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ANALYSIS: The Tribunal's 'Illegal Detention'

Defence counsel allege an illegal kidnapping, raising serious questions about the rights of the accused and procedures for arrest and transfer to The Hague.
By Mirko Klarin

Among other things, Dragan ("Yenki") Nikolic is charged with the "illegal detention" of over 8,000 Muslim civilians and other non-Serbs, who, according to his indictment, passed through the Susica camp near Vlasenica in eastern Bosnia and Herzegovina, between late May and October 1992. According to the prosecutor, Yenki was commander of the camp at the time of the alleged crimes.

His defence counsel, British lawyer Howard Morrison, QC, however, claims that it is Nikolic who was "illegally detained". In a motion filed last week, he asks the judges to "dismiss or otherwise negate the indictment", release the defendant from custody and return him "to the place where he was resident immediately prior to his unlawful incarceration".

There are two versions of how Nikolic found himself in allegedly "illegal detention". The dispute over them goes to the heart of a complex - and so far not clearly unadjudicated - legal question about the rights of the accused, the procedures of arrest, and the relationship between the tribunal and other authorities that may carry out tasks in its support.

According to NATO's official version, the accused was arrested on April 21, 2000, by SFOR commandos at an unidentified location in northern Bosnia and then transferred to The Hague. NATO offers no further comment on the circumstances.

According to the defence, Nikolic was "kidnapped" in Smederevo, deep inside eastern Serbia, and then illegally transferred by bounty hunters to Bosnia, where he was handed over to SFOR in return for an award.

The presumption is that the arrest was part of the US State Department's long-running Rewards for Justice programme to offer awards of up to $5 million for war crimes arrests in the Balkans, publishing wanted posters for Slobodan Milosevic, Radovan Karadzic, Gen. Ratko Mladic and others.

A week later, Nikolic appeared before the tribunal, pleading not guilty to all of the counts of the indictment charging him with crimes against humanity (29 counts), grave breaches of the Geneva Conventions (29) and violations of the laws or customs of war (22). [See Tribunal Update No. 173]

This is the third time the tribunal has faced a challenge to the legality of an arrest.

The first challenge was brought by Belgrade lawyer Toma Fila, who is now defending Slobodan Milosevic before the Serbian judiciary. In the summer of 1997, Fila filed a preliminary motion for the release of Slavko Dokmanovic, the former mayor of Vukovar accused of participating in killing more than 200 Croats taken from Vukovar Hospital in November 1991.

Fila alleged that his arrest had been illegal (executed in a "tricky way" which can be interpreted as "kidnapping"), and thus the basic right of the defendant, as well as the sovereignty of the Federal Republic of Yugoslavia (FRY), had been violated.

Dokmanovic, who "took shelter" in Serbia after the war, was lured by tribunal investigators, in cooperation with the representatives of the UN Transitional Authority in Eastern Slavonia, to come to the part of Croatia then under UN control, for a conversation. Once there, on June 27, 1997, he was met by representatives of the prosecution, who promptly arrested him.

After a public hearing into the circumstances of the arrest and a long deliberation by the judges, on October 1997 the trial chamber announced a detailed, 40-page decision denying the defence motion.

In the first decision by an international court concerning the legality of an arrest carried out by an international authority, the chamber concluded that the means used to carry out the arrest neither violated principles of international law nor the sovereignty of FRY. [See Tribunal Update No. 50] Dokmanovic remained in custody, was tried, but did not wait for the verdict: on June 28, 1998, a week before his sentence was to be announced, he committed suicide.

The second such challenge to an arrest was lawyer Deyan Brashich, defence counsel for Stevan Todorovic, the former chief of police in Bosanski Samac, northern Bosnia. Brashich claimed that his client was "kidnapped" on the Mount Zlatibor in Eastern Serbia, illegally transferred to Bosnia, and then "sold" to members of the Stability Force (SFOR) for 50,000 German marks.

In a motion filed in February 1999, Brashich asked for Todorovic to be released from custody, for the indictment against him to be dismissed, and for the accused to be returned to Serbia as his "country of refuge". Haggling over the case lasted nearly two years and seriously risked affecting relations between the tribunal and NATO. Friction between the two international bodies was threatened especially after the trial chamber issued "binding orders" to the governments of the 33 countries contributing troops to SFOR to hand over relevant documents, and summoned US Gen. Eric Shinseki, SFOR commander at the time of the arrest, to testify. [See Tribunal Update Nos. 195 and 196]

While mounting this challenge, Brashich simultaneously conducted secret negotiations with the Office of the Prosecutor which resulted, in December 2000, in a "Plea and Co-operation Agreement". On the basis of this agreement, Todorovic pleaded guilty on count 1 (persecution on political, racial and religious grounds - crime against humanity), dropped his challenge to the legality of the arrest and withdrew all requests in relation to NATO. He also undertook an obligation to cooperate with the prosecution.

In return, the prosecution withdrew the remaining 27 counts of the indictment and agreed not to seek a sentence exceeding 12 years imprisonment. [See Tribunal Update No. 203]

Chief Prosecutor Carla Del Ponte noted that, "as a prosecutor", she was glad to secure the deal, winning an admission of guilt and an important witness in future trials of Bosnian Serb leaders.

Yet she also claimed that, "as a jurist", she was sorry the agreement puts the "SFOR case" ad acta, that is, outside of judicial consideration. She insisted she was very interested in how the appeals chamber would decide the crucial question: "Whether possible illegalities that occurred during the arrest give the accused the right to be released?"

Yet the decision that will not be forthcoming in the Todorovic case, may in the end come out through the Nikolic case. Both challenges were essentially based on the same arguments. Nikolic, according to defence counsel Morrison, was "kidnapped, falsely imprisoned and assaulted and taken by force and without his consent into the territory of Bosnia".

There he was "subject to further unlawful imprisonment" and then handed over to representatives or agents of SFOR and the Office of the Prosecutor, before being transported to The Hague and imprisoned in the UN Detention Centre.

Meanwhile, Morrison notes that individuals have been tried and sentenced "by a lawfully constituted court in Serbia following upon their admissions of engaging in the said kidnapping."

Morrison's central argument is that "in this and any case involving 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, among others, 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."

Like Todorovic's defence counsel, Morrison also points out that the international tribunal must apply higher standards for the protection of the rights of the accused than national courts.

"An international tribunal . . . has an international legal reputation to maintain and an obligation not to be seen to be condoning any act that amounts to disregarding an offence . . . that demeans human rights in general or could realistically pose a threat to innocent citizens," he argues in his motion. "Any arrest by the way of kidnapping or the use of mercenary or irregular forces or individuals ought not to be tolerated, encouraged or condoned by this tribunal."

The prosecution has still not submitted its response, but it is likely to take a similar position as in the Todorovic case. First, it will argue that no one from the prosecutor's office or the tribunal is involved or complicit in any irregularities which may have occurred in the course of arresting Nikolic, and that SFOR - contrary to Morrison's claim - is neither the organ nor the agent of the prosecutor's office.

Second, the prosecutor will acknowledge that the most important legal question, as it argued in the Todorovic case, is whether "the tribunal's otherwise valid jurisdiction over the accused is vitiated in some way by any alleged illegality that may have occurred in the circumstances of the accused's arrest."

As in that case, the prosecution is likely to conclude that, "even if all the facts suggested by the accused were assumed to be true, and were taken at their highest, they would not justify the dismissal of the indictment against the accused or his release".

So Del Ponte may finally get the answer "as a jurist" that she had to abandon when as a prosecutor she secured a deal with Todorovic. Unless another deal is in the offing . . .

Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief-of SENSE News Agency.

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