Geographical area of crimes
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Referral - 11.07.2007 |
LUKIĆ & LUKIĆ (IT-98-32/1-AR11bis.1) |
|
|
22. The Appeals Chamber also considers that the Referral Bench placed too much stress on the local character of the Appellant’s crimes. Of course, this is a relevant factor and in some situations can be a significant one.[1] […] Since the criminal acts of paramilitary leaders are likely to be limited to a municipal (or at most regional) scope, an undue emphasis on geographic scope might thwart the intent of the Security Council that the Tribunal retain jurisdiction over at least the most significant paramilitary leaders. There is no necessary nexus between, on the one hand, leadership responsibility for the most serious crimes and, on the other hand, a broad geographic area. […] The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[2] In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant. [1] See Todović Decision of 4 September 2006, para. 16. [2] See Second Amended Indictment, paras 3, 5-7, 11-13, and 17. |
ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis | |
| Notion(s) | Filing | Case |
| Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia - 12.12.2018 |
JOJIĆ Petar and RADETA Vjerica (MICT-17-111-R90) |
|
|
11. The Mechanism has the power to prosecute persons who have knowingly and wilfully interfered with the administration of justice by the Mechanism, the ICTY and the ICTR, and to hold such persons in contempt.[44] States are required to cooperate with the Mechanism in the investigation and prosecution of contempt cases and shall comply without undue delay with any order issued by a Single Judge or Trial Chamber, including orders for the surrender or the transfer of the accused to the Mechanism.[45] Before proceeding to try such persons, however, the Mechanism “shall” consider referring a case to the authorities of a competent national jurisdiction, taking into account the interests of justice and expediency.[46] This requirement is mandatory, and the inclusion of this provision in the Statute indicates a strong preference for referral if all relevant conditions are met. Accordingly, the Mechanism may only exercise jurisdiction after it has considered whether the case can be transferred to a national jurisdiction for trial. 12. Articles 6(2) and 12(1) of the Statute provide that a Single Judge may be designated to make this determination.[47] The Single Judge is to consider whether the case should be referred to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept the case and try it.[48] […] 14. […] The Appeals Chamber recalls that the Statute explicitly contemplates referral to a State “in whose territory the crime was committed”, without requiring that all the alleged acts, omissions, or effects thereof be committed or sustained in the territory of that State.[53] […] [T]o read the Statute as so requiring would effectively render meaningless the provisions that allow for the referral of contempt cases as the impact of the alleged conduct will always be on proceedings that took place in The Hague or Arusha, while the alleged acts or omissions could be committed anywhere. If that impact is to be determinative, the Mechanism would be precluded from transferring any such case to another State for trial. […] 21. […] The Mechanism’s Statute explicitly provides for the referral of contempt cases and requires States to comply with any order for the surrender or the transfer to the Mechanism of any person accused of contempt,[77] whereas the ICTY Statute did not.[78] In light of the specific provisions allowing for referral of contempt cases, the Appeals Chamber considers that where a State expresses a willingness and commitment to try a case over which it has jurisdiction, […] it should be given the opportunity to do so, provided other relevant factors are satisfied. [44] Article 1(4) of the Statute. [45] Articles 1(4), 28(1) of the Statute. [46] Article 1(4) of the Statute. See also Article 6 (1) of the Statute. [47] See also Rule 2(C) of the Rules of Procedure and Evidence (“Rules”). [48] Article 6 (2) of the Statute. [53] Article 6(2)(i) of the Statute. [77] Articles 1(4), 6(1), 28(1) of the Statute. [78] See e.g. ICTY Rules, Rule 11bis; ICTY Statute, Article 29(1) which reads: “[s]tates shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law”. See supra note 69 [Please note that the correct footnote is note 68]. |
IRMCT Statute
Article 6 of the IRMCT Statute Article 28 of the |
|