# [THE INTERNATIONAL CRIMINAL TRIBUNAL]{.underline}

#### [FOR THE FORMER YUGOSLAVIA]{.underline}

##### Case No. IT-95-9-AR108*bis*

**[IN THE APPEALS CHAMBER]{.underline}**

#### Before: Judge Mohamed Shahabuddeen, Presiding

####  Judge Lah Chand Vohrah

####  Judge Rafael Nieto-Navia

####  Judge Patricia Wald

####  Judge Fausto Pocar 

**Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh**

**Date Filed: 15 November 2000**

## PROSECUTOR

**v.**

### BLAGOJE SIMIĆ

### MILAN SIMIĆ

### MIROSLAV TADIĆ

### STEVAN TODOROVIĆ

### SIMO ZARIĆ

### 

**BRIEF OF THE UNITED STATES OF AMERICA**

**ON REVIEW OF DECISION ON MOTION**

**FOR JUDICIAL ASSISTANCE TO BE PROVIDED**

**BY SFOR AND OTHERS**

**[The Office of the Prosecutor:]{.underline}**

#### Mr. Graham Blewitt, Deputy Prosecutor

**[Counsel for the Accused:]{.underline}**

Mr. Slobodan Zečević for Milan Simić

Mr. Igor Pentelić and Mr. Novak Lukić, for Miroslav Tadić

#### Mr. Deyan Ranko Brashich, for Stevan Todorović

Mr. Borislav Pisarević and Mr. Aleksander Lazarević, for Simo Zarić

# [THE INTERNATIONAL CRIMINAL TRIBUNAL]{.underline}

###### FOR THE FORMER YUGOSLAVIA

##### Case No. IT-95-9-AR108*bis*

## THE PROSECUTOR

**v.**

### BLAGOJE SIMIĆ

### MILAN SIMIĆ

### MIROSLAV TADIĆ

### STEVAN TODOROVIĆ

### SIMO ZARIĆ

**BRIEF OF THE UNITED STATES OF AMERICA**

**ON REVIEW OF DECISION ON MOTION**

**FOR JUDICIAL ASSISTANCE TO BE PROVIDED**

**BY SFOR AND OTHERS**

####### Introduction

Pursuant to the Decision and Scheduling Order issued by the Appeals
Chamber in the above-captioned case on 8 November 2000 and faxed to the
Embassy of the United States of America in the Netherlands on 9 November
2000, the United States of America herein presents its brief on review
of the Decision on Motion for Judicial Assistance to Be Provided by SFOR
and Others ("Decision"), issued by Trial Chamber III on 18 October 2000.

The Decision orders the Stabilisation Force ("SFOR"), the United States,
and other SFOR participating States to disclose to Stevan Todorović
("the accused") certain information, notwithstanding SFOR's assertion of
critical operational security reasons for withholding that information,
and notwithstanding the fact that the Office of the Prosecutor ("OTP")
and SFOR are prepared to treat the facts alleged by the accused as
proven for the purpose of deciding the accused's motions as a matter of
law.

Refusing to consider whether the accused's allegations could possibly
entitle him to the relief he seeks, the Trial Chamber ordered the
production of information that is neither relevant nor necessary to that
relief, but whose disclosure -- or indeed, even further litigation over
such disclosure -- has grave potential to damage future detention
efforts. The Trial Chamber's Decision is both erroneous and an abuse of
discretion.[^1]

The resolution by the Appeals Chamber of the issues raised by the
Decision will be of the utmost significance to the future of the
Tribunal, and its relationship with those engaged in the apprehension of
persons indicted for war crimes ("PIFWCs") pursuant to Tribunal arrest
warrants. The prospect presented by the Decision -- that the methods and
capabilities employed by SFOR or other entities and States engaged in
apprehensions could be subject to unnecessary disclosure -- has
immediate and far-reaching implications. The disclosure of the
identities of those involved in detention activities, and of their
capabilities and methods, has the potential for endangering the
effectiveness and the safety of units involved in apprehensions -- and
thus may unnecessarily hinder or restrict future apprehension efforts.
It is also likely to have a chilling effect on persons and elements that
may be willing to cooperate with those engaged in apprehensions only
with a guarantee of strict confidentiality.

As noted in its Request for Review of 2 November, the United States was
not before the Trial Chamber and had no opportunity to present views
before issuance of the Decision and order against it. The United States
endorses and adopts, as equally applicable to it, the arguments set
forth by SFOR in its submission to the Trial Chamber dated 9 July 2000.
In addition, the United States respectfully submits that the Decision
should be reversed for the reasons set forth below.

**Argument**

1\. [The Trial Chamber erred or abused its discretion in issuing an
order for the production of information against the United States of
America, when the United States of America was not a party or
participant in the proceedings prior to the Decision, and had no
opportunity to present its views.]{.underline}

As noted by other States requesting review, to the extent the Decision
ordered States to provide information in this case, the Trial Chamber
failed to follow the procedures required by Rule 54 *bis* of the Rules
of Procedure and Evidence. However, while it may be desirable for the
Appeals Chamber to clarify the proper application of Rule 54 *bis*, the
United States does not believe that this case should be returned to the
Trial Chamber for further proceedings under that Rule.

The United States agrees with SFOR that [no]{.underline} disclosure of
the information at issue should be made through any further proceedings.
Rule 54 *bis* provides for the rejection of an application for the
production of documents or information if they are "not
[relevant]{.underline} to any matter in issue in the proceedings \... or
are not [necessary]{.underline} for a fair determination of any such
matter."[^2] The accused has not established that the discovery he seeks
is relevant or necessary to his defense, nor can he do so. To enable the
Tribunal to decide the accused's requests for release while avoiding the
grave consequences of disclosure, SFOR and the OTP have urged the Trial
Chamber to accept the facts alleged by the accused, viewed in the light
most favorable to him. At this point in these lengthy proceedings, it is
time for the accused to be held to some standard of pleading -- either
his allegations, if accepted, establish his entitlement to relief, or
they do not. In either case, there is no necessity for further discovery
on how he was apprehended.

These considerations are particularly important where, as here, the
information at issue raises compelling operational security concerns. In
such a case no further inquiry -- under Rule 54 *bis* or otherwise --
should be permitted. Because this is a question of law, the United
States respectfully submits that the Appeals Chamber can and should
decide it in this review.

2\. [It is inappropriate for the Tribunal to issue orders directing
production of information that SFOR has determined must be withheld for
operational security and force protection reasons.]{.underline}

In its submission of 9 July 2000, SFOR reserved its position on the
question of the Tribunal's power to issue orders addressed to SFOR. In
Decision ¶¶ 46-49, the Trial Chamber decided that it does have such
power, but in ¶¶ 52 and 56 it noted contradictory authority in another
Trial Chamber, which it declined to follow. As a NATO member and a
participating State in SFOR, the United States is entitled to address
this question.

SFOR's predecessor, the multinational implementation force for Bosnia
("IFOR") was established pursuant to Security Council Resolution 1031
under Chapter VII of the United Nations Charter. Paragraph 14 of that
Resolution authorized member States acting through or in cooperation
with NATO to establish a multinational implementation force in order to
fulfill the role specified in Annex 1-A and Annex 2 of the General
Framework Agreement for Peace in Bosnia and Herzegovina (the "Peace
Agreement"). This included a broad range of responsibilities for IFOR
related to, inter alia, the establishment of a durable cessation of
hostilities. Paragraph 15 of Resolution 1031 authorized the member
States acting under paragraph 14 "to take all necessary measures to
effect the implementation of and to ensure compliance with Annex I-A of
the Peace Agreement." Paragraph 17 of that Resolution authorized the
member States to take all necessary measures, at the request of IFOR,
either in defense of IFOR or to assist the force in carrying out its
mission, and it specifically recognized the right of IFOR to take all
necessary measures to defend itself from attack or the threat of attack.

Subsequently, Resolution 1088 authorized those same States to establish
SFOR as a legal successor to IFOR under the same unified command and
control arrangements in order to fulfill the role specified in Annexes
1-A and 2 of the Peace Agreement. Paragraph 19 of that Resolution
authorizes member States to take "all necessary measures" to effect the
implementation of and to ensure compliance with Annex I-A of the Peace
Agreement; paragraph 20 authorizes member States to take all necessary
measures, at the request of SFOR, either in defense of SFOR or to assist
the force in carrying out its mission, and it specifically recognizes
the right of SFOR to take all necessary measures to defend itself from
attack or the threat of attack.

Annex 1-A authorizes the multinational force to fulfill supporting
tasks, and specifically contemplates that the North Atlantic Council may
establish additional duties and responsibilities for the force to carry
out in implementing Annex 1-A. [See]{.underline} Annex 1-A, paragraphs 3
and 4 of Article VI. The North Atlantic Council in 1995 did establish
detention of Tribunal indictees as such an additional duty. Annex 1-A,
paragraph 5 of Article VI, authorizes the commander of the multinational
force to do all "that the Commander judges necessary and proper,
including the use of military force, to protect the \[multinational
force\] and to carry out its responsibilities."[^3] SFOR and the States
acting in cooperation with it have participated in a variety of
activities related to the apprehension and detention of Tribunal
indictees under this authority. These States, as well as SFOR itself,
enjoy authority to take all measures necessary in order to carry out
these activities.

Pursuant to the authority conferred by the Security Council and Annex
1-A of the Peace Agreement, SFOR and the States that carry out these
Chapter VII functions have adopted various measures regarding the
security of the many operations they conduct, including measures that
they deem essential for operational security, the effective carrying out
of their responsibilities, and the protection of their personnel from
hostile action. Of particular importance with respect to this case, and
as described in greater detail [infra]{.underline}, the participants in
these Chapter VII operations have determined that disclosure of the
information requested by the Trial Chamber would give rise to an
unacceptable risk to their forces and compromise their ability to carry
out further PFWIC operations. These are judgments that the Security
Council, in authorizing these operations under Chapter VII, has
entrusted to those responsible for carrying them out.

The Tribunal, of course, also operates pursuant to the authorization of
the Security Council under Chapter VII, and therefore it too has "all
necessary measures" authority to carry out its mandate. But it is
inappropriate for the Trial Chamber to issue an order inconsistent with
what those responsible for carrying out SFOR's mission, acting under
authority co-equal to that of the Tribunal, have concluded is essential
to carry out that mission effectively and safely -- just as the Tribunal
would not expect SFOR to issue orders purporting to require the Tribunal
to take actions inconsistent with what those responsible for carrying
out the Tribunal's work determine is essential for the Tribunal to carry
out its mission.

The need for deference is particularly compelling when, as here, the
information at issue is not sought to assist the Tribunal in determining
the guilt or innocence of an accused -- the Tribunal's core mandate --
and its absence would not undermine the Tribunal's ability to make that
determination. Unlike the [Blaskić]{.underline} case, discussed
[infra]{.underline}, in which the Tribunal's ability to discharge this
core mandate was at stake, in this case information is sought on the
means by which a lawfully indicted person was detained. This is a matter
within the purview of SFOR, and a compulsory order to produce such
information would undermine operational security and effectiveness -- an
SFOR core mandate.

The United States respectfully submits that the difficult questions of
the relative competencies of the Tribunal and SFOR, and of the power of
the Tribunal to issue orders to SFOR or its participating States in the
circumstances presented here, should be avoided if other grounds of
decision are available. The United States further submits that such
alternative grounds are available, and that the Decision of the Trial
Chamber can and should be reversed on the independent grounds set forth
below.

3\. [The Trial Chamber erred or abused its discretion in ordering the
production of information as to which SFOR had asserted compelling
operational security concerns.]{.underline}

The Trial Chamber rejected what it characterized as SFOR's "blanket
objection," noting that "it was open to SFOR to make specific objections
to the disclosure of particular documents or other material at the
hearing*.*"[^4] SFOR did offer specific explanation of its concerns.[^5]
SFOR was not prepared to discuss "particular documents or other
material" specifically,[^6] and there is no requirement that it do
so.[^7] The Decision does not address, much less answer, the concerns
raised by SFOR, and this omission represents error or abuse of
discretion.

The concerns raised by SFOR are equally applicable to the United States
or any other State or entity that participates in SFOR or otherwise
supports the efforts of this Tribunal to bring its indictees to trial.
Those indictees and their supporters are prepared to resort to extreme
measures, including the use of lethal force, to avoid apprehension and
frustrate efforts to bring them to justice. Several have taken refuge in
areas where the local authorities grant them tacit or overt sanctuary.
SFOR and other States and entities can only plan and undertake detention
operations on the basis that the modalities by which such operations are
conducted will not be subject to disclosure. Thus, the need to maintain
operational security for any entity engaged in apprehensions precludes
the disclosure of information of the type sought by the accused. As
explained below, disclosure of such information would prejudice
important national security interests and operational security concerns,
and jeopardize the ability to detain Tribunal indictees in the future.

Strict confidentiality must be maintained as to how indictees are
located and as to the methods employed to detain them. Obtaining
reliable information about the activities and movements of indictees is
essential to the ability of SFOR, or any other entity or State, to
fulfill its responsibilities pursuant to the Security Council
resolutions and the arrest warrants of this Tribunal. Such information
has led to the successful detention and surrender to the Tribunal of
other indictees. The ability to obtain this information in the future
depends on the ability to guarantee the absolute confidentiality of
sources and methods. Any disclosures relating to such activities could
compromise the security and effectiveness of critical sources and
methods and the willingness of sources to cooperate with SFOR or other
entities or States, and would significantly impair their future ability
to detain Tribunal indictees.

Strong considerations of operational effectiveness and security also
require the protection of information regarding the forces engaged, and
methods used, in detaining indictees. Those seeking to evade detention
could exploit information about the conduct of such detentions. This
would inevitably make such detentions considerably more difficult, and
significantly increase the risk that forces engaged in detention
operations would be injured or killed.

The disclosure ordered by the Trial Chamber's Decision would very much
implicate these concerns, compromising the security and effectiveness of
forces engaged in detention efforts, and the confidential sources of
information on which they rely. Indictees and those who would assist
them actively seek out and exploit such information, through both legal
and illegal means. For practical, legal and ethical reasons, SFOR and
other entities and States engaged in detentions must strictly protect
this information.

Nor is there any justification for imposing on SFOR or its participating
States the same type of inquiry employed by this Tribunal in seeking
information from States or entities of the former Yugoslavia, whose
forces are the subject of the Tribunal's investigations and
prosecutions. As noted above, requests for information to States or
entities of the former Yugoslavia typically go to the core mandate of
the Tribunal -- the adjudication of the guilt or innocence of an
accused. "Blanket" assertions of national security concerns are
inherently suspect in the case of such States and entities, whose
political and military leaders and institutions are frequently
implicated in the matters under investigation and prosecution.
Skepticism is appropriate concerning blanket assertions of national
security concerns by such States and entities, because the information
they are attempting to shield concerns [past]{.underline} activities --
in [Blaskić]{.underline}, for example, the issue was military campaigns
that had occurred years before, in a conflict that had ended. Here, it
is not historical information that is at issue, but information that
goes directly to [current]{.underline} and [future]{.underline}
detention operations in support of the Tribunal's mandate. Finally, in
the case of former Yugoslav States and entities, disclosure of
information would not be expected to deter or hinder legitimate
activities pursuant to U.N. Security Council resolutions and this
Tribunal's lawful indictments and arrest warrants. Here, by contrast,
disclosure of operational information has the very real potential of
impairing the operational security and effectiveness of legitimate
activities in support of the Tribunal's mandate. Even the
[prospect]{.underline} of such disclosure -- with or without possible
protective measures -- will undercut the willingness of States to engage
in detentions and chill the willingness of individuals whose cooperation
is vital to such operations.

The Trial Chamber in this case recognized such considerations in its
"[ICRC]{.underline} decision."[^8] That decision recognized the need for
confidentiality that flowed from the nature of the ICRC's mandate under
international law, and ruled -- without any requirement for examination
of the nature of the specific information held by the proposed ICRC
witness -- that this confidentiality must be respected if the ICRC was
to be able to carry out its mandate in the future. SFOR, too, functions
pursuant to an international mandate, with a unique role conferred on it
both by the parties to the Dayton Agreement and by the U.N. Security
Council. Its functions also require confidentiality, and like the
ICRC,[^9] it does not believe that it can adequately protect that
interest even with protective measures.

The Trial Chamber completely failed to address these considerations. To
ignore these arguments, and to order the production of this information
even though it could decide the accused's requests solely on the record
before it, was error and abuse of discretion.

4\. [The Trial Chamber Should Have Accepted the Accused's Assertions of
Fact and Decided His Requests for Release as a Matter of
Law.]{.underline}

In view of the compelling operational security concerns raised by SFOR,
the Trial Chamber erred or abused its discretion in ordering the
production of the requested information, when the OTP and SFOR concurred
that, in the absence of that information, the accused's assertions of
fact could be taken as established for the purposes of his requests for
release, and that those requests could then be decided as a matter of
law.[^10] Both SFOR and the OTP addressed in detail the reasons why, as
a matter of law, the accused is not entitled to the relief he seeks. The
Trial Chamber adverted to those arguments, but did not address them.
Instead, it concluded that these arguments were "erroneous," for the
glaringly circular reason that the accused is seeking information in
support of the relief he seeks:

The main contention of both SFOR and the Prosecution in opposing this
Motion is that the Motion should be dismissed because Todorovic is not
entitled to the relief he seeks, even if his allegations were to be
accepted. This argument proceeds on the assumption that the evidence is
complete. That assumption is erroneous, as what Todorovic is seeking is
further evidence from SFOR which will assist him to obtain the relief
which he seeks. Only when Todorovic has had the opportunity to present
all the available evidence will it be possible for the Trial Chamber to
determine whether he is entitled to the relief he seeks.[^11]

This reasoning is itself plainly erroneous. If all the accused's
allegations can be taken as established, and these allegations still
will not support the relief he seeks as a matter of law, then there is
no conceivable "further evidence . . . which will assist him to obtain
the relief which he seeks." To persist in ordering the production of
such "further evidence," in the face of SFOR's well-founded security
concerns, is futile, erroneous, and an abuse of discretion.

The accused, to this day, has not asserted involvement in his alleged
abduction by the OTP or any other entity connected with the Tribunal. To
the contrary, while he states that the "record is still open," he makes
clear that SFOR involvement, not OTP involvement, is the issue he is
pursuing, on the theory that SFOR is the OTP's (and thus the Tribunal's)
"alter ego or agent."[^12] However, as discussed [infra]{.underline},
SFOR is [not]{.underline} the agent of the OTP, and in the absence of a
connection between the OTP and the alleged abduction, the accused's
requests for release fail as a matter of law.

The Appeals Chamber's second decision in [Barayagwiza v.
Prosecutor]{.underline}, Case No. ICTR-97-19-AR72 (31 March 2000),
stands for the proposition that the Tribunal's jurisdiction is not
impaired by the acts of third parties. In an initial decision in that
case (3 November 1999) the Appeals Chamber held the Prosecutor
responsible for egregious delays in an indictee's case, and ordered the
indictee released. However, on reconsideration the Appeals Chamber
revised its decision, concluding that a significant portion of the delay
was due to other actors, and not attributable to the OTP. Accordingly,
the Appeals Chamber rejected the request for release.

This general principle is fully consistent with the case law. We are
aware of no case in any jurisdiction that would require the release of
the accused on the facts he alleges. Courts are not required to
relinquish personal jurisdiction over an accused because of the acts of
third parties, not part of their State apparatus and not under their
supervision and control.

Indeed, even in cases in which there is an element of State involvement,
such as when police informants are involved, courts have been very
reluctant to find a violation that would justify the remedy of release.
[Stocké v. Germany]{.underline}, ECHR Ser A No. 199 (1991), a case
involving facts and allegations of significant State involvement,
illustrates this most vividly. In [Stocké]{.underline}, an informant
clearly working with government authorities abducted the applicant to
facilitate his arrest in Germany. Following the applicant's arrest, the
German authorities reimbursed the expenses of the airplane charter used
by him in carrying out the abduction. Nonetheless, the German
authorities denied having authorized the abduction, and the Court found
that "it has not been established that the cooperation between the
German authorities and \[the informant\] extended to unlawful activities
abroad." [Id]{.underline}. ¶ 54. The allegations by the accused in this
case concerning a connection between the prosecuting and detaining
authorities do not approach those found insufficient in
[Stocké]{.underline}, and the Trial Chamber should hesitate before
creating a right to release for an indicted war criminal, based on them.

A variety of other cases address the lawfulness of cross-border
abductions, with some upholding the principle that an abduction in
violation of the law of one State does not divest another State to which
he is brought of jurisdiction to prosecute, and others suggesting that a
State's courts may exercise discretion to decline jurisdiction over an
individual brought before them under such circumstances. However, when
agents of the prosecuting State have not been shown to be complicit,
there are no grounds for such discretion. In the current case, the OTP
plays the same role as the agents of the prosecuting State, while SFOR
and other entities and States have no such role.[^13]

Moreover, in no such case of which we are aware has a court been
required to take into account the difference between persons subject to
arrest and prosecution before an international tribunal under a U.N.
Security Council Resolution, on the one hand, and persons subject to
arrest and prosecution before national courts on the basis of national
law or bilateral treaty obligations, on the other hand. Instead, all
other cases of which we are aware were predicated on the existence of
what the Appeals Chamber has described as a "horizontal" legal
relationship, in which national legal systems stand on an equal footing
and the law of one State is not binding on or applicable in the
territory of another. "Judgement on the Request of the Republic of
Croatia for Review of the Decision of Trial Chamber II of 18 July 1997"
in [Prosecutor v. Tihomir Blaskić]{.underline}, Case No.
IT-95-14-AR108*bis*, ¶ 47, at 36 (29 October 1997). Thus, a person
residing in State A who is indicted by State B continues, under the
governing law of State A to enjoy the right to remain at liberty.

The same is not true, however, regarding the relationship between the
Tribunal and the State whose sovereignty is alleged to be in question
here, the FRY -- that relationship is manifestly "vertical."
[Blaskić]{.underline} ¶ 47, at 37. The FRY, like all States, is
obligated to cooperate with the Tribunal and is required in particular
to comply with orders for arrest. This is of decisive significance to
the question at issue here -- the accused's asserted right to be
released from the custody and jurisdiction of the Tribunal, and to be
returned to the FRY as a country of "refuge," under whose law he
evidently asserts a right to remain at liberty. However, any domestic
legal entitlement that the accused may have been able to assert to
remain at liberty in the FRY was overcome by his indictment by the
Tribunal. In sharp contrast to cases involving national prosecutions,
the accused in this case can, after the Tribunal indictment, no longer
claim that his detention by SFOR and his prosecution before this
Tribunal infringe upon any legal right to be at liberty in the FRY.
Accordingly, he is not entitled to the relief he seeks of release from
Tribunal custody and return to the FRY.

For all of the above reasons, the accused is not entitled to the relief
he seeks. Accordingly, it was error and abuse of discretion for the
Trial Chamber to order the production of information in support of the
accused's motions for that relief.

5\. [Neither SFOR nor the United States, nor any Other Entity or State,
Acts as an Agent or Enforcement Arm of the Tribunal.]{.underline}

The Trial Chamber erred in tacitly ruling that SFOR performs a
quasi-police function and operates as an enforcement arm of the
Tribunal.[^14] In its 9 July submission, SFOR argued that it did not
stand in the relationship with the Tribunal of police authority or
prosecutor, and did not perform its functions subject to the Tribunal's
direction or supervision. That role, SFOR argued, is occupied by the
OTP, and in the absence of any allegation of involvement by the OTP (an
issue discussed [infra]{.underline}), there is no legal basis for the
relief sought by the accused, and thus no justification for ordering
SFOR, the United States or any other SFOR participating State to produce
information relating to his detention.

In ordering the production of information, the Trial Chamber tacitly
(but without reasoning) rejected that argument, and Judge Robinson, in
his separate opinion, expressly concluded that SFOR performs "a quasi
police function . . ., whereby it virtually operates as an enforcement
arm of the Tribunal."[^15]

This conclusion is erroneous. In both opinions, this conclusion appears
to rest in large part on a Memorandum of Understanding concerning the
detention and transfer to the Tribunal of PIFWCs by IFOR (now
SFOR).[^16] This MOU, which the Trial Chamber both quotes and discusses
at length,[^17] contains nothing whatever that would support the
conclusion that SFOR functions as an agent of the Tribunal, or acts
under the Tribunal's direction or supervision.

To the extent SFOR detains an indictee pursuant to a Tribunal arrest
warrant, it stands in exactly the same position as any State performing
the same function. A State detaining a Tribunal indictee is not an agent
of the Tribunal, and does not act at the direction or under the
supervision of the Tribunal. It acts, as does SFOR, under Security
Council authority to assist the Tribunal. The execution of an MOU on the
subject in no way alters the nature of the relationship, unless SFOR or
the cooperating State were to agree therein to create an agency
relationship -- an agreement which is completely absent from the MOU in
question. The United States has entered into an agreement with the
Tribunal on the surrender and transfer of persons charged with or found
guilty of a violation or violations within the Tribunal's
competence,[^18] and it categorically rejects any suggestion that by
doing so it has become a Tribunal agent or made itself subject to the
direction or supervision of the Tribunal in the matter of arrests and
extraditions.

If the alleged actions of SFOR -- which are neither dictated nor
controlled by the Tribunal -- can form the basis for a challenge to the
jurisdiction of the Tribunal, the actions of a detaining State could
equally form the basis for such a challenge. Moreover, the kinds of
actions that could potentially form the basis for such challenges cannot
logically be limited to detentions, but would instead extend to a range
of other alleged violations of rights. This could put the Tribunal in
the untenable position of having to hear challenges based on real or
imagined violations by detaining States, that could be asserted by
virtually any accused. Nothing in the law compels, or justifies, a
ruling that would so undermine the Tribunal's jurisdiction.

If, as we respectfully submit, the Trial Chamber erred in assuming that
SFOR acts as an agent or "enforcement arm" of the Tribunal, the only
actor as to which information might be relevant would be the OTP,
discussed [infra]{.underline}.

6\. [The Trial Chamber erred or abused its discretion in not accepting,
before the issuance of its Decision, the OTP's proffer of evidence of
its non-involvement in the alleged abduction of the
accused.]{.underline}

The accused asserts SFOR involvement in his alleged abduction, and
information concerning that involvement is what he expressly seeks.[^19]
But the OTP and SFOR have clearly stated that the accused's well-pleaded
allegations may be accepted for the purposes of his motions. Hence,
additional "evidence" of SFOR's alleged involvement is plainly
superfluous, and it was error or abuse of discretion to order its
production in the face of the objections raised by SFOR.

The only conceivable "further evidence" that [might]{.underline} be
relevant to the accused's motions would be evidence of involvement by
the OTP, not SFOR. Although the accused has not alleged any involvement
by the OTP in his abduction -- and indeed states that "\[t\]he issue yet
to be determined by the Trial Chamber is not the Prosecutor's
participation in the abduction and kidnapping . . . but rather the
Prosecutor's *alter ego* or agent's violation of \[the accused's\]
rights"[^20] -- counsel for the accused did state, when prompted by the
bench, that the Defence was "seeking information which may indicate some
involvement by the Prosecution in the abduction of the accused."[^21]
Similarly, while underscoring his focus on SFOR, the accused in his
Opposition states that "the record is still open with additional proof
yet to be obtained" regarding the OTP.[^22]

After all the accused's opportunities to frame and reframe his
pleadings, these vague statements should not in fairness be taken as
allegations of fact justifying discovery, particularly when the
Prosecutor has categorically denied involvement in the alleged
abduction.[^23] Rather, they are classic illustrations of a "fishing
expedition" -- a litigant seeking discovery with no clear purpose, in
the hope that something will turn up. But even if the Appeals Chamber
were to conclude otherwise, there has been an OTP proffer of proof on
this issue. This proffer was acknowledged but not acted upon by the
Trial Chamber.[^24] We respectfully submit that, had the Trial Chamber
permitted the OTP to offer evidence on this point, there would have been
no need, and no legal basis, for the impugned Decision. The Trial
Chamber's failure to accept the OTP's proffer before issuing its
decision was erroneous or an abuse of discretion.

7\. [The Trial Chamber erred in concluding that General Shinseki would
be subject to a subpoena]{.underline}.

The Trial Chamber erred in concluding that, "it would be appropriate to
issue a subpoena to General Shinseki in due course," requiring him to
testify in his individual capacity.[^25] The Trial Chamber relied on the
[Blaskić]{.underline} decision, in which the Appeals Chamber
distinguished the "functional immunity" enjoyed by State government
officials from the situation of an official serving as a member of a
peacekeeping force:

The situation differs for a State official (e.g., a general) who acts as
a member of an international peace-keeping or peace-enforcement force,
such as UNPROFOR, IFOR or SFOR. Even if he witnesses the commission or
the planning of a crime in a monitoring capacity, while performing his
official functions, he should be treated by the International Tribunal
[qua]{.underline} an individual. Such an officer is present in the
former Yugoslavia as a member of an international armed force . . . and
not [qua]{.underline} a member of the military structure of his own
country.[^26]

This discussion was [dicta]{.underline}. To the extent the Appeals
Chamber finds it persuasive, it should nevertheless note that the facts
here differ in three important respects from the abstract situation
envisioned in [Blaskić]{.underline}. First, as discussed below, General
Shinseki was present in Bosnia in a [dual]{.underline} capacity -- his
other capacity being Commander in Chief, United States Army Europe.
There can be no question that General Shinseki was entitled to
functional immunity in that capacity. There is no way to disentangle his
two capacities in this instance, nor is there any need to do so.

[Second]{.underline}, the passage in [Blaskić]{.underline} relied upon
by the Trial Chamber envisioned an entirely different situation, in
which a peacekeeping officer witnesses the commission or planning of a
crime that is within the jurisdiction of the Tribunal. As discussed
[supra]{.underline}, this would involve information critical to the
adjudication of guilt or innocence -- the Tribunal's core mandate. The
alleged actions at issue here, however, do not concern a crime within
the Tribunal's jurisdiction. Rather, they concern the operations of SFOR
in the discharge of its own mandate, and the very security concerns
raised by SFOR illustrate why SFOR has an interest in asserting
"functional immunity" for its officers that equals the interest of the
United States of America and other States in the "functional immunity"
of their officials.

[Third]{.underline}, General Shinseki at all times retained his status
as a U.S. military officer. When the United States assigns U.S. military
personnel to an international organization such as SFOR, such personnel
remain members of the U.S. military structure. U.S. military personnel
are assigned as national representatives to, and national participants
in, international armed forces. Though U.S. forces are assigned under
NATO operational control, the U.S. national command authorities (NCA)
never relinquish command authority over U.S. military personnel. The NCA
retain ultimate responsibility, for example, for reviewing and approving
the Rules of Engagement under which U.S. personnel operate, the command
structure to which U.S. personnel are assigned, and the missions which
U.S. personnel perform. The NCA assign and withdraw personnel as
required, and are responsible for discipline and administration of U.S.
personnel.

The retention of command authority by nations over personnel assigned to
peacekeeping operations holds true for all member nations of NATO, as
well as those non-NATO nations who participate in NATO operations such
as SFOR. NATO publication AAP-6, the NATO glossary of terms, defines
"operational control" as follows:

The authority delegated to a commander to direct forces assigned so that
the commander may accomplish specific missions or tasks which are
usually limited by function, time, or location; to deploy units
concerned, and to retain or assign tactical control of those units. It
does not include authority to assign separate employment of components
of the units concerned. Neither does it, of itself, include
administrative or logistic control.

On the other hand, "full command" is defined in AAP-6 as:

The military authority and responsibility of a superior officer to issue
orders to subordinates. It covers every aspect of military operations
and administration and exists only within national services. The term
command, as used internationally, implies a lesser degree of authority
than when it is used in a purely national sense. It follows that no NATO
commander has full command over the forces that are assigned to him.
This is because nations, in assigning forces to NATO, assign only
operational command or operational control.

Thus it is clear that the Trial Chamber erred when it concluded that
General Shinseki was "present in the former Yugoslavia as a member of an
international armed force . . . and not [qua]{.underline} a member of
the military structure of his own country."

Throughout his service with SFOR, General Shinseki remained a member of
the military structure of the United States of America and was fully
integrated into those forces at all times. He is therefore entitled to
the immunity enjoyed by State government officials. To conclude
otherwise would allow the [Blaskić]{.underline} [dicta]{.underline} to
negate such immunity entirely. Furthermore, the Decision would
eviscerate any assurance that national security concerns could be
protected while personnel are assigned to international organizations.
Especially in cases where international organizations have
responsibilities for, or participate in, operations connected with war
crimes prosecutions, States would no longer have confidence that their
national personnel would be protected from being required to provide
information directly affecting the national security of the sending
State and its personnel.

Finally, the arguments set out above concerning the errors or abuses of
discretion in the Decision apply fully to the Trial Chamber's ruling
regarding General Shinseki.

**Conclusion**

For the foregoing reasons, the United States of America respectfully
submits that the Trial Chamber's Decision in this case must be reversed.

In view of the operational and national security concerns raised by the
information sought by the Decision, and the serious question whether
such information is necessary for any relevant legal purpose, the
Appeals Chamber should first rule, as a matter of law, whether the
accused would be entitled to the relief he seeks -- release from
Tribunal custody -- assuming for this purpose all facts alleged by him.

If the Appeals Chamber concludes as a matter of law that the accused
would be entitled to release if the facts alleged by him were proven,
and if information relevant to the proof of those facts is withheld for
operational and national security reasons by SFOR and the SFOR
participating States, the United States acknowledges that the Appeals
Chamber may have to conclude that the accused should be released. If,
however, the Appeals Chamber concludes as a matter of law that the
accused would [not]{.underline} be entitled to release -- the correct
view in our submission -- there is no justification for any order to
produce information directed to SFOR or any other entity or State, and
this prosecution should be permitted to go forward without further
delay.

Respectfully submitted,

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Allen S. Weiner

Legal Counselor

Embassy of the United States

The Hague, The Netherlands

Dated this 15th day of November 2000

[^1]: The Appeals Chamber recognized abuse of discretion as a ground for
    review in an earlier decision in this case. [See]{.underline}
    Decision on Appeal by Stevan Todorovic Against the Oral Decision of
    4 March 1999 and the Written Decision of 25 March 1999 of Trial
    Chamber III, 13 October 1999.

[^2]: Rule 54 *bis* ¶ (B)(i) (emphasis added). [See]{.underline}
    [also]{.underline} Rule 54 (Trial Chamber may issue orders
    "[necessary]{.underline} \... for the preparation or conduct of the
    trial") (emphasis added).

[^3]: In this connection, Article XII of Annex 1-A establishes that the
    Commander of the multinational force "is the final authority in
    theatre regarding interpretation" of Annex 1-A.

[^4]: Decision ¶ 60.

[^5]: SFOR submission of 9 July 2000 at 5-6.

[^6]: SFOR's caution in this regard can only be said to have been
    validated by the Trial Chamber's treatment of materials received in
    confidence, discussed [infra]{.underline}.

[^7]: Moreover, in view of the status of SFOR relative to the Tribunal,
    discussed [supra]{.underline}, it is arguable that although it was
    appropriate for SFOR to offer the explanation it did of its
    objections, in a case of this type only SFOR is in a position to
    judge the weight of those objections as applied to specific
    information.

[^8]: [Prosecutor v. Simić et al.]{.underline}, Case No. IT-95-9-PT,
    Decision on the Prosecution Motion Under Rule 73 for a Ruling
    Concerning the Testimony of a Witness, 27 July 1999.

[^9]: [Id]{.underline}. ¶ 20.

[^10]: [See]{.underline} Decision ¶¶ 22, 59. Indeed, even the accused
    argued that, if SFOR failed to produce the information he seeks, the
    Tribunal could decide that he had "established a prima facie case."
    [Id]{.underline}. ¶ 27. Although we disagree with the accused's
    legal conclusion, his argument reinforces the soundness of deciding
    his motions as a matter of law, without further production of
    information.

[^11]: Decision ¶ 59 (footnote omitted).

[^12]: Accused Stevan Todorovic's Motion to Dismiss the Prosecutor's
    Appeal, Opposition to Application for Leave To Appeal Against Trial
    Chamber's Interlocutory Order dated October 18, 2000 and in
    Opposition of a Stay; Motion for an Expedited Appeal Should Leave Be
    Granted; Joinder in Application for Oral Hearing on Stay, filed 31
    October 2000 ("Defence Opposition") at 4-5 and n.7.

[^13]: As discussed [infra]{.underline}, while States and international
    entities like SFOR detain indictees to hand them over to the
    Tribunal, they do not act under its direction or supervision and do
    not stand in the same relationship to it as do officials of a State
    to the courts of that State. The contrary ruling would suggest, for
    example, that an accused before the Tribunal could seek release
    based on substantive or procedural irregularities in the extradition
    or other procedures through which he was surrendered to the
    Tribunal. The Tribunal's custody over indictees should not depend
    upon the vagaries of domestic law or procedure. [See]{.underline}
    Tribunal Rule 12 ("determinations of courts of any State are not
    binding on the Tribunal"). Nor should it depend on actions taken by
    persons who are not subject to the control or supervision of the
    Tribunal.

[^14]: This error led in turn to the Trial Chamber's failure to accept
    the OTP's proffer of evidence of its non-involvement in the alleged
    abduction, discussed [infra]{.underline}.

[^15]: Separate Opinion of Judge Robinson ¶ 6.

[^16]: Memorandum of Understanding (MOU) between the International
    Criminal Tribunal for the Former Yugoslavia and the Supreme
    Headquarters Allied Powers Europe Concerning Practical Arrangements
    for the Detention and Transfer to the Tribunal of Persons Indicted
    for War Crimes by the Tribunal, 9 May 1996.

[^17]: Decision ¶¶ 44, 45. We observe that the MOU at issue is marked
    "NATO/IFOR/TRIBUNAL EYES ONLY," and that the Trial Chamber
    acknowledges that it received the MOU "on the understanding that it
    would not be disclosed to anyone outside the Chamber." Decision at
    fn. 55. It is therefore a matter of concern that the Trial Chamber
    discusses and quotes the MOU at length, on the grounds that the MOU
    "contains provisions that are relevant to this Motion," and that
    "there could be no prejudice caused by the disclosure of the
    provisions quoted." [Id]{.underline}. The appropriate procedure
    would have been to consult and obtain agreement of other interested
    parties in advance. This unilateral disclosure validates SFOR's
    caution about the proposition that documents and other materials
    compromising the security and safety of sources, methods, and
    personnel may with assurance be turned over or discussed in Tribunal
    proceedings. In the present case, the United States agrees with SFOR
    that the risks of unauthorized or inadvertent disclosure are too
    great -- particularly when, as argued before the Trial Chamber and
    herein, as a matter of law this sensitive information is not
    required.

[^18]: Agreement on Surrender of Persons Between the Government of the
    United States and the International Tribunal for the Prosecution of
    Persons Responsible for Serious Violations of International
    Humanitarian Law in the Territory of the Former Yugoslavia, 5
    October 1994.

[^19]: Defence Opposition at 4-5.

[^20]: Defence Opposition at 5, ¶8.

[^21]: Decision ¶ 33.

[^22]: Defence Opposition at 5 n. 7.

[^23]: Prosecutor's Response to the "Notice of Motion for Evidentiary
    Hearing on Arrest, Detention and Removal of Defendant Stevan
    Todorović and for Extension of Time To Move To Dismiss Indictment,"
    filed by Stevan Todorović on 10 February 1999, ¶36, at 15.

[^24]: Decision ¶ 29.

[^25]: Decision ¶ 62.

[^26]: [Prosecutor v. Tihomir Blaskić]{.underline}, Judgement on the
    Request of the Republic of Croatia for Review of the Decision of
    Trial Chamber II of 18 July 1997 (29 Oct. 1997) at ¶ 50.