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Before:
Judge Patrick Robinson, Presiding
Judge David Hunt
Judge Mohamed Bennouna

Decision of:
18 October 2000

SEPARATE OPINION OF JUDGE ROBINSON

__________________________________________________

The Office of the Prosecutor:

Ms. Nancy Paterson

Counsel for the Accused:

Mr. Slobodan Zecevic, for Milan Simic
Mr. Igor Pantelic and Mr. Novak Lukic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic, for Simo Zaric

1. I am in full agreement with the three orders made by the Chamber. My purpose in this Opinion is to advance an additional basis for construing Article 29 of the Statute as empowering the Tribunal to require SFOR to provide the material requested by the accused to support his motions for return to the FRY and for habeas corpus.

2. Essentially, the motions for return to the FRY and for habeas corpus have the same purpose: to challenge the legality of the accused’s arrest. In submitting these motions, the accused is exercising a right, which, although not expressly provided for in the Statute, is to be found in all the major human rights instruments, and which exists under customary international law.

3. No doubt, the right to challenge the legality of one’s arrest is one of the "internationally recognised standards regarding the rights of the accused" which the Secretary-General indicates that the Tribunal must "fully respect" (paragraph 104 of the Secretary-General’s Report which sets out the Statute of the Tribunal). In Barayagwiza, the Appeals Chamber of the International Criminal Tribunal for Rwanda, citing provisions from the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (the "ICCPR"), the European Convention on Human Rights and Fundamental Freedoms, and the American Convention on Human Rights, stressed the fundamental importance of the right to challenge the legality of one’s arrest¹. Article 9, paragraph 4, of the ICCPR is a typical formulation of the right:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

4. Much of what is sought by the accused from SFOR is typical of the material that would be required in some domestic jurisdictions by a person challenging the legality of his arrest, and which the arresting authority would be obliged to provide. For example, in such jurisdictions the arresting authority would have to furnish the police station diary so that entries therein may be examined. Much of the information sought by the accused is of a similar nature. But, regardless of the relative similarity between the information sought by the accused and that typically sought by an accused in domestic proceedings challenging the legality of an arrest, a judicial body, whether domestic or international, when faced with a similar challenge, must be in a position to require the arresting authority to provide material relevant to an arrest; failing such a competence, the right to challenge the legality of one’s arrest, which is a right under customary international law, may well be rendered nugatory and without substance.

5. It is beyond doubt that on 27 September 1998, the accused was detained at the Tuzla Air Force base by SFOR, which, as is revealed by the SHAPE Agreement, has a close, functional, relationship with the Office of the Prosecutor². It is immaterial whether SFOR’s action is characterised, as it is in the decision of the North Atlantic Council of 16 December 1995, as a detention, rather than an arrest; its action resulted in a deprivation of liberty, and it is the legality of that deprivation which is being challenged. In any event, Article 9, paragraph 4, of the ICCPR speaks of a deprivation of liberty "by arrest or detention". SFOR is therefore a detaining authority in this case, even if the Office of the Prosecutor is also another such authority. The constitutional history of SFOR shows that none of the functions originally assigned to it included the power to arrest and detain persons indicted by the Tribunal³. These functions related, inter alia, to ensuring the parties’ compliance with the terms of the Peace Agreement, establishing inter-entity boundaries and assisting organisations in the fulfilment of their humanitarian missions. It is doubtful whether the Tribunal would have any competence to pass on the discharge of any of those functions. However, acting under Article VI, paragraph 4, of the Peace Agreement, SFOR’s role was extended to provide for the detention, and transfer to the Tribunal, of persons indicted by the Tribunal for war crimes.

6. This extension of SFOR’s function gives SFOR a role comparable to that of a police force in some domestic legal systems, and creates, as between itself and the Tribunal, through the Office of the Prosecutor, a relationship of which the analogue in such systems is the relationship between the police force, the prosecuting authority and the courts. This quasi police function of SFOR, whereby it virtually operates as an enforcement arm of the Tribunal, clearly impacts on the work of the Tribunal in the discharge of its fundamental purpose to prosecute persons responsible for serious violations of international humanitarian law. It would be odd if the Tribunal had no competence in relation to the exercise of certain aspects of this quasi police function, and in particular, I would find it inconceivable that the Tribunal would have no power to require SFOR to produce, in proceedings challenging the legality of an arrest, material relevant to its detention, and to its transfer to the Tribunal, of a person indicted by the Tribunal. There is clearly a strong functional, although not organic, relationship between SFOR and the Tribunal, through one of its organs, the Office of the Prosecutor.

7. As a matter of principle therefore, the Tribunal must be competent to order an arresting authority to produce certain material relevant to the arrest of a person who is challenging the legality of his arrest; otherwise, that person’s right under customary international law to mount such a challenge may be seriously prejudiced, and even, nullified. No legal system, whether international or domestic, that is based on the rule of law, can countenance the prospect of a person being deprived of his liberty, while its tribunals or courts remain powerless to require the detaining or arresting authority to produce, in proceedings challenging the legality of the arrest, material relevant to the detention or arrest; in such a situation, legitimate questions may be raised about the independence of those judicial bodies.

8. Article 29 of the Statute must, therefore, be construed in a manner which gives effect to, rather than nullifies, the customary right to challenge the legality of one’s arrest. Such an interpretative approach is entirely consistent with the general rule of interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties, paragraph 3(1)(c) of which provides that a treaty is to be interpreted in its context, and that "there shall be taken into account, together with the context: any relevant rules of international law applicable in the relations between the parties".

9. This Opinion is to be read in conjunction with the Chamber’s decision that SFOR be allowed to raise objections on the grounds that disclosure would prejudice its security interests and those of its members. The particular construction of Article 29 that it espouses is, therefore, to be read as subject to that decision.

Done in English and French, the English text being authoritative.

________________
Patrick Robinson
Dated this eighteenth day of October 2000

At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision, 3 Nov. 1999, para. 88. The subsequent history of this case, in which the decision was reviewed pursuant to Rule 120 of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, in no way affects the validity of the Appeals Chamber’s dictum in paragraph 88 that the "notion that a detained individual shall have recourse to an independent judicial officer for review of the detaining authority’s acts" is a "fundamental right".
2. In this regard, note that, under the Shape Agreement, the Office of the Prosecutor is the liasing body between SHAPE and the Tribunal (para. 1.2) and that it undertakes to "defend SHAPE and IFOR for any errors or omissions occurring as a result of the applications of Articles 1, 2 and 3 by IFOR personnel acting in good faith during such detentions." Paragraph 3.2.
3. See Annex 1-A and 2 of the Peace Agreement.

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