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ex officio
or on the basis of information obtained
from any source, particularly from governments, United Nations organs,
intergovernmental and non-governmental organisations. Information re-
ceived is assessed by the Prosecutor, who then decides whether there is
a sufficient basis to proceed. The Prosecutor may question suspects, vic-
tims and witnesses, collect evidence and conduct on-site investigations.
49
See IT-94-1-AR72, 2 October 1995, p. 70; 105 ILR, p. 419. See further below, chapter 21,
p. 1194.
50
Article 9. Under Rule 9 of the Rules of Procedure and Evidence as amended, deferral
of national proceedings may be requested where the act being investigated or which is
the subject of those proceedings is characterised as an ordinary crime; or there is a lack
of impartiality or independence, or the investigations or proceedings are designed to
shield the accused from international criminal responsibility, or the case is not diligently
prosecuted; or what is in issue is closely related to, or otherwise involves, significant factual
or legal questions which may have implications for investigations or prosecutions before
the Tribunal. See as to the different situation with regard to the International Criminal
Court, below, p. 410.
51
Article 29.
52
Article 10.
406
i n t e r nat i o na l l aw
Where it is determined that a
prima facie
case exists, the Prosecutor shall
prepare an indictment containing a concise statement of the facts and the
crime or crimes with which the accused is charged, and this indictment
is then transmitted to a judge of the Trial Chamber, who will review it.
If satisfied that a
prima facie
case has been established by the Prosecutor,
the judge will confirm the indictment. If not so satisfied, the indictment
shall be dismissed. Upon confirmation of an indictment, the judge may,
at the request of the Prosecutor, issue such orders and warrants for the
arrest, detention, surrender or transfer of persons, and any other orders
as may be required for the conduct of the trial. It will then be for the
Trial Chambers to ensure that the trial is fair and expeditious and that
proceedings are conducted in accordance with the rules of procedure and
evidence, with full respect for the rights of the accused and due regard for
the protection of victims and witnesses.
53
Judgment will then be reached
by the Trial Chamber concerned and punishment, limited to imprison-
ment, imposed upon conviction.
54
Appeal is to the Appeals Chamber on
the grounds either of an error of law invalidating the decision or of an
error of fact occasioning a miscarriage of justice. The Appeals Chamber
may affirm, reverse or revise the decisions taken by the Trial Chambers.
55
The Tribunal has dealt with a number of significant issues.
56
In an
early case, the Appeal Chamber held that it had the power to review the
question of the legality of the establishment of the Tribunal and noted
that the Security Council had adopted a decision under Chapter VII of
the UN Charter binding on all member states to create the Tribunal in the
framework of the restoration of international peace and security.
57
As of early March 2008, the Tribunal had issued 161 indictments; 111
proceedings had been concluded, with regard to which 53 individuals
had been sentenced, 9 acquitted and 36 indictments withdrawn (in-
cluding where the accused had died). Four persons indicted were still
at large, including Radovan Karadˇzi´c and Ratko Mladi´c, the leaders of the
Bosnian Serbs during the war.
58
However, the UN Security Council has
53
Articles 18–20.
54
Article 24.
55
Article 25.
56
See further below, pp. 435 ff.
57
Tadi´c
, IT-94-1-AR72, 2 October 1995, p. 70, paras. 30 ff.; 105 ILR, p. 419. After this decision,
the Dayton Peace Agreement was signed, which includes the obligation placed upon all
states of the former Yugoslavia to co-operate with the Tribunal: see Article X, Annex 1-A.
58
See www.un.org/icty/glance-e/index.htm. Note the death in custody of the Yugoslav Presi-
dent Slobodan Miloˇsevi´c on 11 March 2006 during his trial on sixty-six counts of violations
of the Statute including genocide: see ICTY Annual Report 2006, A/61/271 – S/2006/666,
para. 55. After the text above was written, Radovan Karadˇzi´c was arrested in Belgrade and
sent to the Tribunal, who assigned his case to a Trial Chamber: see IT-95-5/18-I, 22 July
2008.
i n d i v i d ua l c r i m i na l r e s p o n s i b i l i t y
407
confirmed a completion strategy which is intended to ensure a phased and
co-ordinated completion of the Tribunal’s mission by the end of 2010.
59
Under this strategy, the ICTY has concentrated on the prosecution and
trial of the most senior leaders while referring other cases involving inter-
mediate and lower-rank accused to national courts. Two main categories
of cases have been referred to national courts in the region of the for-
mer Yugoslavia, being those cases that were investigated to different levels
by the Tribunal’s Prosecution which did not result in the issuance of an
indictment by the ICTY and the small number of cases that were investi-
gated by the Tribunal’s Prosecution and that resulted in the confirmation
of indictments by the Tribunal and the transfer of accused persons to the
Tribunal’s custody. Cases began to be transferred to the national courts of
successor states to the former Yugoslavia, particularly Bosnia and Croatia,
in 2005.
60
By mid-2007, thirteen ‘lower to mid-level accused’ had been
transferred to local courts.
61
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