‘YOU WILL RECEIVE A FAIR TRIAL ELSEWHERE’ THE AD HOC INTERNATIONAL CRIMINAL TRIBUNALS ACTING AS HUMAN RIGHTS JURISDICTIONS

Abstract

The transfer of intermediate and lower rank indictees from the International Criminal Tribunals for the Former Yugoslavia and Rwanda to competent national jurisdictions is a central component of the so-called completion strategy. When the ad hoc Tribunals contemplate the referral of a case, however, they find themselves hemmed in from two sides. On the one hand, a decision to refer a case will appear justified only if there are strong reasons to believe that national proceedings will be conducted in accordance with international due process standards. On the other hand, the risk that national authorities deny or minimise the responsibility of transferred indictees must be avoided. These two exigencies were given positive expression in the Rules of Procedure and Evidence of both Tribunals, under Rule 11bis. This paves the way for a comparison between Rule 11bis case law and human rights jurisprudence concerning potential violations. For the purposes of this article, comparative analysis provides the basis for asserting that, when the ad hoc Tribunals decide whether or not to refer a case under Rule 11bis, they are bound by human rights standards which go beyond the right to receive a fair trial and are stricter than those normally applicable to a state which is about to extradite or expel an individual.