Todorovic Challenges The Legality Of His Detention

After the Appeals Chamber ruled on October 13 that Todorovic's request for a hearing "does not contain sufficient factual and legal material, and in particular does not provide a statement as to the factual circumstances of his arrest," it seemed that this aspect of the case was over.

However, the defence managed to open it again by submitting a petition for a writ of Habeas Corpus. Among other things, the petition refers to the controversial ruling of the ICTR Appeals Chamber in the case of former Rwandan Foreign Ministry deputy Jean Bosco Barayagwiza, and argues that that decision "upholds the right of detained persons to challenge the legality of their detention".

(On Nov. 3 an appeals hearing at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, ordered the dropping of an indictment against Barayagwiza on procedural grounds. He had been charged with six counts of genocide and crimes against humanity.)

Even though the Trial Chamber in The Hague had concluded that it does not have the power to order a writ of Habeas Corpus, the defence request was accepted as an application to challenge the legality of Todorovic's detention.

In his statement, Todorovic explained in detail how he was "kidnapped" by four unknown men on Mount Zlatibor on September 26. The men, who spoke Serbian, transferred him by boat over the Drina River and handed him over to SFOR. The kidnappers told Todorovic that they had received DM20,000 for their work. The then SFOR commander, General Shinseki, told Todorovic at the US base in Tuzla: "You see that we can do whatever we want", and asked him whether he knew how Blagoje Simic (the first co-accused on the Bosanski Samac indictment) should be arrested. Several hours later, on the morning of September 27, the representative of the Office of the Prosecutor (OTP) showed him an arrest warrant and indictment. Todorovic pointed out that the entire action was carried out without his consent, and that no one had shown him the arrest warrant during the "trip".

Todorovic's defence counsel, Deyan Brashich, claimed that SFOR illegally held the accused in custody on Bosnia-Herzegovina's territory, before they reached Tuzla and the "real" moment of his arrest.

In addition, the defence argued that the kidnappers violated the inter-state border between the FRY and Bosnia-Herzegovina: "I am not accusing the prosecutor of being in collusion with the persons who carried out the kidnapping. But, SFOR was in collusion with those persons, and SFOR acted as an agent of the OTP," Brashich argued.

It is now up to the judges to decide whether there were illegalities in Todorovic's arrest that would justify his release from custody and his "return to the country of refuge", as the defence request put it.

Judge David Hunt touched on the phrasing of the request, asking the defence why the FRY is referred to as "the country of refuge." Todorovic, a citizen of Republika Srpska is accused of crimes against non-Serbs in Bosanski Samac when he was its chief of police in 1992. He moved to Serbia in January 1998.

Todorovic avoided directly confirming that he moved in order to avoid arrest. When prosecutor Grant Niemann asked: "Didn't you think that it would be good to move to Serbia in order to avoid the arrest?"

Todorovic replied that it was "not a decisive reason". He claimed that he went to Serbia "because of work", and that he did not surrender to the Tribunal because "he had not finished his private business".

"I might have surrendered later," he concluded.

In an attempt to explain the choice of the term "refuge", defence counsel Brashich claimed that it is only a "legal concept he took over from various other decisions."

Igor Pantelic, the defence counsel of co-accused Miroslav Tadic, tried to help his colleague Brashich by explaining that the "country of refuge" does not have to mean "a country where safety is sought" but "a country where refuge is found", where one "goes if one is threatened in one's own country."

Chief Prosecutor Carla Del Ponte recently called on the UN Security Council and the international community to be "creative" in finding ways to arrest those who are out of the reach of SFOR and KFOR, i.e. not on Bosnian or Kosovan territory.

The debate about the legality of the arrest of Stevan Todorovic will continue next week, and the judges' decision could have a significant impact on future arrests of those accused of war crimes. The extent of the "creativity" which SFOR and other services involved will be able to express is open to question.