3. Also referred to as ‘the Tribunal’ or ‘the International Tribunal’.

4. ‘[T]he decisions, orders and requests of the International Tribunal can only be enforced by others, namely national authorities. Unlike domestic criminal courts, the Tribunal has no enforcement agencies at its disposal: without the intermediary of national authorities, it cannot execute arrest warrants; it cannot seize evidentiary material, it cannot compel witnesses to give testimony, it cannot search the scenes where crimes have been allegedly committed. For all these purposes, it must turn to State authorities and request them to take action. Our Tribunal is like a giant who has no arms and no legs. To walk and work, he needs artificial limbs. These artificial limbs are the State authorities; without their help the Tribunal cannot operate.’ Address of Antonio Cassese, President of the International Criminal Tribunal for the former Yugoslavia to the General Assembly of the United Nations, 7 November 1995.

5. ICTY Press Release, CDP/P.I.S./917-e, 23 November 2004 <http://www.un.org/icty/latest/index.htm>.

6. According to Del Ponte, there were some 20 indictees still at large in the three countries listed, including key indictees such as Radovan Karadžić, Ratko Mladić and Ante Gotovina.

7. As required by the Security Council; see SC Res. 1503 (2003) para. 7.

8. While not specifically provided for in the ICTY Statute, adopted 25 May 1993 under SC Res. 827, as amended (hereafter, Statute); the Secretary-General's report commenting on the Statute indicates that ‘[a] trial should not commence until the accused is physically present before the International Tribunal’. See ‘Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993)’, UN Doc. S/25704, 3 May 1993, para. 101 (hereafter, Secretary-General's Report).

9. In the words of the Trial Chamber: ‘As the Secretary General of the United Nations confirmed in his report on the establishment of this Tribunal, “[a]n order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations”.’ Prosecutor v. Dragan Nikolić, Case No. IT-94–2-PT, Decision on Defense Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, para. 48 (hereafter, Nikolić Decision on Illegal Capture).

10. Rules of Procedure and Evidence, adopted pursuant to Art. 15 of the Statute, 14 March 1994, as amended (hereafter, Rule(s)).

11. See, e.g., Rule 7bis.

12. Rule 61 sets out a procedure whereby a three-judge panel may be convened to consider the evidence in a case in the absence of the accused and, if there are reasonable grounds for believing that the accused has committed all or any of the crimes charged, to issue a further arrest warrant.

13. Reports were made to the Security Council regarding the lack of state cooperation in arresting Nikolić (whose case is discussed infra) and a Rule 61 hearing was held which resulted in the reconfirmation of the indictment against him and the issuing of an international arrest warrant. See Prosecutor v. Dragan Nikolić, aka “Jenki”, Case No. IT-94–2-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber, 20 October 1995. Nevertheless, he remained at large for a further six and a half years.

14. General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995.

15. On 12 December 1996 the Security Council authorised the Member States to establish SFOR as the legal successor to IFOR, SC Res. 1088 (1996).

16. For a partial list of accused who have been brought before the ICTY through the intervention of SFOR, see Lamb, S., ‘The powers of arrest of the International Criminal Tribunal for the former Yugoslavia’, 70 BYIL (1999) p. 167, n. 3.Google Scholar

17. The first accused to make a claim of illegal capture before the ICTY was Slavko Dokmanović, who was transferred to the Tribunal after being lured out of Serbia and Montenegro and into Croatia by means of a joint effort between the Office of the Prosecutor and a UN mission. Prosecutor v. Mile Mrsksić, Miroslav Radić, Veselin Sljivancanin and Slavko Dokmanović, Case No. IT-95–13a-PT. The Trial Chamber found that the trickery used by the OTP did not amount to kidnapping, as he had alleged, and that the conduct was ‘consistent with the principles of international law and the sovereignty of [Serbia and Montenegro]’. Ibid., para. 57 (the Trial Chamber emphasised the fact that Dokmanović left the Serbia and Montenegro willingly and was not arrested until he was outside that state).

18. See Prosecutor v. Stevan Todorović, Case No. IT-95–9/1-S, Sentencing Judgement, Trial Chamber, 31 July 2001.

19. At his initial appearance before the ICTY on 30 September 1998, Todorović advised the Trial Chamber that he ‘did not feel well because he had received a heavy blow with a baseball bat over his head “during the kidnapping”’. See Prosecution response to the appeal brief of the accused/appellant Stevan Todorović, filed 4 August 1999, para. 9, n. 8.

20. Ibid.

21. See Castle, S., ‘Bosnian police chief may escape war crimes trial’, in The Independent, 16 08 2000, p. 11Google Scholar. See also Walker, T., ‘SAS carried out Serbian raid’, in The Times, 11 11 1998Google Scholar.

22. Prosecutor v. Blagoje Simić, Milan Simić, Miroslav Tadić, Stevan Todorović, and Simo Zarić, Case No. IT-95–9-PT, Decision on Motion for Judicial Assistance to be Provided by SFOR and Others, Trial Chamber, 18 October 2000, para. 11 (hereafter, Todorović Decision on Motion for Judicial Assistance).

23. For a discussion of the various motions, see Sloan, J., ‘Prosecutor v. Todorović: illegal capture as an obstacle to the exercise of international criminal jurisdiction’, 16 LJIL (2003) p. 85CrossRefGoogle Scholar.

24. As summarised by the Trial Chamber in Prosecutor v. Blagoje Simić, Milan Simić, Miroslav Tadić, Stevan Todorović, and Simo Zarić, Case No. IT-95–9-PT, Decision Stating Reasons for Trial Chamber's Order of 4 March 1999 on Defence Motion for Evidentiary Hearing on the Arrest of the Accused Todorović, Trial Chamber, 25 March 1999, p. 2.

25. Some newspaper accounts alleged that his capturers were ‘bounty hunters’ paid by NATO or by the US government. See Castle, supra n. 21 and Walker, supra n. 21. See also Davids, S., ‘NATO “gang” jailed over Todorović’, in The Birmingham Post, 12 12 2000, p. 9Google Scholar, where it is reported that ‘[n]ine Serbs who were allegedly paid £15,500 by NATO to capture and smuggle [Todorović] into Bosnia, were yesterday jailed for kidnapping’. Other reports assert that members of the British or US Forces were involved in the capture. See Walker, supra n. 21, and Swain, J., ‘Serb snatched by rogue bounty hunter,’ in The Sunday Times, 23 07 2000Google Scholar.

26. For example, Todorović had received a letter from the Office of the Legal Advisor of SFOR, Colonel James M. Coyne, dated 24 March 2000, declining to provide the material sought and stating ‘It is the position of SFOR that the ICTY has no authority to order SFOR to disclose any information.’ Todorović Decision on Motion for Judicial Assistance, supra n. 22, para. 5.

27. The Trial Chamber ordered SFOR and the North Atlantic Council, as well as the 33 states participating in SFOR, to provide Todorović with evidence relating to his arrest, including the identities of the individuals who were involved with his arrest. Furthermore, the Trial Chamber issued a subpoena requiring the testimony of the Commanding General of SFOR. See Todorović Decision on Motion for Judicial Assistance, supra n. 22.

28. The OPT and SFOR took an approach whereby it was argued that the information should not be disclosed to the accused as, even assuming all the allegations were true, dismissal of the indictment and release of the accused were inappropriate remedies in the circumstances. The Trial Chamber, however, did not accept this and ordered the disclosure without entering into a discussion of the issues relating to illegal capture and what remedies might be appropriate. See Sloan, supra n. 23.

29. The bulk of the decision considered whether the Tribunal was authorised to order disclosure from SFOR and whether it was appropriate to do so in the circumstances.

30. See Prosecutor v. Stevan Todorović, Case No. IT-95–9/1-S, Sentencing Judgement, Trial Chamber, 31 July 2001, paras. 5 et seq.

31. According to the terms of the plea agreement, both sides agreed that the OTP would recommend to a Trial Chamber a sentence of not less than five and not more than twelve years' imprisonment and that neither party would appeal. Ibid., para. 11.

32. See Cogan, J., ‘International criminal courts and fair trials: difficulties and prospects’, 27 Yale JIL (2002) pp. 111 at 127Google Scholar, where he quotes a representative of the OTP.

33. The OTP, in its pleadings, did elaborate its views on whether refusal of jurisdiction by the Trial Chamber was an appropriate step in the circumstances. Its arguments centred on an assertion that, in the circumstances, it would have been an abuse of the Trial Chamber's discretion to order that the indictment against Todorović be dismissed and that he be released; such a remedy was only available in the most egregious situations and the conduct he alleged was not sufficiently egregious.

34. Prosecutor v. Dragan Nikolić a/k/a “Jenki”, Case No. IT-94–2-I, Indictment, 1 November 1994. His indictment was amended several times by the Tribunal. The ‘crimes were allegedly committed by the accused during 1992 in the Vlasenica region of eastern Bosnia. Most of the crimes alleged are said to have occurred within the Susica camp, a former military installation converted by Bosnian Serbs into a detention camp of which Nikolić is alleged to have been the commander’. See Nikolić Decision on Illegal Capture, supra n. 9, para. 2.

35. Cvijanovic, Z. and Zimonjic, V., ‘Belgrade crackdown: bounty hunters strike inside Serbia to seize war crimes suspects’, in The Independent, 18 05 2000, p. 14Google Scholar.

36. The defendant's initial motion in this regard, ‘Motion for Relief Based Inter Alia Upon Illegality of Arrest Following Upon the Prior Unlawful Kidnapping and Imprisonment of the Accused and Co-related Abuse of Process Within the Contemplation of Discretionary Jurisdictional Relief Under Rule 72’, 17 May 2001 (hereafter, Defendant's Motion of 17 May 2001), was supplemented and modified by a second motion, ‘Motion to Determine Issues as Agreed Between the Parties and the Trial Chamber as Being Fundamental to the Resolution of the Accused's Status Before the Tribunal in Respect of the Jurisdiction of the Tribunal under Rule 72 and Generally, the Nature of the Relationship Between the OTP and SFOR and the Consequences of any Illegal Conduct Material to the Accused, His Arrest and Subsequent Detention’, 29 October 2001 (hereafter, Defendant's Motion of 29 October 2001).

37. Defendant's Motion of 29 October 2001, supra n. 36, para. 16. See also Nikolić Decision on Illegal Capture, supra n. 9, paras. 24–25.

38. Nikolić Decision on Illegal Capture, supra n. 9, para. 25

39. Defendant's Motion of 17 May 2001, supra n. 36, para. 11.

40. Nikolić Decision on Illegal Capture, supra n. 9, para. 25

41. Defendant's Motion of 17 May 2001, supra n. 36, para. 11.

42. Nikolić Decision on Illegal Capture, supra n. 9.

43. Ibid., para. 21. This concession was made despite the existence of reports that the captors had been paid by foreign sources to deliver Nikolić to SFOR's US contingent. See Cvijanovic and Zimonjic, supra n. 35. One of the reasons counsel for Nikolić suggested that the case proceed on the basis of an admitted set of facts was ‘to avoid the quagmire of enquiry, allegation and counter-allegation that typified the approach of the parties in [the similar case of] Todorović’. See ‘Notice of Appeal from the Judgement, pursuant to Rule 108 of the Rules of Evidence and Procedure, of Trial Chamber II dated the 9th day of October 2002 concerning the Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal’, filed by the defendant on 7 November 2002. As we shall see below, it was in large measure because of this concession that the Trial Chamber was able to find that there had been no illegal behaviour associated with Nikolić's capture.

44. Based either on SFOR's status as an agent of the Prosecution or, in the alternative, based on the OTP ratifying SFOR's conduct. See Nikolić Decision on Illegal Capture, supra n. 9, para. 32.

45. Ibid., paras. 68 and 69. As noted by the Trial Chamber at para. 69: ‘Whatever the relationship between SFOR and the Prosecution, no attribution to the Prosecution can take place.’

46. Ibid., para. 70.

47. Ibid.

48. ‘In the view of the defence, this Tribunal should apply the principle of male captus, male detentus, meaning that an irregularity has occurred in the arrest of the accused and therefore should bar any further exercise of jurisdiction by the Tribunal.’ Ibid.

49. The OTP, too, was unwilling to go so far as endorsing a strict male captus, bene detentus approach for the Tribunal, arguing instead that national precedents ‘do not present a consistent picture of the validity, or not, of the maxim male captus, bene detentus’. See Nikolić Decision on Illegal Capture, supra n. 9, para. 72. It argued that even if the male captus, male detentus approach was favoured in national law, it was inapplicable in Nikolić's case because his capture did not violate international law.

50. For example, it relied on the South African Supreme Court case, State v. Ebrahim, 95 ILR (1991) pp. 417 at 442Google Scholar, for the proposition that the OTP must come before the Trial Chamber with ‘clean hands’. See Nikolić Decision on Illegal Capture, supra n. 9, para. 111.

51. See Nilcolić Decision on Illegal Capture, supra n. 9, para. 96.

52. The findings of the Trial Chamber were somewhat strained in this regard. For a more detailed discussion, see Sloan, J., ‘Prosecutor v. Dragan Nikolić: decision on defence motion on irregular capture’, 16 LJIL (2003) p. 541CrossRefGoogle Scholar.

53. Indeed the Trial Chamber builds upon the concession of the defence that there was no connection between SFOR or the OPT and the captors, noting that ‘from the assumed facts the conclusion must be drawn that there are no indicia that SFOR or the Prosecution offered any incentives to [the captors]’ [emphasis added]. Nikolić Decision on Illegal Capture, supra n. 9, para. 101.

54. See Ibid., para. 112.

55. ‘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.’ Ibid., para. 114.

56. Ibid.

57. Ibid.

58. Ibid., para. 6.

59. Prosecutor v. Dragan Nikolić, Case No. IT-94–2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, Appeals Chamber, 5 June 2003, para. 18 (hereafter, Nikolić Decision on Illegal Capture at Appeal).

60. Ibid., para. 18.

61. Nonetheless, the Appeals Chamber signalled that even if such a link had existed, it would not consider the requested remedy to be warranted. See text accompanying n. 146 infra.

62. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 20.

63. As noted by no less an authority than Professor Antonio Cassese, the first President of the ICTY: ‘International criminal law is a relatively new branch of international law’ and one which ‘more than any other … simultaneously derives its origins from, and continuously draws upon, both international human rights law and national criminal law’. Cassese, A., ‘International criminal law’, in Evans, M., ed., International Law (Oxford, Oxford University Press 2003) pp. 721 at 722–723Google Scholar. Citing the paucity of international treaty rules, he noted ‘international criminal law is largely the result of the gradual transposition onto the international plane of rules and legal constructs proper to national criminal law or to national trial proceedings’. Ibid., p. 724.

64. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 24

65. Ibid.

66. The Attorney-General of the Government of Israel v. Eichmann (D.C. Jerusalem, 1961)Google Scholar, 36 ILR (1968) p. 18Google Scholar (hereafter, Eichmann District Court), and (S. Ct. Israel, 1962), 36 ILR (1968) p. 304Google Scholar (hereafter, Eichmann Supreme Court).

67. Fedération nationale des déportés et internés résistants et patriotes et autres c. Barbie (Cass. crim., 1983), 78 ILR (1988) p. 125Google Scholar (hereafter, Barbie).

68. In its consideration of sovereignty issues, the Appeals Chamber's analysis of the national law on illegal interstate capture ran to a mere three paragraphs; in its human rights analysis, it referred to a single national case.

69. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 24.

70. The Appeals Chamber referred to Judge Higgins' highly regarded discussion of international law, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press 1994) p. 72Google Scholar, only for the proposition that ‘universally condemned offences are a matter of concern to the international community as a whole’. (Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 25. However, the first principle put forward by the Appeals Chamber bears a striking similarity to Judge Higgins' thesis that there should be an exception to any prohibition on the exercise of jurisdiction in the face of irregular apprehension where the crime in question was a universally condemned one.

71. Eichmann District Court, supra n. 66.

72. Ibid., p. 59.

73. Eichmann Supreme Court, supra n. 66.

74. Ibid., p. 306.

75. The comments regarding the nature of the crimes alleged were made by the Supreme Court in response to an argument by counsel for the accused that because Eichmann was not alleged to have committed the crime in the forum state (i.e., Israel), the national case law relied upon by the District Court in support of the male captus bene detentus principle (which involved irregularly captured individuals accused of crimes in their forum states, who then fled to the states from which they were captured, to be ultimately returned to their forum states for trial) was inapposite and the principle was inapplicable. It was in reply to this argument that the Supreme Court noted the ‘international nature’ of Eichmann's crimes and stressed that they were of a type which had ‘been condemned publicly by the civilized world’; because universal jurisdiction provided the necessary judicial jurisdiction, the question of whether he committed the crime in the forum state or another state was not relevant and the argument of the defence failed. The Supreme Court noted that counsel for Eichmann had ‘confused the question of the substantive penal jurisdiction of the State of Israel with the question of whether his client enjoys immunity from the exercise of that jurisdiction against him by reason of the fact of his abduction. These two questions are entirely separate from one another’. Eichmann Supreme Court, supra n. 66, p. 307. The Appeals Chamber appeared to suffer from a similar confusion: counsel for Nikolić was not arguing, of course, that the ICTY lacked substantive jurisdiction, merely that, in the circumstances, it should decline jurisdiction in the face of the violations of Nikolić's human rights and Serbia and Montenegro's sovereignty.

76. Barbie, supra n. 67.

77. In Barbie, the accused, the head of the Gestapo in Lyon during the German occupation of France, was expelled from Bolivia and deposited in French Guinea (considered by the court to be French territory). He did not claim to have been captured in violation of Bolivian law, nor did he claim that the sovereignty of French Guyana had been violated. Instead, he applied for his release on the grounds that he had been a victim of disguised extradition which invalidated the proceedings against him. It was in reply to this claim that the Chambre d'accusation and later the Court of Cassation asserted that there had been no disguised extradition but simply the execution of an arrest warrant issued by a French judge and carried out on French territory.

78. Counsel for the defence argued that because the crimes in question were not provided for in French law, they lacked a proper legal basis and the defendant could not be charged with them. Rejecting this assertion, the court emphasised the universal nature of the crimes attributed to the accused. This is, of course, quite different than asserting the principle that where crimes are particularly odious jurisdiction should not be set aside in the face of an illegal or irregular capture.

79. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 24.

80. Ibid.

81. Eichmann District Court, supra n. 66. Two other national cases, decided after Eichmann, were also referred to in this regard: Re Argoud (Cass. crim., 1964), 45 ILR (1972) pp. 90 at 97Google Scholar; and Stocke v. This is, of course, quite differentthe Federal Republic of Germany (BVerfGE, 1985), EuGRZ (1986) p. 18, and (BGH, 1984), NStZ (1984) p. 563.

82. In the words of the District Court: ‘The right to plead violation of the sovereignty of a State is the exclusive right of that State. Only a sovereign State may raise the plea or waive it, and the accused has no right to take over the rights of that State,’ Eichmann District Court, supra n. 66, para. 62.

83. Prosecutor v. Tadić, Case IT-94–1-AR72, Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, para. 55 (hereafter, Tadić Appeal on Jurisdiction). A Trial Chamber of the ICTY, which first considered the issue in the Tadić case, held that the accused lacked ‘the locus standi to raise the issue of primacy, which involves a plea that the sovereignty of a State has been violated, a plea only a sovereign State may raise or waive and a right clearly the accused cannot take over from that State’. Prosecutor v. Tadić, Case IT-94–1-T, Decision on Jurisdiction, Trial Chamber, 10 August 1995, para. 41. In this regard, it relied on Eichmann District Court and, in particular, its passage at para. 62, reproduced supra n. 82. As is evident from the above passage from Tadić Appeal Jurisdiction, this approach was unequivocally overruled by the Appeals Chamber. This right of an accused to assert the breach of a state's sovereignty regardless of the state's wishes in the matter is also discussed in the Dokmanović case, supra n. 17, para. 76.

84. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 26.

85. Unlike the Eichmann case, where the matter was raised at the Security Council, this violation of sovereignty did not feature (so far as we can tell) one Member State entering into the territory of another. Arguably, the fact that Serbia and Montenegro brought criminal proceedings against the individuals who carried out the capture indicated that it was rather less untroubled by the abduction than the Appeals Chamber suggests.

86. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 25.

87. Ibid., para. 26.

88. This is of an entirely different nature than the ‘balancing exercise’ called for by the Trial Chamber whereby it would ‘assess all the factors of relevance’ in order to conclude whether it can exercise jurisdiction over the accused. The factors considered by the Trial Chamber were the severity of the mistreatment of the accused and whether the OTP or SFOR had been involved. See text accompanying nn. 50–52 supra.

89. See R. v. Mullen, in The Times, 15 February 1999. This case involved IRA terrorism, where a test which is very similar to the one propounded by the Appeals Chamber is relied upon. There the court held that it: ‘recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the IRA and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case …. [T]here may … be … cases in which the seriousness of the crime is so great relative to the nature of the abuse of process that it would be a proper exercise of judicial discretion to permit a prosecution to proceed … notwithstanding an abuse of process.’

90. See Lamb, supra n. 16, p. 240. She suggested (relying on the Mullen case) that the ‘Tribunal may in future be required to strike a similar balance between, on the one hand, considerations of due process and the individual rights of the accused and, on the other, the dictates of the most elementary justice which require that such crimes be subject to prosecution and punishment’.

91. The Appeals Chamber noted simply that the damage to international justice by not apprehending fugitives accused of serious violations of international humanitarian law was greater ‘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’. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 26.

92. See supra nn. 9–13.

93. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 26.

94. Of course, unlike the ICTY, the Statute of the ICC was not established as a means to restore peace and security under Chapter VII of the Charter, with the attendant obligations on states to carry out the decision of the Security Council. Nevertheless, refusal by a member state of the ICC to surrender an accused would amount to a breach of international responsibility as well.

95. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 30.

96. Ibid., para. 26.

97. The only hint in this regard comes from its brief reference to US v. Toscanino, 500 F.2d 267 (2d Cir. 1974), where the accused alleged that he had been brought into the US illegally and had been the victim of brutal and prolonged torture with the participation of US law enforcement officials. ‘The Appeals Chamber relied on the US court's reference to “due process” and the invasion of the accused's constitutional rights’ in the context of the US system. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 29.

98. Ibid., para. 30.

99. Ibid.

100. US v. Toscanino, supra, n. 97.

101. Barayagwiza v. Prosecutor, Case No. ICTR-97–19-AR72, Decision, Appeals Chamber, 3 November 1999, para. 74 (hereafter Barayagwiza I). The Appeals Chamber held that a court may decline to exercise jurisdiction if doing so ‘in light of serious and egregious violations of the accused's rights would prove detrimental to the court's integrity’.

102. Prosecutor v. Nikolić, Case No. IT-94–2-AR73, Decision on Motion Requesting Clarification, Appeals Chamber, 6 August 2003, p. 2 (hereafter, Decision on Motion Requesting Clarification).

103. Ibid.

104. See, for example, R. v. Horseferry Road Magistrates Court, Ex parte Bennett, (1994) 98 Cr. App. R 114 (HL). Lord Bridge of Harwich noted at p. 130 that there is ‘no principle more basic to any proper system of law than the maintenance of the rule of law itself. When it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participation in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance.’

105. See, for example, State v. Ebrahim, supra n. 50, p. 442, where the court noted that ‘international legal sovereignty must be respected’; see also State v. Beahan, 1992 (1) SACR 307 (A) p. 317, where the court noted that illegal interstate capture ‘corrodes the peaceful coexistence and mutual respect of sovereign nations’.

106. See State v. Beahan, supra n. 105. The court held that ‘in order to promote confidence in and respect for the administration of justice and preserve the judicial process from contamination, a court should decline to compel an accused person to undergo trial in circumstances where his appearance before it has been facilitated by an act of abduction undertaken by the prosecuting State’. See also R. v. Horseferry Road Magistrates Court, Ex parte Bennett, supra n. 104, p. 135 per Lord Lowry, where the court stayed the prosecution ‘because it offends the court's sense of justice and propriety to be asked to try the accused in … circumstances [involving illegal interstate capture]’.

107. See State v. Ebrahim, supra n. 50, p. 442, where the court noted that ‘the legal process must be fair towards those affected by it’.

108. See also R. v. Horseferry Road Magistrates Court, Ex parte Bennett, supra n. 104, p. 130 per Lord Bridge of Harwich, where the court noted that ‘To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view.’

109. While it is, of course, the case that its jurisdiction, method of establishment (under Chapter VII of the UN Charter) and relationship with UN Member States distinguish the ICTY from national courts, the concerns of national courts would, at least prime facie, appear to be applicable to the ICTY. Indeed, similar concerns were voiced by the Appeals Chamber of the ICTR in Barayagwiza I, supra n. 101, para. 108, where the accused was ordered released as a result of violations of his human rights. The Appeals Chamber observed: ‘As troubling as this disposition may be to some, the Appeals Chamber believes that to proceed with the Appellant's trial when such violations have been committed, would cause irreparable damage to the integrity of the judicial process. Moreover, we find that it is the only effective remedy for the cumulative breaches of the accused's rights. Finally, this disposition may very well deter the commission of such serious violations in the future.’

110. United States v. Alvarez-Machain, 504 US 655 (1992).

111. Wilske, S. and Schiller, T., ‘Jurisdiction over persons abducted in violation of international law in the aftermath of United States v. Alvarez-Machain’, 5 Univ. of Chicago Law School Roundtable (1998) pp. 205 at 208Google Scholar. The authors consider the Toscanino case to present an exception to the general rule regarding jurisdiction in the United States, which ‘hinges upon the application of the Ker-Frisbie Doctrine, which states that, as a matter of principle, a court's exercise of personal jurisdiction is not defeated by a defendant's unlawful importation in to the court's jurisdictions’.

112. See, for example, Biblowit, C., ‘Transborder abductions and United States policy: comments on United States v. Alvarez Machain’, 9 NY Int'l L. Rev. (1996) pp. 105 at 107Google Scholar, where he observed ‘Justice Stevens, in his dissenting opinion, described the decision as “monstrous”’. The New York Times found the majority's opinion ‘astonishing’. The Inter-American Juridical Committee of the OAS criticised the decision; Mexico, and many other countries protested. Rarely has a decision of the Supreme Court on an issue of international law created as great a furor.’ See also Wilske and Schiller, Ibid., pp. 205–213. See also Scharf, M., ‘The tools for enforcing international criminal justice in the new millennium: lessons from the Yugoslavia Tribunal’, 49 DePaul Law Review (2000) pp. 925 at 969Google Scholar, where he outlines the adverse international reaction to the decision.

113. See Scharf, supra n. 112, p. 969.

114. This included a resolution by the Security Council of 23 June 1960, UN Doc. S/4349. The resolution stated that the ‘reciprocal respect for and the mutual protection of the sovereign rights of States [were] an essential condition for their harmonious coexistence’, and ‘that the repetition of acts [such as the capture of Eichmann] would involve a breach of the principles upon which international order is founded, creating an atmosphere of insecurity and distrust incompatible with the preservation of peace’. Moreover, the resolution declared that ‘acts … which affect the sovereignty of a Member State and therefore cause international friction, may if repeated, endanger international peace and security’.

115. The District Court's observation at p. 66 that it was only aware of one case conflicting with the male captus bene detentus precedent could not be made today. Eichmann District Court, supra n. 66. For example, the District Court relied on the case of Ex Parte Elliot [1949] 1 All ER 373 as showing that ‘[t]he courts in England … have constantly held that the circumstances of the arrest and the mode of bringing the accused into the territory of the State have no relevance to his trial, and they have consistently refused in all instances to enter upon an examination of these circumstances.’ Ibid., p. 59. However, as noted more recently by one British expert: ‘There were a number of inconsistent decisions on this point [that there could be a legitimate exercise of jurisdiction despite an illegal abduction] after the Elliott case, but the law has now to an extent been clarified by R v. Horseferry Road Magistrates Court, Ex parte Bennett, which reaches the opposite conclusion to that in the Elliott case.’ Harris, D.J., Cases and Materials on International Law, 5th edn. (London, Sweet and Maxwell 1998)p. 293Google Scholar.

116. The court observed that counsel for the accused ‘may be correct that respondent's abduction was “shocking” … and that it may be in violation of general principles of international law …’ but the court found, nonetheless, that his ‘forcible abduction did not prohibit his trial in a court in the United States for violations of the criminal laws of the United States’. United States v. Alvarez-Machain, supra n. 110, pp. 669–670. Judge Higgins, supra n. 70, noted at p. 71 that the ‘Supreme Court was discussing whether the abduction violated the treaty, not the underlying issue of whether jurisdiction should be exercised if the abduction violated international law generally or a specific treaty’.

117. On the question of the extent to which the ICTY is bound by international human rights law, see Sluiter, G., ‘International criminal proceedings and the protection of human rights’, 37 New England Law Review (2003) p. 935Google Scholar.

118. Perhaps most famously, the passage from the first decision of the Appeals Chamber in Tadić Appeal on Jurisdiction, supra n. 83, para. 45: ‘For a tribunal such as this one to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognised human rights instruments.’

119. See, e.g., Art. 21 of the Statute. Also, as noted in the Secretary-General's Report, supra n. 8, para. 106: ‘It is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings.’

120. Entered into force 23 March 1976. Indeed, Art. 21 of the Statute is an almost verbatim transposition of Art. 9 ICCPR.

121. See Scharf, supra n. 112, p. 969 where he notes that the UN Working Group on Arbitrary Detention specifically condemned the detention of Alvarez-Machain as being in violation of Art. 9 ICCPR.

122. See, for example, R. v. Horseferry Road Magistrates Court, Ex parte Bennett, supra n. 104.

123. Entered into force on 3 September 1953.

124. As noted by Higgins, supra n. 70, p. 70: ‘From the perspective of an individual, his forcible detention and removal (whether or not from one jurisdiction to another, whether or not to stand trial) violate his human rights, in that everyone is entitled to security of the person and only to be restrained in accordance with due process. This is provided for in all the leading instruments on human rights?’

125. Barayagwiza I, supra n. 101.

126. The abuse of process consisted of an overly long provisional detention, violation of his right to be promptly charged and violation of his right to an initial appearance without delay.

127. Schabas, W., ‘Barayagwiza v. Prosecutor in international decisions’, 94 AJIL (2000) pp. 563 at 565CrossRefGoogle Scholar.

128. Barayagwiza v. Prosecutor, Case No. ICTR-97–19-AR72, Decision, Appeals Chamber, 31 March 2000 (hereafter, Barayagwiza II).

129. Schabas, supra n. 127, p. 566.

130. Barayagwiza was subsequently sentenced to 35 years (less time served) for genocide and crimes against humanity, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99–52-T, Judgement and Sentence, Trial Chamber, 3 December 2003.

131. According to one news report, the accused's captors were bounty hunters, paid £31,000 to hand the accused over to a US-led contingent of SFOR. See Cvijanovic and Zimonjic, supra n. 35, p. 14. The report indicates that the police said that the payment came from ‘unspecified “foreign services”’.

132. Nikolić Decision on Illegal Capture, supra n. 9, para. 21.

133. Although the Appeals Chamber appears to consider it to have done so. See Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 2, where the Appeals Chamber held that ‘the Trial Chamber found that … “neither SFOR nor the Prosecution were involved in”’ Nikolić's allegedly illegal arrest and abduction, however, the Trial Chamber did not make such a finding per se; rather it reached that conclusion ‘[b]ased on the assumed facts’. Nikolić Decision on Illegal Capture, supra n. 9, unnumbered final para., entitled ‘Conclusions’.

134. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 2. See also Nikolić Decision on Illegal Capture, supra n. 9, para. 15.

135. Nikolić Decision on Illegal Capture, supra n. 9, para. 6.

136. Ibid., para. 15.

137. See text accompanying n. 58 supra.

138. Nikolić Decision on Illegal Capture, supra n. 9, para. 6.

139. Nikolić Decision on Illegal Capture at Appeal, supra n. 59, para. 31. It does not suggest how Nikolić could have conceivably come up with a more comprehensive view of the facts without an order for disclosure from the Tribunal, something which defence counsel had obligingly agreed not to request until the motions under appeal were decided.

140. Ibid.

141. Ibid.

142. Rule 98 provides that a Trial Chamber may order either party to produce additional evidence and may proprio motu summon witnesses and order their attendance. Such actions would appear to be authorised at the level of the Appeals Chamber when these rules are read in conjunction with Rule 107, which provides: ‘The rules of procedure and evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.’

143. Decision on Motion Requesting Clarification, supra n. 102, p. 2. The defendant petitioned to discover, inter alia, what the Appeals Chamber determined happened on the evening of Nikolić's capture.

144. Ibid.

145. Nilcolić Decision on Illegal Capture at Appeal, supra n. 59, para. 32.

146. Ibid., paras. 27 and 33.

147. Notwithstanding the fact that he expressly reserved his right to bring such a hearing. See text accompanying n. 58 supra.

148. On 4 September 2003 a plea agreement was approved by the Trial Chamber and on 12 December 2003 Nikolić was sentenced to 23 years' imprisonment (less time served), Prosecutor v. Dragan Nikolić, Case No. IT-94–2-S, Sentencing Judgement, Trial Chamber, 18 December 2003. An appeal is currently pending.

149. Separate opinion of Judge Robinson, in Todorović Decision on the Motion for Judicial Assistance, supra n. 22, para. 6 and n. 2, where he likens the role of SFOR ‘to that of a police force in some domestic legal systems’, and notes that ‘it virtually operates as an enforcement arm of the Tribunal …’.

150. On 22 November 2004, the Security Council adopted a resolution welcoming the European Union's intention to establish EUFOR as the legal successor to SFOR, UN Doc. S/RES/1575 (2004).