The contemporary system of international judicial cooperation in criminal matters has evolved from the classic horizontal axis between states to include an additional vertical axis, which connect states with international jurisdictions. This vertical axis is particularly important in the prosecution of international crimes such as war crimes, crimes against humanity and the crime of genocide. These crimes are often adjudicated by international courts and tribunals, whether backed by the UN through the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) or supported through international treaties — as is the case with the International Criminal Court (ICC) and the Rome Statute. Since these international judicial bodies do not have at their disposal an enforcement agency to implement their orders, they rely on national authorities to execute requests for cooperation including arrests and the surrender of suspects.
Given that such international crimes are mostly committed during armed conflicts or situations of serious internal disturbances, a number of persons who might be involved in the commission of atrocities flee the forum commissi delicti (the place where the crime has been committed) to seek shelter abroad by claiming refugee or asylum status. This diaspora makes extradition requests the only way to obtain the presence of suspects before the national courts that have jurisdiction.
In the past few years, the US has made remarkable efforts to locate and extradite alleged human rights violators to requesting states all over the world. An example of how this cooperation machinery between states and international tribunals works is the recent extradition of a US resident, Dejan Radojkovic, to Bosnia and Herzegovina. The US prosecutor sought his expulsion from the US on the basis of his involvement in rounding up some 200 Bosnian-Muslim men in the Konjevic Polje region in July 1995 and transferring them to locations where they were executed. Radojkovic did not disclose his past as a commander of the Special Police Brigade in the Srebrenica area during his entry into American territory in 1999. An investigation carried out by the US authorities in coordination with the Office of the Prosecutor of the ICTY and the Court of Bosnia and Herzegovina linked Radojkovic to the occurrences in Srebrenica in summer 1995. In his order, upheld on appeal, the US immigration judge found that Radojkovic "ordered...and/or otherwise participated in extrajudicial killing" and decided for his removal from the US, which took place on May 24, 2012. According to the relevant section of the US Code, an alien who, outside the US, has committed, ordered, incited, assisted or otherwise participated in the commission of acts of torture or extrajudicial killings is deportable from a US territory.
Crucially, extraditing an individual suspected of criminal offences is not a finding or a predetermination of the guilt of such person for the crimes charged by a foreign court. The latter is to be assessed after a criminal proceeding. Instead, a removal order is the mere assessment — based on the evidence adduced by the prosecutor of the requested state — that grounds for inadmissibility of the person on the territory of the state of residence exist and that these grounds rest on the suspicion that the person might have committed offences abroad. Thus, the individual loses his entitlement to lawfully reside in the territory of the requested state and is extradited to a competent jurisdiction to respond to the allegations against him. The importance of the distinction between extradition procedures and criminal proceedings is decisive to preserve one of the fundamental principles of criminal law and one of the basic rights of the accused: the right to be presumed innocent until found guilty by a court of law.
In this regard, what happened in a removal case strictly linked to Radojkovic is instructive. On January 19, 2010, Radojkovic's superior, Nedjo Ikonic, was also found to have illegally obtained US residence and was transferred to Bosnia and Herzegovina on grounds similar to Radojkovic. The case against Ikonic was joined with an existing proceeding against three others accused of similar crimes appearing before a Bosnian court. These proceedings resulted in the conviction of two defendants and the acquittal of the other two, including Ikonic. Notwithstanding the result of the trial, evidence used in the proceeding before the ICTY indicates [PDF] that the unit led by Ikonic helped secure the road to and from Srebrenica between July 12 and July 13, 1995, in order to separate Muslim male civilians from women and children — with the males being designated to be executed.
Since its creation, the ICTY has investigated and collected evidence against several persons suspected of being responsible for international crimes committed during the wars in the former Yugoslavia. However, since its inception in May 1993, the ICTY has given priority to the prosecution of those believed to be the most responsible for violations of international law during armed conflicts in the former Yugoslavia. As a result, the judges of the ICTY adopted Rule 11 bis in 1997, which allows a specially constituted bench to refer to national courts cases in which indictments have already been confirmed by the ICTY but a trial has not yet. Such referrals may take place regardless of whether the person is actually under ICTY custody [PDF]. The three judge bench must determine whether the case under consideration should be referred to the authorities of the state: (i) in which the crime was committed; (ii) in which the accused arrested; or (iii) which has jurisdiction and is willing and adequately prepared to accept such a case.
A total of 8 cases involving 13 indictees have been transferred by the referral bench of the ICTY to courts of the national courts of the former Yugoslavia, most notably in Bosnia and Herzegovina. These persons are prosecuted in accordance with the law of the state to which the case is referred.
The system established by the international community to address the serious violations of international humanitarian law and human rights committed in the former Yugoslavia represents the first attempt to comprehensively tackle the issue of impunity in situations of large-scale, protracted and inter-ethnic armed conflicts. A UN-backed tribunal has been established to try the senior leadership that masterminded atrocities against civilians and protected those responsible under the law of armed conflicts. Cooperatively, the authorities of states where these atrocities were perpetrated have strengthened their judicial capabilities and sought the extradition of suspected war criminals abroad. This represents a successful model for an effective fight against serious violations of human rights.
Niccolò Pons is currently an Assistant Legal Officer in Pre-Trial Division, Chambers of the International Criminal Court. He is a former Legal Consultant in a Trial Chamber of the International Criminal Court. Previously, he worked in the Chambers of the Special Tribunal for Lebanon and has written on the challenges of in absentia proceedings. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Criminal Court or the Special Tribunal for Lebanon.
Suggested citation: Niccolò Pons, National Cooperation Key to International Judicial Success, JURIST - Hotline, Aug. 6, 2012, http://jurist.org/hotline/2012/08/niccolo-pons-icc-cooperation.php.
This article was prepared for publication by Leah Kathryn Sell, an associate editor of JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org.