Prosecutor v Todorovic: illegal capture as an obstacle to the exercise of international criminal jurisdiction

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Sloan, J. (2003)

For years the majority of those individuals publicly indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) remained at large due to a lack of co-operation from states whose assistance was required to effect their arrest. In order to assist in this regard, various operations have been undertaken since 1997 by which UN and regional missions have taken steps to assist the ICTY in the difficult task of bringing accused before the Tribunal in The Hague. Such steps were taken in the case of Stevan Todorovic, who was captured and transferred to The Hague by means of an operation shrouded in secrecy and alleged to have involved illegal behaviour on the part of the NATO-led Stabilization Force. The following article discusses the nature of Todorovic's arrest (based on the limited facts available) and his various attempts to have his indictment dismissed due to the nature of his arrest. In so doing, it considers the state of the law regarding the appropriateness of an international judicial body proceeding with the trial of an individual brought before it by potentially illegal means. Although a plea agreement was reached in the case, with the result that the judicial consideration of the issues is limited, important issues are nevertheless raised in the arguments of the Office of the Prosecution and the defence counsel which are likely to recur in similar cases in the future.
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    95 references, page 1 of 10

    12. See Sentencing Judgment, supra note 3, at para. 5 et seq.

    13. 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 years' and not more than twelve years' imprisonment and that neither party would appeal. Ibid., at para. 11.

    14. See J. Cogan, 'International Criminal Courts and Fair Trials: Difficulties and Prospects' (2002) 27 Yale Journal of International Law 111, at 127, where he remarked: 'Deputy Chief Prosecutor Graham Blewitt said, rather unconvincingly, that “Absolutely nothing has been sacrificed.” But Blewitt acknowledged that there had been a recent decline in the number of arrests by SFOR and that “[he] would not be surprised if [the Todorovi c´ case] had something to do with it”.'

    15. Prosecutor v. Slavko Dokmanovic´ , Decision on the Motion for Release by the Accused Slavko Dokmanovi c´, Case No. IT-95-13a-PT, T. Ch. II, 22 Oct. 1997.

    16. Case No. IT-94-2-PT, T. Ch. II.

    17. For a closer look at the Dokmanovi c´ case see M. Scharf, 'The Prosecutor v. Slavko Dokmanovic´ : Irregular Rendition and the ICTY' (1998) 11 LJIL 369.

    18. Consisting of Serbia and Montenegro.

    19. Bait for Dokmanovi c´ included the possibility of compensation for lands formerly held by him in Croatia as well as promised meetings with an OTP investigator regarding atrocities Dokmanovi c´ claimed were committed by Croatians in the Vukovar area.

    20. See Prosecutor v. Slavko Dokmanovic´ , supra note 15, at para. 13.

    21. In this regard he relied on Art. 9(1) of the 1966 International Covenant on Civil and Political Rights (ICCPR) and Art. 5(1) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, reproduced and discussed at note 152, infra.

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