker with respect to the case of the Accused than the nexus with Bosnia and Herzegovina. Having regard to the circumstances of the case, the arguments in favour of referral proprio motu to Serbia and Montenegro are comparatively of little weight.

3. Conclusion
The Referral Bench is persuaded for the reasons indicated that Bosnia and Herzegovina has a significantly greater nexus with the Accused and the offences alleged against him than Serbia and Montenegro. The Bench will therefore turn to consider whether, in light of all relevant factors, referral for trial of the case to the authorities of Bosnia and Herzegovina would be appropriate. Only if there are significant problems with this will the Referral Bench come to consider whether it should act proprio motu to refer the case to Serbia and Montenegro.

C. Applicable Substantive Law
The Referral Bench stresses that it is not the competent authority to decide in any binding way which law is to be applied in this case if it is referred to Bosnia and Herzegovina. That is a matter which would be within the competence of the State Court of Bosnia and Herzegovina if referral is ordered.⁴⁶ The Bench must be satisfied, however, that if this case were to be referred to Bosnia and Herzegovina, there would exist an adequate legal framework which not only criminalises the alleged conduct of the Accused so that the allegations can be duly tried and determined, but which also provides for appropriate punishment in the event that conduct is proven to be criminal. The Referral Bench must therefore consider whether the laws applicable in proceedings before the State Court would permit the prosecution and trial of the Accused, and if found guilty, the appropriate punishment of the Accused, for offences of the type currently charged before the Tribunal.

1. Submission
The Prosecution submits that there are two avenues open to the State Court of Bosnia and Herzegovina in determining the law applicable to each of the alleged criminal acts of the Accused.⁴⁷ The first option is to apply the Criminal Code of Bosnia and Herzegovina (“BiH CC”),⁴⁸ first enacted in 2003, i.e., after the alleged conduct. The second option is to apply the law which was in force at the time of the alleged conduct, that being penal acts of the former Socialist Federal Republic of Yugoslavia, such as the Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY CC”),⁴⁹ enacted in 1977, perhaps together with national acts implementing international treaty provisions. The Prosecution submits that if the BiH CC is applied, jurisdictional challenges might exist based upon the principles reflected in Article 7 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”).⁵⁰ Were penal law of the former SFRY applied, the Prosecution submits that jurisdictional challenges could be raised if non-self-executing provisions of international treaties were relied upon without implementation.⁵¹ However, the Prosecution notes that some criminal offences proscribed by international treaties had been implemented in the SFRY CC before the date of the alleged conduct (Articles 142 and 143 of the SRFY CC, proscribing war crimes against the civilian population and against the sick and wounded and a 1978 law implementing the two Additional Protocols to the Geneva Conventions.)⁵²
The Defence contends that insofar as the charged crimes are concerned, only the provisions of the SFRY CC could have been applied in Bosnia and Herzegovina until adoption of the BiH CC in 2003.⁵³ The Defence further submits that the SFRY CC did not include the crimes set out in Articles 3 and 5 of the Statute of the Tribunal, but that in practice these crimes could have been subsumed under Article 142 of the SFRY CC. Nor, it is submitted, did the SFRY CC contain provisions equivalent to Article 7(3) of the Statute of the Tribunal relating to command responsibility. The BiH CC, in force since 2003, on the other hand, envisages all the crimes encompassed by the Statute of the Tribunal, as well as Article 7(3) of the Statute of the Tribunal.⁵⁴ The Defence further submits that Article 4(1) of both the SFRY CC and the BiH CC provides that the law which is in force at the time a crime is allegedly committed is to be applied (that being the SFRY CC in this case) and that a later law which is in force at the time of trial may only be applied if it is more favourable to an accused (Article 4(2)). In this regard, the Defence submits that the maximum authorised imprisonment for the conduct with which the Accused is charged is less under the SFRY CC than under the BiH CC, and therefore the SFRY CC should be applied as the later BiH CC is less favourable to the Accused.⁵⁵ Finally, the Defence contends that a 2004 amendment to the BiH CC (Article 4a) should not be interpreted to derogate from the principle of applying the law most lenient to an accused and the principle of legality (nullum crimen nulla poena sine lege ) in order to allow prosecution under the BiH CC of an act or omission which at the time it was committed was recognised as a crime by general principles of international law.⁵⁶
The Government of Bosnia and Herzegovina had provided submissions in the case of Prosecutor v. Stankovic( footnote 57 ) regarding the law to be applied if that case were to be referred. Those submissions were relied on at the hearing of the present case and the parties proceeded on the basis that they will also be considered in the present case.⁵⁸ The Government submits that the BiH CC, rather than the SFRY CC, would apply to the case of the Accused. The submission assumes that by virtue of Article 4(2) of the BiH CC, it is that code (the BiH CC) which would apply since it is “more lenient ” than the SFRY CC and provides a “more complete exposition of the law.” ⁵⁹ The Government also contends that where the BiH CC differs from the SFRY CC, it is merely a result of the BiH CC codifying crimes which were recognised by the general principles of international law at the time of the offences charged. Furthermore, the Government contends that by operation of Article 4a of the BiH CC, the principles articulated in Article 4 (application of the law more lenient to an accused and the principle of legality) should not prejudice the trial and punishment of an accused for acts or omissions which were criminal according to the general principles of international law at the time of their commission.⁶⁰ With respect to sentencing, the Government notes that the maximum penalty under the SFRY CC was death, whereas the maximum penalty under the BiH CC is long-term imprisonment, defined as a term of twenty to forty-five years.⁶¹ In the course of the oral submissions at the hearing, however, the Government accepted that some issues on which its submissions were founded had not yet been resolved by the courts of Bosnia and Herzegovina; in particular that no national test had been judicially established for determining which of two or more laws is the more lenient. It is accepted that it will be for the State Court to determine issues such as these should this case be referred.⁶²

2. Discussion
Given the legislation in place at the time of the offences alleged in the Indictment and the more recent legislative changes, there will be a need to resolve some rather basic issues relating to the trial of the alleged crimes if the case is referred to Bosnia and Herzegovina. While the submissions of the parties differ, it will be for the State Court to resolve any of these issues which may arise should this case be referred.
For the purposes of determining the present Motion, it is unnecessary for the Referral Bench to presume to reach any decision on the correct resolution of the various submissions that have been advanced by the parties and by the Government of Bosnia and Herzegovina. Rather than attempting to do so, the Referral Bench will consider what will be the apparent position under each of the possibly applicable sets of legal provisions, in order to determine whether there is any significant deficiency which may impede or prevent the prosecution, trial, and if appropriate, the punishment of the Accused for the alleged criminal conduct which is charged in the present Indictment.

(a) SFRY Criminal Code
The offences in the Indictment are alleged to have occurred between July 1992 and October 1992. Under the federal constitutional structure of the former Yugoslavia, the SFRY CC, having been enacted in 1977, was in force at the time of the alleged conduct of the Accused which is the subject of the charges in the present Indictment.⁶³ The SFRY CC included a provision which proscribed war crimes against the civilian population. Article 142(1) provides the following:

Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders an attack against the civilian population, settlement, individual civilians or persons unable to fight, which results in the death, grave bodily injuries or serious damaging of people’s health; an indiscriminate attack without selecting a target, by which the civilian population is injured; that the civilian population be subject to killings, torture, inhuman treatment, biological or other scientific experiments, taking of tissue or organs for the purpose of transplantation, immense suffering or violation of bodily integrity or health ; dislocation or displacement or forcible conversion to another nationality or religion ; forcible prostitution or rape; application of measures of intimidation and terror, taking hostages, imposing collective punishment, unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of an enemy’s army or in its intelligence service or administration; forcible labour, starvation of the population, property confiscation, pillaging, illegal and self-willed destruction and stealing on large scale of property that is not justified by military needs, taking an illegal or disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency, or who commits some of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.

Although the whole of Chapter 16 of the SFRY CC is entitled “Criminal Acts against Humanity and International Law,” the SFRY CC did not expressly specify any particular offence therein to be a crime against humanity.⁶⁴
Thus, at the time of the alleged conduct of the accused, Article 142(1) of the SFRY CC, which was expressly directed at crimes against a civilian population in time of war, armed conflict or occupation, would appear to apply to the acts of torture and rape alleged against the Accused as violations of the laws or customs of war, and would also appear applicable to the acts of torture and rape charged as crimes against humanity.
Although the maximum authorised punishment for acts in violation of Article 142(1) was the death penalty, which is now abolished in Bosnia and Herzegovina,⁶⁵ Article 38(2) of the SFRY CC permitted a court, as an alternative punishment, to impose imprisonment for a term of 20 years for criminal acts eligible for the death penalty. Article 48 of the SFRY CC further provided a system for combining punishments in the event an accused is found to have committed several criminal acts. It provides, inter alia, that where a court has decided upon a punishment of 20 years imprisonment for one of the combined criminal acts, then it shall impose that punishment only.⁶⁶ Thus, twenty years imprisonment was, at the time of the alleged conduct of the Accused, the maximum authorised non -capital penalty which could be imposed under the SFRY CC.
It should also be noted that the SFRY CC contained a limitation period for prosecution. Article 95(1)(1) provided for a bar to prosecution after a lapse of twenty-five years from the commission of a criminal act for which the law provided capital punishment or the punishment of imprisonment of 20 years. Offences committed in 1992 in violation of Article 142(1), for example, would not be barred until 2017.

(b) BiH Criminal Code
The BiH CC entered into force on 1 March 2003 and proscribes crimes against humanity under Article 172 and war crimes against civilians under Article 173. If the BiH CC were to apply, as has been submitted, it would provide apparent coverage of all the acts alleged in the Indictment. In pertinent part, Articles 172 and 173 provide:

Article 172 (Crimes against Humanity)

(1) Whoever, as part of a widespread or systematic attack directed against a civilian population, with knowledge of such an attack perpetrates any of the following acts :

….

(f) Torture;

(g) Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape);

….

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to physical or mental health,

shall be punished by imprisonment for a term not less than ten years or long-term imprisonment.

Article 173 (War Crimes against Civilians)

(1) Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates any of the following acts:

….

(c) (I(ntentional infliction of severe physical or mental pain or suffering upon a person (torture) (…( immense suffering or violation of bodily integrity or health ;

….

(e) Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape);

….

shall be punished by imprisonment for a term not less than ten years or long-term imprisonment.
Long-term imprisonment is defined under Article 42(2) as being a term of twenty to forty-five years. This would constitute the maximum authorised punishment if the BiH CC were applicable. If less than long-term imprisonment were adjudged, then under a system of compounding punishment for concurrent offences, the maximum penalty could not exceed imprisonment for twenty years.⁶⁷ The limitation period for an offence for which a punishment of long-term imprisonment is authorised is thirty-five years.⁶⁸
The modes of criminal responsibility, as set out in Article 180 of the BiH CC, are similar to that of Article 7(3) of the Statute.
In pertinent part, Article 180 provides:

Article 180 (Individual Criminal Responsibility)

(1) A person who planned, instigated, ordered, perpetrated or otherwise aided and abetted in the planning, preparation or execution of a criminal offence referred to in Article 171 (Genocide), 172 (Crimes against humanity), 173 ( War Crimes Against Civilians), 174 (War Crimes against the Wounded and Sick)….shall be personally responsible for the criminal offence…

(2) The fact that any of the criminal offences referred to in Article 171 through 175 and Article 177 through 179 of this Code was perpetrated by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof…
The principle of legality, and specifically with respect to the applicability of criminal law to the time an offence is committed, is found in the following provisions of the BiH CC:

Article 3

(1) Criminal offences and criminal sanctions shall be prescribed only by law.

(2) No punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which a punishment has not been prescribed by law.

Article 4

(1) The law that was in effect at the time when the criminal offence was perpetrated shall apply to the perpetrator of the criminal offence.

(2) If the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall be applied.

Article 4a

Articles 3 and 4 of this code shall not prejudice the trial and punishment of any person for any act or omission, which at the time when it was committed, was criminal according to the general principles of international law.
Article 4a was enacted in 2004 and had no comparable counterpart in the SFRY CC. Whether it would apply retroactively, and if so, how it should be interpreted and applied would be matters for the State Court of Bosnia and Herzegovina to determine if the case is referred. If Article 4a is applied retroactively, consideration would need to be given to whether the acts alleged in the Indictment were criminal at the time of commission according to general principles of international law. The State Court may be assisted in this regard by relevant case-law of this Tribunal which has found torture,⁶⁹ inhumane acts and cruel treatment⁷⁰ as well as rape⁷¹ to be crimes under international law, whether committed in international or non-international armed conflict, at the time relevant to the Indictment.
(c) Command Responsibility
With respect to the Defence submission that the SFRY CC did not contain any provisions relating to individual criminal responsibility as defined in Article 7(3) of the Statute of the Tribunal, it will ultimately be for the State Court of Bosnia and Herzegovina to determine whether the concept of command responsibility applies either through provisions of the SFRY CC, the BiH CC, or as a norm of customary international law, if the case is referred.⁷² The submissions with respect to this issue raised the matter with minimal analysis. Article 180 of the BiH CC stipulates criminal liability for a superior who “knew or had reason to know that the subordinate was about to commit” an act punishable under Article 171 through 175 and Article 177 through 179 of the BiH CC and “failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof”.⁷³ Furthermore, provisions of the SFRY CC existed which appear to address most of the field covered by Article 7(3) of the Statute concerning command responsibility. For example, Article 142 of the SFRY CC made it a crime not only to commit war crimes against the civilian population, but also to order such crimes. Article 145 made it a crime to organise a group for the purpose of committing war crimes against the civilian population, or to call on or instigate the commission of such crimes. Further, Articles 25 and 26 concerned the limits of responsibility and punishment of accomplices, inciters and aiders, and those who organise criminal associations. Finally, Article 30 provided for the criminalisation of an act committed by omission if the offender abstained from performing an act which he or she was obligated to perform.
The Referral Bench observes that Article 180(2) of the BiH CC contains a provision almost identical to Article 7(3) of the Statute. Whether the other provisions of the SFRY CC would permit liability to be established where a commander did not know that a crime had been, or was about to be, committed by persons under his command, but had “reason to know”, and yet failed to prevent or punish the offence, is uncertain. The Bench considers that it is preferable for the purpose of this Motion for Referral to proceed on the basis that the law of Bosnia and Herzegovina may not recognise this mode of liability as applicable during the time relevant to the Indictment. The Bench is conscious that an acquittal on this basis cannot be excluded if the Prosecution fails to establish any subjective intent. Given the factual circumstances alleged in the present case, in which command responsibility is alleged only in counts 1-4, the Referral Bench does not regard this possible and limited difference in the law as an obstacle to the referral proposed by the Motion.

3. Conclusion
In summary, Article 4(1) of the BiH CC would suggest that the SFRY CC, as it was in force in the charged timeframe of 1992 to 1994, would be applied to each of the alleged criminal acts of the Accused should this case be referred. The submissions this Bench has received canvass the possibilities, however, that in respect of some or all of the alleged criminal acts of the Accused, provisions of the BiH CC or general principles of international law might be applied pursuant to Articles 4( 2) and 4a respectively of the BiH CC. Should this case be referred, it will be for the State Court of Bosnia and Herzegovina to determine the law applicable to each of the alleged criminal acts of the Accused. Nevertheless, this Referral Bench has been able to satisfy itself, for reasons already discussed, that whichever of the possible alternatives is held by the State Court to apply, there are appropriate provisions to address most, if not all, of the criminal acts of the Accused alleged in the present Indictment and there is an adequate penalty structure.⁷⁴

D. Non-Imposition of the Death Penalty and Fair Trial
Rule 11 bis requires that the Referral Bench be satisfied that the death penalty will not be imposed or carried out, and an accused will receive a fair trial if a case is to be referred.

1. Non-Imposition of Death Penalty
Neither party submits that the death penalty would be imposed or carried out if the case were referred.
Article 37(1) of the SFRY CC authorised the death penalty only for the most serious criminal acts, including war crimes, against the civilian population in violation of Article 142(1). However, on 7 July 2003, Bosnia and Herzegovina ratified Protocol 13 to the ECHR, abolishing the death penalty in all circumstances. The Protocol entered into force for Bosnia and Herzegovina on 29 July 2003.
The Referral Bench is satisfied that if the law in effect at the time of the offences is applicable, imposition of the death penalty would nonetheless be precluded as contrary to Protocol 13 to the ECHR.

2. Fair trial

(a) Submission
The Prosecution submits that Bosnia and Herzegovina will provide all necessary legal and technical requirements to ensure a fair trial.⁷⁵
The Defence raises issues with regard to whether the Accused would receive a fair trial in Bosnia and Herzegovina if the case is referred. The identified areas of concern involve the right of the Accused to have adequate time and facilities for the preparation of his defence, the right to counsel of his own choosing, the right to be present and to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, and the right to be tried without undue delay.⁷⁶ As these matters are given some prominence in the submissions of the Defence, they will be addressed separately below. Where submissions were made by either the Prosecution or the Government of Bosnia and Herzegovina related to one of these areas of concern, they will be referred to immediately following the Defence submissions.
The submissions of Bosnia and Herzegovina, as in previous referral cases, are to the effect that legislative and administrative measures now in place would ensure a fair trial if the case is referred.⁷⁷
(b) Adequate Time and Facilities for Preparation a Defence
The Defence submits that the time and facilities for preparation of a Defence, as envisaged by the current legislation in Bosnia and Herzegovina, are inadequate.⁷⁸ Specifically, Article 229(4) of the Criminal Procedure Code of Bosnia and Herzegovina (hereinafter “BiH CPC”),⁷⁹ which is to be applied by the State Court of Bosnia and Herzegovina, is cited as the basis for the submission that inadequate preparation time would be allowed. The Defence contends that this provision allows for only 60 days or, exceptionally, 90 days to prepare for trial. It is argued that such time is inadequate in light of the allegations against the Accused and the fact that the Defence at the time of the submissions has either not received or not reviewed all the material deemed relevant to the defence. It is further argued that the Defence is unaware what means will be at its disposal for communication with the Accused during detention awaiting trial in Bosnia and Herzegovina. The additional point is raised that uncertainties in the legislation of Bosnia and Herzegovina regarding composition and funding of the Defence team may adversely affect the ability of the Defence to prepare for trial.
The Government of Bosnia and Herzegovina was not requested to make specific submissions in regard to this matter. However, in regard to Defence Counsel communication with the Accused during detention awaiting trial, the Government of Bosnia and Herzegovina had previously noted that the Law of Bosnia and Herzegovina on Execution of Criminal Sanctions, Detention, and other Measures (hereinafter “BIH Law on Detention”)⁸⁰ regulates the operation of the detention facility in accordance with State, European, and international standards, including providing detainees with the means of having confidential communications with counsel.⁸¹

(c) Right to Counsel of Accused’s Own Choosing
The Defence submits that the present counsel may not be allowed to continue representation of the Accused if the case is referred to the authorities of Bosnia and Herzegovina.⁸² The basis for the submission is that legislation of Bosnia and Herzegovina only permits counsel licensed to practice in the State to appear before the State Court, unless the State Court allows otherwise in its discretion. Present counsel are not licensed to practice in Bosnia and Herzegovina, but rather in Serbia and Montenegro. If the Accused have not retained their own defence counsel, they are entitled to choose one from a list provided by the State Court, and if they do not, then the State Court will appoint counsel for them. The present counsel are also not on the State Court’s list of counsel. Finally, the Defence submits that the State Court of Bosnia and Herzegovina does not have in place a system for remuneration of counsel, and thus referral of the case would prevent the Accused from having effective use of appointed counsel.
In previous referral proceedings, the Government of Bosnia and Herzegovina submitted that whether counsel presently retained may continue to represent the Accused if the case is referred rests in the discretion of the State Court. Although Article 12(1) of the Law on the Court of Bosnia and Herzegovina (hereinafter “BiH Law on the State Court”)⁸³ provides that “to appear or practice before the Court, an attorney must be licensed to practice by an authority in Bosnia and Herzegovina which has been recognised by the Court,” Article 12(2) allows the Court to specially admit attorneys who do not fulfil this requirement.⁸⁴ Further, Bosnia and Herzegovina submitted that it has a system in place guaranteeing legal representation to indigent defendants. The BiH CPC provides that an accused must have counsel, for example, after an indictment has been brought for a criminal offence for which a prison sentence of ten years or more may be pronounced. If an accused does not retain defence counsel, he is entitled to choose one from a list provided by the State Court.⁸⁵ The Government also submitted that the Registry of the State Court has in place a unit designed to support defence counsel in the area of legal research and training, and a budget has been reserved for remuneration of defence counsel.⁸⁶ Finally, the Government submitted a Council of Ministers Decision on Compensation of the Costs of Criminal Proceedings⁸⁷ which regulates the manner of reimbursement of the costs of criminal proceedings, including remuneration of assigned counsel, before the State Court.⁸⁸

(d) Right to Attend Trial and Examine Witnesses
The Defence submits that the legislation of Bosnia and Herzegovina provides “limitations to the Accused’s presence in the courtroom during the trial, exceptions from the imminent presentation of evidence, the possibility of retaining personal details of a witness as confidential for an exceptionally long period, and various limitations surrounding the witness protection hearing […] in direct contravention of the Accused’s basic rights to attend his trial and to examine or have examined the witnesses against him.”⁸⁹

(e) Witness Availability
The Defence submits that potential witnesses from Serbia and Montenegro would be reluctant to testify before the State Court of Bosnia and Herzegovina out of a fear of arrest or prosecution.⁹⁰ The Defence further submits that the present level of mutual assistance in criminal matters, or claimed lack thereof, between Bosnia and Herzegovina and Serbia and Montenegro (where, according to the Defence, a very considerable number of potential Defence witnesses reside) does not facilitate a fair trial. The expressed concern is that the authorities of Serbia and Montenegro have no legal means of compelling a witness residing in its State to cooperate with the State Court of Bosnia and Herzegovina, and that there are no safe conduct assurances in the current laws of Bosnia and Herzegovina.⁹¹
The Government of Bosnia and Herzegovina in previous referral proceedings submitted that the arrest warrants issued by the State Court may be executed anywhere in the territory of Bosnia and Herzegovina, whether in the Federation of Bosnia and Herzegovina, Republika Srpska, or the District of Brcko. A defence witness from Republika Srpska, for example, would not be exempt from arrest should a lawful warrant exist.⁹² Further, witness testimony is obligatory when summoned by the Court, and refusal to appear or justify one’s absence may result in apprehension.⁹³ In the current proceedings, as to potential witnesses who reside outside of Bosnia and Herzegovina, the Government submits that it has ratified the European Convention on Mutual Assistance in Criminal Matters (“ECMACM”) and intends to fully comply with it.⁹⁴

(f) Trial Without Undue Delay
The Defence submits that the case will inevitably be delayed if it is referred, and specifically, that voluminous material from the Prosecutor v. Kunarac case will in all likelihood be relevant to proceedings against the Accused, and review of that material will be time-consuming, especially as it is in the English language which the Accused do not speak.⁹⁵ Moreover, additional delay may result from possible amendments to the Indictment.⁹⁶
Insofar as trial without undue delay is concerned, the Prosecution submits that should a referral order be made in this case, all appropriate material, including documentary evidence, will be provided to the authorities of Bosnia and Herzegovina.⁹⁷
The Government of Bosnia and Herzegovina in previous referral proceedings submitted that the right to trial without undue delay is guaranteed by Article 13 of the BiH CPC, thus binding the State Prosecutor to adapt, and the State Court to review, the Indictment as soon as reasonably practicable. In addition, under BiH law, the Accused must be released from custody if no indictment is brought or confirmed within six months. Following confirmation of the Indictment, the Accused may only be kept in custody for one year before a first instance verdict is pronounced. If the first instance trial does not result in a verdict during that period, the Accused must be released from custody.⁹⁸

3. Discussion

(a) Fair Trial -- Generally
The Referral Bench considers that, for present purposes, it can be accepted that the requirement of a fair criminal trial includes the following⁹⁹:

The equality of all persons before the court.

A fair and public hearing by a competent, independent, and impartial tribunal established by law.

The presumption of innocence until guilt is proven according to the law.

The right of an accused to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.

The right of an accused to be tried without undue delay.

The right of an accused to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing

The right of an accused to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.

The right of an accused to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

The right of an accused to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

The right of an accused to have the free assistance of an interpreter if he cannot understand or speak the language used in the proceedings.

The right of an accused not to be compelled to testify against himself or to confess guilt.
In comparing these requirements of a fair trial with those provided under the laws of Bosnia and Herzegovina, the Constitution of Bosnia and Herzegovina (hereinafter “BiH Constitution”) provides a foundation. Article II in particular guarantees the right to a fair hearing in criminal matters, and other rights relating to criminal proceedings.¹⁰⁰ The enjoyment of these rights are secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.¹⁰¹
In furtherance of the guarantees provided in the BiH Constitution, the BiH CPC makes the following more detailed provisions.
Article 234(1) of the BiH CPC provides the right of an accused to a public hearing.
Article 3(1) of the BiH CPC and Article 33 of the BiH Law on the State Court codify the presumption of innocence of an accused.
Articles 5(1), 6(1), 8, and 78(2)(e) of the BiH CPC and Articles 9 and 34(3 ) of the BiH Law on the State Court provide that a suspect, on first questioning, must be informed about the charged offences and grounds for suspicion. This includes the right to use one’s own language and have assistance with interpretation at no cost.
Articles 7, 39(1), 46, 48(1), and 78(2)(b) of the BiH CPC and Articles 34(2 ),(3) of the BiH Law on the State Court provide the right to a defence attorney of one’s own choosing and require that an accused be given sufficient time to prepare a defence. If deprived of liberty, a suspect has the right to request appointment of defence counsel if unable to bear the costs due to financial circumstances. Law enforcement officials have a duty to inform a suspect of these rights to counsel.
Article 13 of the BiH CPC guarantees the right to be brought before the Court in the shortest reasonable time period and to be tried without delay.
Articles 7, 236(1) and 242(2) of the BiH CPC provide for the right of an accused to present his own defence and be tried in his presence.
Article 78(2)(a) of the BiH CPC and Article 34(4) and of the BiH Law on the State Court forbid a compelled confession or any other compelled statement from a suspect or accused.
Articles 78(2)(d), 259, and 261(1) of the BiH CC provide that an accused has a right to present favourable witnesses and evidence, and examine or have examined witnesses against him.
Furthermore, Bosnia and Herzegovina is bound as a party by the ECHR, of which Article 6 in particular guarantees a fair trial and an independent and impartial tribunal established by law.
The Referral Bench also notes that Rule 11 bis provides that where a referral order is made, the Prosecutor may send observers to monitor the proceedings in the national courts,¹⁰² a provision which may be given enhanced effectiveness by conditions imposed on the Prosecution by the referral order. Further, at any time after issuance of an order and before an accused is found guilty or acquitted by a national court, the Referral Bench may revoke the order and make a formal request for deferral within the terms of Rule 10 of the Rules.¹⁰³ This monitoring mechanism enables a measure of continuing oversight over trial proceedings should a case be referred.¹⁰⁴

(b) Adequate Time and Facilities for Preparation of a Defence
The Defence submission that the legislation in Bosnia and Herzegovina does not allow adequate time to prepare for trial must be evaluated beyond the mere recitation of Article 229(4) of the BiH CPC, which the Defence contends allows for only 60 days or, exceptionally, 90 days to prepare for trial. First, it must be noted that Article 229(4) concerns referral of a case from the preliminary hearing judge in the State Court to the Panel assigned to try the case so that trial can be scheduled no later than sixty days from the day when a plea is entered by an accused. Preparation for trial need not wait until the day a plea is entered; it can and should begin earlier. Secondly, and more importantly, the timelines referenced in Article 229 (4), must be considered within the context of the guarantee in Article 7 of the BiH CPC that an accused must be given sufficient time to prepare a defence. It is not for the Referral Bench to determine how these provisions will be applied, as this is a matter for the State Court if the case is referred. However, the guarantee of Article 7 fully addresses the contention that the time for preparation of a Defence, as envisaged by the current legislation in Bosnia and Herzegovina, is inadequate.
As to the Defence concern with the ability of counsel to communicate with the Accused during detention while awaiting trial in Bosnia and Herzegovina, the legislation of Bosnia and Herzegovina also addresses this. Article 3 of the Law on Detention ¹⁰⁵ provides that detainees “shall retain all rights other than those necessarily restricted for the purpose for which they were ordered and in accordance with this Law and international agreements.” Article 68(1) specifically permits detainees and prisoners to communicate confidentially with a lawyer of their choice.

(c) Right to Counsel of Accused’s Own Choosing
The right of an Accused to counsel of his or her own choosing is not without limitation, even before this Tribunal.¹⁰⁶ The right to counsel of one’s own choosing extends only to counsel who are entitled to appear before the court of trial; the accused must confine his or her choice accordingly. This is so even where an accused engages his or her own counsel. The right to publicly paid counsel of one’s own choice is also limited.¹⁰⁷ This does not, however, mean that an indigent accused is without effective representation by counsel. Both the Statute of the ICTY and the BiH CPC provide for assignment of counsel where an accused has insufficient means to pay. Article 7(1) of the BiH CPC provides than an accused “has a right to present his own defence or to defend himself with the professional aid of a defence attorney of his own choice,” a right which is reiterated in Article 36(3) of the Law on the State Court. If an accused is charged with a criminal offence for which a prison sentence of ten years or more may be adjudged, then representation by counsel is mandatory in accordance with Article 45(3) of the BiH CPC. If an accused cannot pay for counsel, he or she will be asked to select counsel from a list maintained by the State Court. If no selection is made, one will be appointed by the State Court. ¹⁰⁸ This system is similar to the one applied at this Tribunal.
The Defence concern that present counsel are not on the list maintained by the State Court, and thus may not be able to continue representation of the Accused if the case is referred is premature, given the provision under the BiH Law on the State Court which permits the special admission of attorneys to appear before it even though not licensed to practice in Bosnia and Herzegovina.¹⁰⁹ A positive effect can be expected, also in view of the very recent amendments to the State Court’s rules of procedure to grant special permission for defence counsel to appear before the State Court if they previously appeared before the Tribunal in a case that has been transferred pursuant to Rule 11 bis.¹¹⁰ It is clear that an avenue exists for the present counsel to continue representation and receive remuneration for their efforts. Even if the present counsel did not continue to represent the Accused in Bosnia and Herzegovina, the Accused would not be denied counsel.
Finally, just as the Prosecution must provide to the authorities of Bosnia and Herzegovina all information relating to the case which is considered appropriate, particularly the material which supports the Indictment, pursuant to Rule 11 bis (D)(iii), there is nothing that prevents current defence counsel from doing the same even if they were no longer to represent the Accused. It is not apparent, in this hypothetical situation, why present defence counsel would not efficiently pass to the new attorney the work product of the case.
(d) Right to Attend Trial and Examine Witnesses
It is submitted that the Accused’s right to attend his trial and examine witnesses against him is limited by Articles 10-11, 13-15, and 19-23 of the Bosnia and Herzegovina Law on Protection of Vulnerable Witnesses and Witnesses under Threat (“Vulnerable Witness Protection Law”).¹¹¹ The Referral Bench interprets the Defence submissions as referring to the right of an accused to be tried in his or her presence, rather than a right to attend trial.
The Referral Bench does not view Articles 10-11, 13-15, and 19-23 of the Vulnerable Witness Protection Law as infringing upon the rights of the Accused so as to prevent a referral.
Article 11 does not limit the rights of the Accused to examine the witness, but it provides, as an exception, that a protected witness under specific circumstances need not personally appear at the public hearing. However, Article 11 allows for cross examination in such a case by other measures such as an in camera proceeding. Article 13 provides for measures protecting the witness from public identification and consequential risks, and there is nothing to suggest that the provisions would operate to infringe upon the rights of the accused to examine a witness.
Articles 19, 21, and 22 concern a type of proceeding, described as a ‘witness protection hearing’, which is conducted in the absence of the parties. Only the witness, the Court and minute taker are present.¹¹² Thereafter, the record of the proceeding is read at the main trial and if there are any additional questions for the witness, upon motion by the parties or ex officio by the Court, they may be asked in a further witness protection hearing.¹¹³ The circumstances in which such a hearing is held are limited; they are exceptional and where there is a “manifest risk to the personal security of a witness or the family of the witness, and the risk is so severe that there are justified reasons to believe that the risk is unlikely to be mitigated after the testimony is given, or is likely to be aggravated by the testimony”.¹¹⁴ It is clear that the hearing is intended to provide adequate protection for a particular group of witnesses.¹¹⁵ Further, there is nothing in these provisions that would deny the right of the Accused to examine witnesses; the provisions specifically allow additional questions to be posed.

(e) Witness Availability
The issue of witness availability at trial is discussed within the context of an accused’s fair trial right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Witness availability issues may be resolved by mutual assistance arrangements.
Interstate mutual assistance issues arise with respect to promoting the attendance of witnesses or production of evidence from outside Bosnia and Herzegovina. As the Defence expects that a considerable number of its witnesses reside in Serbia and Montenegro, it is significant that Bosnia and Herzegovina ratified the ECMACM in March 2005.¹¹⁶ Serbia and Montenegro is also a party to the Convention, so the legal means now exist to facilitate the appearance of witnesses residing in Serbia and Montenegro for trial in Bosnia and Herzegovina, either through travel or by other means such as letters rogatory.
For witnesses residing in Bosnia and Herzegovina, including Republika Srpska, attendance to give trial testimony when summoned is obligatory. Efforts to secure the testimony of witnesses by either party may be enforceable by an order of the State Court for compulsory apprehension of a witness, pursuant to Article 81(5) of the BiH CPC and Article 5(1) of the Law on the Judicial Police of Bosnia and Herzegovina.¹¹⁷ This national direct enforcement mechanism exists without regard to whether the witness is at risk of arrest for personal criminal activity. To the extent that Defence witnesses residing in Bosnia and Herzegovina may fail to appear because of a (perceived) risk of arrest, the issue may be entirely hypothetical. The Defence merely contends that potential witnesses may be reluctant to give evidence if called. In any event, any disadvantage to the Accused by virtue of this national procedure which reflects the generally accepted direct enforcement mechanism for ensuring witness presence cannot be properly regarded as prejudicial to the right to a fair trial.
The Defence claims a need for safe conduct of witnesses. The claim was made in regard to witnesses from Serbia and Montenegro at a time when the Defence was under the impression that Bosnia and Herzegovina had not ratified the ECMACM.¹¹⁸ That ratification has removed the basis for this concern. With respect to safe conduct for witnesses from within Bosnia and Herzegovina, it is submitted by the Defence that without safe conduct a witness could be at risk of arrest. The submission, however, wrongly presumes the applicability of the safe conduct mechanism in the context of witness production within a State. Safe conduct is an instrument of international law to secure the presence at trial of a witness who, in order to avoid the risk of arrest for involvement in criminal activity, is reluctant or refuses to appear before a court in a foreign jurisdiction. The foreign court’s lack of authority to compel the production of such a witness creates the need for cooperation between the two States concerned, and it is within this context that the safe conduct mechanism contributes to securing the attendance of witnesses at trial. A witness who resides within the jurisdiction of a State, however, is subject to domestic law which may authorise both compulsory witness production and apprehension for failure to appear. An accused may prefer trial in an international forum for the perceived advantage offered in promoting the presence of reluctant witnesses by virtue of the safe conduct mechanism.¹¹⁹ On the other hand, an accused may prefer trial in a national court where a direct means of enforcing the presence of witnesses is available. No general assessment can be made as to whether one mechanism is more effective than the other. In either situation, the right of an accused to call witnesses on his or her behalf is given effect.

(f) Trial Without Undue Delay
First and foremost, statutory safeguards exist under the law of Bosnia and Herzegovina to protect an accused’s right to trial without undue delay. Article 13 of the BiH CC grants an accused the right to be brought before the Court in the shortest reasonable time period and to be tried without delay, and requires the duration of custody to be reduced to the shortest time necessary. Furthermore, incentives exist under the law to proceed without undue delay. Article 135 of the BiH CPC provides for release from custody where an indictment has not been brought or confirmed within a maximum of six months after an accused enters into custody. Article 137(2) provides that after confirmation of the indictment, custody may last no longer than one year. If during that period, no first instance verdict is pronounced, the custody shall be terminated and the accused released. Release from custody, however, does not terminate the proceedings against an accused.
Secondly, if the case is referred, the proceedings could be continued before the State Court from their current stage, subject only to the potential for some limited delay as the Indictment is adapted. The adaptation of the Indictment is required by the procedure in the BiH Law on the Transfer of Cases.¹²⁰ Article 2(1) provides that:

If the ICTY transfers a case with a confirmed indictment according to Rule 11 bis of the ICTY Rules of Procedure and Evidence, the BiH Prosecutor shall initiate criminal prosecution according to the facts and charges laid out in the indictment of the ICTY. The BiH Prosecutor shall adapt the ICTY indictment in order to make it compliant with the BiH Criminal Procedure Code, following which the indictment shall be forwarded to the Court of the BiH. The Court of BiH shall accept the indictment if it ensured that the ICTY indictment has been adequately adapted and that the indictment fulfils the formal requirements of the BiH CPC.

The nature of what is contemplated by this provision suggests that the procedure should not be lengthy.
Thirdly, Rule 11 bis (D)(iii) requires the Prosecution, upon issuance of a referral order by the Bench, to provide to the authorities of Bosnia and Herzegovina all information relating to the case which the Prosecutor considers appropriate, particularly the material which supports the indictment. Compliance with this rule will require the provision in this case of such information as background material, pre-trial brief, witness and exhibit lists, witness statements, and documentary and demonstrable exhibits. The Referral Bench is aware from proceedings before this Tribunal that this material is to a large extent already disclosed to the Accused. To the extent that any material is in a language which the Accused does not understand – a concern which is raised in connection with the issue of adequate time to prepare a defence – then it may result in delay. Such delay, however, could hardly be characterised as undue, and the position would be the same whether or not referral was ordered. It would be for the State Court, if the case is referred, to achieve a balance among any potentially conflicting rights of the Accused asserted by the Defence, such as the right to have adequate time to prepare a defence, the right to be informed of the nature and cause of the charges against him in a language which he understands, and the right to trial without delay.
Fourthly, the Defence submission that there may be delay due to a need to review voluminous material from the Prosecutor v. Kunarac case is based on speculation at this point in time. Even if the Defence ultimately determines there is a need to review such materials, the focus of Defence attention would undoubtedly remain on the materials and evidence in the present case against the Accused. In any event, the same concern would arise, if at all, whether the Accused were tried in the Tribunal or in the State Court of Bosnia and Herzegovina.
Finally, once proceedings are underway, Article 4 of the BiH Law on the Transfer of Cases provides the Court with discretionary means to expedite the form of the evidence, either, by accepting as proven facts which have been established by legally binding decisions of the Tribunal or by accepting relevant documentary evidence from proceedings before this Tribunal.
It has not been shown that any possible delay as a consequence of referral would be of such nature or extent as to outweigh the propriety of referral action. Any delay resulting from referral cannot properly be viewed as undue, unreasonable, or unnecessary. Indeed, referral may well result in the case being brought to trial sooner than would have been possible if the case were to remain with the Tribunal.

4. Conclusion
The Referral Bench is satisfied that the laws applicable to proceedings against the Accused in Bosnia and Herzegovina provide an adequate basis to ensure compliance with the requirements for a fair trial. As to the specific areas of concern raised by the Defence, the Referral Bench is not persuaded that any of the matters contained therein would result in the denial of a fair trial to the Accused if this case is to be referred. The Bench also observes that provision is made in Rule 11 bis for a system to allow monitoring of the trial of a case which has been referred. By this means, it is possible to better ensure that the expectations of a fair trial are met. If not, a referral order may be revoked by this Tribunal.

E. Witness Protection

1. Submission
In the event that referral is ordered, the Prosecution requests the Referral Bench to order that the protective measures granted to victims and witnesses as set forth in the confidential Annex V to the Motion for Referral apply and remain in force, pursuant to Rule 11 bis (D)(ii).¹²¹
As to protective measures expected to be needed for Defence witnesses, none are specifically identified. Within the context of witness availability and fair trial already discussed, the Defence submits that potential Defence witnesses would be reluctant to testify for fear of arrest or prosecution.¹²² However, the Defence does not oppose the Prosecution request.

2. Discussion
The issue of witness protection, unlike that of witness availability, does not arise directly within the context of an accused’s right to a fair trial. It may, however, be viewed as having an indirect relevance by promoting the presence of witnesses at trial through assurances that legal measures exist for their protection. Rule 11 bis (D)(ii) provides that the Referral Bench may order existing protective measures for certain witnesses or victims to remain in force. The law of Bosnia and Herzegovina has provision for witness protection, as discussed earlier,¹²³ and pursuant to Article 267( 4) of the BiH CPC, either party may request an order for such protective measures. The issue of protective measures for Defence witnesses, however, is raised prematurely and on a conjectural basis. It is a matter within the competence of the State Court, if referral is ordered, as there are adequate powers available to that court to deal with such issues.

3. Conclusion
The Referral Bench has no grounds to believe that the need for protection of those witnesses in respect of whom orders have already been issued has been subject to any change, and therefore finds it appropriate to order the continuation of the protective orders which are the subject of the Prosecution’s request. The Referral Bench further concludes that no matters of witness protection have been identified or submitted which preclude referral of this case.

F. Monitoring of Proceedings

1. Submission
The Defence submits that, if the case is referred, observers sent by the Prosecution to monitor the proceedings in the State Court of Bosnia and Herzegovina would not be an appropriate and sufficient means of monitoring the fairness of those proceedings.¹²⁴
The Prosecution made no further submissions as to this matter in the present case, but at the time of submissions in the Stankovic case, was in the course of negotiating an agreement with the Organization for Security and Cooperation in Europe (“OSCE”) for the monitoring of and reporting on the trial proceedings of a referred case.¹²⁵
It is the understanding of the Referral Bench that following the hearing in this case, the Prosecution entered into an arrangement with the OSCE with respect to the monitoring and reporting function, and the Bench will proceed upon that assumption.¹²⁶

2. Discussion
Referral of a case implies that the proceedings against an accused become the primary responsibility of the authorities, including the investigative, prosecutorial, and judicial organs, of the state concerned. Nevertheless, Rules 11 bis (D)(iv) and 11 bis (F) serve as precautions against a failure to diligently prosecute a referred case or conduct a fair trial. Rule 11 bis (D)(iv) provides for monitoring of proceedings that have been referred. Specifically, the Rule provides that the Prosecutor may send observers to monitor the proceedings in the national courts on her behalf. Further, Rule 11 bis (F) enables the Referral Bench, at the request of the Prosecutor, to revoke a referral order at any time before an accused is found guilty or acquitted by a national court, in which event Rule 11 bis (G) makes provision to enable the re-transfer of an accused to the seat of this Tribunal in The Hague.
It is submitted that monitoring by the Prosecution may be inadequate to ensure that difficulties experienced by the Defence following the referral of the case are properly appreciated for the purposes of these Rules. While there is some apparent force in this submission, it appears to be met by the proposal which the Prosecution has put to the Referral Bench, namely for the monitoring of and reporting on the trial proceedings of a referred case by an appropriate international organisation such as the OSCE. Attention to the procedures for monitoring and reporting is a means by which the Referral Bench may be better assured that the Accused will receive a fair trial. It appears that arrangements have now been made between the Prosecution and the OSCE for these purposes. The standing of the OSCE and the neutrality of its approach ought to ensure that reports it provides will adequately reflect Defence as well as Prosecution issues.

3. Conclusion
On the assumption that monitoring of the trial of this case, if referred, would be undertaken by the OSCE, or a similar organisation, by arrangement with the Prosecution, the Referral Bench has no need at this stage to further consider the aspect of the submission concerning impartial and adequate monitoring of this case.

V. CONCLUSION
Having considered the matters raised, in particular the gravity of the criminal conduct alleged against the Accused in the present Indictment and the level of responsibility of the Accused, and being satisfied on the information presently available that the Accused will receive a fair trial and that the death penalty will not be imposed or carried out, the Referral Bench concludes that referral of the case of Prosecutor v. Gojko Jankovic to the authorities of Bosnia and Herzegovina should be ordered.

VI. DISPOSITION
For the forgoing reasons, THE REFERRAL BENCH
PURSUANT to Rule 11 bis of the Rules;
ORDERS the case of Prosecutor v. Gojko Jankovic to be referred to the authorities of the State of Bosnia and Herzegovina, so that those authorities should forthwith refer the case to the appropriate court, i.e., the State Court, for trial within Bosnia and Herzegovina;
DECLARES that the referral of this case shall not have the effect of revoking the previous Orders and Decisions of the Tribunal in this case. It will be for the State Court or the competent national authorities of Bosnia and Herzegovina to determine whether different provision should be made for the purposes of the trial of this case in Bosnia and Herzegovina;
ORDERS the Registrar to arrange for transport of the Accused and his personal belongings, within 30 days of this Decision becoming final, to Bosnia and Herzegovina in accordance with the procedures applicable to transfer of convicted persons to States for service of sentence;
ORDERS the Prosecution to hand over to the Prosecutor of Bosnia and Herzegovina, as soon as possible and no later than 30 days after this Decision has become final, the material supporting the Indictment against the Accused, and all other appropriate evidentiary material;
ORDERS the Prosecutor to continue its efforts in cooperation with the Organization for Security and Cooperation in Europe, or another international organisation of notable standing, to ensure the monitoring and reporting on the proceedings of this case before the State Court of Bosnia and Herzegovina. If arrangements for monitoring and reporting should prove ineffective, the Prosecution should seek further direction from the Referral Bench;
FURTHER ORDERS the Prosecution to file an initial report to the Referral Bench on the progress made by the Prosecutor of Bosnia and Herzegovina in the prosecution of the Accused six weeks after transfer of the evidentiary material and, thereafter, every three months, including information on the course of the proceedings of the State Court of Bosnia and Herzegovina after commencement of trial, such reports to comprise or to include any reports received by the Prosecution from the international organisation monitoring or reporting on the proceedings;
AND FINALLY ORDERS that the protective measures granted to victims and witness as set forth in the confidential Annex (confidential Annex V of the Motion for Referral ) remain in force.

Done in English and French, the English text being authoritative.

Dated this twenty-second day of July 2005
At The Hague
The Netherlands

________________________
Judge Alphons Orie, Presiding

[Seal of the Tribunal]

1. In its original form, Rule 11 bis provided for transfer of an accused from the Tribunal to the authorities of the State in which the accused was arrested. Transfer required an order from the Trial Chamber suspending the indictment pending the proceedings before the national courts. Such an order necessitated findings by the Trial Chamber that State authorities were prepared to prosecute the accused in their own courts and that it was appropriate in the circumstances for the courts of that State to exercise jurisdiction over the accused.
2. S/PRST/2002/21; S/RES/1329 (2000).
3. S/RES/1503 (2003). The Security Council further noted that referral of cases to the War Crimes Chamber of the Court of Bosnia and Herzegovina was an essential prerequisite to achieving the objectives of the completion strategy. See also S/RES/1534 (2004); S/PRST/2004/28.
4. Rules of Procedure and Evidence, IT/32/Rev. 34, 22 February 2005.
5. On the date in which Rule 11 bis was adopted, 12 November 1997, the original indictment against the Accused had already been confirmed. The Defence has not raised any issue of non-applicability of Rule 11 bis resulting from the provision on the operation of amended Rules of Procedure and Evidence contained in Rule 6(D). Having considered the matter proprio motu, the Referral Bench does not consider Rule 6(D) to have the effect of rendering Rule 11 bis inapplicable in this case.
6. IT-96-23, Indictment, 26 June 1996. Included were: the Accused, Radovan Stankovic, Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic, Dragan Gagovic, Janko Janjic and Dragan Zelenovic. See Prosecutor v. Kunarac, Kovac, and Vukovic, Case No. IT-96-23 & IT-96-23/1-T, Trial Judgement, 22 February 2001; Appeal Judgement, 12 June 2002.
7. IT-96-23-PT, First Amended Indictment, 7 October 1999. The remaining indictees were Janko Janjic, Zoran Vukovic, Dragan Zelenovic and Radovan Stankovic.
8. IT-96-23/2-PT, Motion by the Prosecutor under Rule 11 bis with Annexes I, II, III and Confidential Annexes IV and V, 29 November 2004 (“Prosecution's First Submissions”).
9. IT-96-23/2-PT, Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should be Referred to Another Court Under Rule 11 bis, 1 December 2004.
10. IT-96-23/2-PT, Decision for Further Information in the Context of the Prosecution's Motion under Rule 11 bis, 15 April 2005.
11. IT-96-23/2-PT, Response by the Government of Bosnia and Herzegovina to Questions Posed by the Referral Bench in its Invitation of 15 April 2005, 26 Feb 2005 (“BiH First Submissions”).
12. IT-96-23/2-PT, Prosecution's Further Submissions Pursuant to Referral Bench's Decision of 15 April 2005, 5 May 2005 (“Prosecution's Second Submissions”).
13. IT-96-23/2-PT, Gojko Jankovic's Defence Submission of Further Information in Accordance with the Referral Bench's Decision of 15 April 2005 and in the Context of the Prosecutor's Motion Under Rule 11 bis,, 6 May 2005 (“Defence's First Submissions”).
14. IT-96-23/2-PT, Serbia and Montenegro's Submission in the Proceedings Under Rule 11 bis, 6 May 2005.
15. IT-96-23/2-PT, Prosecutor's Motion to Strike Serbia and Montenegro's Submission in the Proceedings Under Rule 11 bis, 10 May 2005 (“Prosecution's Third Submissions”).
16. IT-96-23/2-PT, Prosecution's Application for Leave to File a Reply to Gojko Jankovic's Defence Submission of Further Information in Accordance With the Referral Bench's Decision of 15 April 2005 and in the Context of the Prosecutor's Motion Under Rule 11 bis, 10 May 2005.
17. IT-96-23/2-PT, Further Scheduling Order for a Hearing on Referral of a Case Under Rule 11 bis, 11 May 2005.
18. IT-96-23/2-PT, Rule 11 bis Motion Hearing (Open Session), 12 May 2005 (“Motion Hearing”).
19. Case IT-96-25/1-PT.
20. IT-96-23/2-PT, Gojko Jankovic's Defence Notice Regarding its Position on the ‘Response from the Bosnia and Herzegovina Government to the Questions Posed by the Referral Bench, Filed 12 May 2005', 19 May 2005 (“Defence's Second Submissions”); Defence Further Submission Regarding Gojko Jankovic's Citizenship, 19 May 2005 (“Defence's Third Submissions”).
21. IT-96-23/2-PT, Submission of Information Requested From the Government of Bosnia and Herzegovina (BiH) by the Referral Bench in the Hearing on the Referral of Cases Under Rule 11 bis on 12 May 2005, 20 May 2005 (“BiH Second Submissions”).
22. IT-96-23/2-PT, Gojko Jankovic's Defence Response to the BiH Government ‘Submission of Information Requested From the Government of Bosnia and Herzegovina (BiH) by the Referral Bench in the Hearing on the Referral of Cases Under Rule 11 bis on 12 May 2005, 20 May 2005', 24 May 2005 (“Defence's Fourth Submissions”).
23. Motion Hearing, T.115; Case No. IT-96-23/2-PT, Prosecutor v. Stankovic; Case No. IT-02-65-PT, Prosecutor v. Mejakic, et al.; Case No. IT-95-13/1-PT, Prosecutor v. Mrksic, et al.; IT-96-25/1-PT, Prosecutor v. Rasevic and Todovic.
24. Motion Hearing, T.115-117, 125- 127.
25. Indictment, para. 2.1; Motion Hearing, T. 288.
26. Motion Hearing, T. 288-291, 293 -294; Defence's First Submissions, para. 77.
27. Motion Hearing, T. 294-295.
28. Defence's Third Submissions, para. 2.
29. Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May 1993 by S/RES 827 (1993) and last amended by S/RES 1481 (2003).
30. Indictment, paras 5.8, 6.17, 7. 25, and 9.3.
31. Indictment, para. 5.8.
32. Indictment, paras 3.1, 5.1-5.8, 6.1-6.11, 7.1-7.22, 9.1-9.3.
33. Ibid., para. 3.
34. Prosecution's First Submissions, paras 20, 26; Prosecution's Second Submissions, paras 4-8.
35. Prosecution's Second Submissions, para. 8.
36. Defence's First Submissions, paras 11-19.
37. Indictment, para. 5.8.
38. Indictment, para. 2.1.
39. BiH First Submissions, pp. 1, 2.
40. See also S/RES/1503 (2003 ).
41. See Prosecution's First Submissions, para. 40; Prosecution's Third Submissions, paras 2, 3; Motion Hearing, T. 295-296.
42. Motion Hearing, T. 114.
43. See exhibits R1-R2 tendered during the Motion Hearing (T. 158).
44. Defence's Third Submissions, para. 2.
45. Defence's Third Submissions, para. 2 d) and e).
46. Pursuant to the Law on the Transfer of Cases from the ICTY to the Prosecutor's Office of BiH and the Use of Evidence Collected by ICTY in Proceedings before the Courts in BiH (“BiH Law on the Transfer of Cases”) (Official Gazette of Bosnia and Herzegovina, Nos. 37/03, 54/04, 61/04 ), a case which is referred from the Tribunal to Bosnia and Herzegovina must be transferred from the authorities of the State to the State Prosecutor's Office and the State Court for disposition. While it is not for the Referral Bench to decide the competency of a national court, it will be presumed that the State Court of Bosnia and Herzegovina is intended to be the forum for trial of the case against the Accused, if referred.
47. Prosecution Further Submissions, para. 11.
48. Official Gazette of Bosnia and Herzegovina, Nos. 37/03, 54/04, 61/04.
49. Official Gazette of the Socialist Federal Republic of Yugoslavia, No. 44/76.
50. Prosecution Further Submissions, paras 11-13. The Prosecution cites to Arts. 7(1) and 7(2) of the ECHR (1950). Specifically to the challenge regarding the principles of nullum crimen sine lege or prohibiting retroactive application of law, the Prosecution cites Article 15(2) of the International Covenant on Civil and Political Rights (1966) for the proposition that these principles are not violated where the new penal Act is based upon previously existing general principles of international law.
51. Prosecution Further Submissions, paras 14-16.
52. Ibid., fn. 13, citing Case No. IT-94-1, Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras 132, 135.
53. Defence's First Submissions, para. 27.
54. Defence's First Submissions, para. 27. The Defence incorporates by reference the submissions made regarding these issues in the case Prosecutor v. Todovic, Case No. IT-97-25/1-PT, Savo Todovic's Defence Response to Prosecution's 11 bis Motion and Defence's Submission of Further Information in Accordance with the Referral Bench's Decision of 14 April and in the Context of the Prosecutor's Motion under Rule 11 bis, 28 April 2005 (“Todovic Defence Submissions”), paras 36-37.
55. Todovic Defence Submissions, paras 38-41. The Defence in Todovic also contends that the Bench should not take into account the potential for a sentence to the death penalty under the SFRY CC when comparing which code is the more lenient, since Article 11(2) of the Republika Srpska Constitution prohibited the death penalty prior to the time of the charged offences.
56. Todovic Defence Submissions, paras 42-44.
57. IT-96-23/2-PT, Prosecutor v. Stankovic, Decsision on Referral of Case under Rule 11 bis, Referral Bench, 17 May 2005.
58. IT-96-23/2-PT, Prosecutor v. Stankovic, Response of Government of Bosnia and Herzegovina to the Questions of Specially Appointed Chamber of ICTY, 25 February 2005. (“BiH First Submissions in Stankovic”); IT-96-23/2-PT, Prosecutor v. Stankovic, Government of Bosnia and Herzegovina Response to the Additional Questions Requested by the Referral Bench in Letter dated 11 March, 22 March 2005 (“BiH Second Submissions in Stankovic”).
59. BiH Second Submissions in Stankovic , pp. 5-6.
60. BiH First Submissions, pp. 3-6. The Government of Bosnia and Herzegovina submits that its courts are constitutionally empowered to apply international conventional and customary law, and that such application in the context of this case would be consistent with Art. 7 of the ECHR (1950) and with judgements of the European Court of Human Rights, e.g., K.H.W. v. Germany, para. 45, 22 March 2001; Streletz, Kessler and Krenz v. Germany, para. 50, 22 March 2001.
61. BiH Second Submissions in Stankovic, p. 6, citing BiH CC, Art. 42(2).
62. Ibid., pp. 5-6.
63. The Criminal Code of the Socialist Republic of Bosnia and Herzegovina was also in force, but as it did not contain any provisions criminalising either violations of the laws or customs of war or crimes against humanity, it may be eliminated from further assessment.
64. Whether or not any of the crimes under Chapter 16 qualify as a species of crimes against humanity is a matter for the State Court of Bosnia and Herzegovina to determine.
65. Discussed infra at paras 46-48.
66. SFRY CC, Art. 48(2)(2).
67. BiH CC, Art. 53(2)(b).
68. BiH CC, Art. 14(1)(a).
69. See, e.g., Prosecutor v. Kunarac et al., Trial Judgement, 22 February 2001, paras 465-497; Appeal Judgement, 12 June 2002, paras 142-148.
70. See, e.g., Prosecutor v. Delalic et al., Appeal Judgement, 20 February 2001, paras 419-426..
71. Prosecutor v. Furundzija, Case No. IT-97-17/1, Trial Judgement, 10 December 1998, paras 165-169; Kunarac et al., Appeal Judgement, paras 127-132.
72. See BiH CC, Art. 180 (2), para. 39 supra; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, 1st Edition, (Cambridge: ICRC, 2005), Rule 153, pp. 558-563.
73. See para. 39 supra.
74. See infra paras 46-48, the discussion regarding non-imposition of the death penalty.
75. Prosecution's First Submissions, paras 29-31.
76. Defence's First Submissions, paras 30-42, 46-47, 54-72; Motion Hearing, T. 135-147.
77. Motion Hearing, T. 145. See also Prosecutor v. Stankovic, Response of Government of Bosnia and Herzegovina to the Questions of Specially Appointed Chamber of ICTY, 25 February 2005; Prosecutor v. Stankovic, Government of Bosnia and Herzegovina Response to the Additional Questions Requested by the Referral Bench in Letter dated 11 March, 22 March 2005.
78. Defence's First Submissions, paras 54-58.
79. Official Gazette of Bosnia and Herzegovina, Nos. 36/03, 26/04, 63/04, 13/05.
80. Official Gazette of Bosnia and Herzegovina, No. 13/05.
81. BiH First Submissions in Stankovic , p. 4.
82. Defence's First Submissions, paras 46-47; Todovic Defence Submissions, paras 69-74 which are incorporated by reference in the Defence's First Submissions. See also Motion Hearing, T. 128-129. See also Case No. IT-02-65-PT, Prosecutor v. Mejakic et al., Joint Supplemental Submission by the Defense Teams of All the Named Accused in Opposition of the Prosecution's Motions under Rule 11 bis, 18 March 2005, paras 7-17; and Further Supplemental Response Made Jointly on Behalf of All Accused in Opposition to the Prosecution's Submission Pursuant to Rule 11 bis, 31 March 2005, paras 35-40.
83. Official Gazette of Bosnia and Herzegovina, Nos. 16/02, 42.03, 9/04, 4/04, 35/04, 61/04.
84. BiH First Submissions in Stankovic , p. 13.
85. BiH CPC, Art. 45.
86. BiH First Submissions in Stankovic , Annex D4627-D4619.
87. Council of Ministers of Bosnia and Herzegovina Decision on Reimbursement of the Costs of Criminal Proceedings Pursuant to the Criminal Procedure Code of BiH, 15 February 2005, in BiH Second Submissions. The Defence responded to this submission (Defence's Fourth Submissions) contending that the Decision was in fact only a proposal, and if it was adopted, it does not provide for a fair trial because it relates to remuneration of one counsel only, does not provide for remuneration for case preparation, and does not provide for a daily subsistence allowance for defence counsel.
88. Ibid. Arts. 1, 2.
89. Defence's First Submissions, paras 60-68. The Defence invites the Bench's attention to Arts. 10-15 and 19-23 of the Law on Protection of Vulnerable Witnesses and Witnesses under Threat, Official Gazette of Bosnia and Herzegovina, Nos. 21/03, 61/04.
90. Defence's First Submissions, paras 32-33.
91. Defence's First Submissions, paras 34-35, 37-42.
92. BiH Second Submissions in Stankovic , paras 1-5.
93. Ibid., para. 9.
94. Motion Hearing, T. 148-149.
95. Defence's First Submissions, paras 44, 70-72.
96. Defence's First Submissions, para. 45.
97. Prosecution's First Submissions, paras 32-34.
98. BiH First Submissions in Stankovic , p. 14, citing BiH CPC, Arts. 135 and 137(2).
99. See, e.g., Statute of the Tribunal, Art. 21; International Covenant on Civil and Political Rights (1966), Art. 14; ECHR (1950), Art. 6.
100. BiH Constitution, Art. II.3(e ).
101. Ibid., Art. II.4.
102. Rule 11 bis (D)(iv).
103. Rule 11 bis (F).
104. The monitoring mechanism is discussed in more detail infra at paras 99-104.
105. BiH Law on Detention, Art. 3.
106. See Statute of the Tribunal, Art. 21; and Rules of Procedure and Evidence, Rules 44-46.
107. Case No. IT-95-13/1-PT, Prosecutor v. Sljivancanin, President of the Tribunal Decision on Assignment of Defence Counsel, 13 August 2003, para. 20; Case No. IT-95-4-PT & IT-95-8/1-PT, Prosecutor v. Knezevic et al., Trial Chamber Decision on Accused's Request for Review of Registrar's Decision as to Assignment of Counsel, 6 September 2002, p. 3; Case No. IT-02-60-T, Prosecutor v. Blagojevic and Jokic, Trial Chamber Decision on Independent Counsel for Vidoje Blagojevic's Motion to Instruct the Registrar to Appoint New Lead and Co-counsel, 3 July 2003, paras 74-75; Case No. IT-04-74- AR73.1, Prosecutor v. Prlic et al., Appeals Chamber Decision on Appeal by Bruno Stojic Against Trial Chamber's Decision on Request for Appointment of Counsel, 24 November 2004, para. 19; Case No. IT-02-65-AR73.1, Prosecutor v. Mejakic et al., Appeals Chamber Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simic, 6 October 2004, para. 8.
108. BiH CPC, Art. 45(6).
109. BiH Law on the State Court, Art. 12(2).
110. Case No. IT-96-23/2-AR11bis .1, Prosecutor v. Stankovic, Prosecutor's Response to Appellant's Brief, 11 July 2005, para. 29. According to the information provided to the Prosecution, the amendment to the State Court's rules of procedure were adopted on 30 June 2005, but at the time of writing, they had not yet entered into force.
111. Supra fn. 89.
112. Vulnerable Witness Protection Law, Art. 19.
113. Ibid., at Arts 21-22.
114. Ibid., at Art. 14.
115. Ibid., at Arts 14-15.
116. Official Gazette of Bosnia and Herzegovina, International Agreements, No. 3/05.
117. Official Gazette of Bosnia and Herzegovina, No. 3/03.
118. Defence's First Submissions, paras 34-35; Motion Hearing, T. 147-148.
119. Even before this Tribunal, the safe conduct mechanism may not eliminate the reluctance of witnesses to appear who fear exposure to risk of prosecution.
120. Supra fn. 46.
121. Motion for Referral, paras 38 -39.
122. Defence's First Submissions, paras 30-36.
123. Supra paras 80-83. See also the Witness Protection Programme Law of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina No. 29/04, which provides for protective measures outside the courtroom, such as change of identity or issuance of cover documents.
124. Defence's First Submissions, paras 48-49.
125. Prosecution's Second Submissions in Stankovic, para. 24.
126. PC.DEC/673, Co-operation Between the Organization for Security and Co-operation in Europe and the International Criminal Tribunal for the Former Yugoslavia, OSCE, 556th Plenary Meeting, 19 May 2005.