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1 1Attorney at Law, Criminal Defender; Senior Partner Becher & Dieckmann Rechtsanwaelte, Bonn (Germany); Assinged Co-Counsel for Mr Sredoje Lukić at ICTY (IT-98-32/1-PT); List Counsel at ICTY, ICTR and ICC
2 2M.I.L. (Sydney), Trainee Lawyer in Cologne (Germany) and Legal Assistant at ICTY, Defence Team of Mr. Sredoje Lukić; included in the List of Assistants to Counsel at the ICC
The ICTY and ICTR have been put under an enormous time pressure to comply with the deadlines scheduled by the so-called Completion Strategy, which was announced by the United Nations Security Council in its Resolutions 1503 and 1534. This strategy called upon the two ad hoc Tribunals to focus on the trials of the most senior leaders and transfer intermediary- and lower-level accused to competent national jurisdictions in order to complete all trial activities at first instance by 2008 and all of its work by 2010. Rules 11bis of the ICTY and ICTR Rules of Procedure and Evidence were consequently amended to provide for the referral of indictments to national courts. While the ICTY to date has issued ten Referral Bench decisions and seven appellate decisions in Rule 11bis cases, the ICTR has only just initiated its referral practice. It is therefore time to examine the ICTY's jurisprudence on referrals as they will have a large impact on referral cases presented before the ICTR. This article critically analyses the development of the Tribunals' case law on referral cases from the point of view of the Defence. It provides an exhaustive overview of the jurisprudence in Rule 11bis proceedings, and examines the extent to which this jurisprudence has developed reasonable responses to the strict guidelines of the UN Security Council.