"Decision on Motion for Judicial Assistance to be provided by SFOR and others"

18 October 2000
Trial Chamber III (Judges Robinson [Presiding], Hunt and Bennouna)

Procedural Background

• On 24 November 1999, Counsel for the accused Stevan Todorovic filed a Notice of Motion for Judicial Assistance. In the Motion, the Defence requested Trial Chamber III to issue an Order asking SFOR and other military or security forces operating on the territory of Bosnia-Herzegovina to assist the Defence in obtaining certain documents and calling certain witnesses. These documents and witnesses would be used in evidentiary hearings on the legality of the accused's transfer from his residence in the FRY to Tuzla Air Force Base in Bosnia-Herzegovina and the lawfulness of his detention by SFOR. These events are alleged to have occurred between 26 and 28 September 1998.

• On 8 December 1999, the Office of the Prosecutor responded, objected to the relief sought and asserted that the Motion and the related proceedings on the legality of the arrest represented "nothing more than a legalistic 'fishing expedition'".

• The Defence replied on 13 December 1999.

• On 7 March 2000, in response to a further filing by the Defence seeking similar material from the Prosecution, the Trial Chamber issued the Order on Defence Requests for Judicial Assistance for the Production of Information. The Order required the Prosecution to provide copies of relevant reports and other material, and to disclose the identity of various individuals involved in the transportation to and arrest of Stevan Todorovic at the Tuzla Air Force base. At the same time, Trial Chamber III required the Defence to state what steps it had taken in order to obtain the documents and information from SFOR.

• On 14 March 2000, the Prosecution applied for leave to appeal against the Decision before a Bench of three Judges of the Appeals Chamber under Rule 73(B)(ii) and the Defence opposed this application on 18 March 2000.

• On 3 May 2000, a Bench of three Judges of the Appeals Chamber rejected "the Application in full".

• The Prosecution subsequently disclosed a one-page report on the arrest of the accused on 8 May 2000. The Prosecution asserted that apart from this document it had none of the designated material within its custody and control.

• On 20 March and 12 May 2000, the Defence provided details of its attempts to obtain the materials sought directly from SFOR. Counsel produced a copy of a letter from the Office of the Legal Advisor of SFOR dated 24 March 2000 declining to provide the material and stating that "[i]t is the position of SFOR that the ICTY has no authority to order SFOR to disclose any information."

• On 1 June 2000, the Trial Chamber ordered that the Motion be served on SFOR which was notified of the opportunity to file a written response to the application by 16 June 2000 and to appear at the hearing scheduled for 23 June 2000.

• On 5 June 2000, the Defence filed a Memorandum of Law in Support of the Defense position that SFOR is subject to ICTY jurisdiction.

• On 16 June 2000, SFOR sought a time-extension in which to file a written response to the Motion.

• On 21 June 2000, Trial Chamber III vacated the hearing date and required SFOR to file its reasons for its request for postponement by 28 June 2000.

• On 28 June 2000, SFOR filed a letter asserting that the Motion presented "legal issues that require careful consideration and coordination within SFOR and SHAPE" (Supreme Headquarters Allied Powers Europe) and sought a time-extension in which to file a written response to the Motion for judicial assistance.

• The Prosecution and the Defence responded on 30 June and on 3 July 2000 respectively.

• On 7 July 2000, the Trial Chamber granted the time-extension sought by SFOR and rescheduled the hearing on the Motion for 25 July 2000.

• On 10 July 2000, SFOR filed a written response to the Motion, followed by further filings from the Defence on 17, 25 July and 1 August 2000 and from the Prosecution on 31 July 2000. In its filing of 25 July 2000, the Defence specified the relief sought. For the first time this included an additional request for judicial assistance directed to the United States of America.

• On 25 July 2000, the open hearing on the Motion took place at which SFOR did not appear.

The Decision

Trial Chamber III granted Stevan Todorovic's Motion and ordered that:

1. "SFOR and its responsible authority, the North Atlantic Council", as well as all the 33 "States participating in SFOR [...] disclose to the Defence for Stevan Todorovic" the following documents, items and material "relating to the apprehension of the accused" by 17 November 2000:

a. "Copies of all correspondence and all reports by SFOR relating to the apprehension of the accused, Stevan Todorovic;
b. the original or a copy of all audio and video tapes made by SFOR on 27 September 1998 of the initial detention and arrest of the accused, Stevan Todorovic; and
c. copies of all SFOR pre- and post-arrest operations reports relating to the arrest and detention of the accused, Stevan Todorovic; and
d. the identity, if known, of the individual or individuals who transported the accused, Stevan Todorovic, by helicopter to the Tuzla Air Force base, Bosnia and Herzegovina, on or about 26 and 27 September 1998; and
e. the identity, if known, of the individual or individuals who placed the accused, Stevan Todorovic, under arrest and who served the arrest warrant issued by the International Tribunal on the accused, Stevan Todorovic, on or about 28 September 1998."

2. a subpoena ad testificandum1 "be issued in due course to General Shinseki [...] requiring him to provide evidence in the ongoing evidentiary hearing in this matter at a date and time to be specified". General Eric Shinseki was the American Commanding General of SFOR at the time of Todorovic's detention and transfer. However, he "is to be treated qua individual in respect of any event that he has personally witnessed, even if observed while performing his official functions. Thus he is compellable not in his role as Commanding General of SFOR but as an individual with personal knowledge of the events of which complaint is made".

3. The Trial Chamber's orders were made pursuant to Rule 54 bis (E)(iii) of the Rules of Procedure and Evidence2, in accordance with which SFOR, as well as a State participating in SFOR, "may, within fifteen days of service of the order, apply by notice to the Judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests".

The Reasoning

Trial Chamber III identified the question as being one of whether "the Tribunal is empowered under Article 29" of the Statute3 to issue an order to SFOR whilst bearing in mind that this text "is, on its face, confined to the issuing of orders to States."

The Judges held that the scope of Article 29 of the Statute "applies to all States, whether acting individually or collectively. In principle, there is no reason why [this text] should not apply to collective enterprises undertaken by States, in the framework of international organisations and, in particular, their competent organs such as SFOR in the present case. A purposive construction of Article 29 [of the Statute] suggests that it is as applicable to such collective enterprises as it is to States." The purpose of this text is to secure cooperation with the Tribunal "in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law in the former Yugoslavia." The Trial Chamber considered that the existing relationship between SFOR and the Tribunal "is indicative of such cooperation in practice."

The Judges referred to Article 31(1) of the Vienna Convention on the Law of Treaties4 and found that the case-law of the Tribunal "has repeatedly stressed the importance of giving due weight to the object and purpose of the Statute in its construction."

Trial Chamber III found that a "purposive construction of the Statute yields the conclusions that such an order should be as applicable to collective enterprises of States as it is to individual States". Article 29 of the Statute should therefore be read as conferring on the Tribunal "a power to require an international organization or its competent organ such as SFOR to cooperate with it".

Latest Development

• On 25 October 2000, the Prosecution filed an interlocutory appeal against the Decision before the Appeals Chamber under Rule 72(B)(i)5; in the alternative, it applied for leave to appeal before a Bench of three Judges of the Appeals Chamber under Rule 73(B)(ii)6 and further requested that a stay of execution of the impugned Decision "be granted pending resolution of these appeal proceedings and that, prior to a final resolution of this matter, an oral hearing be scheduled so as to determine the ultimate remedies which would be available to the Accused in the instant case."

• On 31 October 2000, the Defence for the accused Stevan Todorovic filed a Motion to dismiss the Prosecutor's appeal and to oppose the application for leave to appeal; alternatively should leave be granted Defence Counsel requested a joinder in application for an oral hearing on the issue of a stay and on the scope of the appeal as well as for an expedited appeal.

• On 2 November 2000, NATO and the following States sought review of the Decision by the Appeals Chamber pursuant to Rule 108 bis7: the United States of America, Canada, the United Kingdom, Germany, The Netherlands and Norway. Pursuant to Rule 54 bis, NATO, Germany and Norway also sought a stay of the Decision. NATO and Italy sought a time-extension of two weeks to review the issue. On the same date, Denmark notified that it had not been possible to identify information relevant to the decision and stated that "[a]ny future release of information w[ould] be limited to information which can be disclosed without prejudice to national security interests". On 6 November 2000, France sought review of the Decision by the Appeals Chamber, a time-extension of two weeks to prepare a brief and a stay of the Decision.

Separate Opinion of Judge Parick Lipton Robinson

Judge Patrick Lipton Robinson pointed out that he was "in full agreement" with the Decision and that the purpose of his Separate Opinion was "to advance an additional basis for construing Article 29 of the Statute as empowering the Tribunal to require SFOR to provide the material requested by the accused to support his motions for return to the FRY and for habeas corpus."

Judge Robinson noted that in submitting these two motions, the accused was exercising his right to challenge the legality of his arrest, "which, although not expressly provided for in the Statute, is to be found in all major human rights instruments, and which exists under customary international law."

He also emphasised that this right "is one of the 'internationally recognised standards regarding the rights of the accused'" which, according to the Secretary-General, "the Tribunal must 'fully respect'"8. The Judge relied on the Decision rendered on 2 November 1999 in the case The Prosecutor v. Jean-Bosco Barayagwiza9 in which the Appeals Chamber of the International Criminal Tribunal for Rwanda stressed "the fundamental importance of the right to challenge the legality of one's arrest" based on the provisions of international human rights instruments.

Judge Robinson noted that the SHAPE Agreement revealed that SFOR "has a close, functional, relationship with the Office of the Prosecutor". The action of SFOR "resulted in a deprivation of liberty, and it is the legality of that deprivation which is being challenged."

The Judge added that SFOR's function gives it "a role comparable to that of a police force in some domestic legal systems, and creates, as between itself and the Tribunal, through the Office of the Prosecutor, a relationship of which the analogue in such systems is the relationship between the police force, the prosecuting authority and the courts." Through this quasi police function, SFOR "virtually operates as an enforcement arm of the Tribunal". According to the Judge, "[i]t would be odd if the Tribunal had no competence in relation to the exercise of certain aspects of this quasi police function, and in particular, [he] would find it inconceivable that the Tribunal would have no power to require SFOR to produce, in proceedings challenging the legality of an arrest, material relevant to its detention, and to its transfer to the Tribunal, of a person indicted by the Tribunal. There is clearly a strong functional, although not organic, relationship between SFOR and the Tribunal, through one of its organs, the Office of the Prosecutor."

Judge Robinson expressed the view that "Article 29 of the Statute must, therefore, be construed in a manner which gives effect to, rather than nullifies, the customary right to challenge the legality of one's arrest. Such an interpretative approach is entirely consistent with the general rule of interpretation set out in" the Vienna Convention on the Law of Treaties10.

The Judge concluded that this "Opinion is to be read in conjunction with the Chamber's decision that SFOR be allowed to raise objections on the grounds that disclosure would prejudice its security interests and those of its members."

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1. An order requiring a person to appear before a court or other tribunal to give evidence.
2. The very detailed Article 54 bis of the Rules was added at the 21st Plenary Session, 15-17 November 1999 (IT/32/Rev. 17) and adopted on 7 December 1999. It provides in relevant part that: "If, having regard to all circumstances, the Judge or Trial Chamber has good reasons for so doing, the Judge or Trial Chamber may make an order to which this Rule applies without giving the State concerned notice or the opportunity to be heard under Sub-rule (D), and the following provisions shall apply to such an order […] subject to paragraph (iv), the order shall not have effect until fifteen days after such service".
3. "1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:

(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal."

4. "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".
5. "Decisions on preliminary motions are without interlocutory appeal save […] in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber."
6. "Decisions on such motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave […] if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally."
7. "(A) A State directly affected by an interlocutory decision of a Trial Chamber may, within fifteen days from the date of the decision, file a request for review of the decision by the Appeals Chamber if that decision concerns issues of general importance relating to the powers of the Tribunal.
(B) The party upon whose motion the Trial Chamber issued the impugned decision shall be heard by the Appeals Chamber. The other party may be heard if the Appeals Chamber considers that the interests of justice so require.
(C) The Appeals Chamber may at any stage suspend the execution of the impugned decision.
(D) Rule 116 bis shall apply mutatis mutandis."
8. Paragraph 106 of the Report of the Secretary General provides that "[i]t is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally recognised standards are, in particular, contained in Article 14 of the International Covenant on Civil and Political Rights." (Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 [1993], S/25704, 3 May 1993, page 27).
9. The Prosecutor v. Jean-Bosco Barayagwiza, Case No. ICTR-97-19-AR72, Appeals Chamber, Decision, 2 November 1999 (summarised in Judicial Supplement No. 9).
10. See the Declaration of Judge Patrick Robinson attached to the Judgement rendered by the Appeals Chamber on 21 July 2000 in the case The Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A (summarised and analysed in Judicial Supplement No. 18), in which the Judge interpreted Rule 15 in the light of the Vienna Convention.