Tribunal Criminal Tribunal for the Former Yugoslavia

Page 746

1 Tuesday, 25 July 2000

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.34 a.m.

6 JUDGE ROBINSON: Will the Registrar call the case, please.

7 THE REGISTRAR: [Interpretation] Case IT-95-9-PT, the Prosecutor

8 versus Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric.

9 JUDGE ROBINSON: May we have the appearances starting with the

10 Office of the Prosecutor.

11 MS. PATERSON: Yes, Mr. President, Nancy Paterson representing the

12 Office of the Prosecutor. With me today is Susan Lamb, another legal

13 advisor with the Office of the Prosecutor and Andrew Powell the case

14 manager.

15 JUDGE ROBINSON: Thank you. For the Defence.

16 MR. BRASHICH: Deyan Brashich for the Todorovic Defence. Good

17 morning, Your Honours.

18 MR. PANTELIC: Good morning, Your Honours. Igor Pantelic on

19 behalf of Mr. Miroslav Tadic.

20 MR. ZECEVIC: Good morning, Your Honours. Slobodan Zecevic for

21 Milan Simic.

22 MR. LAZAREVIC: Good morning, Your Honours. Aleksander Lazarevic,

23 Defence counsel for Simo Zaric.

24 JUDGE ROBINSON: In this motion, the accused, Stevan Todorovic,

25 seeks an order from the Chamber for the Peace Stabilisation Force SFOR or

Page 747

1 other military and security forces operating in Bosnia and Herzegovina to

2 furnish certain information and documents in connection with an ongoing

3 evidentiary hearing.

4 SFOR was invited to send a representative to this hearing and to

5 make written submissions. SFOR has made written submissions. It

6 indicated that it would not be represented at the hearing. I should say

7 that the Chamber is in receipt of written submissions and arguments from

8 the Defendant and the Office of the Prosecutor. For this reason, the

9 Chamber, while not wishing to curtail submissions from the parties,

10 indicates that it does not expect them to be very long. We begin with

11 Mr. Brashich.

12 MR. BRASHICH: Good morning, Your Honour. The way that I see us

13 at this juncture is that we have possibly a pragmatic solution to the

14 impasse that we find ourselves in at this present time. Perhaps the Court

15 would wish to inquire of the Prosecutor whether or not there is any

16 evidence that she may wish to adduce which would contradict the testimony

17 so far adduced before this Chamber.

18 If there is no such testimony or proof, then I submit that the

19 Court could find that a prima facie case has been established and, if my

20 reading of the law is correct, then this Court could order the return of

21 Mr. Todorovic to Yugoslavia which would avoid a confrontation with SFOR

22 and resolve the problem.

23 Of course, this does not resolve the problem which has been raised

24 by SFOR as to this Court's jurisdiction. However, being a pragmatist, I

25 would urge the Court to follow the suggestion that I have respectfully

Page 748

1 made and inquire of the Prosecutor of her case in opposition. On the

2 other hand, if that is not followed, then I will be very brief and terse.

3 I believe that the Republic of Croatia case, the Appeals Chamber

4 has made it very clear that this Tribunal can request of sovereign states

5 the information that I seek. That is why this morning I have filed that

6 such a request be directed to the United States of America because I

7 believe it was -- the United States of America forces that were in charge

8 of the Tuzla air force base.

9 I have a second submission under the teachings of the Republic of

10 Croatia decision and that is for a subpoena duces tecum to be directed to

11 the Commanding General of SFOR which would specify the items and documents

12 and informations that I seek and a further subpoena ad testificandum

13 directed to the General, and I'm using it phonetically, first name

14 unknown -- Eric, thank you, Mr. Pantelic -- Chizeki [phoen] who was the

15 Commanding General at Tuzla air force base in September of 1998 and then

16 John Doe's one through ten that I have identified in the filing this

17 morning. Thank you, Your Honour.

18 JUDGE ROBINSON: Yes, Ms. Paterson.

19 MS. PATERSON: Thank you, Your Honour. I'll keep in mind your

20 admonition to be short. I think it's important that we all understand

21 what the issues are that we're discussing here today. And toward that end

22 I'd like to go back to some statements made by three of Your Honours in

23 previous proceedings before this Court.

24 On the 4th of March, 1999, when we held oral argument, Judge

25 Bennouna pointed out that there were two issues before the Court in

Page 749

1 relation to Mr. Brashich's motions. The first was to see whether there

2 was any kind of collusion between the Office of the Prosecutor or any

3 personnel of the Tribunal and any kind of unlawful activity. And as Judge

4 Bennouna stated, and I'm quoting from the transcript, "You," referring to

5 Mr. Brashich, "told us in your written document that the answer was no.

6 And I assume that you still insist that negative answer." Meaning that

7 Mr. Brashich has already conceded that he has absolutely no evidence that

8 the Office of the Prosecutor was involved in any way in any unlawful

9 arrest of Mr. Todorovic.

10 In addition, Judge Bennouna went on to point out, "The second

11 issue is whether or not the rights of Mr. Todorovic that are granted to

12 him under the International Covenant on Human Rights or the European Human

13 Rights Convention, whether any of those rights were violated." And Judge

14 Bennouna pointed out that those rights have to do with procedural issues

15 whether Mr. Todorovic was arrested pursuant to a lawful arrest warrant.

16 Then additionally during that hearing, Judge Robinson also stated

17 that, "If an evidentiary hearing was granted," put the question, "wouldn't

18 the evidentiary hearing, if granted, assist in showing whether there was

19 any connection between the OTP and the alleged abduction." Again, the

20 issue becomes whether the OTP was involved in any unlawful activity.

21 Now, I would point out that if you look at the motion filed by

22 Mr. Brashich, the material that he is requesting from SFOR are things such

23 as the attendance of the person who flew the helicopter, the attendance of

24 the person who placed the defendant under arrest, and copies of audio and

25 videotapes made at Tuzla air base at the time of the arrest. And the

Page 750

1 original SFOR rearrest and post-arrest operation report.

2 It's the position of the Office of the Prosecutor that none of

3 that evidence, even if it were made available to the defendant, would in

4 any way show any evidence whatsoever that the Office of the Prosecutor was

5 involved in any illegal activity. If Mr. Brashich wants to allege that

6 the Defendant was unlawfully arrested, then that issue must be taken up

7 with the courts of Serbia. That is not an issue before this Court. As

8 all three of Your Honours have stated, the issue is whether the OTP was

9 involved in any way and whether the Defendant was arrested pursuant to a

10 lawful arrest warrant.

11 In response to Mr. Brashich's question, if we are going to

12 continue the hearing that we started back in November, yes, the Office of

13 the Prosecutor would like the opportunity to present some evidence. That

14 evidence would be a certified copy of the lawful arrest warrant and a copy

15 of the arrest report prepared by the investigator who effected the

16 arrest. We believe that those two pieces of evidence, along with all the

17 other submissions by the Office of the Prosecutor, will show that there

18 was no unlawful activity on the part of the Office of the Prosecutor.

19 Whether or not this Court has the right to issue subpoenas or

20 orders to SFOR, it's our contention that it is not the issue before the

21 Court today. The issue is whether any of the information Mr. Brashich is

22 seeking could in any way further the two questions: the involvement of

23 the Office of the Prosecutor and the lawfulness of the arrest warrant.

24 It's our contention that none of the information he was seeking would in

25 any way provide that information, and unless he can provide an offer of

Page 751

1 proof to the contrary, we believe that that's quite clear and we would

2 respectfully request that this Court refer to Rule 54 bis, specifically

3 the section which allows the Trial Chamber to reject the application for a

4 motion and order if the documents or information sought are not relevant

5 to any matter in issue in the proceedings before them. It's our

6 contention that the documents and the information that Mr. Brashich is

7 seeking are not relevant to the issue of OTP involvement and the

8 lawfulness of the arrest warrant. Thank you.

9 JUDGE HUNT: Ms. Paterson, I'm wondering whether you have

10 correctly perceived what the application is that Mr. Brashich makes. He

11 started off on what in common law countries is called a fishing

12 expedition, and which apparently is allowed in the United States but which

13 is not allowed here. The Appeals Chamber has already had to deal with

14 that. He then sought to identify particular documents and the video,

15 which he wanted, and also particular witnesses to attend.

16 Now, his concession that he had no evidence was correct. He has

17 no evidence. What he is doing, as I understand him, is seeking evidence,

18 which may well demonstrate some part that the OTP has had to play in this

19 arrest. Now, he may be right, he may be wrong, but having given evidence

20 that there was a representative of the OTP there at the time when he

21 arrived, he says, and he may or may not be right, that that demonstrates a

22 sufficient basis upon which he seeks these reports.

23 Now, the Trial Chamber made an order first of all against the

24 Prosecution to provide reports that it had received from the SFOR people.

25 The Prosecution, after some delay, said it had no reports. It did not, I

Page 752

1 hasten to add, and never has had any -- you might perhaps enlighten us as

2 to whether it ever did have any reports -- and it would have been

3 sufficient if the OTP had produced them. But the OTP, either not having

4 them or having got rid of them, is unable to comply with the order that

5 was made, so he then goes back one stage and seeks an order against SFOR

6 or the components of SFOR.

7 Now, you can't say because he hasn't yet got any evidence the case

8 must fail. What he is still trying to do is to get some evidence. And as

9 I say, he may or he may not be successful.

10 I should also add that his submissions, very detailed submissions

11 he's made, seems to go beyond the premise that you are proceeding on, that

12 he is seeking to produce evidence against the OTP. As I understand his

13 further submissions, he is seeking to argue that it doesn't matter whether

14 the OTP was involved or not. He wanted to go beyond what might be called

15 the domestic decisions on the point and to say that international law is

16 so pure that if there's any problem at any stage in the line of behaviour

17 that leads to the arrest, then somehow he has to be set free. Now, again

18 he may be right or he may be wrong. It's a surprising submission, but

19 it's not restricted to the one that you suggested, that he was seeking

20 only to prove that the OTP was involved.

21 Now, I think you have to face up to that. I, for myself, would be

22 very interested to know whether the OTP ever did have any reports from

23 SFOR in relation to this.

24 MS. PATERSON: Your Honour, I will state today, as I have stated

25 on several occasions, the OTP had absolutely no involvement in the arrest

Page 753

1 of Stevan Todorovic and the OTP never possessed any documents related to

2 the arrest of Stevan Todorovic other than the single document that we have

3 already disclosed to the Defence, that being a brief, one-page report

4 written by the investigator who made the arrest at Tuzla air base on the

5 date in question.

6 JUDGE HUNT: We have not yet seen the whole of that document, of

7 course. We've only seen --

8 MS. PATERSON: That is the whole document, Your Honour. There is

9 nothing else besides that.

10 JUDGE HUNT: What, with all the spaces in it?

11 MS. PATERSON: That is the style that the person who wrote the

12 report wrote it in. What I'd suggest is that perhaps we could continue

13 the hearing that we started in November, perhaps call the investigator.

14 We're more than willing to have him come and give testimony. Let him be

15 questioned, let him explain exactly what he did, what he knew, what he did

16 not know, and at that point in time perhaps the Court would be in a better

17 position to know if any of the documents that Mr. Brashich is seeking are

18 truly relevant. Because I can give you an offer of proof that the

19 investigator will come and state, as I have, unequivocally he knew nothing

20 in advance about the arrest of Mr. Todorovic, the Office of the Prosecutor

21 was not involved in any way in his arrest, and he was there as a

22 representative of the Office of the Prosecutor simply to take the

23 defendant into custody, to advise him of his rights, to provide him with a

24 copy of the indictment and the arrest warrant.

25 The Office of the Prosecutor has an investigator present at every

Page 754

1 single arrest that is made in Bosnia or Croatia in relation to the people

2 indicted by the Tribunal. We have investigators present in other

3 countries where arrests are made. If you are going to say that the mere

4 fact that an investigator was present to effect the arrest opens the door

5 to the right of any Defence counsel to seek these documents from SFOR,

6 then I contend we are opening quite a Pandora's box that will be very

7 difficult to close. You cannot say that the Office of the Prosecutor

8 doesn't have a right to send an investigator to effect the arrest. The

9 simple fact that they're there effecting the arrest doesn't then give rise

10 to a right to seek documents and information from SFOR.

11 JUDGE HUNT: Well, I'm not going to debate that with you, because

12 I've stated what Mr. Brashich is claiming, and as I've said, he may be

13 right or he may be wrong. But you still have not, if I may say so, faced

14 up to his further arguments that it doesn't matter whether the OTP was

15 involved or not.

16 MS. PATERSON: Well, respectfully, Your Honour, I believe that we

17 have discussed that several times in our various submissions.

18 JUDGE HUNT: Only by saying from the bar table that the OTP had

19 nothing to do with it.

20 MS. PATERSON: No, Your Honour. I believe in our submissions to

21 the original request for the evidentiary hearing, we argued that he had no

22 right to the challenge that he was putting forth against just the general

23 unlawfulness of his arrest. We've argued that in the appeal, we've argued

24 that in several submissions. Our point from day one has been -- and I

25 believe Judge Bennouna himself stated this in one of the

Page 755

1 proceedings -- that the issue is whether the OTP was involved. Whether or

2 not SFOR might have been involved or some private citizens who might have

3 kidnapped Mr. Todorovic were involved is not an issue that this Tribunal

4 can exercise jurisdiction over.

5 JUDGE HUNT: Well, I think I have said exactly the same thing as

6 Judge Bennouna myself. That's my belief. But that's not the case that is

7 being made, and we have to consider the case that is being made.

8 MS. PATERSON: The case -- to me, my reading of Mr. Brashich's

9 motion is that's exactly what he's asking for, for this Court to go beyond

10 the consideration of the involvement of the OTP.


12 MS. PATERSON: To consider his general arrest scenario. And it's

13 our contention that this Tribunal does not have jurisdiction over that

14 issue, that even if he can make such a case, that issue is before the

15 courts of Serbia, not before this Tribunal.

16 JUDGE HUNT: All right. Well, then come back a stage. Let's

17 leave his further claim to one side. What do you say to his claim that he

18 should be entitled to these documents, having identified them, in order to

19 demonstrate that the OTP was involved? Now, all you have said so far to

20 that is, from the bar table, "We were not involved." That, if I may say

21 so, is hardly an answer.

22 MS. PATERSON: Well, Your Honour, as an officer of the Court, I

23 believe it is a legitimate statement to make, and I believe if Mr. Brondum

24 comes and is put under oath, he will make a similar statement to that

25 effect, that the OTP was not involved. Now, you characterise this as a

Page 756

1 fishing expedition, and frankly, we feel that is an appropriate

2 characterisation. If Mr. Brashich cannot put forward any further offer of

3 proof that there is reason to believe that the Office of the Prosecutor

4 was in fact involved in any illegal activity, then it's our contention

5 that this is nothing more than a fishing expedition.

6 JUDGE HUNT: But we have already made an order against the OTP to

7 produce these documents and this video, and you unsuccessfully appealed

8 against it. Now, for myself, I haven't changed my mind. From my point of

9 view, the material that was placed before us the last time justified us in

10 making those orders against the OTP. And, as I have said, you have

11 unsuccessfully appealed against that order. If those documents should

12 have been made available from the OTP and the OTP hasn't got it, what do

13 you say to the various countries who comprise SFOR being ordered to

14 produce the same documents and video? You can't really continue to argue

15 that they're irrelevant if we've already determined that they are matters

16 which should be produced.

17 MS. PATERSON: But other than the fact that Mr. Todorovic, in his

18 testimony here, has alleged --

19 JUDGE HUNT: No, no, no. Please. You have said that all along,

20 and we have not accepted it. And you have to now face up to the fact we

21 have said that those documents and that videotape should be produced by

22 the OTP and you have lost an appeal against that order. So you have to

23 face up to that being a justifiable order that they be produced. You say

24 you haven't got them and you now say that you've never had them. So

25 Mr. Brashich moves on one step back and he asks for SFOR, or the Generals

Page 757












12 Blank page inserted to ensure pagination corresponds between the French

13 and English transcripts.













Page 758

1 or somebody -- I would have thought it would be the countries comprising

2 SFOR -- to have to produce the matters which we say should be produced

3 upon the material already before the Trial Chamber.

4 MS. PATERSON: Well, perhaps, Your Honour, if I can put a couple

5 of questions to you, it may help me in my argument. Are you stating that

6 you believe that Mr. Brashich has presented sufficient evidence that this

7 Court is of the opinion that there may in fact be evidence of OTP

8 involvement in the arrest of Mr. Todorovic?

9 JUDGE HUNT: No, we haven't, and I wish you would listen to what I

10 have said. We have followed a decision of the Appeals Chamber which says

11 that they don't have to show that it will produce it, but that it is on

12 the cards or that there is a reasonable possibility that it will produce.

13 That's all. And on that basis they are entitled to have the material

14 produced. And once again, I hope for the last time, you appealed against

15 that and lost. Now, that is something which we have said should be

16 produced by whoever has them. Now, you've said that you haven't got them,

17 and he now says SFOR should produce them, or at least the Generals or

18 somebody who is representing them. Now, what do you want to say about

19 that?

20 MS. PATERSON: So am I to understand, then, that if, in every

21 single case a defendant is arrested --

22 JUDGE HUNT: No, no. Look, please.

23 MS. PATERSON: -- and brought before the Tribunal --

24 JUDGE HUNT: Now, look. I think I'm entitled to say you are not

25 entitled to keep arguing that point. You tried it last time and you

Page 759

1 failed. We have made a decision that on the material -- which was not

2 just that -- but on the material that was presented, we made an order that

3 those documents and that video be produced. And you haven't been able to

4 do it, so he now seeks it from those people who do have it. Now, what do

5 you want to say about that?

6 MS. PATERSON: In relation to that specific issue, Your Honour, I

7 am not a representative of SFOR. I'm not authorised to speak on behalf of

8 SFOR. I can only speak on behalf of the OTP. The OTP has applied with

9 all your orders. The OTP has turned over every document we've ever had in

10 our possession related to the arrest of Mr. Todorovic. As to whether or

11 not you have a right to order SFOR to turn over documents, we contend that

12 that is not a right that you have. But as to whether or not an argument

13 should be made, that argument needs to be made by SFOR. I cannot make

14 that argument on their behalf. They have filed their written

15 submissions --

16 JUDGE HUNT: You have nothing further to say beyond what they've

17 said.

18 MS. PATERSON: No, Your Honour.

19 JUDGE HUNT: Because they haven't faced up to that either.

20 MS. PATERSON: We basically stand in agreement with the submission

21 of SFOR, which we think for the most part reflects all of our previous

22 submissions and all of our arguments, but I cannot speak on behalf of

23 SFOR.

24 JUDGE ROBINSON: Judge Bennouna.

25 JUDGE BENNOUNA: [Interpretation] I should like to ask Mr. Brashich

Page 760

1 a question.

2 Mr. Brashich, perhaps you could help us, because you tell us, in

3 your Defence reply to the submission made by SFOR, which is a document

4 dated 9th of July, and you list several things on pages 7 and 8, page 9.

5 You remind us of the Tadic jurisprudence in this Tribunal. You say

6 individuals can now invoke as defence violations of state sovereignty [In

7 English] and pass upon such claim. [Interpretation] And then you develop

8 this as follows: You tell us [In English] to plead the violation of the

9 sovereignty of the state as a defence is not the exclusive right of

10 states, but that individuals do, in fact and in law, have standing to

11 challenge violations of international law and invoke violations of

12 sovereignty as a defence. [Interpretation] And then you once again quote

13 the Appeals Chamber.

14 Now, if I understand your position well, you, in point of fact,

15 tell us that the accused,Todorovic, is entitled to refer in his defence to

16 the violation of sovereignty of a state, which in this case is the Federal

17 Republic of Yugoslavia. And that this violation, if it did indeed take

18 place, that, to begin with, one can use that in his defence. And then you

19 say there is then a problem. If one considers that there has been a

20 violation of the sovereignty, then the accused has the right to go back to

21 what you call "country of refuge; not his own country, but the country of

22 refuge, that country where he was unlawfully arrested.

23 In the document which was submitted by SFOR, the Peace

24 Stabilisation Force, and the paper that was written by its legal advisor

25 also dated 9th of July, he says as follows: "They tell us that whatever

Page 761

1 the form in which Mr. Todorovic was arrested, and even if he was arrested

2 by violating the laws of the Federal Republic of Yugoslavia, and therefore

3 this might constitute a violation of the sovereignty of that state, but

4 this cannot result in his release, that is, it cannot result in his return

5 to this country of refuge." [As interpreted]

6 And do I now understand properly what is then the procedure which

7 does not end up in any results since the accused is here, he is present,

8 and I leave aside the debate which took place between Judge Hunt and the

9 Prosecutor regarding the possible responsibility of OTP. I am talking

10 about the violation of sovereignty. Because what are you telling us, what

11 you are referring to is the violation of sovereignty which could be a

12 means, a tool of the Defence, and that could be the problem.

13 Now, you tell us, the SFOR, even if he was unlawfully arrested,

14 the SFOR tells us the result of this should not be his release because

15 whatever the case, this person needs to be arrested wherever he happens to

16 be, by virtue of the indictment, which is a valid act and in the light of

17 the Statute of the Tribunal and its Articles, it is therefore binding on

18 all the states, so it's what kind of -- so what is the action that you can

19 take which will not result in anything because it is not going to result

20 in the release of Mr. Todorovic?

21 Now, I should like to hear what you have to tell us about this,

22 because you have always maintained that it was evident that if somebody

23 has been unlawfully arrested, then this sole remedy to this is the release

24 of such a person. But then it could result in some absurd result because

25 someone takes them to the country of refuge, and then the country of

Page 762

1 refuge is requested to send him by the same plane, by the same flight.

2 This is not only in theory; this is also in practice. Because this -- is

3 an indictment against this person which is valid, and he therefore needs

4 to be delivered by whatever standard he may happen to be in.

5 Now he is in The Hague. Now you tell us you take him back to

6 Belgrade, and then you request Belgrade to deliver him back immediately.

7 Would you please try to clarify this point because we should indeed like

8 to know what you think about it.

9 MR. BRASHICH: The way I read the precedent in international law

10 is that we start with the Eichman case, and we have an illegal abduction

11 which is made legal by the failure of the state in which the abduction

12 takes place to protest. That's the early '60s. International law has

13 evolved and now I believe the proper view is that an illegal abduction

14 ousts the Court of jurisdiction.

15 We have a situation where we have a violation of state

16 sovereignty, which my client has a vote, and which the Appeals Chamber has

17 said is a defence that can be invoked by a defendant before this

18 Tribunal. The practical result, Your Honour, you are quite correct, would

19 be a return not to freedom, not liberation, but a return to the

20 jurisdiction of the Federal Republic of Yugoslavia and a request, a proper

21 request by the OTP for extradition of Mr. Todorovic to this Court, to this

22 Tribunal, for further --

23 JUDGE BENNOUNA: [Interpretation] Excuse me, I will stop you now,

24 Mr. Brashich. The term "extradition" is not in order here because this is

25 a technical and a legal term, and it is not used in the international

Page 763

1 jurisdiction.

2 MR. BRASHICH: I'm sorry, Your Honour, I misspoke. For his return

3 to the Tribunal for further proceedings pursuant to the indictment.

4 As I have pointed out in my recent submission, to do otherwise or

5 to follow SFOR's argument, which I believe is flawed, that this is

6 pointless, either: One, he will be returned immediately; or two, the

7 Federal Republic of Yugoslavia will not honour its commitment made in the

8 Dayton Accord and the Paris Peace Treaty because it has not done so which

9 places this Tribunal in a very difficult position of having to pass upon

10 the politics of a sovereign state.

11 Therefore, where you return him to follow through on the proper

12 procedure is immaterial, if it is Cuba, North Korea, Iraq, as I have

13 pointed out, or the Netherlands. That is something, I believe, outside

14 the scope that this Court may -- "scope" is an improper word -- beyond the

15 interests of the Tribunal and has to be dealt in a political forum just as

16 any request to a state for information in order to compel the receipt of

17 such information is dealt not in the level of the Court, but at the level

18 of the Security Council.

19 JUDGE BENNOUNA: [Interpretation] Mr. Brashich, let us try to be

20 professional, because this is not a political institution, this is the

21 International Tribunal. You quote a number of precedents. Now, how do

22 they concern the violation of sovereignty of a state by another state?

23 MR. BRASHICH: Yes, Your Honour.

24 JUDGE BENNOUNA: [Interpretation] It's not a question of a

25 violation of sovereignty of a state by an international organisation

Page 764

1 because the problem that you raise here is the judgement here, it is the

2 judgement of an International Tribunal taken on the basis of Chapter VII.

3 You know very well that when one is within the context of Chapter VII,

4 then the reservation of paragraph 2 in Chapter VII of the Charter which

5 protects the domain which is reserved to the national jurisdiction of the

6 states, that is domestic jurisdiction, that does not really, cannot play a

7 role here. It cannot be raised because in Chapter VII, and that is quite

8 clear, and even in paragraph 2 of Chapter VII of the Charter. So you

9 speak about the domestic jurisdiction of the state before the Tribunal and

10 that is the national competence of the Tribunal because this Tribunal

11 operates on the basis of Chapter VII.

12 Now, the question which arises here, that is which you put before

13 us and about which our Chamber will rule in due time is that the Peace

14 Stabilisation Force, the SFOR, which is an international organisation set

15 up by the Security Council, that the SFOR exceeded its own competencies.

16 That is the problem that you put before us, and I wish to conclude on this

17 point. The mandate, the terms of reference of SFOR to arrest individuals,

18 that do support the Tribunal is limited to the territory of the former

19 Yugoslavia, that is Bosnia, and it transpires here that the operation took

20 place elsewhere or it is alleged that it began elsewhere, even though it

21 was effected in Bosnia and you, therefore, tell us that this international

22 organisation which depends on NATO, but which was set up by the Security

23 Council, has received a mandate by the Security Council on the basis of

24 Chapter VII and it has exceeded the competencies which were laid down for

25 it by the Security Council in its resolution.

Page 765

1 Is that what you are telling us? I should like to hear it from

2 you. Is that what you are telling -- is that how -- that is how I

3 understand things but I should like to hear how you understand things.

4 MR. BRASHICH: The Court is totally correct that all of the

5 precedent that I have cited deal with national jurisdiction. I am unaware

6 of an international body being involved in a kidnapping or having been

7 brought to task for being involved in a kidnapping so I do not have a

8 precedent to cite to the Court.

9 I believe that Your Honour is totally correct that Article 7 which

10 established this Tribunal also established IFOR, and then SFOR, on the

11 territory of Bosnia. I'm going a step further, Your Honour. I'm saying

12 that there is a vertical relationship rather than a horizontal

13 relationship, as the Republic of Croatia suggests, between SFOR and this

14 Tribunal.

15 I am further suggesting, Your Honour, that participation in an

16 abduction and seizure of a person on the territory of the Federal Republic

17 of Yugoslavia, if proven, would oust this Court of jurisdiction,

18 respectfully. And I'm going further, Your Honour, and stating that it

19 just, at least in my point of view, cannot be a situation where an

20 international body is not responsible to someone for any act which might

21 be deemed illegal.

22 JUDGE BENNOUNA: [Interpretation] Very well, Mr. Brashich. To

23 conclude this, you tell us, and I'm reading from the transcript now, [In

24 English] "... and seizure of a person on the territory of the Federal

25 Republic of Yugoslavia."

Page 766

1 [Interpretation] Are you questioning SFOR for having taken place

2 in this "unlawful seizure" in inverted commas, or are you questioning the

3 Tribunal by means of the OTP? What is it that you bring into question?

4 MR. BRASHICH: Yes, primarily, but as Judge Hunt pointed out, I am

5 seeking information which I have not received and which the OTP has not

6 been forthcoming with that there may be some involvement on the OTP.

7 As you recall, in the situation where we had the luring across the

8 bridge, the OTP specifically admitted that it was a joint operation. I do

9 not recall the citation, Your Honour -- Dokmanovic case. Thank you.

10 JUDGE BENNOUNA: [Interpretation] Oh, I see, Dokmanovic case.

11 MR. BRASHICH: It seems odd, as Judge Hunt just pointed out, when

12 I made a request and this Court made an order, rather than just saying,

13 "Here is a report. That's all we have." We have a stonewalling, and we

14 have an appeal. Then, after the appeal is lost, I receive not the

15 original of the arrest report, a redone, remade, presently manufactured

16 report, because the original is somehow lost in the OTP's office in

17 Sarajevo.

18 Is there any other points, Your Honour?

19 JUDGE BENNOUNA: [Interpretation] Thank you, Mr. Brashich. If I

20 understand you well, you tell us that you do not exclude possible

21 complicity between the OTP in this operation of illegal abduction; is that

22 what you mean? Thank you.

23 JUDGE ROBINSON: Mr. Brashich, you will be able to reply briefly

24 if you wish to the submissions from the Prosecutor, but before you do

25 that, I just wanted to clarify something with Ms. Paterson.

Page 767

1 Ms. Paterson, to Judge Hunt, you said that you could not speak on

2 behalf of SFOR, but my understanding is that you are not asked, you are

3 not being asked to speak on behalf of SFOR, you are being asked as the

4 representative of the Office of the Prosecutor to make submissions on the

5 legal issue, and that legal issue is whether the Chamber has the

6 competence to issue an order to SFOR.

7 I understand you, however, to be saying that you adopt in that

8 regard the submissions made by SFOR; is that right?

9 MS. PATERSON: Well, Your Honour, I believe what I said was that

10 we have addressed that issue several times in the past in our written

11 submissions so I don't want to repeat myself again.

12 It's our position that this Court does not have the right to issue

13 such an order to SFOR. While we do not adopt the statement of SFOR, I

14 simply point out that it is basically in line with the arguments that the

15 OTP has made, that we are essentially making the same arguments. We had

16 no opportunity to have any input into the submission by SFOR so I don't

17 want to claim any connection to it in that regard.

18 Our position is, and has been all along, that there is no basis in

19 international law for the request that Mr. Brashich is making, that the

20 Tribunal has limited jurisdiction when it comes to these issues --

21 JUDGE BENNOUNA: [Interpretation] Ms. Paterson, to help us, you

22 need to answer fully the question that Judge Robinson asked. My

23 colleague, Judge Robinson, asked you a question and that is a very

24 important question. Does the Tribunal have the possibility to -- can the

25 Tribunal order SFOR to produce that document, because so far, we have only

Page 768

1 been asking for the document, but have not ordered it yet.

2 I am not raising that question of the subpoena, which is a

3 different matter and which, as you know, has to do with another problem

4 and that problem was, in part, resolved by the Tribunal jurisprudence in

5 the Blaskic case.

6 Judge Robinson's question was: What is your position about this?

7 We know that the Tribunal can issue orders to the state on the basis of

8 Article 29. The question that I ask you, if we can order, issue an order

9 to a particular state, why cannot we order to a certain number of states

10 which operate through an international organisation?

11 Now, the question is as follows: Would it be enough to hide

12 behind an international organisation in order to avoid, to evade the

13 orders of the International Tribunal, is that it? And we should like to

14 hear what you think about this.

15 MS. PATERSON: Your Honour, our position is that on the basis of

16 the facts before this Chamber, the specific facts of the arrest of

17 Mr. Todorovic, the information that Mr. Brashich has provided, the

18 information that we have provided, it's our position and on the basis of

19 these facts that it is not appropriate and not within the jurisdiction of

20 this Tribunal to order SFOR to comply.

21 We are not stating that there are not potential circumstances

22 under which that would be appropriate. We acknowledge the rights under

23 the Blaskic decision, and the right to issue requests to states to provide

24 documents. We acknowledge that but what we are saying is that this is a

25 different factual situation, and based on the facts in this particular

Page 769

1 case, we do not think that the Tribunal has the right to order SFOR. That

2 is not because the OTP is attempting to hide behind any international

3 organisation, it is, as we have argued all along, based on the facts of

4 this case.

5 It's our point that the only issue that is before this Tribunal is

6 whether the OTP was involved in some illegality, and the arguments that

7 Mr. Brashich go to extradition issues, state sovereignty issues and issues

8 of that nature that are not within the jurisdiction of the Tribunal.

9 JUDGE ROBINSON: Thank you, Ms. Paterson.

10 Do you wish to reply? If so, very briefly.

11 MR. BRASHICH: [Microphone not activated] Not really, Your Honour.

12 The only thing which I would say --

13 THE INTERPRETER: Microphone for the counsel, please.

14 MR. BRASHICH: [Microphone not activated] Blaskic decision

15 is --

16 THE INTERPRETER: Microphone for the counsel.

17 MR. BRASHICH: Thank you. I've made the written submissions and

18 the arguments.

19 JUDGE ROBINSON: I thank the parties for the submissions that have

20 been made. The Chamber will consider this matter and give a decision as

21 soon as possible. The hearing is adjourned.

22 --- Whereupon the Motion Hearing adjourned

23 at 10.24 a.m.