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Case No. IT-95-9-PT, Decision on the Motion for a Judicial Assistance to be Provided by SFOR and Others, Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, 18 October 2000

Harmen van der Wilt

Relevance of the case

This decision is a highly relevant follow-up to the Blaskic judgment of the ICTY Appeals Chamber on state co-operation and subpoena powers, in which the Chamber recognized the power of the Tribunal to issue binding orders to states. In the present case, the Trial Chamber extends this authority to cover multinational peace-keeping forces, like SFOR, as well. Moreover, the Chamber implicitly acknowledges that irregularities in the apprehension and detention of the suspect could in principle affect the court’s jurisdiction.

I. The facts of the case

Although several accused are mentioned in this case, the central issue concerns the arrest and detention of one of them, Stevan Todorovic preceding his trial before the International Tribunal for the former Yugoslavia in The Hague. Todorovic had been indicted on charges of grave breaches of the 1949 Geneva Conventions, violations of the laws and customs of war, and crimes against humanity, relating to the events said to have taken place in the area of Bosanski Samac, in the north-eastern part of Bosnia-Herzegovina, during the summer of 1992. A warrant for the arrest of the accused had been issued on 21 July 1995 and Todorovic, who lived in Serbia and Montenegro, had allegedly been abducted and taken against his will to Bosnia and Herzegovina. Subsequently, the accused was handed over to the Stabilisation Force (SFOR) at the Air Base at Tuzla, Bosnia and Herzegovina. Counsel for the accused had submitted a motion that sought an order from the Trial Chamber requesting the assistance of SFOR in the production of documents and witnesses that might shed a light on the forceful apprehension and transfer of the accused from his residence to the Tuzla Air Force basis. SFOR itself had countered the claim, by arguing that, in its opinion, the ICTY had no authority to order SFOR to disclose information. However, defence counsel had persisted in its request and had clarified the exact relief sought as: (i) an order and subpoenas duces tecum directed to the Commanding General of SFOR for the production of documents and other evidentiary material; (ii) a subpoena ad testificandum directed to the Commanding General of Tuzala Air Force and to the SFOR personnel involved in the seizure, abduction, and arrest of the accused; and (iii) a request for judicial assistance directed to the United States of America for the same materials.

II. The legal question

The core legal issue was whether the ICTY had the power to issue binding orders to an international peace-keeping force, such as SFOR, in order to obtain evidence on irregular arrest and detention. This question had hitherto been contested as several Trial Chambers had reached contrary conclusions. In this case the Trial Chamber gave a substantiated affirmative answer.

III. Excerpts

[...]

The Defence

  • 9. The Defence argues that it is entitled to seek assistance in the production of evidence relating to the facts and circumstances of the detention and alleged arrest of the accused. In particular, it seeks:2
  • (a) attendance of the individual or individuals who transported the accused by helicopter to the Tuzla Air Force base;
  • (b) attendance of the individual who placed the accused under arrest and served the arrest warrant;
  • (c) production of the audio and video tapes made on 27 September 1998 of the initial detention and arrest of the accused at the Tuzla Air Force base;
  • (d) SFOR pre- and post-arrest operations reports relating to the arrest and detention of the accused.[...]
  • 11. The Defence asserts4 that individuals serving with SFOR are amenable to compulsory attendance, relying on a Decision of the Appeals Chamber of the International Tribunal in Prosecutor v. Blaskic.5 The involvement of SFOR in the alleged abduction is said to be shown by the fact that, after being transported across the border from the Federal Republic of Yugoslavia (Serbia and Montenegro) into Bosnia and Herzegovina, a helicopter arrived within minutes of a radio call to transport the accused to the SFOR base at Tuzla.6
  • 12. The Defence also asserts that it has described the documents and items sought with sufficient specificity to meet the requirements of the Appeals Chamber Decision in Blaskic. The request is not unduly onerous and sufficient time for compliance may be granted.
  • 13. Further, the Defence argues that, even if SFOR itself is not subject to the jurisdiction of the International Tribunal, the individual member States remain liable and obligated to fulfil all of the obligations undertaken as members of the United Nations and thus to cooperate with the International Tribunal. The Defence suggests that this obviates any need for the Trial Chamber to address the issue of whether SFOR, as an entity, is subject to the jurisdiction of the International Tribunal, as its constituent members clearly are so subject.7 The Defence notes that Security Council resolution 1088, of 12 December 1996,8 which established SFOR, ‘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’.

The Prosecution

  • 14. The Prosecution relies upon the arguments raised in previous filings in the proceedings as to the legality of the arrest.9 In essence, the Prosecution asserts:
    • (a) the Motion does not establish any prima facie basis for judicial enquiry;
    • (b) even if any irregularity in the circumstances of the arrest did exist, it would not justify the relief sought.
  • 15. The Prosecution argues that ‘some international laws are not binding on certain international institutions’ first, because ‘some international laws are exclusively designed to regulate conduct between states and have no application to international institutions’ and, second, ‘because of the fact that in the legitimate performance of its functions, the powers of the International Tribunal prevail over traditional concerns of state sovereignty’.10 In seeking to justify the legality of the arrest, the Prosecution notes that the territorial jurisdiction of the International Tribunal extends throughout the territory of the former Yugoslavia, and so there is no basis to assert any breach of sovereignty. Furthermore, the arrest of persons pursuant to a valid warrant of arrest issued by the International Tribunal does not constitute a breach of sovereignty as, if it did, all other matters, such as investigation and indictment of any accused, holding hearings and detaining accused persons, would also amount to a breach of sovereignty." The actions taken by the International Tribunal, which would, if conducted by a State, constitute a breach of sovereignty of another State, are specifically authorised under the United Nations Charter.[...]

SFOR

  • 18. In its written submission of 10 July 2000 (‘the SFOR Submission’)," SFOR has argued: (i) further disclosure is unnecessary because the accused would not be entitled to the relief sought even if the allegations are proven because (a) relevant case law does not mandate release of the accused, (b) the accused is not entitled to the remedy of release from custody, and (c) the accused should not be returned to a State which defies its legal obligations to the International Tribunal; and (ii) compelling requirements of operational security preclude further disclosure by SFOR concerning the detention of the accused.^...]
  • 1. Application of this power to SFOR
  • 38. Article 29 of the Statute deals with cooperation between States and the International Tribunal ‘in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law’. The Appeals Chamber decision in Prosecutor v. Blaskic48 confirms what is plain on a reading of that Article, that is, that the International Tribunal is empowered to issue binding orders to States. The question is whether the International Tribunal is empowered under Article 29 to issue an order to SFOR, bearing in mind that Article 29 is, on its face, confined to the issuing of orders to States. To answer this it is necessary to examine both the establishment and structure of SFOR and the scope of Article 29.[...]
  • 2. Co-operation between SFOR and the International Tribunal
  • 43. In December 1995 the North Atlantic Council agreed that copies of indictments and arrest warrants issued by the International Tribunal would be transmitted to IFOR and that any indicted person detained by IFOR would be taken into custody, immediately informed of the charges against him and transferred as soon as reasonably practicable to the International Tribunal (hereafter ‘NAC decision’). Reference to the NAC decision is to be found in the Order of Judge Claude Jorda of 24 December 1995, which, inter alia, noted as follows:
  • 1. that the North Atlantic Council on 16 December 1995 agreed that, having regard to UN Security Council regulations (sic) 827 (1993) and 1031 (1995) and Annex 1-A of the General Framework Agreement for Peace in Bosnia and Herzegovina, the multinational military implementation force (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;
  • 2. that the North Atlantic Council on 16 December 1995 approved a supplemental Rule of Engagement on the detention and transfer of such indicted persons with application limited to Bosnia-Herzegovina, to be implemented once practical arrangements have been agreed with the International Criminal Tribunal for the transfer to it of such indicted persons.54 [...]
  • 3. The scope of Article 29
  • 46. On its terms, Article 29 applies to all States, whether acting individually or collectively. 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 as 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.
  • 47. The International Tribunal has on several occasions had recourse to the general rule of treaty interpretation set out in Article 31 (1) of the Vienna Convention on the Law of Treaties (‘the Vienna Convention’) for the purpose of interpreting the Statute.57 Article 31(1) of the Vienna Convention provides that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ The jurisprudence of the International Tribunal has repeatedly stressed the importance of giving due weight to the object and purpose of the Statute in its construction. The mere fact that the text of Article 29 is confined to States and omits reference to other collective enterprises of States does not mean that it was intended that the International Tribunal should not also benefit from the assistance of States acting through such enterprises in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
  • 48. 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.
  • 49. The Trial Chamber is satisfied that SFOR is sufficiently organised and structured to receive and implement orders of the International Tribunal made pursuant to Article 29. [...]

B. The specific orders requested

  • (i) The order to SFOR
  • 58. On the basis of the analysis at paragraphs 46-49, the Trial Chamber concludes that it is competent to issue a binding order under Article 29 of the Statute to the 33 participating States of SFOR and, through its responsible authority, the North Atlantic Council, to SFOR itself. Such an Order is issued to the various States concerned pursuant to Rule 54 bis (E) and a similar procedure will, by analogy, be applied in respect of the Order to SFOR and to the North Atlantic Council. Indeed a similar procedure has already been followed in this case to date, by serving the Motion on SFOR and inviting it to attend the hearing in July 2000. There are further provisions of the Rules permitting an affected State to apply to have such Order set aside on the basis that disclosure would prejudice its national security interests or to seek review of such a decision by the Appeals Chamber.
  • 59. The purpose of the Defence Motion is to secure certain information and documents, which the accused believes to be in the custody and control of SFOR, and which will assist him in his motions challenging the legality of his arrest.66 The main contention of both SFOR and the Prosecution in opposing this Motion is that the Motion should be dismissed because Todorovic is not entitled to the relief he seeks, even if his allegations were to be accepted67 This argument proceeds on the assumption that the evidence is complete. That assumption is erroneous, as what Todorovic is seeking is further evidence from SFOR which will assist him to obtain the relief which he seeks. Only when Todorovic has had the opportunity to present all the available evidence will it be possible for the Trial Chamber to determine whether he is entitled to the relief he seeks. The Prosecution sought to argue once more that there is no basis in the evidence to date which entitled Todorovic to obtain such material68 As the Trial Chamber, in its Order of 7 March 2000, has already held that there is such a basis, and as the application by the Prosecution for leave to appeal against that decision was refused, it is not open to the Prosecution to re-agitate that issue now.
  • 60. As to the additional claim by SFOR that ‘further’ factual disclosure is precluded by ‘compelling requirements of operational security1Vs9 the Trial Chamber does not accept the blanket objection which SFOR has raised. It was open to SFOR to make specific objections to the disclosure of particular documents or other material at the hearing in accordance with a procedure similar to that set forth in Rule 54 bis (F) but SFOR chose not to do so.
  • 61. The Trial Chamber is satisfied that it has been adequately demonstrated that there is material in the custody or control of SFOR which is likely to assist Todorovic in obtaining the relief he seeks, and that there is a legitimate forensic purpose in having it produced. The Trial Chamber is also satisfied that, as the Prosecution has not been able to produce copies of the material, it is appropriate that SFOR now be required to disclose that material.

The Subpoena to SFOR Personnel to Testify

  • 62. On the basis of the Appeals Chamber’s decision in Blaskic, referred to in paragraph 51 of this Decision, the Trial Chamber has the competence to issue a subpoena ad testificandum to SFOR personnel. This includes General Shinseki since, in terms of that decision, he is not representing his State and is to be treated qua individual in respect of any event that he has personally witnessed, even if observed while performing his official functions. Thus he is compellable not in his role as Commanding General of SFOR but as an individual with personal knowledge of the events of which complaint is made. Similar considerations will apply to any other SFOR personnel who are shown to have direct knowledge of these events.
  • 63. The Trial Chamber is satisfied that it would be appropriate to issue a subpoena to General Shinseki in due course, requiring him to testify in the ongoing evidentiary hearing in this matter.

IV. Commentary

This decision has its origin in the problematic fact that international criminal tribunals and courts have no police force at their disposal and are therefore dependent on the assistance of states for obtaining evidence and custody over suspects. Article 29 of the Statute of the ICTY obliges states to co-operate with the Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. If states that are the most eligible to offer such assistance default on their obligations, international criminal tribunals are naturally inclined to turn to other states or multinational peace-keeping forces, when available. Both the Stabilisation Force (SFOR) and its predecessor IFOR were under an obligation to detain persons indicted by the ICTY with a view to their transfer to the Tribunal.1 The choice of words delineating the category of persons that are to be detained and transferred— ‘persons who come into contact with IFOR in its execution of assigned tasks’[1] [2]—is interesting, as it begs the question whether SFOR/IFOR members were supposed to actively search for war criminals. It is generally held that they were not.[3] However, SFOR did not need to possess such far-reaching criminal enforcement powers if it could easily benefit from the actions of ‘unknown individuals’ who were prepared to do the dirty work and put the suspects into SFOR’s hands. Such abductions and ‘irregular renditions’ trigger new legal problems, as they both infringe on territorial sovereignty of states and violate fundamental human rights of human beings. The recurring issue in the ICTY’s case law has been whether such acts could be attributed to SFOR or the Prosecutor’s Office and whether the Tribunal had to divest itself of jurisdiction, thus sanctioning the unlawful practices in the pre-trial stage.[4] In inter-state relations this legal problem has gained currency under the maxim male captus, bene detentus. Traditionally most courts have turned a blind eye to irregular arrest, detention, and surrender in foreign countries, holding that such unlawful behavior preceding the trial did not prevent the court from exercising jurisdiction over the accused.[5] However, some courts have advanced a different view, arguing that the Prosecutor should come to the court with clean hands, that serious violations of the law in the pre-trial stage affected the integrity of the entire criminal process and that the court should consequently decline to exercise jurisdiction.[6] Trial Chambers of the ICTY have referred to this case law of domestic courts, emphasizing that the balancing of the interests of international criminal law enforcement, states, and individual suspects would yield different outcomes in the vertical context. I will return to this issue in due course.

The male captus theme as just expounded, while highlighted by both the Prosecutor and SFOR, did not feature in the Trial Chamber’s decision, because the Defence sought to obtain the very documents from SFOR that would sustain its claim that SFOR had been involved in the alleged abduction. The crux of the matter was therefore whether the Tribunal could issue binding orders to an international body like SFOR. For obvious reasons, the Trial Chamber referred to the famous subpoena decision of the Appeals Chamber in the Blaskic-case, in which that Chamber, while denying the power of the Tribunal to punish a state, acknowledged its right to issue binding orders to states.[7] Should this power be extended in order to cover international organizations as well? Invoking art. 31(1) of the Vienna Convention which stipulates that treaties are to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, the Trial Chamber answered the question affirmatively. That conclusion seems to be a sensible, if not inevitable one. Although the rendering of assistance to the ICTY did perhaps not constitute the raison d’etre of IFOR/SFOR, it soon became one of its major tasks. SFOR’s services would be largely pointless if the Tribunal would not be able to instruct the organization to co-operate. Moreover, it would imply that states could evade their obligations under art. 29 ICTY Statute by pooling their resources and establishing a collective. The Trial Chamber therefore ordered SFOR to disclose all material—correspondence, reports audio, and video tapes—that could shed light on the apprehension and arrest of the accused, Stevan Todorovic. The order was predicated on Rule 54bis of the ICTY Rules of Procedure and Evidence (‘Orders Directed to States for the Production of Evidence’) which was applied by analogy to SFOR. While SFOR attempted to preclude disclosure, invoking ‘compelling requirements of operational security’, the Trial Chamber did not accept the ‘blanket objection’.[8]

An interesting side-issue was whether the Tribunal could directly subpoena SFOR- personnel to testify during proceedings. In this respect the Blaskic precedent was quite instructive as well. In general, international criminal courts would not be entitled to pierce the veil of a state’s internal organization. They would have to respect the state’s decision to designate individuals as state officials and assign them specific tasks, both at the internal level and in international relations. The Appeals Chamber qualified the functional immunity of state officials as a corollary of such authority, which had to be observed by international organizations and international courts as well.[9] But the position of a state official who acted as a member of an international peacekeeping—or enforcement force, like SFOR—was different, as he was not present in Yugoslavia ‘qua a member of the military structure of his own country. His mandate stems from the same source as that of the International Tribunal, id est, a resolution of the Security Council, and therefore he must testify, subject to the appropriate requirements set out in the Rules.’10 In a footnote, the Appeals Chamber clarified that such a direct approach of an SFOR official, bypassing SFOR itself, would be appropriate if he had direct knowledge of the commission or planning of a crime, by personal observation (the so called subpoena ad testificandum). If, on the other hand, the official was expected to produce a document or other written evidence (subpoena duces tecum), it would be preferable to address the organization." As the Commanding General of SFOR, General Shinseki was assumed to have personal knowledge of the arrest of the accused, the Trial Chamber in the case under scrutiny gratefully followed the Blaskic precedent.

The very fact that the Trial Chamber was prepared to grant the request of the accused by issuing binding orders to SFOR and subpoena the SFOR General indicates that the Chamber opined that further information could reveal whether the accused’s complaint would strike home. That point of view as such was contested by both the Prosecution and SFOR who asserted that, even if any irregularity in the circumstances of the arrest would surface, the accused would not be entitled to the relief sought." The Trial Chamber did not agree: ‘Only when Todorovic has had the opportunity to present all the available evidence will it be possible for the Trial Chamber to determine whether he is entitled to the relief he seeks."3 In other words: the Chamber left the door ajar for the possibility that the accused’s claim would be successful. This position comports with previous and subsequent case law of the ICTY. Addressing the question under what circumstances ‘irregularities’ in respect of arrest would require the court to decline to exercise jurisdiction, the Appeals Chamber in Nikolic made a sharp distinction between the violation of state sovereignty and infringements of human rights.[10] [11] [12] [13] Balancing the legitimate expectation that those accused of universally condemned crimes will be brought to justice quickly with the principle of state sovereignty, the Appeals Chamber made it clear that the former should prevail. It did not matter whether the unlawful conduct of the accused’s captors could be attributed to SFOR or not: even the former situation would not affect the Tribunal’s jurisdiction. The Appeals Chamber made a highly interesting side note by suggesting that any state which failed to meet its obligations to co-operate had itself to blame for an incursion upon its sovereignty.^ That makes sense. If a state flouts its commitments by refusing to co-operate, it cannot expect an international criminal tribunal to set aside jurisdiction, if others step in to repair the state’s omission. It demonstrates that concerns for sovereignty are less pressing in the framework of vertical co-operation in criminal matters between tribunals and states than in the inter-state context.

In relation to the human rights of the accused that might have been affected by the abduction, the Appeals Chamber was more circumspect. It acknowledged that exceptionally cruel treatment of the accused during arrest and detention might leave a court no other option than to decline jurisdiction^6 The Chamber referred to and concurred with the US Federal Court of Appeals in Toscanino which had famously held that ‘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.’i7 However, the Appeals Chamber found that in the case under consideration the treatment of the Appellant was not of such an egregious nature as to impede the exercise of jurisdiction^8 just as little as in the issue of state sovereignty, the Appeals Chamber did not attach much relevance to the question whether SFOR had been involved in the venture and that it was consequently responsible for the violations of his rights. I tend to agree with that position. Within the state context, the courts’ sanctioning of unlawful police behavior symbolizes the rule of law and simultaneously reflects the separation of powers and the unity of the state, both vis-a-vis its citizens and other states. Such considerations are largely foreign to international tribunals. SFOR and other peace-keeping forces are not an extension of international criminal tribunals (see also the discussion in fn. 3) and it would therefore be far-fetched to argue that they are complicit or co-responsible for SFOR’s faults, by simply reaping the benefits from those faults. The only thing that counts is that the Tribunal has to abide by the law and do justice which in these situations entails that it might in exceptional cases compensate the accused for his great losses and suffering.

The decision in Nikolic retroactively confirmed that the Trial Chamber had been correct in ordering SFOR to provide the necessary documents. The accused stood an, albeit tiny, chance that his claim would be accepted and that the Trial Chamber would consequently decline to exercise jurisdiction. Only on the basis of the scrutiny of all available evidence could the Trial Chamber determine if the accused would be entitled to such a relief.[14] One will of course be curious to learn the outcome of the case, but the end result was rather unspectacular. On 13 December 2000, Todorovic entered a guilty plea on one count of the indictment, to wit persecution as a crime against humanity. Subsequently, the Prosecutor withdrew the other counts and the Defence withdrew the outstanding motions challenging the legality of the arrest of the accused. Stevan Todorovic was convicted and sentenced to ten years’ imprisonment.[15] [16]

The decision in the case under scrutiny demonstrates once again that international criminal tribunals acknowledge that they are called to respect and promote the human rights of all individuals, including those charged with heinous crimes.21 One may add that suspects are particularly in need of such support when they are stripped of the protection of their national state. However, in guaranteeing the fair trial rights of those standing trial, international criminal tribunals often require the assistance of states in a similar way as in (repressive) criminal law enforcement. If states default on their obligations, international tribunals must have the possibility to resort to international peace-keeping forces. In that sense the availability of such entities serves as a double-edged sword.

  • [1] According to the Order of Judge Claude Jorda of 16 December 1995, which mentioned SecurityCouncil Resolution 1031 of 15 December 1995 in tandem with Annex 1-A of the Dayton Peace Agreementas the legal basis; Prosecutor v Blagoje Simic et al. IT-95-9, Order, Judge Jorda, filed 5 February 1996.
  • [2] Decision, § 43.
  • [3] Compare G. Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligationsof States (Antwerpen and Oxford, New York 2002), p. 265 who observes that ‘although internationalforces such as SFOR/IFOR or KFOR perform tasks at the request of the ICTY in the field of “enforcement”, they can as such not be considered the “enforcement branch” of the Tribunals’. However, Sluiterpoints at the contrary opinion of Judge Robinson who in his separate opinion (§ 6) to this Decision attributes a role to SFOR ‘comparable to that of a police force in some domestic legal systems’.
  • [4] See Prosecutor vDokmanovic, Decision on the Motion for Release by the Accused Slavko DokmanovicTrial Chamber I, Case No. IT-95-13a-PT, 22 October 1997; Prosecutor v Dragan Nikolic, Decision onDefence Motion Challenging the Exercise of Jurisdiction by the Tribunal (Trial Chamber II), IT-94-2-AR72, 9 October 2002 and Pros. v Nicolic, Decision on Interlocutory Appeal Concerning Legality ofArrest, Appeals Chamber, Case No. IT-94-2-AR73, 5 June 2003.
  • [5] The most (in)famous example is the US Supreme Court’s judgment in the case of United States vAlvarez Machain (1992) 504 US 655.
  • [6] Regina v Horseferry Road Magistrates’ Court, Ex parte Bennett, House of Lords 25 June 1993, [1994] 1AC 42; State v Ebrahim, South African Supreme Court (Appellate Division), Opinion, 16 February 1991,Int. Leg. Mat., Vol. 31, n. 4, July 1992, pp. 890-9.
  • [7] Prosecutor v Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Decisionof Trial Chamber II of 18 July 1997, IT-95-14-AR108bis, 29 October 1997, §26: ‘The exceptional legal basisof Article 29 accounts for the novel and indeed unique power granted to the International Tribunal toissue orders to sovereign States.’
  • [8] Decision, § 60. 9 Ibid., § 41. ™ Ibid., § 50. u Ibid., § 50, fn. 68.
  • [9] 12 Decision, §§ 14 and 18. ” Decision, § 59.
  • [10] Prosecutor v Nicolic (n. 4), §§ 20-7 and §§ 28-33, respectively.
  • [11] Ibid., § 26: ‘In the opinion of the Appeals Chamber, the damage caused to international justice bynot 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.’ (italics HvdW).
  • [12] Prosecutor v Nikolic, § 30. 11 500 F.2d 267 (2d Cir. 1974), p. 275.
  • [13] 18 Prosecutor v Nikolic, § 31.
  • [14] Decision, § 59.
  • [15] Prosecutor v Todorovic, Sentencing Judgement, Case No.: IT-95-9/1-S, 31 July 2001.
  • [16] That point was explicitly made by the Appeals Chamber in Prosecutor v Barayagwiza, Decision, CaseNo. ICTR-97-19-AR72, A.Ch., 3 November 1999, § 112.
 
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