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2010 | The Processing of ICTY Rule 11bis cases in Bosnia and Herzegovina: Reflections on Findings from Five Years of OSCE Monitoring

From 2005 through 2009, the OSCE Mission conducted the Rule 11bis Monitoring Project. Rule 11 bis is one of the rules comprising the Rules of Procedure and Evidence of the ICTY and provides that after an indictment has been confirmed at the International Tribunal, and prior to the commencement of trial, the ICTY can elect to transfer a case to the State on whose territory the crime was committed, or in which the accused was arrested, or which otherwise has jurisdiction. The rule constitutes a distinctive feature of the relationship between the International Tribunal and the domestic courts of the States of the former Yugoslavia.  

The 11bis Projects focused on monitoring and reporting on cases transferred to the Court of BiH, monitoring six cases involving ten defendants. Monitors identified multiple obstacles to the realization of human rights and the efficient prosecution of war crimes after transfer. One of these was the slow and – until the time of writing – ultimately ineffective observance of the obligation upon domestic courts to inform victims participating in a criminal case of their right to file injured-party compensation claims within the context of the criminal trial. Judges or Prosecutors are also obliged to investigate all potential claims and to order damages were appropriate. However even after some judges began notifying victims of this right they continued to refuse to actually investigate claims and instead referred the claimants to civil proceedings. No compensation payments had been ordered at the time of writing. See Section III(d) of the report, beginning page 21.