Laws governing extradition

Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.

At para. 31, the Appeals Chamber confirmed the Referral Bench’s finding that regardless of the way an accused is transferred to the Tribunal, “transfer pursuant to Rule 11bis would not amount to an extradition stricto sensu”.[1] It held:

31. […] The Referral Bench’s reliance on the Kovačević Decision in support of the proposition that regardless of the manner in which the Appellants were originally transferred to the International Tribunal, referral pursuant to Rule 11bis of the Rules would not amount to an extradition stricto sensu, is correct.[2] Accordingly, the Referral Bench properly concluded that the treaty or national law governing extradition does not apply to prevent the referral of the Appellants’ case pursuant to Rule 11bis of the Rules because, as with the initial transfer of the Appellants to the International Tribunal, their transfer to the State authorities under Rule 11bis is not the result of an agreement between the State and the International Tribunal.[3] The Appeals Chamber recalls that the obligation upon States to cooperate with the International Tribunal and comply with its orders arises from Chapter VII of the United Nations Charter. Accordingly, a State cannot impose conditions on the transfer of an accused, or invoke the rule of specialty or non-transfer concerning its nationals.[4] The referral procedure envisaged in Rule 11bis is implemented pursuant to a Security Council resolution, which, under the United Nations Charter, overrides any State’s extradition requirements under treaty or national law.[5]

[1] Prosecutor v. Mejakić et al., Case No. IT-02-65-PT, Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11bis with Confidential Annex, Referral Bench, 20 July 2005 (“Impugned Decision”), para. 31, relying on Prosecutor v. Kovačević, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998.

[2] Impugned Decision, para. 31.

[3] Ibid; see also Decision on Joint Defence Motion to Admit Additional Evidence Before the Appeals Chamber pursuant to Rule 115, 16 November 2005, para. 39 (“Mejakić et al. Rule 115 Decision”).

[4] Impugned Decision, para. 31; Mejakić et al. Rule 115 Decision, para. 39.

[5] U.N. Doc. S/Res/1503 (2003) 28 August 2003.

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis