Judge Mohamed Shahabuddeen, Presiding
Judge Lal Chand Vohrah
Judge Rafael Nieto-Navia
Judge Patricia Wald
Judge Fausto Pocar

Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
4 December 2000







The Office of the Prosecutor:

Mr. Graham Blewitt

Counsel for the Defence:

Mr. Slobodan Zecevic, for Milan Simic
Mr. Igor Pantelic and Mr. Novak Lukic, for Miroslav Tadic
Mr. Deyan Ranko Brashich and Mr. Nikola Kostich, for Stevan Todorovic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic, for Simo Zaric


THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the International Tribunal");

BEING SEIZED OF the "Prosecutor’s Appeal Against the Trial Chamber’s Decision on Motion for Judicial Assistance to be Provided by SFOR and Others Dated 18 October 2000 or, Alternatively, Application for Leave to Appeal Against that Decision and Request for a Stay of the Decision", filed by the Prosecutor on 26 October 2000 ("the Application");

NOTING the "Notice to the Appeals Chamber of the Todorovic Defense’s Joinder in the Prosecutor’s Application for an Oral Hearing as to Stay of Trial Chamber’s Order and as to Definition of Scope of Appeal", filed by the Defence for Stevan Todorovic ("the Defence") on 30 October 2000 and the "Accused Stevan Todorovic’s Motion to Dismiss the Prosecutor’s Appeal, Opposition to Application for Leave to Appeal Against Trial Chamber’s Interlocutory Order Dated October 18, 2000 and in Opposition of a Stay; Motion for an Expedited Appeal Should Leave be Granted; Joinder in Application for Oral Hearing on Stay" filed by the Defence on 31 October 2000 (together "the Response");

NOTING that pursuant to the "Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal" (IT/155), the Prosecutor "may file a reply within four days of the filing of the response" and that no such reply has been filed to the Response;

NOTING the "Notice of Motion for Judicial Assistance" filed by the Defence on 24 November 1999 ("the Motion");

NOTING that the Defence in the Motion to the Trial Chamber sought "an Order requesting the assistance [of] SFOR or other military and security forces operating on the territory of BOSNIA & HERCEGOVINA SsicC, including but not limited to the REPUBLICA SsicC SRPSKA to furnish documents and witnesses…relating to the abduction, kidnapping and detention of the Accused STEVAN TODOROVIC";

NOTING ALSO the subsequent oral and written submissions on the Motion made by the Prosecutor and the Defence before Trial Chamber III;

NOTING the "Decision on Motion for Judicial Assistance to be Provided by SFOR and Others", issued on 18 October 2000 ("the Impugned Decision");

NOTING that the Application has also been filed in the alternative under Rule 73(B)(ii) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") and that the issues raised therein are not being considered in this decision1;

CONSIDERING that the Application claims pursuant to Rule 72(B)(i) of the Rules, inter alia, that "the Accused’s numerous motions seeking an Order from the Trial Chamber directing that the indictment against him be dismissed and that he be immediately released" "forms part and parcel of this enquiry into the Tribunal’s exercise of jurisdiction ratione personae over the Accused" and that the Impugned Decision "is based on a flawed interpretation of the circumstances that may validly lead to the exceptional remedy of ousting the International Tribunal of personal jurisdiction. It must accordingly be seen as relating to a preliminary legal finding which amounts to a decision on jurisdiction"2;

CONSIDERING that the Impugned Decision did not pronounce on the legality of the arrest or on any potential remedies, but was issued in order to secure the disclosure of documents and the identity of witnesses, which the Defence believes to be in the custody and control of SFOR or other military and security forces operating on the territory of Bosnia and Herzegovina, and which would assist the Defence’s motions challenging the legality of the arrest;

NOTING that Rule 72(B)(i) of the Rules provides for an interlocutory appeal as of right only against decisions on preliminary motions challenging jurisdiction;

FINDING that the Motion considered by the Trial Chamber in the Impugned Decision was not filed or considered as a preliminary motion as defined by Rule 72(A) of the Rules and that therefore there can be no right of appeal under Rule 72(B)(i) of the Rules;

FINDING more specifically that in any event the request contained in the Motion, as set out above, did not constitute a challenge to jurisdiction within the meaning of Rules 72(A)(i) and 72(B)(i) of the Rules;

HEREBY REJECTS the Application.

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


Mohamed Shahabuddeen

Dated this fourth day of December 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1. IT-95-9-AR73.4
2. The Application, para. 9, [footnote omitted]