C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 001546

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/MILLER, EUR - BOGUE, EUR/SCE
- JONES/GREGORIAN, L/EUR - LAHNE, INR/WCAD - SPRIGG

E.O. 12958: DECL: 1.6 FIVE YEARS AFTER CLOSURE OF ICTY
TAGS: PREL PHUM BK HR SR NL ICTY
SUBJECT: ICTY: CROSS-BORDER PIFWC APPREHENSIONS GET A GREEN
LIGHT

REF: A. (A) 00 THE HAGUE 1247


B. (B) 02 THE HAGUE 2940

C. (C) THE HAGUE 1510

Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b) an
d (d).


1. (SBU) Summary: The Appeals Chamber of the International
Criminal Tribunal for the former Yugoslavia (ICTY) confirmed
on June 5 that the Tribunal has jurisdiction over indictee
Dragan Nikolic, who has claimed since his arrest in April
2000 to have been detained unlawfully by SFOR (refs A and B).
In its opinion, the Tribunal recognized that cross-border
apprehensions of alleged war criminals without the consent of
the host state may be acceptable (at least relative to ICTY
jurisdiction), "particularly when the intrusion occurs in
default of the State's cooperation." While this ruling
provides greater latitude for persons-indicted-for-war-crimes
(PIFWC) apprehension efforts, it also places a marker that
the Court will continue to carefully review allegations "that
the rights of the accused were egregiously violated in the
process of his arrest." End summary.


2. (U) In April 2000, SFOR apprehended Dragan Nikolic,
indicted for crimes against humanity and war crimes for his
role as commander of the Susica detention camp in
Northeastern Bosnia (ref a). Nikolic's counsel claimed that
he was forcibly and illegally abducted from his home in
Serbia. For the limited purpose of resolving whether the
circumstances of his arrest could divest the ICTY of
jurisdiction, the Prosecution and Defense agreed to a
stipulated set of facts suggesting that Nikolic's
apprehension was forcible and, in some respects, harsh. The
trial chamber noted that the Prosecution and Defense agreed
"at least" that the accused was forcibly taken from his home
in the Federal Republic of Yugoslavia (FRY) by unknown
individuals having no connection with SFOR or the Tribunal.

Further, Nikolic asserted that he was transported to Bosnia
in handcuffs in the trunk of a car. The court did not
question those facts and sought no testimony as proof of
them. Last October, the trial chamber rejected the defense's
main claims that the ICTY lacked jurisdiction because, one,
Nikolic's abduction from Serbia was a violation of FRY
sovereignty, and two, he was mistreated during the arrest and
initial detention (ref B). The appeals chamber upheld the
trial chamber decision.


3. (SBU) Two aspects of the opinion are noteworthy. First,
after finding support that state courts are likely to place
great weight on the nature of the offense at issue when
cross-border apprehensions are challenged, the appeals
chamber notes 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." In a forward-leaning statement of ICTY
judicial policy, the Appeals Chamber says that it "does not
consider that in cases of universally condemned offences
(i.e., genocide, crimes against humanity, war crimes),
jurisdiction should 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 organization
involved." Further, "the exercise of jurisdiction should not
be declined in cases of abductions carried out by private
individuals whose actions, unless instigated, acknowledged or
condoned by a State, or an international organization, or
other entity, do not necessarily in themselves violate State
sovereignty." Even assuming intrusive action by the captors
that could be attributed to SFOR, the chamber found "no
basis, in the present case, upon which jurisdiction should
not be exercised."


4. (SBU) Second, it is clear that the Tribunal -- especially
absent stipulated facts as in this case -- will review
allegations of mistreatment during apprehension and
detention. This could involve requests to hear testimony of
or obtain statements from those involved in apprehensions, a
risk that is significantly increased when the Office of the
Prosecutor (OTP) has been involved closely in those efforts.
At the same time, however, the decision suggests strongly
that an accused must show a very high level of abuse in order
to deprive the Tribunal of jurisdiction. The trial chamber
had noted that "in a situation where an accused is very
seriously mistreated, maybe even subjected to inhuman, cruel
or degrading treatment, or torture, before being handed over
to the Tribunal, this may constitute a legal impediment to
the exercise of jurisdiction over such an accused." The
appeals chamber cited this language approvingly, though it
may have sown some confusion by suggesting that the standard
is whether "the rights of the accused were egregiously
violated in the process of his arrest." Whether there is any
light between "very seriously mistreated" and "egregiously
violated," the clear conclusion that may be drawn is that,
except in very grave cases of mistreatment, the Tribunal is
unlikely to divest itself of jurisdiction over an accused.


5. (SBU) That said, the appeals chamber hints that in a case
where the mistreatment of an accused or violation of state
sovereignty reaches a very high degree of seriousness, it
will "determine whether the underlying violations are
attributable to SFOR and by extension to the OTP." In other
words, even if the misconduct is carried out by persons other
than SFOR/KFOR or OTP, the Tribunal may look to determine
whether that misconduct is attributable first to SFOR or KFOR
and second to OTP and could therefore deprive the ICTY of
jurisdiction. Neither the appeals nor trial chambers found
it necessary to address when such attribution would be
possible, but the trial chamber's more expansive opinion
leaves open the possibility that SFOR or KFOR involvement in
an unlawful apprehension or detention -- such as procuring
others' illegal actions or carrying them out directly --
could bring into question the Tribunal's jurisdiction.


6. (C) Comment: The appeals chamber has handed OTP and SFOR
an important victory that closes the chapter on Nikolic's
apprehension. Perhaps more important, however, it highlights
the importance the chambers attach to apprehensions of PIFWCs
-- essentially, it says that the importance of apprehensions
trumps state sovereignty concerns. This is a remarkable
statement for the Tribunal to make and may be seen as a green
light for the international community to take aggressive
action to capture fugitives. (NB: The tone and substance
echo comments Embassy legal officers have heard directly from
President Theodor Meron (American), who signed the opinion.)
There is a caveat, of course; a complaint by a state
concerned could weigh against the legitimacy of a
cross-border apprehension. But even in such a situation the
Tribunal suggests that the value of international justice is
more important than such a limited injury to state
sovereignty. We also see this statement of the chamber as
another signal of cooperation issues moving into the judicial
sphere (ref c).


7. (C) Comment, cont'd: It should also be recognized that the
Tribunal keeps open the possibility that indictees in custody
may challenge the means by which they were apprehended and,
in the most serious cases, potentially gain release. We
suspect that few cases, if any, will lead a chamber to find
that it lacks jurisdiction over an accused. However, in
cases where OTP and the defense cannot agree to stipulated
facts (as they did here), trial chambers dealing with
challenges to the circumstances of an arrest are likely to
feel it necessary to explore the details of apprehensions.
In such cases, the more the apprehension effort is
intertwined with the OTP, the greater the risk that
apprehension forces may be asked to explain to the court the
circumstances of the arrest. End comment.
SOBEL