Case No. IT-94-2-PT

Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndpele Mwachande Mumba
Judge Carmel Agius

Registrar:
Mr. Hans Holthuis

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DECISION ON DEFENCE MOTION CHALLENGING THE EXERCISE OF JURISDICTION BY THE TRIBUNAL

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The Office of the Prosecutor:

Mr. Upawansa Yapa

Counsel for the Accused:

Mr. Howard Morrison
Ms. Tanja Radosavljevic

1. Pending before this Trial Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the former Yugoslavia since 1991 (“Tribunal”) is a Preliminary Motion by the Accused, Dragan Nikolic (“Nikolic” or “Accused”), challenging the legality of his arrest.

2. Mr. Nikolic was originally indicted for 24 counts of crimes against humanity , violations of the laws or customs of war and grave breaches of the Geneva Conventions .¹ Following two amendments to the Indictment by the Prosecution, the accused now stands charged with eight counts of crimes against humanity.² The crimes were allegedly committed by the accused during 1992 in the Vlasenica region of eastern Bosnia. Most of the crimes alleged are said to have occurred within the Susica camp , a former military installation converted by Bosnian Serbs into a detention camp of which Nikolic is alleged to have been the commander. In these proceedings Nikolic challenges the jurisdiction of the Tribunal to hear the allegations against him pursuant to Rule 72(A)(i) of the Rules of Procedure and Evidence (“the Rules”). By way of relief, Nikolic seeks a stay, dismissal or negation of the Indictment, his release from the custody of the Tribunal and a return to his place of residence prior to his arrest.³

3. During his first appearance on 28 April 2000, Nikolic entered a plea of not guilty to all counts. At that time, he made no complaint about the way in which he was brought before the Tribunal.

4. At the Status Conference of 12 October 2000, Counsel for Nikolic advised the Tribunal that he would be challenging the legality of his arrest and detention at the Tribunal pursuant to that arrest.

5. At a Status Conference held on 30 March 2001, the pre-trial Judge suggested to Counsel for Nikolic that the Trial Chamber should decide as a preliminary legal issue whether misconduct on the part of “somebody other than the Prosecutor”⁴ could form the basis of a successful challenge to the jurisdiction of the Tribunal . Counsel for Nikolic agreed and it was decided that this approach should form an alternative to conducting the proceedings by way of an evidentiary hearing.⁵

6. On 17 May 2001, the Defence filed the First Defence Motion challenging the unlawful arrest of the Accused.⁶ In this Motion Nikolic reserves his right to rely upon the decision of a Trial Chamber of this Tribunal in the case of Todorovic⁷ (“Simic Decision”) so that, if this present Motion failed, he would seek an evidentiary hearing to establish the facts surrounding his arrest as an alternative challenge to the Tribunal’s exercise of jurisdiction.⁸ In its Response, the Prosecution acknowledged that Nikolic had reserved his position with respect to any future stand he may decide to adopt on the question of disclosure and the Prosecution mutatis mutandis would reserve its position on an identical and reciprocal basis.⁹ The Prosecution claims, however, that in response to a request made by Nikolic all the material in its possession relating to his arrest has already been disclosed to him.¹⁰ Both Parties agree that a trial of the alleged abductors has taken place in Serbia and that those persons have been convicted of the offence. Neither Party has, however , been able to supply the Trial Chamber with a copy of a judgement.¹¹

7. Nikolic sought leave to file a reply to the Prosecution’s Response. As the Response raised no new issue, and the points made were merely argumentative, leave to reply was refused by the Trial Chamber.¹²

8. On 6 July 2001, the Trial Chamber issued a Direction to the Parties to inform the Chamber as to whether they could reach an agreement on narrowing the issues in dispute regarding the Defence Motion on the illegality of arrest.¹³ At that time, the Parties did not reach an agreement. On 29 August 2001, a Status Conference was convened during which the pre-trial Judge again appealed to Parties to reach an agreement. Following the Status Conference, the Parties advised the Trial Chamber that an agreement between them to narrow the issues in dispute had been reached.

9. On 29 October 2001, the Defence filed a second Motion incorporating the precise issues to be resolved.¹⁴ The Prosecution filed its Response to this Second Motion on 12 November 2001¹⁵ and the Defence filed a brief Reply to the Response on 19 November 2001.¹⁶
   II. BACKGROUND

10. On 4 November 1994, pursuant to Rules 47 and 55 of the Rules, Judge Odio Benito confirmed the Indictment against Nikolic. In accordance with Rules 2(A) and 55 of the Rules, two warrants for his arrest were issued, one addressed to the Federation of Bosnia and Herzegovina and the other to the Bosnian Serb administration in Pale . The arrest warrants were served on the authorities, and various attempts were made by the Prosecution to serve the Indictment on Nikolic and to have them executed .

11. On 15 November 1994, the Registrar of the Tribunal received official notification that the Federation of Bosnia and Herzegovina was unable to execute the arrest warrant . The Federation of Bosnia and Herzegovina claimed that Nikolic was residing in the town of Vlasenica. No response was received from the Bosnian Serb administration in Pale concerning its ability or willingness to execute the arrest warrants against Nikolic.

12. On 16 May 1995, Judge Odio Benito ordered the Prosecution to submit the case to the Trial Chamber for a review of the Indictment pursuant to Rule 61(A) of the Rules.¹⁷ On 20 October 1995, the Trial Chamber found that it was satisfied by the evidence presented to it that there were reasonable grounds for believing that Nikolic had committed the crimes charged in the Indictment. Accordingly, an international arrest warrant was issued and transmitted to all States.¹⁸

13. The Trial Chamber also found that the failure of the Prosecution to effect service of the Indictment was due wholly to the failure or refusal of the Bosnian Serb administration in Pale to co-operate. In accordance with the procedure of Rule 61(E), the Presiding Judge of the Trial Chamber requested the President of the Tribunal to notify the Security Council of this failure.¹⁹ The President of the Tribunal complied with this request and sent a letter dated 31 October 1995 to notify the Security Council.²⁰

14. The Trial Chamber invited the Prosecution to amend the Indictment in the light of the evidence presented at the Review Proceedings. The Prosecution subsequently filed its first Amended Indictment in which 80 counts of crimes against humanity , violations of the laws and customs of war and grave breaches of the Geneva Conventions were alleged. Judge Claude Jorda confirmed the Amended Indictment on 12 February 1999 and issued a new arrest warrant to the authorities of the Federal Republic of Yugoslavia (“FRY”).

15. On or about 20 April 2000, Nikolic was arrested and detained by SFOR and, thereafter , on 21 April 2000, transferred to the Tribunal. How Nikolic came into the custody of SFOR is not entirely clear. It is alleged that he was kidnapped in Serbia by a number of persons and delivered into the hands of SFOR officers stationed in the Republic of Bosnia and Herzegovina.

16. During 2001, and following discussions with the pre-trial Judge and between Parties, the Prosecution was requested to submit a new amended indictment. On 7 January 2002, the Prosecution sought leave to file the Second Amended Indictment .²¹ This was granted on 15 February 2002²² and the accused was charged with eight counts of crimes against humanity.
    III. GENERAL OBSERVATIONS

17. Before analysing the various issues in the present case, it is appropriate to reflect on the terms of the agreement between the parties and on the “assumed facts” which form the basis on which the legal questions will have to be decided .

18. The terms of the Agreement between the Parties read:

    DRAFT TERMS OF LEGAL ISSUE AGREEMENT IN NIKOLIC

    The relief sought by the Accused is his release and the dismissal of the Indictment against him or such other relief that the Court deems appropriate. In order to determine whether the relief should be granted the Prosecution and Defence agree that the following issues would require resolution by way of hearing;

    1. If it can be established by the accused that the accused’s arrest was achieved by any illegal conduct committed by, or with the material complicity of;

    (a) any individual or organisation (other than SFOR, OTP or the Tribunal),

    (b) SFOR,

    (c) OTP or

    (d) the Tribunal

    would the accused be entitled to the relief sought.

    2. Does SFOR act as an agent of the OTP and/or the Tribunal in the detention and arrest of suspected persons?

    For the purposes of resolving the legal issue at the hearing, the Prosecution and Defence agree that the portions of the Accused’s statement to the OTP as to the circumstances of his arrest would be the “assumed facts” on which the argument would be based.

    It is also agreed between the Prosecution and Defence that if, after the hearing of this issue, the Court decides that relief could be granted to the Accused, if the assumed facts were established, a further hearing would be held to determine the factual circumstances of the Accused’s arrest.

    If such a hearing were necessary, the Prosecution and Defence agree that the burden of proof establishing the relevant facts lies with the Defence. It is further agreed that the Defence must establish the facts on the balance of probabilities.²³

    Counsel for the Accused and the Prosecution then signed these draft terms.²⁴

19. As the relevant portions of the Accused’s statements to the Prosecution had never been submitted to the Trial Chamber, the pre-trial Judge on 11 July 2002 issued an Order,²⁵ requesting that, in consultation with one another, the Parties provide a copy of these statements.

20. The Trial Chamber has carefully reviewed the relevant parts of the Accused’s statements relating to the circumstances of his arrest²⁶ and considers that the assertions of the Parties²⁷ on this issue are consistent with the Accused’s statements.

21. In particular, the Trial Chamber notes that both the Defence and the Prosecution agree on the following facts at least:

    - that the Accused at the time of his apprehension was living in the Federal Republic of Yugoslavia;

    - that the Accused was taken forcibly and against his will and transported into the territory of Bosnia and Herzegovina;

    - that the apprehension and transportation into the territory of Bosnia and Herzegovina was undertaken by unknown individuals having no connection with SFOR and/or the Tribunal;²⁸

    - that the Accused in his interview with the Prosecution asserted that he was handcuffed and in the trunk of a car, when the unknown individuals handed him over to SFOR;

    - that in Bosnia and Herzegovina the Accused was arrested and detained by SFOR;

    - that subsequently the Accused was delivered into the custody of the Tribunal and transferred to The Hague;

    - that certain individuals have been tried and sentenced in the Federal Republic of Yugoslavia for the acts relating to the apprehension of the Accused.

22. For the purposes of this Decision, the Trial Chamber considers that these facts are not in dispute between the Parties and will limit itself to deciding on the legal issues presented by the Parties in the Agreement and in the light of the factual submissions contained in the Parties’ filings following their Agreement. The issues raised in the first submissions by the Parties, prior to the Agreement, will be examined only insofar as they relate to the legal issues set out in the Agreement .
    IV. SUBMISSIONS OF THE PARTIES

23. The Defence disputes the Tribunal’s exercise of jurisdiction over the Accused , as a result of how he was brought into the hands of the Tribunal.

24. The argument on which Nikolic bases himself can be summarised as follows:

    [t]hat in this case, and any case involving, in effect, kidnapping, the taint of that degree of illegality and breach of fundamental human rights is so pernicious , and the dangers of the appearance of condoning it to any degree so much a hostage to unpredictable consequence and fortune, that a judicial body set up with, inter alios, the objectives of preserving human rights can have no proper option but to make it plain that jurisdiction will not be entertained in such circumstances .²⁹

    In the Second Defence Motion, this argument is phrased as follows:

    It is submitted that for the Trial Chamber to accept jurisdiction where an unlawful apprehension has been established is to, in effect, condone such action in spite of the availability of other legitimate means by which the presence of an accused might have been secured. Where there has been a violation of international law – particularly where the breach was committed by or with the material complicity of an agent and/or alternatively, by a recipient of an order of the Tribunal itself – it is incumbent on the Court to reject jurisdiction over the accused if only to protect and maintain its own integrity.³⁰

25. The submissions of the Defence are essentially:

    - that although SFOR was not directly involved in the Accused’s removal from the FRY , SFOR “had knowledge, actual or constructive, that the accused had been unlawfully apprehended and brought from Serbia against his free will” and that “the rendition was tainted with illegality”; ³¹

    - that SFOR must be considered both the de facto and de jure agent of the Prosecution and of the Tribunal in apprehending indictees and that, consequently , the illegal conduct can be attributed to the Tribunal;³²

    - alternatively, that the subsequent conduct of the Prosecution and the Tribunal “ was such that the conduct of SFOR was in effect ratified and made as if it had been previously authorised”³³; stated otherwise the conduct of SFOR must be considered consistent with having accepted and ratified any preceding violations of international or FRY law that may have occurred;

    - that the forcible removal of the Accused from the FRY entailed a breach of both the sovereignty of the FRY and the Accused’s individual due process guarantees; and that although such breaches occurred prior to the delivery of the Accused into the custody of SFOR and the Tribunal, these breaches were of such magnitude that even absent the involvement of SFOR or Prosecution, the release of the Accused from the custody of this Tribunal and the dismissal of the indictment against him is the only appropriate remedy. ³⁴

26. In its Response, the Prosecution submits that the parties disagree as to whether any violations of international law were committed. It submits that the parties do agree that lengthy and protracted evidence gathering processes should be avoided and that the focus should therefore first be on the availability of the remedies requested.³⁵

27. The Prosecution argues that there can be no doubt that any irregularities committed by the authorities of another State or individuals prior to the delivery of the Accused to the jurisdiction of the Tribunal should not suffice to divest the Tribunal of its jurisdiction over him nor that any alleged violations of Nikolic’s rights committed by unknown individuals be imputed to the Prosecution. ³⁶ The mere subsequent acceptance by the Prosecution of custody of the Accused is not sufficient in and of itself to satisfy the required level of “collusion” and/or “official involvement.” According to the Prosecution, at least some form of adoption and approval by the Prosecution of such violations is required.³⁷

28. Lastly, the Prosecution submits that the far-reaching remedies sought by the Accused may be warranted only in situations that involve at a minimum:

    a) [u]nambiguous, advertent violations of international law which can be attributed to the Office of the Prosecutor; and/or b) a residual category of cases where the violations in question are of such egregiousness or outrageousness that, irrespective of any lack of involvement on the part of the Prosecution, the Trial Chamber could not, in good conscience, continue to exercise its jurisdiction over the Accused. ³⁸

29. In the view of this Chamber, the Defence has used two different lines of reasoning to challenge the exercise of jurisdiction by this Tribunal over the accused. The first submission is that by taking over the accused from the unknown individuals , SFOR and/or the Prosecution have acknowledged and adopted the alleged illegal conduct of those individuals. The illegality of the acts of the individuals thereby becomes attributable to SFOR and to the Prosecution. In turn, such attribution leads to the conclusion that the Tribunal is barred from exercising jurisdiction over the accused. The second submission creates a more direct relationship between the arrest of the accused by the unknown individuals and the exercise of jurisdiction by the Tribunal. According to this submission, the illegal character of the arrest in and of itself should bar the Tribunal from exercising jurisdiction over the accused . To support this line of reasoning, the Defence relies on the argument that the maxim male captus, bene detentus should not form a basis for the exercise of jurisdiction by this Tribunal.

30. The Trial Chamber will first examine the argument that the acts of the individuals can be attributed to SFOR and to the Prosecution.
    V. ATTRIBUTION

31. As set out above, the Parties are in agreement that the Accused was apprehended in the territory of the FRY by individuals not related to SFOR, transferred to Bosnia and Herzegovina and then delivered to SFOR. The Parties disagree, however, as to the question how the relationship between the individuals who apprehended the Accused and SFOR and between SFOR and the Prosecution should be assessed. Related to the nature of this relationship is the question of what the consequent effect of any potentially illegal act committed by such individuals prior to the handing over of the Accused to the Tribunal should be on the exercise of jurisdiction by the Tribunal.

32. The Defence submits that when SFOR personnel took custody of the Accused, they had – actual or constructive - knowledge of the fact that he had been unlawfully apprehended and brought against his will from the territory of the FRY into the territory of Bosnia and Herzegovina. The Defence also submits that SFOR, aware of the illegal character of the arrest, took advantage of the situation by taking the Accused into custody and handing him over to the Prosecution. The Defence sets out that “by not only ignoring the illegality but, by actively taking advantage of the situation and taking into custody the accused, SFOR’s exercise of jurisdiction over Nikolic was an adoption of the illegality – of which they were aware – and thus, an extension of the unlawful detention.”³⁹

33. The Prosecution replies that any irregularities committed by the authorities of another State or individuals prior to the delivery of the Accused to the jurisdiction of the Tribunal should not suffice to divest the Tribunal of its jurisdiction over him. Here, SFOR appears to have been merely a fortuitous recipient of the Accused .⁴⁰

34. In order to be able to determine the issue at hand, the Trial Chamber first must determine the legal framework within which both SFOR and the Tribunal, in particular the Prosecution, operate.
    A. Legal framework

35. The Tribunal was established by the Security Council on 25 May 1993 in resolution 827. The resolution was adopted under Chapter VII of the United Nations Charter. Accordingly, the resolution is binding on all Member States of the UN. Paragraph 4 of the resolution specifies that all States “shall co-operate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal” and affirms the “obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute.” Subsequent Security Council resolutions, including those relating to the establishment and functioning of IFOR and SFOR, reaffirm that duty on Member States.⁴¹

36. Article 29 (1) of the Statute reiterates that States must co-operate with the Tribunal. Paragraph 2 states further, inter alia, that “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 ; (…) (d) the arrest or detention of persons, and (e) the surrender or the transfer of the accused to the International Tribunal.”

37. In relation to the issue of arrest, Article 19 (2) of the Statute merits recall :

    Upon confirmation of an indictment, the judge may, at the request of the Prosecutor , issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial .

    Furthermore, Article 20 (2) sets out:

    A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal .

38. Rule 55 of the Rules deals with the execution of arrest warrants. Rule 55 ( A) determines that an arrest warrant “shall include an order for the prompt transfer of the accused to the Tribunal upon the arrest of the accused.” Rule 56 adds that

    The State to which a warrant of arrest (…) is transmitted shall act promptly and with all due diligence to ensure proper and effective execution thereof, in accordance with Article 29 of the Statute.

    Rule 58 further states:

    The obligations laid down in Article 29 of the Statute shall prevail over any legal impediment to the surrender or transfer of the accused (…) to the Tribunal which may exist under the national law or extradition treaties of the State concerned.

    And Rule 59 on “Failure to Execute a Warrant or Transfer Order” reads:

    (A) Where the State to which a warrant of arrest or transfer order has been transmitted has been unable to execute the warrant, it shall report forthwith its inability to the Registrar, and the reasons therefor.

    (B) If, within a reasonable time after the warrant of arrest or transfer order has been transmitted to the State, no report is made on action taken, this shall be deemed a failure to execute the warrant of arrest or transfer order and the Tribunal , through the President, may notify the Security Council accordingly.

39. On 14 December 1995, the Dayton Peace Agreement (the “Dayton Agreement”) was signed in Paris. As part of the Dayton Agreement, the multinational military Implementation Force (“IFOR”) was created. The Dayton Agreement was concluded between the governments of Bosnia and Herzegovina, Croatia and the FRY (“the Parties”). Article IX of the General Framework Agreement stipulates that the Parties

    [s]hall cooperate fully with all entities involved in implementation of this peace settlement, as described in the Annexes to this Agreement, or which are otherwise authorized by the United Nations Security Council, pursuant to the obligation of all Parties to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law.

40. Annex 1-A to the Dayton Agreement contains the “Agreement on the Military Aspects of the Peace Settlement”. Article I (1)(a) of this Agreement, entitled “General Obligations”, invites the Security Council

    [t]o adopt a resolution by which it will authorize Member States or regional organizations and arrangements to establish a multinational military Implementation Force (hereinafter “IFOR”).

    Article I (1)(b) also provides that

    [N]ATO may establish such a force, which will operate under the authority and subject to the direction and political control of the North Atlantic Council (“NAC”) through the NATO chain of command.⁴²

    Paragraph 2 (b) of this provision lists as one of the obligations of the Parties

    [t]o provide for the support and authorization of IFOR and in particular to authorize the IFOR to take such actions as required, including the use of necessary force, to ensure compliance with this Annex, and to ensure its own protection;

41. Article VI of this Agreement reiterates the invitation to the Security Council to have IFOR established “under Chapter VII of the UN Charter” and sets out the functions of IFOR.⁴³ Article VI (4 ) provides:

    The Parties understand and agree that further directives from the NAC may establish additional duties and responsibilities for the IFOR in implementing this Annex.

    Paragraph 5 of the same Article also states:

    The Parties understand and agree that the IFOR Commander shall have the authority , without interference or permission of any Party, to do all that the Commander judges necessary and proper, including the use of military force, to protect the IFOR and to carry out the responsibilities listed above in paragraphs 2, 3 and 4 , and they shall comply in all respects with the IFOR requirements.

42. Article X of this Annex 1-A provides:

    The Parties shall cooperate fully with all entities involved in implementation of this peace settlement, as described in the General Framework Agreement, or which are otherwise authorized by the United Nations Security Council, including the International Tribunal for the former Yugoslavia.

    And lastly, Article XII reads:

    In accordance with Article I, the IFOR Commander is the final authority in theatre regarding interpretation of this agreement on the military aspects of the peace settlement (…).

43. The Security Council, acting under Chapter VII of the Charter of the United Nations, on 15 December 1995, adopted resolution 1031. In paragraph 14, it

    [a]uthorizes the Member States acting through or in cooperation with the organization referred to in Annex 1-A of the Peace Agreement (i.e. NATO) to establish a multinational implementation force (IFOR) under unified command and control in order to fulfil the role specified in Annex 1-A and Annex 2 of the Peace Agreement;

44. On 16 December 1995, the North Atlantic Council approved the Supreme Allied Commander Europe’s (SACEUR) Operational Plan for the establishment of IFOR and authorised the deployment of the IFOR’s main forces to the theatre of operations. As part of this decision, the NAC issued the following Rule of Engagement:

    [h]aving regard to the United Nations Security Council Resolution 827, the United Nations Security Council Resolution 1031, and Annex 1-A of the General Framework Agreement for Peace in Bosnia and Herzegovina, IFOR should detain any persons indicted by the International Criminal Tribunal who come into contact with IFOR in its execution of assigned tasks, in order to assure the transfer of these persons to the International Criminal Tribunal.⁴⁴

    In order to further implement this Rule, copies of indictments and arrest warrants issued by this Tribunal were transmitted to IFOR.

45. In January 1996, the Judges of this Tribunal, meeting in a plenary session, amended the Rules of Procedure and Evidence and adopted a new Rule 59 bis . This Rule now reads:

    Notwithstanding Rules 55 to 59, on the order of a permanent Judge, the Registrar shall transmit to an appropriate authority or international body or the Prosecutor a copy of a warrant for the arrest of an accused, on such terms as the Judge may determine, together with an order for the prompt transfer of the accused to the Tribunal in the event that the accused be taken into custody by that authority or international body or the Prosecutor. ⁴⁵

46. In May 1996, an agreement was concluded between the Tribunal and the Supreme Headquarters Allied Powers Europe (“SHAPE”). In the Simic decision⁴⁶ of 18 October 2000, reference is made to the following pertinent provisions in this agreement:

    2.1 The Point of Contact (POC) at the Tribunal in the Hague will be the Office of the Prosecutor. The POC at SHAPE will be the Office of the Legal Advisor (OLA). All policy level mattes will be dealt with by these two POCs.

    3.2 Upon the arrival of the competent representative of the Tribunal, that representative will also be responsible for confirming that the person detained by IFOR is the person named in the relevant arrest warrant and for informing said person of the substance of the arrest warrant issued against him. The Tribunal will also defend SHAPE and IFOR for any errors or omissions occurring as a result of the application of Articles 1, 2 and 3 by IFOR personnel acting in good faith during such detentions .⁴⁷

    3.5 Upon transfer of the detained PIFWC (person indicted for war crimes) to the competent representative of the Tribunal, the IFOR Provost Marshal will furnish the Tribunal representative with a brief report concerning the details of the PIFWC’s detention, including notations of any statements made by the detained PIFWC relevant to the PIFWC’s indictment and arrest warrant.

    Furthermore, the relevant part of paragraph 4 reads,:

    4.1 IFOR will support the discharge of the Tribunal’s mandate in Bosnia and Herzegovina to the extent of its capabilities taking account of its assigned tasks and resources. ⁴⁸

    4.4. The Commander of IFOR (COMIFOR) will be the final authority for determining IFOR’s capabilities according to Article 4.1 above”.⁴⁹

47. In 1996, Security Council resolution 1088 (12 December 1996) authorised the Member States, acting through or in co-operation with the organisation referred to in Annex 1-A of the Dayton Agreement to establish SFOR as the legal successor to IFOR for a period of 18 months. Operative paragraph 7 of this resolution

    Reminds the parties that, in accordance with the Peace Agreement, they have committed themselves to cooperate fully with all entities involved in the implementation of this peace settlement, as described in the Peace Agreement, or which are otherwise authorized by the Security Council, including the International Tribunal for the Former Yugoslavia, as it carries out its responsibilities for dispensing justice impartially, and underlines that full cooperation by States and entities with the International Tribunal includes, inter alia, the surrender for trial of all persons indicted by the Tribunal and provision of information to assist in Tribunal investigations;

    This mandate of SFOR was subsequently renewed by several Security Council resolutions and remained applicable throughout the period relevant for this decision.⁵⁰

    B. Assessment

48. As the Secretary General of the United Nations confirmed in his report on the establishment of this Tribunal,

    [a]n order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations.”⁵¹

49. The question that may arise is whether the duty to co-operate, as laid down in Article 29, applies to States only, or also to other entities or collective enterprises , such as SFOR. Read literally, Article 29 seems to relate to States only. This question had been discussed previously, inter alia, by the Trial Chamber in the Simic Decision. This Trial Chamber sees no reason to take a different view and refers to the following observations in that Decision:

    In principle, there is no reason why Article 29 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 suggests that it is applicable to such collective enterprises as it is to States. The purpose of Article 29 of the Statute of the International Tribunal is to secure cooperation with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law in the former Yugoslavia. The need for such cooperation is strikingly apparent, since the International Tribunal has no enforcement arm of its own – it lacks a police force. Although this cooperation would, more naturally, be expected from States, it is also achievable through the assistance of international organizations through their competent organs which, by virtue of their activities, might have information relating to, or come into contact with, persons indicted by the International Tribunal for serious violations of international humanitarian law. The existing relationship between SFOR and the International Tribunal is indicative of such cooperation in practice.

    (…)

    A purposive construction of the Statute yields the conclusion that such an order should be as applicable to collective enterprises of States as it is to individual States; Article 29 should, therefore, be read as conferring on the International Tribunal a power to require an international organization or its competent organ such as SFOR to cooperate with it in the achievement of its fundamental objective of prosecuting persons responsible for serious violations of international humanitarian law, by providing the several modes of assistance set out therein. ⁵²

50. This Chamber wishes to add that the introduction of Rule 59 bis should also be viewed against this background. As stated above, co-operation with the Tribunal would more naturally be expected from States, but this has not always been forthcoming . As the Trial Chamber in the Decision on the Motion for Release by the Accused Slavko Dokmanovic held, Rule 55, which deals with the execution of arrest warrants by States remains the primary method for the arrest and transfer of persons to the Tribunal. However, Rule 59bis should also be read as providing “for a mechanism additional to that of Rule 55”.⁵³ The present Chamber also concurs fully with this observation. It notes that the two mechanisms – the one provided by Rule 55 and the other set out in Article 59bis – do not differ in substance but emanate from the general duty to co-operate with the Tribunal pursuant to Article 29 of the Statute.

51. The Trial Chamber notes that the Defence does not challenge the authority of SFOR as such to arrest, detain and transfer indicted war criminals. It considers , however, that it is appropriate to address the legal basis for the authority to arrest and detain⁵⁴ suspects and to hand such suspects over to the Prosecution with a view to their transfer to The Hague.

52. The legal basis for the authority of SFOR to arrest, detain and transfer persons indicted by this Tribunal is, in the view of this Chamber, firmly established. The legal framework described above provides convincing elements for such a conclusion . The Rule of Engagement adopted by the NAC on 16 December 1995 forms the core provision for the authority of SFOR in this respect. This Rule should of course be considered against the entire legal framework as it forms part of a number of resolutions of the Security Council, obligations for the Parties to the Dayton Agreement and the Statute and Rules of this Tribunal. The language in this Rule, according to which SFOR “should detain any persons indicted by the International Criminal Tribunal who come into contact with SFOR/IFOR in its execution of assigned tasks” has however formed the basis of further discussions regarding the exact scope of SFOR’s role . It has regularly been argued that SFOR is merely authorised to arrest, detain and transfer persons indicted by the Tribunal and, sometimes even, that SFOR is obliged to arrest, detain and transfer those persons.⁵⁵

53. That IFOR and SFOR have the authority to arrest, detain and transfer persons indicted by the Tribunal has been repeatedly reiterated by SFOR officials. In such statements, it has consistently been made clear that if IFOR or SFOR come into contact with war criminals, it is their responsibility to turn them over to the Tribunal . ⁵⁶ This authority has also been used by SFOR personnel in a number of instances since July 1997. Repeatedly, SFOR has made it clear that the carrying out of such arrests took place when indicted persons were “encountered in the course of their duties”. ⁵⁷ The Trial Chamber observes that the Rules of Engagement (“ROE”) have a mandatory character for SFOR forces. The ROE define the degree and the modalities in which military force can be used.⁵⁸ For every person participating in an SFOR context, these ROE constitute a legal obligation . From the practice of SFOR under the ROE, the Chamber deduces that SFOR does have a clear mandate to arrest and detain a person indicted by the Tribunal and to have that person transferred to the Tribunal whenever, in the execution of tasks assigned to it, SFOR comes into contact with such a person. These are the modalities which are defined by the NAC and which fall within the mandate given by the Security Council .⁵⁹

54. When applying the legal framework to the assumed facts, the following conclusions can be drawn. The Accused was brought into the hands of SFOR troops in Bosnia and Herzegovina by some unknown individuals who had arrested and transferred him from the territory of the FRY to the territory of Bosnia and Herzegovina. The Accused can therefore be said to have “come into contact with” SFOR. SFOR had the authority to detain him and did so in application of the procedure laid down in the SHAPE Agreement. A representative of the Tribunal was informed and the Accused transferred to The Hague.

55. Might SFOR in fact have acted differently and, for example, released the Accused? In the view of this Chamber, that question can be answered in the negative only . Rule 59 bis, paragraph (A) explicitly refers to “an order for the prompt transfer of the accused to the Tribunal in the event that the accused be taken into custody by that authority or international body (…).” The use of the word “order ” in this provision is in itself already indicative of a binding character. As discussed above, Article 29 of the Statute does not apply only to States. Here again, a purposive interpretation of this Article, in combination with Rule 59 bis, can lead the Chamber to no other conclusion than that, in the particular circumstances of this case the relevant SFOR forces had no other option than to detain the Accused and to set the standard procedures in motion in order to have the Accused transferred to The Hague.
    C. Attribution to SFOR

56. On the basis of the legal framework set out above, the question of whether the alleged illegal acts undertaken by unknown individuals against the Accused can be attributed to SFOR needs to be addressed.

57. According to the assumed facts between the Parties, some unknown individuals arrested the Accused in the territory of the FRY and brought him across the border with Bosnia and Herzegovina and into the custody of SFOR. The mandate of SFOR extends only to the territory of Bosnia and Herzegovina. The Parties agree that these individuals had no connection whatsoever with SFOR and/or the Tribunal. SFOR, as described, acted within the applicable legal framework, detained the Accused and handed him over to a representative of the Office of the Prosecutor. Subsequently, he was brought to the United Nations Detention Unit in The Hague.

58. The Defence does not allege that SFOR participated in the illegal conduct of these unknown individuals. It argues primarily that when SFOR personnel took custody of the accused, “they had knowledge, actual or constructive, that the accused had been unlawfully apprehended and brought from Serbia against his free will, that his freedom of movement had been unlawfully restricted, that he had been unlawfully deprived of his liberty and that he had been, and remains, detained against his will.” It argues in addition that “SFOR personnel opted to “take advantage” of the situation by taking custody of the accused, alerting the International Tribunal of his presence and proceeding with the arrest procedures as agreed with the Tribunal ”.⁶⁰

59. The Prosecution counters these arguments and submits that SFOR was merely a fortuitous recipient of the Accused as a result of the fact that unknown individuals had delivered him to SFOR in Bosnia and Herzegovina. It argues that the Prosecution was not involved in these alleged illegal activities, an argument that is not disputed by the Defence. It also claims that there was no form of adoption or approval of these activities by the Prosecution and that “the mere subsequent acceptance by the Prosecution of custody of the Accused cannot in and of itself satisfy the required level of “collusion” or “official involvement” on the part of the Prosecution .” In short, the Prosecution submits that both SFOR and the Prosecution merely carried out their duties in accordance with the legal framework described above.⁶¹

60. In determining the question as to whether the illegal conduct of the individuals can somehow be attributed to SFOR, the Trial Chamber refers to the principles laid down in the Draft Articles of the International Law Commission (“ILC”) on the issue of “Responsibilities of States for Internationally Wrongful Acts”. These Draft Articles were adopted by the ILC at its fifty-third session in 2001.⁶² The Trial Chamber is however aware of the fact that any use of this source should be made with caution. The Draft Articles were prepared by the International Law Commission and are still subject to debate amongst States. They do not have the status of treaty law and are not binding on States. Furthermore, as can be deduced from its title, the Draft Articles are primarily directed at the responsibilities of States and not at those of international organisations or entities. As Draft Article 57 emphasises,

    [t]hese articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.

61. In the present context, the focus should first be on the possible attribution of the acts of the unknown individuals to SFOR. As indicated in Article I of Annex 1-A to the Dayton Agreement, IFOR (SFOR) is a multinational military force. It “ may be composed of ground, air and maritime units from NATO and non-NATO nations ” and “will operate under the authority and subject to the direction and political control of the North Atlantic Council.” For the purposes of deciding upon the motions pending in the present case, the Chamber does not deem it necessary to determine the exact legal status of SFOR under international law. Purely as general legal guidance, it will use the principles laid down in the Draft Articles insofar as they may be helpful for determining the issue at hand.

62. Article 11 of the Draft Articles relates to “Conduct acknowledged and adopted by a State as its own” and states the following:

    Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.⁶³

63. The Report of the ILC on the work of its fifty-third session sheds light on the meaning of the Article:

    Article 11 (…) provides for the attribution to a State of conduct that was not or may not have been attributable to it at the time of commission, but which is subsequently acknowledged and adopted by the State as its own. (…), article 11 is based on the principle that purely private conduct cannot as such be attributed to a State. But it recognizes “nevertheless” that conduct is to be considered as an act of State “if and to the extent that the State acknowledges and adopts the conduct in question as its own.⁶⁴

    Furthermore, in this report a distinction is drawn between concepts such as “acknowledgement ” and “adoption” from concepts such as “support” or “endorsement”. The ILC argues that

    [a]s a general matter, conduct will not be attributable to a State under article 11 where a State merely acknowledges the factual existence of conduct or expresses its verbal approval of it. In international controversies States often take positions which amount to “approval” or “endorsement” of conduct in some general sense but do not involve any assumption of responsibility. The language of “adoption”, on the other hand, carries with it the idea that the conduct is acknowledged by the State as, in effect, its own conduct.⁶⁵

64. The Trial Chamber observes that both Parties use the same and similar criteria of “acknowledgement’, “adoption”, “recognition”, “approval” and “ratification”, as used by the ILC. The question is therefore whether on the basis of the assumed facts SFOR can be considered to have “acknowledged and adopted”⁶⁶ the conduct undertaken by the individuals “as its own”. It needs to be re-emphasised in this context that it cannot be deduced from the assumed facts that SFOR was in any way, directly or indirectly, involved in the actual apprehension of the accused in the FRY or in the transfer of the accused into the territory of Bosnia and Herzegovina . Nor has it in any way been argued or suggested that SFOR instructed, directed or controlled such acts. What can be concluded from the assumed facts is merely that the Accused was handed over to an SFOR unit after having been arrested in the FRY by unknown individuals and brought into the territory of Bosnia and Herzegovina . From the perspective of SFOR, the Accused had come into contact with SFOR in the execution of their assigned task. In accordance with their mandate and in light of Article 29 of the Statute and Rule 59 bis, they were obliged to inform the Prosecution and to hand him over to its representatives. From these facts, the Trial Chamber can readily conclude that there was no collusion or official involvement by SFOR in the alleged illegal acts.

65. Both SFOR and the Tribunal are involved in a peace mission and are expected to contribute in a positive way to the restoration of peace and security in the area. Any use of methods and practices that would, in themselves, violate fundamental principles of international law and justice would be contrary to the mission of this Tribunal.

66. The question that remains is, whether the fact that SFOR and the Prosecution , in the words of the Prosecution, became the “mere passive beneficiary of his fortuitous (even irregular) rendition to Bosnia” could, as the Defence claims, amount to an “adoption” or “acknowledgement” of the illegal conduct “as their own”.

67. The Trial Chamber responds to this question in the negative. Once a person comes “in contact with” SFOR, like in the present case, SFOR is obliged under Article 29 of the Statute and Rule 59 bis to arrest/detain the person and have him transferred to the Tribunal. The assumed facts show that SFOR, once confronted with the Accused, detained him, informed the representative of the Prosecution and assisted in his transfer to The Hague. In this way, SFOR did nothing but implement its obligations under the Statute and the Rules of this Tribunal.
    D. Relationship between SFOR and the Prosecution

68. In the previous section, the Trial Chamber concluded that the alleged illegal conduct of unknown individuals cannot be attributed to SFOR, for lack of acknowledgement and ratification. The Defence argues, in addition, that the relationship between SFOR and the Prosecution has developed from one of co-operation into one of agency .⁶⁷ Were such an agency relationship to exist and in some way the Prosecution to have acknowledged and ratified the alleged illegal conduct of unknown individuals, the allegedly illegal conduct by the individuals could be attributed to SFOR and through SFOR to the Prosecution.

69. In light of the conclusions already reached, the Chamber does not find it necessary to discuss this hypothesis. As concluded, the conduct of the unknown individuals cannot be attributed to SFOR. Whatever the relationship between SFOR and the Prosecution , no attribution to the Prosecution can take place. Stated otherwise, the submissions of the Defence have become moot.
    VI. THE PRINCIPLE OF MALE CAPTUS, BENE DETENTUS
    A. Introduction

70. Until this point the discussion has focused on the question of whether the Tribunal should be barred from exercising jurisdiction over the Accused because his alleged illegal arrest by unknown individuals in the FRY has tainted the arrest and transfer by SFOR and the Prosecution. The Defence, however, also uses a different , one might say more direct, challenge to the exercise of jurisdiction by the Tribunal . According to this line of reasoning, the illegal arrest in itself constitutes a direct obstacle to the exercise of jurisdiction by the Tribunal. The Defence bases the argument on a comparison with developing trends in national jurisdictions, according to which the traditional maxim male captus, bene detentus should no longer be applied. The maxim male captus, bene detentus expresses the principle that a court may exercise jurisdiction over an accused person regardless of how that person has come into the jurisdiction of that court. The Defence, in brief, argues that the principle has lost much of its relevance in the practice of various national jurisdictions and should therefore not be used as a basis for the exercise of jurisdiction by this Tribunal. In the view of the Defence, this Tribunal should instead apply the principle of male captus, male detentus, meaning that an irregularity has occurred in the arrest of the Accused and therefore should bar any further exercise of jurisdiction by the Tribunal.⁶⁸

71. The central submission of the Defence is that unlawful rendition of a defendant to the Tribunal should lead to the conclusion

    [t]hat international law has to some degree been breached and that the violation of some fundamental principle - whether it be state sovereignty and/or international human rights and/or the rule of law – needs to be protected above all other considerations .⁶⁹

    This submission comes down to three separate grounds for alleging a violation of international law.

    First, such an abduction would constitute a violation of the state sovereignty of the allegedly injured State. As the Defence observes, cross-border abductions were traditionally considered primarily from a “State-centric perspective”. From that perspective, the issue of whether there was evidence of direct or indirect complicity of a State in such abductions played a predominant role. According to the Defence , this is much less important today. Therefore, when “the abduction has been perpetrated by private individuals, the law remains unsettled and thus, the remedy for such a breach also remains unresolved.”⁷⁰

    Second, such abduction could constitute a serious curtailment of basic inalienable rights and lead to a subsequent irregular exercise of jurisdiction over an individual by an adjudicating court. In this context, according to the Defence "the issue of whether or not the perpetrators of the abduction were State-sponsored or acting in a private capacity, is irrelevant."⁷¹

    And third, the Defence argues that such an abduction per se and the subsequent exercise of jurisdiction constitutes an abuse of process and a breach of the rule of law.⁷² In this context, the Defence interprets the concept of the rule of law in a broad way, acknowledging explicitly that "there is no suggestion on the part of the Defence that the irregular rendition inevitably divests the accused of a fair trial."⁷³ Here, the Defence also submits that the Trial Chamber should not exercise jurisdiction because other legitimate means by which the presence of the accused might have been secured, were available here.⁷⁴

72. The Prosecution has submitted a number of counter-arguments. It observes that the national precedents used by the Defence do not present a consistent picture of the validity, or not, of the maxim male captus, bene detentus. It also argues that the difference between the horizontal relationship between States and the vertical relationship between the Tribunal and States cannot validly lead to an automatic application of such national precedents. Furthermore, the Prosecution submits that even if, for the sake of argument, it could be argued that the accused was apprehended in violation of international law for one of the reasons identified by the Defence, the exercise of jurisdiction over such an accused is in itself not contrary to international law. The remedy sought by the Defence is, in the view of the Prosecution, "a remedy of the utmost gravity, to be resorted to only where the imperatives of justice so demand and when it is thought by the Tribunal to be vitally necessary to safeguard the integrity of the conduct of international criminal justice".⁷⁵ In cases like this, a balancing act is necessary in order to weigh all competing interests. The Prosecution submits that only in extreme situations may the remedy of dismissal of the indictment come into play. The following minimum conditions must be satisfied. Either “unambiguous , advertent violations of international law which can be attributed to the Office of the Prosecutor (…)" have to take place, and/or a very special situation must arise "where the violations in question are of such egregiousness or outrageousness that, irrespective of any lack of involvement on the part of the Prosecution, the Trial Chamber could not, in good conscience, continue to exercise its jurisdiction over the accused. In such circumstances, release may therefore be ordered so as to safeguard the integrity of the entire judicial process."⁷⁶ Although the Prosecution uses the formula "and/or" here, it also argues that authorities normally require that the conduct resulting in such egregiousness or outrageousness must be attributed to the State concerned. Referring to the Dokmanovic and the Barayagwiza cases, the Prosecution concludes that in this balancing process no situation has yet been identified in which the outrageousness was such that the remedy sought by the Defence, the dismissal of the indictment, was considered the appropriate remedy.⁷⁷

73. On the basis of these submissions, the Trial Chamber considers that the central legal question that needs to be answered in this part of the Decision is whether there is a legal impediment to the exercise of jurisdiction over the Accused. Such an impediment would stem from the fact that the Accused was brought into the jurisdiction of the Tribunal by SFOR and the Prosecution after his alleged illegal arrest in the territory of the FRY and transfer to the territory of Bosnia and Herzegovina by some unknown individuals.

74. The question is whether such serious factors are involved in the present case that it would amount to an impediment for this Tribunal to exercise its jurisdiction . The Chamber has an inherent power to decide whether or not to exercise jurisdiction over an Accused.⁷⁸ Whether such serious factors are involved in this case must now be addressed.

75. The Trial Chamber is aware that in answering the central legal question, as formulated above, it finds itself in uncharted waters. Finding the appropriate answer requires caution. In order to provide guidance for determining the issue at hand , both Parties have made extensive references to the case law of various national jurisdictions relating to the question of forced cross-border abduction. Care needs to be applied in respect of this case law. First, as will be seen below, the case law referred to is far from uniform. In some national jurisdictions, the maxim male captus, bene detentus is more closely followed than in others. Furthermore , the case law on this particular issue is still developing and such developments are more advanced in some jurisdictions. In addition, the concept of forced cross -border abductions is not always interpreted the same way. Case law often differs also in that the facts on which decisions have to be taken are not at all identical .

76. An additional and important factor to be taken into account is the fact that all case law is based on various forms of forced cross-border abductions which occur between sovereign States, i.e. on a horizontal level. On a horizontal level , States are entirely free to enter into treaty obligations regarding e.g. the extradition of persons accused of certain crimes. As the case law of this Tribunal has emphasized time and again, the relationship between the Tribunal and national jurisdictions is not horizontal, but vertical. The Chamber refers to the legal framework within which the various organs of this Tribunal co-operate with SFOR as set out above. The vertical character of the co-operation between the Tribunal on the one hand and States and other entities on the other is first and foremost determined by Security Council resolution 827 and Article 29 of its Statute. No such freedom therefore exists in this relationship. For purposes of the exercise of jurisdiction by this Tribunal, by definition this must have an impact on the interpretation of the national case law. In other words, the national case law must be “translated ” in order to apply to the particular context in which this Tribunal operates.

77. While bearing in mind these considerations, the Chamber still regards it useful to provide an overview of this case law although the overview will not and cannot be exhaustive. The Chamber will briefly analyze the major aspects of the case law of a number of national jurisdictions regarding the issue of forced cross-border abductions. This analysis will provide the Chamber with sufficient information to identify the core elements that have played a role in the developments in that case law. These elements will subsequently be used and “translated” for the purpose of answering the legal question raised above. In doing so, the Chamber will be in a position to determine which factors have played an important role in the case law of various national jurisdictions and which factors – and to what extent – are applicable to the case at hand.

78. The principle of male captus, bene detentus has for decades caused intensive and sometimes heated debates in judicial, executive and academic circles.⁷⁹ The vertical context in which the present Decision needs to be taken differs too much from the horizontal one in which such debates have occurred. Caution is therefore required when using these debates for the present Decision. Similar caution is needed to interpret the outcome of this case in its vertical context to the debates in that horizontal context.
    B. National case law

79. The principle of male captus, bene detentus has traditionally found strong support in the case law of the United States. In Ker v. Illinois, the defendant, a citizen of the United States, was forcibly abducted from Peru back to the United States, by a “private messenger” who had been sent to Peru with a warrant to be used under the extradition relationships between these two States. On the initiative of the messenger, however, this warrant was never used and the defendant was brought back to the United States by abduction. When Ker challenged the exercise of jurisdiction by the courts, the Supreme Court held that

    [s]uch forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court.

    The Supreme Court held that the defendant had not been deprived of due process of law.⁸⁰

80. In 1952, a similar reasoning was used in Frisbie v. Collins. In that case, the defendant had been forcibly abducted from Chicago and brought to Michigan to stand trial. Also here, the Court held that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.”⁸¹ No violation of due process of law was found. It must be noted here that the case did not relate to a forced abduction from one sovereign State to another but from one of the States of the United States to another. Ever since, the rule laid down in these precedents has often been referred to as the Ker-Frisbie rule.

81. In United States v. Toscanino, decided in 1974, the defendant, Toscanino , an Italian citizen, was kidnapped in Uruguay by Uruguayan authorities, brought to Brazil where he was detained and tortured for nearly three weeks and then abducted to the United States. All this happened with the connivance of the United States authorities. In the United States he was charged and convicted for drug related crimes. The United States had not attempted to use normal extradition proceedings in order to have him stand trial in the United States. In this case, the Court held :

    Faced with a conflict between the two concepts of due process, the one being the restricted version found in Ker-Frisbie and the other the expanded and enlightened interpretation expressed in more recent decisions of the Supreme Court, we are persuaded that to the extent that the two are in conflict, the Ker-Frisbie version must yield. Accordingly we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the Government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.⁸²

    To hold otherwise in such a situation would, in the view of that Court, reward “ police brutality and lawlessness”.⁸³ One needs to take into account here that the decision to divest jurisdiction was based on the way the abduction was carried out and not on the fact that an abduction had taken place. Therefore, when the same Court was again confronted with an abduction case a few years later – in the case of United States, ex rel . Lujan v. Gengler,- and no allegations of serious mistreatment were advanced , the Court referred to the Ker-Frisbie rule and, accordingly, ruled that there was no need to divest itself of jurisdiction.⁸⁴ The Toscanino rule therefore appears to apply only when (i) the abduction itself amounts to “grossly cruel and unusual barbarities” or “shock the conscience ”, (ii) the abduction was the work of State agents, and (iii) there was a protest by the injured State.⁸⁵

82. One of the most well known and equally debated decisions in the United States is that of the Supreme Court in the case of Alvarez-Machain.⁸⁶ In that case, Mr. Alvarez-Machain, a Mexican citizen, was forcibly abducted in Mexico by Mexican agents and brought into the United States where he had to stand trial for participation in the kidnapping and murder of a United States DEA special agent . United States government agents were involved in the abduction and no extradition had been sought. The Supreme Court had to rule on the question whether the extradition treaty between Mexico and the United States prohibited such an abduction. Mexico had strongly protested it and considered it to be a violation both of the extradition treaty and of its national sovereignty. It also requested the return of the accused to Mexico. A majority of the Supreme Court decided that no such violation of the extradition treaty had occurred, as the treaty contained no explicit provision prohibiting such an abduction. Failing a violation of the extradition treaty, according to the majority of the Supreme Court, the Ker-Frisbie rule should apply and the Court should not have to divest itself of jurisdiction over the accused. The minority of the Supreme Court strongly disagreed and considered the decision “monstrous”. In their view, the concept of due process of law should be interpreted as relating not only to the question of whether the accused would receive a fair trial but also to such principles as protection of the court’s process from abuse by the executive , respect for a broadly interpreted concept of international rule of law and respect for human rights. The decision was not only heavily criticized in the United States but also in other States, in judicial decisions of national courts in other States and in academic circles. Still, it must be considered “the leading U.S. case on forcible abduction by government agents.”⁸⁷

83. Two other decisions of United States courts still deserve mention. The first is United States v. Matta-Ballesteros, decided on 1 December 1995. This case very much resembles United States v. Alvarez-Machain. Here too, the accused was abducted, this time from Honduras, by Honduran and Unites States agents. He was alleged to have been involved in the torture and killing of a United States DEA special agent. The accused alleged that during his abduction he was regularly beaten and tortured on the direction of United States agents. However, in this case , the United States had first tried to use its extradition treaty with Honduras in order to get jurisdiction over the accused. But this procedure had failed. The Court followed the Supreme Court in the Alvarez-Machain case and held that “where the terms of an extradition treaty do not specifically prohibit the forcible abduction of foreign nationals, the treaty does not divest federal courts of jurisdiction over the foreign nationals.”⁸⁸ The Court did not exclude the possible application of the Toscanino rule but held that the circumstances of the accused’s abduction did not meet the level of seriousness required. Also worth mentioning is United States v. Noriega, decided on July 7, 1997. Here the accused argued, inter alia, that his transfer from Panama to the United States, after military intervention by the United States in Panama, amounted to a violation of the extradition treaty between the two States . The Court however followed the Alvarez-Machain precedent.⁸⁹

84. A classic example of a decision close to the application of the principle of male captus, bene detentus is the case of Eichmann.⁹⁰ Eichmann was seized from Argentina by persons acting at the instigation of Israel and brought to Israel to stand trial for war crimes and crimes against humanity committed under the German Nazi regime. Argentina initially objected strongly to this action which led to the adoption of a resolution on the issue by the Security Council. ⁹¹ The Council requested Israel to make appropriate reparation to Argentina but did not require the return of Eichmann to Argentina. Israel and Argentina subsequently settled their dispute . Eichmann was tried in Israel. He objected to the exercise of jurisdiction over him but his objections failed. He was convicted and sentenced to death.⁹²

85. In the United Kingdom, the maxim male captus, bene detentus has long been followed. In ex p. Scott, a British woman, sought for charges of perjury , was apprehended in Belgium and returned to the United Kingdom. When faced with a challenge to its jurisdiction, the English Court held:

    The question, therefore, is this, whether if a person charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought, and still continue to think, that we cannot inquire into them.⁹³

    This argument was still followed in 1949 in the case of ex p. Elliott. Here the accused, charged with desertion, was arrested in Belgium by Belgian and British officers and brought back to the United Kingdom. His challenge to jurisdiction also failed as the court held that it had no power to inquire into the circumstances by which the accused was before it. Interesting however was the observation by Lord Goddard, C.J., who noted that “it may influence the court if they think there was something irregular or improper in the arrest”.⁹⁴

86. A first sign that this approach was about to change came in ex parte Mackeson in which a citizen of the United Kingdom was sought for fraud charges. He was found in Zimbabwe, but the British government did not ask for his extradition. The local authorities, informed by British authorities that he was being sought, deported him to the United Kingdom. Upon his arrival, he was arrested. However, the Court stayed the proceedings against him because his rendition had been organised in such a way as to circumvent regular extradition proceedings.⁹⁵

87. The Mackeson approach was followed in a judgement of the House of Lords of 24 June 1993 in re Bennett. The appellant in this case was a citizen of New Zealand arrested in South Africa. The United Kingdom sought him for fraudulent activities relating to the purchase of a helicopter. At the time, no extradition relationship existed between South Africa and the United Kingdom. The South African police however put him on an aeroplane to London where he was arrested. The appellant argued that the procedure followed amounted to a disguised extradition. Although the Divisional Court applied the Scott rule, the House of Lords decided otherwise holding that

    [t]he maintenance of the rule of law prevailed over the public interest in the prosecution and punishment of crime where the prosecuting authority had secured the prisoner’s presence within the territorial jurisdiction of the court by forcibly abducting him or having him abducted from within the jurisdiction of some other state in violation of international law, the law of the state from which he had been abducted and his rights under the laws of that state and in disregard of available procedures to secure his lawful extradition to the jurisdiction of the court from the state where he was residing. It was an abuse of process for a person to be forcibly brought within the jurisdiction in disregard of extradition procedures available for the return of an accused person to the United Kingdom ….⁹⁶

    In his opinion in this case, Lord Bridge of Harwich added:

    [t]here is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view.⁹⁷

    The approach taken by the House of Lords in this case is now generally considered to be the ruling principle for cases where representatives of a State have been involved in a violation of international law and which amount to a violation of the rule of law. The rule of law is clearly interpreted here as demanding only a fair trial for an accused.

88. New Zealand however was the first country within the Commonwealth legal system that started to distance itself from the more traditional approach of male captus , bene detentus. In Regina v Hartley, a New Zealand citizen was sought for murder and fled to Australia. The Australian police, at the instigation of the New Zealand police, put him on a flight back to New Zealand where he was arrested , tried and convicted. Though possible, extradition had not been requested. Judge Woodhouse noted in this case:

    And in our opinion there can be no possible question here of the Court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute. (…) But this must never become an area where it will be sufficient to consider that the end has justified the means. The issues raised by this affair are basic to the whole concept of freedom in society.

    The Court used its discretionary power to stay the case as it considered the conduct of the police to be an abuse of power.

89. In Australia, the Hartley reasoning was followed in the case of Levinge .⁹⁸ Here, the accused, an Australian citizen, was arrested in Mexico by Mexican agents and brought to the United States in what seemed to be a co-ordinated effort of Mexican and United States agents. From the United States he was extradited to Australia. The Court held that it has a right to stay proceedings in order to prevent an abuse of process by the executive or to protect the integrity of the court processes. This, however, according to the Court, should be done only where the executive had been a direct or indirect party to the unlawful conduct. As an involvement of the Australian executive could not be identified, the Court decided not to stay the proceedings against him.

90. In South Africa as well, the issue of whether the maxim male captus, bene detentus should still be considered good law became an issue in the early 90s . It was raised in the case State v. Ebrahim where the accused, a South African citizen, was arrested and abducted in Swaziland and brought back to South Africa . He was sought for treason and initially sentenced to twenty years imprisonment . When challenging his arrest, the Supreme Court held:

    [t]he individual must be protected against illegal detention and abduction, the bounds of jurisdiction must not be exceeded, sovereignty must be respected, the legal process must be fair to those affected and abuse of law must be avoided in order to protect and promote the integrity of the administration of justice. This applies equally to a state. When the state is a party to a dispute, as for example in criminal cases, it must come to court with “clean hands”. When the state itself is involved in an abduction across international borders, as in the present case , its hands are not clean.

    In this judgement, the Supreme Court made explicit reference to the fact that the maxim male captus, bene detentus had come into discussion in the United States and made explicit reference to the Toscanino case.⁹⁹

91. In France, early case law shows that courts have been rather reluctant to apply the maxim male captus, bene detentus. In re Jolis¹⁰⁰ a French citizen was arrested by French agents in Belgium and abducted to France . The Court considered that this was a violation of international law and released the person.¹⁰¹ In re Argoud , however, the Court did not see an obstacle to the exercise of jurisdiction over the accused, a former ex-colonel in the French army who was sought for involvement in an attempt to assassinate General de Gaulle. The Court held that

    [l]a capture à l’étranger d’un citoyen ne priverait pas les tribunaux de son pays du droit et de la compétence de le juger.¹⁰²

    In a trial in absentia he was sentenced to death. He had fled to Germany where he was found by private individuals and brought back to France. Once back, the French police were informed of his presence by an anonymous telephone call and he was arrested and tried. The decision not to stay proceedings against the accused was heavily influenced by the fact that no French executive authorities seemed to be involved and Germany had not made any complaints about the way the accused was transferred to France.

92. The German Constitutional Court (Bundesverfassungsgericht) explicitly endorsed the view taken in re Argoud and was not able to identify an impediment to the exercise of criminal jurisdiction in case of a German citizen allegedly illegally transferred from French territory to German territory.¹⁰³

93. Finally, in this overview of national case law, reference may be made to the Zimbabwe case of State v. Beahan, decided one year after the Ebrahim case which to a great extent took the same approach. In this case, the accused was transferred to Zimbabwe as a result of a co-operation with another State which amounted to deliberate circumventing of an extradition procedure. Chief Justice Gubbay observed :

    In my opinion it is essential that, in order to promote confidence in and respect for the administration of justice and preserve the judicial process from contamination , a court should decline to compel an accused person to undergo trial in circumstances where his appearance before it has been facilitated by an act of abduction undertaken by the prosecuting State. There is an inherent objection to such a course both on grounds of public policy pertaining to international ethical norms and because it imperils and corrodes the peaceful coexistence and mutual respect of sovereign nations. For abduction is illegal under international law, provided the abductor was not acting on his own initiative and without the authority or connivance of his government . A contrary view would amount to a declaration that the end justifies the means , thereby encouraging States to become law-breakers in order to secure the conviction of a private individual.¹⁰⁴

    C. Assessment
    1. Introduction

94. The Trial Chamber observes that the case law described above is rather diverse . Depending on how one defines illegal abduction, probably not all of the cases described necessarily fit such a definition. In some cases, the State which is about to exercise jurisdiction over the accused (the forum State) was intensively involved in the forced abduction of the accused. In others, the State where the accused was originally found was actively involved as well and, for example, deported or expelled the accused - a situation sometimes referred to as a form of informal extradition or even of a circumvention of the due process of extradition. The Trial Chamber does not consider it necessary to define the various forms of cross-border transfer of accused persons. What is important is to identify the core elements which played a role in the case law and to assess how they should be interpreted in light of the legal question with which the Chamber is now confronted.

95. Here again, the Chamber wishes to stress that such core elements were developed in the context of horizontal relationships between sovereign and equal States. It is a different question whether, and if so, to what extent such elements apply in the particular – vertical – context in which the Tribunal operates in relation to States. Notwithstanding this observation, it is still appropriate to summarise the major elements that have played a role in the case law. These elements are:

    - Was a member of the executive of the forum State involved in the illegal transfer of the accused from the State where he was found (the injured State) to the forum State? Such involvement may be direct, as for example in the case of Noriega where US military forces went into Panama and arrested the accused. But it can also be much more indirect involvement such as, for example, in the case of Bennett where the British authorities used more informal contacts with the authorities of South Africa in order to have the authorities of the latter State put the accused on a plane to the United Kingdom where he could be arrested¹⁰⁵;

    - Was the accused a national of the injured State (like in Alvarez-Machain) or of the forum State (like in Hartley)?;

    - Did the injured State protest in some way against the fact that the accused was taken out of its territory? Such a protest is more likely in the case where the accused is a national of the injured State and the authorities of that State were not involved in the cross-border transfer of the accused (such as – originally - in the case of Eichmann and in the case of Alvarez-Machain).

    - Did an extradition treaty exist between the forum State and the injured State and , if so, was there first an attempt to apply that treaty? In the case of Ker , Toscanino and Alvarez-Machain, such a treaty relationship did exist , but the forum State did not attempt to apply that procedure first. In the case of Matta-Ballesteros, the forum State first tried to make use of the extradition treaty but that avenue failed to bring about the desired result.

    - How was the accused treated during the period between the moment of his deprivation of liberty in the injured State and the moment of his official arrest in the forum State? Was the accused seriously mistreated? In the case of Toscanino, the treatment reached the level of “grossly cruel and unusual barbarities” that “shock the conscience”. In some other cases, mistreatment was alleged (e.g. in the case of Matta-Ballesteros) but the court considered the allegations unproven or not reaching to such a level of seriousness.

    - Finally, for which crimes was the accused sought? In most cases, the accused were sought for crimes such as murder, attempted murder, drug trafficking, crimes relating to drug trafficking or fraud crimes. One important exception is the Eichmann case where the accused was sought for high-level involvement in war crimes and crimes against humanity.¹⁰⁶

96. The Chamber must now address the allegations of the Defence that, in the present case, violations of international law occurred. Such violations relate to: (i) a violation of the State sovereignty of the injured State, (ii) a violation of international human rights, in particular the rights of the accused, and (iii) a violation of the rule of law. The question of whether such violations have taken place needs to be assessed in the context of the relationship between the Tribunal, States and other entities, as determined, first and foremost, by Article 29 of the Statute.
    2. Violation of State sovereignty?

97. In relation to the question of whether a forced cross-border transfer amounts to a violation of State sovereignty of the injured State, in particular, the following factors will have to be taken into account: the role the executive authorities of the forum State played in the transfer of the accused, the nationality of the accused , the role of the injured State itself and any treaty obligations that may exist between the injured State and the forum State, especially as to extradition. As the Defence observes, “In cross-border abduction cases where there was some evidence to indicate State involvement (…) the violation of international law was regarded as a breach of State sovereignty.” Traditionally, such breaches were considered a possible dispute between States with no role as such for the person involved. Much therefore depends on the reaction of the injured State itself. As the Defence rightly points out, however, the Appeals Chamber in the Tadic Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, held that individuals can also invoke this ground, at least before this Tribunal.¹⁰⁷

98. The Defence further submits that where there is evidence of complicity by a State in the abduction of an individual, this in itself raises “a legitimate action for the violation of State sovereignty”. But “where the abduction has been perpetrated by private individuals, the law remains unsettled and thus, the remedy for such a breach also remains unsolved.”¹⁰⁸ The Trial Chamber observes that the overview of national case law does not provide sufficient guidance in this respect. In many instances, national courts did not express an opinion at all on the question whether international law was violated but focused on the interpretation and application of national law. In the instances where courts decided not to exercise jurisdiction over the accused, the most important argument used was that the way the accused had been brought into the jurisdiction of the forum State amounted to an undermining of the principle of due process of law.¹⁰⁹

99. Nonetheless, the Chamber concurs with the Defence that in clear cases of State involvement in a forced abduction serious questions may arise about respect for the sovereignty of the injured State. This may, in particular, be the case in situations where extradition treaties between the injured State and the forum State have not been properly applied, deliberately circumvented or otherwise violated and where the injured State protests and requests the retransfer of the abducted person. Notwithstanding such a conclusion, basing itself upon the assumed facts, the Chamber cannot concur with the Defence that such a violation of international law has occurred here. The following reasons have brought the Chamber to this conclusion.

100. First, the Chamber once more wishes to emphasise the difference between the legal context in which the national case law has been developed and the context in which the Tribunal operates. This case law deals with situations where an accused person is brought – with or without force and with or without some form of State involvement – from one national jurisdiction to another. As national jurisdictions function concurrently on an equal level, it is of utmost importance that any exercise of such national jurisdiction be exercised in full respect of other national jurisdictions . Observance of this fundamental principle forms an important asset of peaceful co-operation between States. This means that sovereignty and equality between States go hand in hand. The role of the Tribunal, as an enforcement measure under Chapter VII of the UN Charter, is from that perspective, fundamentally different. Consequently , in this vertical context, sovereignty by definition cannot play the same role.

101. Second, the present case differs in one very important aspect from many of those referred to in the overview of national case law. According to the assumed facts, the Accused was deprived of his liberty in the territory of the FRY by unknown individuals and brought by those individuals across the border into the territory of Bosnia and Herzegovina. At no time prior to the Accused’s crossing the border between the FRY and Bosnia and Herzegovina were SFOR and/or the Prosecution involved in the transfer. In addition, from the assumed facts the conclusion must be drawn that there are no indicia that SFOR or the Prosecution offered any incentives to these unknown individuals. Further analysis of the national case law shows that in every case in which a court decided not to exercise jurisdiction the facts of the case demonstrated that executive authorities of the forum State had been involved in the disputed operation to transfer an accused from one State to another. Furthermore , in several cases where it was clear that those authorities had not been involved , the courts saw no obstacle to the exercise of jurisdiction over the case.¹¹⁰

102. Various other authors also share this conclusion. Michell, for example, holds :

     The abduction must have been carried out by state agents, either state employees or private individuals working under state direction. The distinction between abduction by state agents and private citizens is important because international wrongfulness and state responsibility depend upon an agency relationship.¹¹¹

     And Lamb writes:

     It bears emphasizing that none of the national authorities previously cited suggest that a court should decline to exercise jurisdiction over a defendant, in circumstances where the authorities of the forum State have acted with propriety, merely because the authorities of another State or individuals may have acted irregularly.¹¹²

     Commenting on how Eichmann was abducted from Argentina to Israel, O’Higgins observes:

     If in fact this meant that they were private citizens acting on their own initiative Israel would not be liable for their acts.¹¹³

103. And third, the present case also distinguishes itself from various cases discussed in the national case law in that, in the present case, no issue arises as to possible circumvention of other available means for bringing the Accused into the jurisdiction of the Tribunal. As follows inter alia from the vertical relationship between the Tribunal and national States, no extradition treaties are applicable. Instead , States are obliged to surrender indicted persons in compliance with any arrest warrants. Such warrants are de jure orders of this Tribunal directed to all Member States of the United Nations.

104. As an obiter dictum the Chamber wishes to make the following comment . Even if this Chamber would have concluded that a violation of State sovereignty had taken place in this case, the maxim “dolo facit qui petit quod SstatimC redditurus est” would still have applied.¹¹⁴ In the present context, this maxim would have implied that, if a violation of State sovereignty had taken place, the Accused should first have been returned to the FRY, whereupon the FRY would have been immediately under the obligation of Article 29 of the Statute to surrender the Accused to the Tribunal.

105. All things considered, the Chamber concludes that, in the present case, there has been no violation of State sovereignty.
     3. Violation of human rights and due process of law?

106. The Defence also argues that the arrest and transfer of the Accused amounts to a violation of internationally recognised human rights and a violation of the fundamental principle of due process of law. In relation to the question of whether a violation of human rights has occurred, the following factors in particular may play a role: how was the accused arrested, how was he treated, who was involved in the arrest and treatment? As regards the question of whether a violation of the principle of due process of law occurred, the same factors may play a role. In addition , the question may arise as to whether the Accused can still be considered to receive a fair trial. As both arguments are closely connected to each other, they will be discussed here together.

107. In order to support the contention that the abduction of the Accused amounts to a violation of his human rights, the Defence invokes, in particular, Article 5 of the European Convention on Human Rights and Article 9 of the Covenant on Civil and Political Rights. It refers to a number of decisions and judgements taken by regional and international human rights institutions. In its view, this case law shows that an abduction is manifestly arbitrary, constitutes a violation of the principle of legality and is not in accordance with procedures prescribed by law .¹¹⁵

108. The Defence further submits that since the abduction was unlawful, the exercise of jurisdiction over the individual becomes irregular as well, regardless of whether the abduction was State-sponsored or undertaken by private individuals. In cases where “there has been a serious violation of the rule of law or an abuse of process ”, the Tribunal should “consider divesting itself of jurisdiction over the defendant .” “It is submitted that while an abduction is per se both an abuse of process and a breach of the rule of law, the subsequent transfer of a defendant as a direct consequence of an abduction into a different jurisdiction to face criminal proceedings is, it is suggested, an abuse of process.” ¹¹⁶ The Defence adds here that, as such, it is not suggesting that the Accused will not receive a fair trial but that proceeding with the trial, in light of how he was brought within the jurisdiction of this Tribunal, will undermine the integrity of the judicial process. The Defence refers here to the “abuse of process” doctrine , applied by the Appeals Chamber in the Barayagwiza case. In this case, the Appeals Chamber held that a court may decline – as a matter of discretion – to exercise its jurisdiction in cases “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s right would prove detrimental to the court’s integrity”. ¹¹⁷

109. The Prosecution submits that the remedy sought by the Defence, i.e. the dismissal of the indictment and the return of the Accused to the FRY, is a remedy that should apply only to very extreme cases of violations of the rights of the Accused. The Prosecution argues that the Trial Chamber needs to undertake a balancing exercise between the duty to respect the rights of the Accused and the duty to prosecute very serious violations of humanitarian law. According to the Prosecution, “doctrinal support can be found for the view that the exercise of jurisdiction over an accused apprehended in violation of international law is not in itself contrary to international law.”¹¹⁸ The Prosecution further submits that, in practice, the abuse of process doctrine may be invoked successfully when not only very serious violations of the Accused’s fundamental rights have occurred but also when those violations can be attributed to a State. According to the Prosecution , this threshold has not been met in the present case.¹¹⁹

110. The Trial Chamber observes first that it attaches great importance to respect for the human rights of the Accused and to proceedings that fully respect due process of law. It is also duty-bound to respect the rights laid down in Article 21 of the Statute. This Tribunal has a paramount duty and responsibility to respect fully the norms developed over the last decades in this field, especially within, but not limited to, the framework of the United Nations. For this reason, this Tribunal has a responsibility to fully respect “internationally recognized standards regarding the rights of the accused at all stages of its proceedings.” Such standards “are , in particular, contained in article 14 of the International Covenant on Civil and Political Rights”¹²⁰; such standards are e.g. also contained in Articles 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950. This Chamber observes that these norms only provide for the absolute minimum standards applicable.

111. There exists a close relationship between the obligation of the Tribunal to respect the human rights of the Accused and the obligation to ensure due process of law. Ensuring that the Accused’s rights are respected and that he receives a fair trial forms, in actual fact, an important aspect of the general concept of due process of law. In that context, this Chamber concurs with the view expressed in several national judicial decisions, according to which the issue of respect for due process of law encompasses more than merely the duty to ensure a fair trial for the Accused. Due process of law also includes questions such as how the Parties have been conducting themselves in the context of a particular case and how an Accused has been brought into the jurisdiction of the Tribunal. The finding in the Ebrahim case that the State must come to court with clean hands applies equally to the Prosecution coming to a Trial Chamber of this Tribunal. In addition, this Chamber concurs with the Appeals Chamber in the Barayagwiza case that the abuse of process doctrine may be relied on if “in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice ”. However, in order to prompt a Chamber to use this doctrine, it needs to be clear that the rights of the Accused have been egregiously violated.¹²¹

112. The Chamber must undertake a balancing exercise in order to assess all the factors of relevance in the case at hand and in order to conclude whether, in light of all these factors, the Chamber can exercise jurisdiction over the Accused.

113. The Chamber has already concluded that, as such, the acts of the unknown individuals , i.e. bringing the Accused against his will from the territory of the FRY into the territory of Bosnia and Herzegovina, cannot be attributed to SFOR or the Prosecution . This however does not mean that such acts do not raise concerns with the Chamber . The assumed facts show that some violence was used by these individuals against the Accused. The Defence makes reference to several decisions of the Human Rights Committee relating to forced abductions in the 1980’s in some Latin-American countries . In these decisions, the persons concerned were considered victims of violations of the right to liberty and security of the person.¹²² The Chamber hesitates to apply this case law automatically mutatis mutandis to the issue at hand. Those cases were decided in the specific context of whether a State should be held responsible for the violation of the human rights it was duty-bound to respect. Furthermore, in all those cases, the States against which the applications were lodged were themselves involved in the forced abductions of the victims. As already discussed above, this aspect is an important factor in the assessment of the legal and factual issues in the case at hand.

114. Notwithstanding such considerations, the Chamber holds that, in a situation where an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal , this may constitute a legal impediment to the exercise of jurisdiction over such an accused. This would certainly be the case where persons acting for SFOR or the Prosecution were involved in such very serious mistreatment. But even without such involvement this Chamber finds it extremely difficult to justify the exercise of jurisdiction over a person if that person was brought into the jurisdiction of the Tribunal after having been seriously mistreated. This, the Chamber observes, is in keeping with the approach of the Appeals Chamber in the Barayagwiza case , according to which in cases of egregious violations of the rights of the Accused , it is “irrelevant which entity or entities were responsible for the alleged violations of the Appellant’s rights.”¹²³ The Prosecution supports such an approach.¹²⁴ Whether such a decision should be taken also depends entirely on the facts of the case and cannot be decided in the abstract. Accordingly, the level of violence used against the Accused must be assessed. Here, the Chamber observes that the assumed facts, although they do raise some concerns, do not at all show that the treatment of the Accused by the unknown individuals amounts was of such an egregious nature .

115. This leads the Chamber to the final conclusion that, on the basis of the assumed facts, the Tribunal must exercise jurisdiction over the Accused. The allegations that his human rights have been violated or that proceeding with the case would violate the fundamental principle of due process of law are rejected.
     VII. CONCLUSION

Based on the assumed facts, the Trial Chamber concludes that:

- the Accused was allegedly illegally arrested and abducted from the territory of the FRY by some unknown individuals and transferred by them to the territory of Bosnia and Herzegovina;

- neither SFOR nor the Prosecution were involved in these acts;

- the Accused was arrested and detained by SFOR once on the territory of Bosnia and Herzegovina;

- SFOR acted in accordance with the authority of the North Atlantic Council in relation to the arrest and transfer of persons indicted by the Tribunal;

- as the Accused had “come into contact with SFOR”, SFOR was obliged to arrest, detain and transfer him to The Hague;

- SFOR and the Prosecution have entered into a well-defined relationship which must be considered one of co-operation;

- the Tribunal has jurisdiction over the Accused;

- the Tribunal has an inherent right to decide whether there exists a legal impediment to the exercise of jurisdiction over the Accused in order to ensure the integrity of the entire judicial process;

- the assumed facts provide no indicia that there was a violation of the sovereignty of the FRY attributable to either SFOR or the Prosecution;

- the assumed facts provide no indicia that there was a violation of the human rights of the Accused;

- the assumed facts provide no indicia that there was a violation of the fundamental principle of due process of law;

- there exists no legal impediment to the Tribunal’s exercise of jurisdiction over the Accused.

FOR THE FOREGOING REASONS THIS TRIAL CHAMBER

REJECTS the relief sought by the Defence, i.e. the release of the Accused and the dismissal of the Indictment against him and DISMISSES the Defence Motion.

Done in both English and French, the English version being authoritative.

Done this ninth day of October 2002
At The Hague
The Netherlands

________________________________
Wolfgang Schomburg
Presiding Judge

[Seal of the Tribunal]