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.
B. The specific orders requested
The Subpoena to SFOR Personnel to Testify
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’ —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. 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. 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. 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. 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. 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’.
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. 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.    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. 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. 
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.