Rule 11 bis forms a cornerstone of the ICTY's completion strategy. Part I of this Article provides an analysis of the elements of the rule. This Part will highlight the purpose of Rule 11 bis, offer an overview of the legal basis through which the transfer of jurisdiction has taken place in the ICTY, discuss the referral process and the elements necessary for a successful referral, and, finally, round out the discussion with an overview of the decision making process of the referral bench in identifying which state is suitable to proceed with a trial once it is determined that the indictment is compatible with the referral. Part II discusses the relevance of applicable substantive law and its importance to the decisions of the referral bench, particularly in the determination of a state's ability to meet fair trial standards and to provide appropriate punishments. This Part also points out the potential problems that national courts will face when examining applicable substantive law. Part III highlights the tensions that could arise between Rule 11 bis and the right to a fair trial, quality of prisons, and other issues that surround sentencing. Finally, Part IV draws attention to the discretionary powers of the prosecutor to monitor the proceedings before the national courts.
Rule 11 BIS: An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence,
33 Fordham Int'l L.J. 723
Available at: https://ir.lawnet.fordham.edu/ilj/vol33/iss3/2