US embassy cable - 03THEHAGUE1546

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