The Prosecutor v. Dragan Nikolic - Case No. IT-94-2-PT

"Decision on Defense Motion Challenging the Exercise of Jurisdiction by the Tribunal

9 October 2002
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· Mr. Nikolic was originally indicted for 24 counts of crimes against humanity, violations of the laws and customs of war and grave breaches of the Geneva Conventions. He now stands charged with eight counts of crimes against humanity, following two amendments to the Indictment.¹

· On or about 20 April 2000, Nikolic was arrested and detained by SFOR and transferred to the Tribunal on 21 April 2000. He alleges to have been kidnapped in Serbia by a number of persons and delivered into the hands of SFOR officers stationed in the Republic of Bosnia and Herzegovina.

· During his first appearance on 28 April 2000, Nikolic entered a plea of not guilty to all the counts and made no complaint about how he was brought before the Tribunal.

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

· On 17 May 2001 the Defence filed the First Defence Motion challenging the unlawful arrest of the Accused.²

· On 29 August 2001 a Status Conference was held during which the pre-trial Judge again appealed to the Parties to reach an agreement. Following the Status Conference the Parties advised the Trial Chamber that an agreement had been reached to narrow the issues in dispute.³

The Decision

The Trial Chamber rejected the relief sought by the Defence, i.e. the release of the Accused and the dismissal of the Indictment against him, and dismissed the Defence Motion.

The Reasoning

The submissions of the parties

The accused Nikolic essentially argued that “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 alia, 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.”⁴

The Prosecution, in response, mainly argued that the far-reaching remedy sought by the accused may be warranted, but only in cases involving 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.”⁵

In the view of the Trial Chamber the Defence has used two different lines of reasoning:

1. 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 illegal conduct thereby became attributable to SFOR and/or the Prosecution and , as a result, the Tribunal should be barred from exercising jurisdiction over the accused.

2. The illegal character of the arrest in and of itself should bar the Tribunal from exercising jurisdiction over the accused: the maxim male captus, bene detentus should not form the basis of jurisdiction by this Tribunal.

The two lines of reasoning and the related findings of the Trial Chamber will be dealt with accordingly.

Attribution of the acts related to the alleged unlawful arrest of the accused

The parties were in agreement that the accused was apprehended in the territory of the Federal Republic of Yugoslavia (hereinafter “FRY”) by individuals not related to SFOR, transferred to Bosnia and Herzegovina and then delivered to SFOR. The parties however disagreed as to the question of how the relationship between the individuals who apprehended the accused and between SFOR and the Prosecution should be assessed . Related to the nature of this relationship is the question of what the effect of any illegal act committed by such individuals prior to the handing over of the accused to the Tribunal could have on the proceedings.

The legal basis for the authority of SFOR to arrest, detain and transfer persons indicted by this Tribunal

The Trial Chamber first conducted a review of the relevant provisions⁶ and then assessed the situation of the particular case. In its view there is no doubt, following the Simic Decision,⁷ that the duty to co-operate, as laid down in Article 29 of the Statute,⁸ does not only apply to States only but also to other entities or collective enterprises such as SFOR.⁹ It concurred with the observation of the Trial Chamber in the Decision on the Motion for Release by the Accused Slavko Dokmanovic pursuant to which while Rule 55¹⁰ remains the primary method for the arrest and transfer of persons to the Tribunal , noting that Rule 59 bis,¹¹ however should be read as “providing for a mechanism additional to that of Rule 55”.¹² It further noted that “the two mechanisms - the one provided by Rule 55 and the other set out in Article 59 bis - do not differ in substance but emanate from the general duty to co- operate with the Tribunal pursuant to Article 29 of the Statute.”¹³

The Trial Chamber affirmed that “the legal basis for the authority of SFOR to arrest , detain and transfer persons indicted by this Tribunal is […] firmly established ”.¹⁴ It deduced from the practice and the Rules of Engagement of SFOR 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”.¹⁵ It asserted that a “purposive interpretation” of Article 29 of the Statute “in combination with Article 59bis could lead it 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.”¹⁶

Attribution to SFOR

The Defence did not argue that SFOR had participated in the illegal conduct of these unknown individuals. It argued 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 […].”¹⁷

The Prosecution countered these arguments and submitted 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 argued that the Prosecution was not involved in these alleged illegal activities, an argument that is not disputed by the Defence .

To determine whether the alleged illegal conduct of the individuals could be attributed to SFOR, the Trial Chamber referred, “with caution”,¹⁸ to the principles laid down in the Draft Articles of the International Law Commission (hereinafter “ILC”) on the issue of “Responsibilities of States for Internationally Wrongful Acts”.¹⁹ The question is whether SFOR, following the wording of Article 11 of the Draft Articles,²⁰ acknowledged and adopted the conduct in question as its own. The Trial Chamber concluded that SFOR forces, acting “in accordance with their mandate and in light of Article 29 of the Statute and Rule 59 bis, were obliged to inform the Prosecution and to hand him over to its representatives” and that there was “no collusion or official involvement by SFOR in the alleged illegal acts”.²¹

On the allegation of the Defence that the relationship between SFOR and the Prosecution has developed from one of co-operation to one of agency,²² the Trial Chamber did not find it “necessary to discuss the hypothesis”, as it would be “moot” to attribute the acts to the Prosecution since those acts cannot be attributed to SFOR in the first place.

The principle of male captus, bene detentus and the abuse of process doctrine

In the section of the Decision The Trial Chamber dealing with the attribution of the acts, the Trial Chamber made clear that “[a]ny 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.”²³ Here the question is to determine whether or not an illegal arrest in itself constitutes a direct obstacle to the exercise of jurisdiction by the Tribunal.

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 the court.

The Defence expressed the view that this principle has lost most of its relevance in the practise of various national jurisdictions and that the Tribunal should instead use the principle male captus, male detentus, meaning that unlawful rendition of a defendant should lead to the conclusion that “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.”²⁴

The Prosecution submitted that, even if 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. It asserted that a “balancing act” is necessary to weigh all compelling interests and that in this regard the following minimum conditions must be met: 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 in order to safeguard the integrity of the entire judicial process.”²⁵

The Trial Chamber reviewed the case-law of various national jurisdictions relating to the question of forced cross-border abduction and noted that the case-law in this matter is “far from uniform”.²⁶ It also attached importance to the fact that all case law is based on various forms of forced cross-border abductions which occur between States, i.e. on the horizontal level, and that therefore the interpretation of the national case -law must be “translated” in order to apply to the particular context in which the Tribunal operates, i.e. on a vertical level.²⁷

The Trial Chamber addressed the possible violations of international law alleged by the Defence, namely a violation of the State sovereignty of the injured State, a violation of international human rights (in particular the rights of the accused ), and a violation of the rule of law.

A violation of State sovereignty?

The Trial Chamber emphasised the difference between the legal context in which the national case-law has been developed and the context in which the Tribunal operates.²⁸ It concluded that there had been no violation of State sovereignty. It found as an obiter dictum that even if the Chamber had “concluded that a violation of State sovereignty had taken place in this case, the maxim “dolo facit qui petit quod [statim] redditurus est” would still have applied.²⁹ 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.”³⁰

A violation of human rights and due process of law?

In the view of the Defence, abduction is arbitrary, constitutes a violation of the principle of legality and is not in accordance with procedures prescribed by law.³¹ The Defence submitted that since the abduction in this instance was unlawful, the exercise of jurisdiction over the accused became irregular as well, regardless of whether it was State-sponsored or undertaken by private individuals.

The Prosecution argued that the Trial Chamber needed 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.

The Trial Chamber first underscored the importance it attaches to respect for the human rights of the accused and to proceedings which fully respect due process of law. It declared that the 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.”³² It further declared that “[t]here 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 [which] encompasses more than merely the duty to ensure a fair trial for the Accused [and] 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.”³³

The Trial Chamber then undertook a balancing exercise, following the “abuse of process ” doctrine applied by the Appeals Chamber in the Barayagwiza case, according to which 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 ”.³⁴ It found 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.”³⁵

The Trial Chamber observed 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”, and therefore rejected the allegations that his human rights had been violated or that proceeding with the case would violate the fundamental principle of due process of law.

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1. See the Second Amended Indictment, 7 January 2002. The accused is alleged to have committed crimes in the Vlasenica region of eastern Bosnia in 1992, mostly within the Susica camp, a former military installation converted by Bosnian Serbs into a detention camp of which he is alleged to have been the commander.
2. Motion for Relief Based Inter Alia Upon Illegality of Arrest Following Upon the Prior Unlawful Kidnapping and Imprisonment of the Accused and Co-related Abuse of Process Within the Contemplation of Discretionary Jurisdictional Relief Under Rule 72, 17 May 2001 (hereinafter “First Defence Motion”).
3. 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. See Direction on pre-trial Judge dated 6 July 2001.
4. First Defence Motion, para. 11.
5. Prosecutor’s Response to Defence “Motion to Determine Issues as Agreed Between the Parties and the Trial Chamber as Being Fundamental to the resolution of the Accused’s Status Before the Tribunal in Respect of the Jurisdiction of the Tribunal under Rule 72 and Generally, the Nature of the Relationship Between the OTP and SFOR and the Consequences of any Illegal Conduct Material to the Accused, His Arrest and Subsequent Detention, 29 October 2001 (hereinafter “Second Prosecution’s Response”), para. 17.
6. See paras. 35-47.
7. Simic et al., IT-95-9, Decision on Motion for Judicial Assistance to be Provided by SFOR and Others, 18 October 2000, pp. 18-19, Judicial Supplement No. 19.
8. Article 29 (Co-operation and judicial assistance)
1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:
(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.
9. Para. 49.
10. Rule 55 (Execution of Arrest Warrants)
(A) A warrant of arrest shall be signed by a permanent Judge. It shall include an order for the prompt transfer of the accused to the Tribunal upon the arrest of the accused.
(B) The original warrant shall be retained by the Registrar, who shall prepare certified copies bearing the seal of the Tribunal.
(C) Each certified copy shall be accompanied by a copy of the indictment certified in accordance with Rule 47 (G) and a statement of the rights of the accused set forth in Article 21 of the Statute, and in Rules 42 and 43 mutatis mutandis. If the accused does not understand either of the official languages of the Tribunal and if the language understood by the accused is known to the Registrar, each certified copy of the warrant of arrest shall also be accompanied by a translation of the statement of the rights of the accused in that language.
(D) Subject to any order of a Judge or Chamber, the Registrar may transmit a certified copy of a warrant of arrest to the person or authorities to which it is addressed, including the national authorities of a State in whose territory or under whose jurisdiction the accused resides, or was last known to be, or is believed by the Registrar to be likely to be found.
(E) The Registrar shall instruct the person or authorities to which a warrant is transmitted that at the time of arrest the indictment and the statement of the rights of the accused be read to the accused in a language that he or she understands and that the accused be cautioned in that language that the accused has the right to remain silent, and that any statement he or she makes shall be recorded and may be used in evidence.
(F) Notwithstanding paragraph (E), if at the time of arrest the accused is served with, or with a translation of, the indictment and the statement of rights of the accused in a language that the accused understands and is able to read, these need not be read to the accused at the time of arrest.
(G) When an arrest warrant issued by the Tribunal is executed by the authorities of a State, or an appropriate authority or international body, a member of the Office of the Prosecutor may be present as from the time of the arrest.
11. Rule 59 bis (Transmission of Arrest Warrants)
(A) 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.
(B) At the time of being taken into custody an accused shall be informed immediately, in a language the accused understands, of the charges against him or her and of the fact that he or she is being transferred to the Tribunal. Upon such transfer, the indictment and a statement of the rights of the accused shall be read to the accused and the accused shall be cautioned in such a language.
(C) Notwithstanding paragraph (B), the indictment and statement of rights of the accused need not be read to the accused if the accused is served with these, or with a translation of these, in a language the accused understands and is able to read.
12. Dokmanovic et al., Decision on the Motion for Release by the Accused Slavko Dokmanovic, IT-95-13a-PT, 22 October 1997, paras. 40-41.
13. Para. 50.
14. Para. 52. The Defence was not challenging the authority of SFOR as such to arrest, detain and transfer persons indicted by this Tribunal.
15. Para. 53.
16. Para. 55.
17. Second Defence Motion, para. 12.
18. Para. 60.
19. Adopted by the ILC at its fifty-third session in 2001 (see: Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chap.IV.E.2.).
20. Article 11 of the Draft Articles (“Conduct acknowledged and adopted by a State as its own”) states: “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.”
21. Para. 64.
22. Second Defence Motion, paras. 6-8.
23. Para. 65.
24. Second Defence Motion, para. 14.
25. Second Prosecution’s Motion, para. 17.
26. Para. 75.
27. Para. 76. On the horizontal level States are free to enter into treaty obligations regarding e.g. the extradition of persons accused of certain crimes. On the vertical level the co-operation between the Tribunal and States and other entities is first and foremost determined by Security Council resolution 827 and Article 29 of its Statute. No such freedom therefore exists in this relationship.
28. See para. 100.
29. According to Blacks’ Law Dictionary, 7th ed. Appendix A, Legal Maxims, this maxim is translated as “a person acts with deceit who seeks what he will have to return [immediately]”.
30. Para. 104.
31. Second Defence Motion, para. 16.
32. Para. 110.
33. Para. 111.
34. Barayagwiza, Decision of the ICTR Appeals Chamber, 3 November 1999, para. 74.
35. Para. 114.