## Facts

- Dragan Nikolić, alleged commander of the Sušica detention camp near Vlasenica, was indicted in 1994 for crimes against humanity and war crimes.
- In April 2000, Nikolić was apprehended in Bosnia and Herzegovina by the Stabilisation Force (SFOR) and transferred to ICTY custody.
- The Trial Chamber found Nikolić was allegedly abducted from the Federal Republic of Yugoslavia by unknown individuals and moved into Bosnia and Herzegovina.
- The Trial Chamber found neither SFOR nor the Prosecution participated in the alleged abduction; once Nikolić came into contact with SFOR, SFOR was obliged to arrest and transfer him.
- The Trial Chamber concluded there was no legal impediment to the Tribunal exercising jurisdiction over Nikolić despite the alleged irregularities.
- Nikolić filed an interlocutory appeal under Rule 73 challenging the Tribunal’s jurisdiction based on alleged violations of state sovereignty and his human rights in the manner of his capture and transfer.
- After the Appeals Chamber ruled, the Defence sought clarification; the Appeals Chamber rejected the request as frivolous, stating it need not explain every step of its reasoning and that clarification is reserved for exceptional circumstances.

## Issues

1. Whether the ICTY may exercise personal jurisdiction over an accused notwithstanding alleged violations of state sovereignty and the accused’s human rights in connection with the accused’s apprehension and transfer to the Tribunal.
2. Under what circumstances, if any, serious irregularities in arrest or transfer can bar an international criminal tribunal from exercising jurisdiction.
3. Whether the alleged conduct related to Nikolić’s apprehension met an “egregious” threshold requiring divestiture of jurisdiction or other relief.

## Decision

- The Appeals Chamber affirmed the Trial Chamber’s determination that there was no legal impediment to the ICTY’s exercise of jurisdiction over Nikolić.
- The Appeals Chamber accepted the Trial Chamber’s findings that the alleged abduction was carried out by unknown individuals and was not attributable to SFOR or the Prosecution.
- The Appeals Chamber held that only exceptional circumstances involving serious, egregious human rights violations in bringing an accused before the Tribunal could affect the exercise of jurisdiction, and those circumstances were not shown on the facts.
- The Appeals Chamber allowed proceedings to continue.
- In a later ruling, the Appeals Chamber denied the Defence motion for clarification as frivolous, reiterating that reasoned decisions need not spell out every step and that clarification is granted only in exceptional circumstances.

## Legal Principles

- Irregularities in capture or transfer do not, by themselves, deprive an international criminal tribunal of personal jurisdiction once the accused is before the court.
- Alleged violations of a state’s sovereignty in an accused’s apprehension will not bar jurisdiction absent a basis to attribute the breach to relevant tribunal actors in a manner affecting the tribunal’s authority to proceed.
- Only exceptional cases involving serious, egregious human rights violations connected to bringing the accused before the tribunal may have consequences for the tribunal’s exercise of jurisdiction.
- A motion for clarification is an extraordinary measure; it is properly denied where it seeks to revisit the merits rather than resolve genuine ambiguity, and a chamber’s duty to give reasons does not require detailing every inferential step.

## Conclusion

The Appeals Chamber held that the ICTY could proceed against Nikolić despite allegations of illegal abduction and sovereignty violations because the relevant misconduct was not attributable to SFOR or the Prosecution and, in any event, the record did not show exceptional, egregious human rights violations that would justify barring jurisdiction.


Prosecutor v. Nikolić, Case No. IT-94-2-AR73 (Int’l Crim. Trib. for the Former Yugoslavia App. Ch. 2003)