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Tribunal Update 186 Last Week in The Hague (July 24-29, 2000)

The defence had requested all reports referring to Todorovic's arrest, video-footage of his arrival at the US base in Tuzla, plus a list of everyone who took part in the arrest. SFOR has refused to hand over the documents (see Tribunal Update 184) arguing that whatever the circumstances of the arrest, the accused has no legal right to request the court to return him to his "country of refuge" - namely, Yugoslavia.

SFOR argued that such a return would effectively recognise FRY as a legal refuge for fugitives from the international justice. SFOR also cited reasons of "operational security" and a need to "protect information regarding the forces, means and methods engaged in detaining ICTY indictees" as reasons for withholding the documents.

SFOR's attitude had brought the case around Todorovic's arrest to a grinding halt, said his American defence counsel Deyan Ranko Brashich. At the start of the SFOR hearing, he suggested a "pragmatic solution". The judges could order Todorovic's return to Yugoslavia "and thus avoid the confrontation with the SFOR." The prosecution could then provide a "regular warrant for the arrest and surrender of the accused," which would have to be carried out in accordance with the Dayton Accords.

Alternatively, Brashich requested the Trial Chamber to send a binding order and subpoena to current commanding general of SFOR and to General Shinseki - commander of the Tuzla Air Force Base when Todorovic was arrested in September 1998. The defence made the same request for ten unidentified SFOR personnel (listed as John Doe 1-10) who were "involved in the seizure, abduction and arrest of the accused StevanTodorovic."

Finally, the defence requested the Trial Chamber to send a request for judicial assistance to the United States of America, demanding the production of all "pre and post-arrest operational reports."

Judge Mohamed Bennouna noted that the defence's request envisaged "an absurd scenario of a person returning to his country of refuge, only for that country to be asked to send him back on the same plane," but otherwise the chamber ignored the "pragmatic solution." Instead, the hearing concentrated on the right of the accused to nominate a "country of refuge" and then invoke the "violation of sovereignty" of that state. The court also considered the Tribunal's right to issue "binding orders" to states and to international organisations.

The defence referred to an Appeals Chamber decision in the Blaskic case to note that the Tribunal can issue binding orders to States. Prosecutor Nancy Paterson accepted that general principle, but argued "the facts in this case show that the Tribunal has no jurisdiction to issue orders to SFOR."

The prosecution argued that the case should be limited to whether the office of the prosecutor or any other tribunal personnel participated in any "unlawful acts" which may have occurred during the arrest; whether Todorovic was arrested on the basis of a legal warrant; and whether his rights were respected throughout the operation.

Concluding the SFOR hearing, Presiding judge, Patrick Robinson, said that the chamber would make a decision "as soon as possible." Hearings on the circumstances of Todorovic's arrest have now been going on for over a year, postponing the start of his trial and those of three others co-defendants, accused of ethnic cleansing in Bosanski Samac: Milan Simic, Sima Zaric and Miroslav Tadic. A fifth defendant, Blagoje Simic, is still at large.

Deputy prosecutor, Graham Blewitt, acknowledged last week that the judges' decision on Todorovic's arrest - whatever it might be - will be very important for the Tribunal. The Office of the Prosecutor, Blewitt said "would not want to see anything which would alter SFOR's willingness to bring the indicted before this Tribunal."

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