Chapter VIII. Decisions of National Tribunals

  1. The Netherlands

    THE HAGUE DISTRICT COURT Civil Law Division—President

    Judgement in interlocutory injunction proceedings of 31 August 2001

    Plea of Slobodan Milošević for release from detention by the International Criminal Tribunal for the Former Yugoslavia and returned to the territory of the Federal Republic of Yugoslavia

    Slobodan Milošević

    domiciled in Belgrade, Federal Republic of Yugoslavia,

    currently residing in Scheveningen in the municipality of The Hague, plaintiff,

    procurator litis A. B. B. Beelaard,

    advocates N. M. P. Steijnen, E. T. Hummels and E. Olof, all of Zeist,

    The State of the Netherlands (Ministries of General Affairs and Foreign


    with its seat in The Hague defendant,

    procurator litis Cécile M. Bitter, advocate G. J. H. Houtzagers.

  2. The facts

    On the basis of the documents and the oral proceedings of 23 August 2001, the following facts will be deemed to have been established in this case.

    —By resolution 827 (1993) of 25 May 1993 (Netherlands Treaty Series 1993,

    168), the United Nations Security Council, “acting under Chapter VII of the Charter of the United Nations”, decided to establish an international tribunal “for the sole purpose of prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. The annex to the resolution includes the Statute (“Statute of the International Tribunal; hereafter, “the Statute”) of the aforementioned tribunal (hereafter, “the Tribunal”). Article 31 of the Statute provides that the Tribunal shall have its seat in The Hague.

    —Article 9, paragraph 2, of the Statute reads as follows:

    “The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request na-

    tional courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.”

    —Article 29, paragraph 1, of the Statute includes the following sentence:

    “States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”

    —The relationship between the Netherlands—as host country—and the Tribunal is laid down in the Agreement of 29 July 1994 between the Netherlands and the United Nations (Netherlands Treaty Series 1994, No. 189), also referred to as “the Headquarters Agreement”. This Agreement also provides for the practical implementation of certain of the Statute’s provisions. The Netherlands implemented resolution 827 (1993) and the Statute by Act of Parliament of 21 April 1994 (Bulletin of Acts and Decrees 1994, 308).

    —The plaintiff is the former President of the Federal Republic of Yugoslavia.

    —After the plaintiff’s detention in Belgrade on 1 April 2001 to answer criminal charges, he was transferred to the Tribunal on 29 June 2001 in compliance with the arrest warrant issued by the Tribunal on 22 January 2001. He was flown to Welschap aerodrome near Eindhoven and from there taken to the United Nations Detention Unit, a section of the Scheveningen prison complex reserved exclusively for the detention of persons being prosecuted before the Tribunal, where he has been held since then.

  3. The claims, the grounds on which they are based and the defence

    The plaintiff has asked the court—in essence—to order the defendant as follows:

    —Principally: to release him unconditionally within 8 hours of the notice of service of this judgement;


    —To return the plaintiff or order his return to the territory of the Federal

    Republic of Yugoslavia within 24 hours of the notice of service of this judgement;


    — To plead forthwith before the so-called Tribunal and all international bodies and institutions of relevance in this connection for his immediate and unconditional release;


    —To plead forthwith before the so-called Tribunal and all international bodies and institutions of relevance in this connection for his immediate return to the territory of the Federal Republic of Yugoslavia.

    In support of his claims, the plaintiff contends as follows:

    —The so-called Tribunal, elements in the Serbian Government and the defendant blatantly kidnapped and abducted him in a coordinated action, which must be regarded as a flagrant breach of his human rights. At the time the Federal Constitutional Court of Yugoslavia had suspended his extradition

    to the so-called Tribunal pending the Court’s ruling, which it had not yet given, on the lawfulness of this extradition. He was therefore still under the protection of the domestic courts. Even so, the defendant permitted his transfer to the territory of the Netherlands and handed him over to the so-called Tribunal. The defendant’s actions should be deemed unlawful in respect of the plaintiff.

    —The so-called Tribunal has no basis in law and possesses no democratic legitimacy. The Security Council is not competent to establish an international tribunal, as only a few United Nations Member States are involved in it. The Tribunal has not been established by treaty. Neither the Charter of the United Nations nor international law provides any legal basis for the so-called Tribunal. Not a single rule of law exists that would entitle the Security Council to limit the sovereign rights of States. The establishment of the so-called Tribunal is a flagrant violation of the principle of the sovereign equality of all United Nations Member States, as enshrined in Article 2, paragraph 1, of the Charter of the United Nations. The Security Council has no jurisdiction over the individual citizens of States. That the so-called Tribunal can and should sit in judgement over its own lawfulness is neither credible nor acceptable.

    —The so-called Tribunal cannot, therefore, be regarded as an independent and impartial tribunal within the meaning of article 6 of the European Convention on Human Rights, particularly since it maintains close and friendly relations with the North Atlantic Treaty Organization (NATO) and is indeed dependent on NATO. Its prosecutors and judges are not appointed in an impartial procedure.

    —The defendant is acting unlawfully towards the plaintiff by cooperating in the Security Council’s decision to establish the so-called Tribunal, which is self-evidently incompatible with fundamental human rights. The defendant may therefore be regarded, in a sense, as a co-perpetrator of human rights violations. Furthermore, the Security Council makes arbitrary and unlawful distinctions between countries. The Security Council and/or the United Nations do not implement resolutions adopted against countries that harbour ill-will against the Western States [sic].

    —As a former head of State, the plaintiff can claim immunity from prosecution. No conceivable rule of law can be invoked on the basis of which this immunity could be declared to have lost its validity, as asserted in the Statute of the so-called Tribunal. At no time in history has immunity ever been declared null and void before. Immunity is an instrument to safeguard the sovereignty of States and should therefore be respected above all else. Whatever crimes may have been committed, the plaintiff, as head of State, cannot be held to account for them.

    —The Dutch courts are pre-eminently competent to rule on the legal protection of persons who are within the territory of the Netherlands. This applies to the plaintiff in the same way as to anyone else. Not a single valid rule of law can be found that would exclude such an appeal. The plaintiff cannot ask the so-called Tribunal to release him provisionally.

    The defendant presented its defence, furnished with arguments. Where necessary this defence will be discussed below.

  4. Assessment of the dispute

    3.1 The defendant’s primary line of defence is that the Tribunal possesses exclusive competence to hear the principal application for release. It holds that it has been expressly acknowledged, both in domestic and in international law, that the Tribunal possesses exclusive competence within the Dutch legal order to decide on the deprivation of liberty of persons facing charges before the Tribunal, and that this is not a matter for the Netherlands. Whatever cooperation there may have been between the defendant and the Tribunal has been limited to the transport of individuals, including the transit of persons being transferred from another country to the Netherlands, who must be transported across the territory of the Netherlands, and to the security of these persons.

    3.2 To answer the question of competence, however, it is first necessary to address the plaintiff’s contentions regarding the Tribunal’s legal basis or legal validity, which he challenges. After all, were it to be ruled at law that the Tribunal possesses no legal validity, this would necessarily lead to the conclusion that the President is competent to hear the principal application for release in interlocutory injunction proceedings.

    3.3 The essence of the plaintiff’s challenge to the Tribunal’s legal validity is that in his view the Tribunal should have been established by an international convention or that its establishment should at least have been based on a motion adopted by the United Nations General Assembly.

    This may be answered as follows. The issue of the Security Council’s competence has already been dealt with at length by Trial Chamber II (Decision of 10 August 1995) and the Appeals Chamber of the Tribunal (Prosecutor v. D. Tadić). The latter eventually ruled on appeal, by judgement of 2 October 1995 (“Decision on the defence motion for interlocutory appeal on jurisdiction”) that the Security Council’s competence can be based on Chapter VII of the Charter of the United Nations. Compelling considerations supporting this conclusion were that there was nothing in the Charter to militate against the inauguration and establishment of a...

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