The Prosecutor v. Dragan Nikolic - Case No. IT-94-2-AR73

“Decision on Interlocutory Appeal Concerning Legality of Arrest”

5 June 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Güney and El Madhi)

Procedural Background

· On 9 October 2002, Trial Chamber II rendered its decision on the legality of the arrest of Dragan Nikolic (the “Accused”).¹

· On 7 November 2003, Nikolic’s Defence filed a notice of appeal against the Impugned Decision pursuant to Rule 108 and/or Rule 72 of the Rules and Procedure and Evidence (the “Rules”).² The Prosecution responded on 18 November 2002.³

· On 9 January 2003, the Appeals Chamber dismissed the Notice of Appeal on the grounds that the Defence should have filed its Notice of Appeal under Rule 73.⁴

· On 14 January 2003, the Appellant sought certification for leave to appeal from the Trial Chamber.⁵ The Prosecution responded on 17 January 2003.⁶ The Defence replied on 20 January 2003.⁷ On 17 January 2003, the Trial Chamber granted certification.⁸

· On 27 January 2003, Nikolic’s Defence filed the “Appellant’s Brief on Appeal Against a Decision of the Trial Chamber Dated 9 October 2002” (the “Appeal”).

The Decision

The Appeals Chamber dismissed the Appeal.

The Reasoning

The question before the Appeals Chamber was whether the International Tribunal can exercise jurisdiction over the Appellant notwithstanding the alleged violations of Serbia and Montenegro’s sovereignty⁹ and of the Accused’s human rights committed by SFOR and, by extension, the Office of the Prosecutor (“OTP), acting in collusion with the unknown individuals who abducted the Accused from Serbia and Montenegro.

The impact of a breach of a State’s sovereignty in the exercise of jurisdiction

As noted by the Appeals Chamber, this is a novel issue for the International Tribunal. There is no case-law on the point and the Statute and the Rules do not offer much guidance. The Appeals Chamber had therefore to rely on national case-law.¹⁰ After a review of the relevant cases, it admitted that it is “difficult to identify a clear pattern in this case-law” and noted that “caution is needed when generalising”. Nevertheless it identified two principles that seem to have support in State Practice as evidenced by the practice of their courts:

“First, in cases of crimes such as genocide, crimes against humanity and war crimes which are universally recognised and condemned as such (“Universally Condemned Offences”), courts seem to find in the special character of these offences and, arguably, in their seriousness, a good reason for not setting aside jurisdiction . Second, absent a complaint by the State whose sovereignty has been breached or in the event of a diplomatic resolution of the breach, it is easier for courts to assert their jurisdiction”.¹¹

The Appeals Chamber observed that Universally Condemned Offences are a matter of concern to the international community as a whole. It found that there is “a legitimate expectation that those accused of these crimes will be brought to justice swiftly ” and that “[a]ccountability for these crimes is a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts”.¹² The Appeals Chamber considered that “the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory, particularly when the intrusion occurs in default of the State’s cooperation”.¹³ It held that “in cases of Universally Condemned Offences, jurisdiction should [not ] be set aside on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives from international justice, whatever the consequences for the international responsibility of the State or organisation involved”.¹⁴

The Appeals Chamber found that this is all the more so in cases where the State has not lodged any complaint, thus accepting de facto the Tribunal’s jurisdiction . It held that a fortiori this holds all the more so when such abductions do not violate State sovereignty. It therefore held that even if the conduct of the Accused’s captors is to be attributed to SFOR in violation of Serbia and Montenegro’s sovereignty, there will still be a basis for jurisdiction.

The impact of a violation of an accused’s human rights in the exercise of jurisdiction

The Trial Chamber had found in the Impugned Decision that the treatment of the Appellant was not of such an “egregious” nature as to impede the exercise of jurisdiction without excluding that jurisdiction could be excluded in cases where an accused is very seriously mistreated. The Appeals Chamber upheld the approach of the Trial Chamber. It stated that “certain human rights violations are of such a serious nature that they require that the exercise of jurisdiction be declined”.¹⁵

However it held that “[a]part from such exceptional cases […] the remedy of setting aside jurisdiction will […] usually be disproportionate”¹⁶ and that “[t]he correct balance must therefore be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.¹⁷

In the present case, the Appeals Chamber did not find that the rights of the Accused had been “egregiously” violated and therefore did not find that the Tribunal should be impeded from exercising jurisdiction even if the conduct of the Accused’s captors was to be attributed to SFOR.

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1. Nikolic, IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002 (the “Impugned Decision”). Nikolic was arrested by unknown individuals, handed over to the Stabilisation Force (“SFOR”) and transferred to the Tribunal. On the background of the case and the legal issues involved see the summary of the Impugned Decision, Judicial Supplement No. 37.
2. Nikolic, IT-94-2-AR72, Notice of Appeal from the Judgement, pursuant to Rule 108 of the Rules of Evidence and Procedure, of Trial Chamber II dated the 9th day of October 2002 concerning the Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 7 November 2002.
3. Nikolic, IT-94-2-AR72, Prosecution Response to the Two Defence Documents filed on 8 November 2002 purporting to be a Notice of Appeal pursuant to Rule 108 and a Motion for Extension of Time under Rule 127 Respectively, 18 November 2002.
4. Nikolic, IT-94-AR72, Decision on Notice of Appeal, 9 January 2003.
5. Nikolic, IT-94-AR72, Motion for Certification and Relief under the Provisions of Rules 73 and 127 of the Rules, 20 January 2003.
6. Nikolic, IT-94-2-PT, Prosecution’s Response to the Defence Motion for Certification and Relief Under the Provisions of Rules 73 and 127 of the Rules of Procedure and Evidence, IT-94-2-PT, 17 January 2003.
7. Nikolic, IT-94-2-PT, Reply to Response of the Prosecutor, filed on the 17th January 2003 to the Defence Motion Filed on the 14th January 2003 for Certification and Relief under Rules 73 and 127 of the Rules of Procedure and Evidence, 20 January 2003.
8. Nikolic, IT-94-AR72, Decision to Grant Certification to Appeal the Trial Chamber’s “Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal”, 17 January 2003.
9. As the name of the Federal Republic of Yugoslavia officially changed on 4 February 2003 and is now Serbia and Montenegro, the Appeals Chamber decided to refer to Serbia and Montenegro in its Decision, except when quoting portions of the Impugned Decision. The present summary follows the same logic.
10. Paras. 21-23.
11. Para. 24.
12. Para. 25.
13. Para. 26.
14. Ibid.
15. Para. 30.
16. Ibid.
17. Ibid.