Research Handbooks in International Law series
Edited by Róisín Mulgrew and Denis Abels
Chapter 9: Rule 11bis: exploring the penal aspects of transferring cases to national courts by the ad hoc Tribunals
Rule 11bis, found in the RPE of both the ICTY and ICTR came into existence at the time the term ‘completion strategy’entered the international criminal law vernacular. Prompted by the Tribunals’ finite resources in terms of both time and financial means, the Rule was seen as a way of processing more cases and was introduced alongside other structural reforms. The application of the Rule meant that a number of indictees in the Tribunals’ custody were transferred to national courts for trial. If convicted these individuals served their sentences in prisons to which they would most likely not have been transferred, had they been convicted by the Tribunals. The Secretary General’s report that accompanied the creation of the ICTY had excluded the possibility of serving sentences in the former Yugoslavia, owing to the ‘nature of the crimes in question and the international character of the tribunal’. In the ICTR, despite the fact that a similar restriction did not exist, no prisoners had been transferred to Rwanda to serve their sentences prior to the 11bis referrals. The creation of the MICT in December 2010 put the ad hoc Tribunals firmly on the road to permanently closing their doors. Since 1 July 2012 for the ICTR and 1 July 2013 for the ICTY respectively, responsibility for oversight of prisoners who spend their sentences in national courts as a result of Rule 11bis proceedings as well as referrals has been transferred to the MICT.
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