The Office of the Prosecutor made the request in a motion dated August 15 and signed by Chief Prosecutor Carla Del Ponte.
The motion was backed by the regulation of Rule 11bis of the ICTY's Rules of Procedure and Evidence which states that the referral of a case can be moved only by the Referral Bench or the Office of the Prosecutor, and not the accused. The motion also noted that deciding on the country to which a case will be referred was an integral part of that right.
The Office of the Prosecutor said it would oppose any intervention by Croatia in the procedure as moved by the accused and asked to be given more time to respond to the defence motion.
On July 28 the prosecution moved that the trial of Ivica Rajic, a 47-year-old former commander of Bosnian Croat forces in Kiseljak in central Bosnia, accused of war crimes against Muslims in 1993, be referred to the State Court of Bosnia-Herzegovina.
The prosecution stated that according to the gravity of the crimes committed and the level of responsibility of the accused the "Rajic case" met the conditions of Rule 11bis and that the crimes he was charged with had been committed in Bosnia-Herzegovina, whose judiciary it said was capable of providing for a fair trial.
In their reply of August 8 Rajic's attorneys Zeljko Olujic and Doris Kosta dismissed the prosecution's arguments, requesting that the trial be held before the ICTY or that the case be referred to Croatia.
They said that the referral of the case to Bosnia-Herzegovina would mean a postponement of the trial which was to have started before the ICTY soon, and that they would not be able to represent Rajic in Bosnia-Herzegovina.
The attorneys also warned that the Bosnian media had already started a campaign against Rajic describing him as a notorious criminal, thus exerting pressure on judges.
Backing their motion, the attorneys said that Rajic was a Croatian citizen and that he was arrested in Croatia, and cited a number of advantages of the Croatian legislation in relation to Bosnia's, including the Constitutional Law on Cooperation with the ICTY which provides for proceedings that are in accordance with ICTY standards.
Olujic confirmed reports that he and his client were in a disagreement and that Rajic demanded to be represented only by Kosta. Olujic added that the ICTY Registrar insisted that he continue representing Rajic and that he would continue doing so in the interest of his client until further notice.
Rajic is charged with ten counts of crimes against humanity and violations of the laws and customs of war, including the murder of 37 Muslims in the village of Stupni Do near Vares on October 23, 1993, and the imprisonment of 250 Muslims in Vitez.
He was indicted in August 1995 and arrested in Split on April 5, 2003, after spending eight years in hiding under a false identity.