Lawful arrest

Liberty may be deprived only in a manner in accordance with a procedure prescribed by the law. For this reason, deprivation of liberty presupposes conformity with domestic law,⁷³⁸ also conformity with the purpose of the restrictions permitted by Article 5, paragraph 1, namely the protection of individuals from arbitrariness; it is required in respect of both the ordering and the execution of the measures entailing deprivation of liberty.⁷³⁹

From the aspect of Article 15 of the ECHR and Article XI of Annex 1-A of the GFAP, in the transitional period after the entry into force of the Dayton Agreement, deprivation of liberty of prisoners of war cannot be considered unlawful. Admittedly, Article 5 of the ECHR does not provide any justification for the deprivation of liberty of prisoners of war. However, if the arrest took place in accordance with domestic and international law, the initial deprivation of liberty was not unlawful, since Article XI of Annex 1-A of the GFAP provides the extension of detention during the short transitional period after the entry into force of the GFAP, and Article 15 of the ECHR provides for an exception to Article 5 of the ECHR. However, if the detention is longer than is provided for by transitional time-limits and if, in addition, the detention of a person is kept secret, which is in violation of the obligations under Annex 1-A of the GFAP, then it is also in violation of Article 5 of the ECHR.⁷⁴⁰

With regards to the arrest of persons suspected of war crimes, additional requirements are laid down in the so-called Rules of the Road which were agreed to in Rome by Presidents Izetbegović, Tuđman and Milošević on 18 February 1996. According to item 5, paragraph 2 of the Rules of the Road (Cooperation on War Crimes and Respect for Human Rights), “persons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal”.⁷⁴¹ The Rules of the Road do not have lower-ranking legal force than the obligations of the signatory Parties to Annex 6 to punish violations of international humanitarian law. They provide for “a division of competencies” which serves no other purpose than the prevention of arbitrary arrest or detention by national authorities and which need therefore to be respected.⁷⁴² The Rules of the Road entered into force on date of signing the Agreement.⁷⁴³ The Parties were obliged to inform the competent institutions and authorities of the Rules of the Road, so that the authorities could not refer to – allegedly⁷⁴⁴ – the lack of awareness of the content of these Rules.⁷⁴⁵ The deprivation of liberty before issuing a relevant order, arrest warrant or indictment reviewed beforehand by the ICTY and declared consistent with international legal standards constitutes unlawfulness due to the lack of the ICTY’s approval regardless of whether a person was already deprived of liberty for other matters with which he/she was charged.⁷⁴⁶ For the question whether the Rules of the Road are applicable or not, one should firstly take into consideration the legal classification of criminal charges by the domestic authorities. If the domestic authorities have determined the alleged act to have constituted a serious violation of international humanitarian law, the authorities have to obtain prior approval by the Hague. However, if the domestic authorities have determined that the alleged crime does not constitute a war crime, since the factual allegations are classified differently, the Rules of Road will apply if the factual allegations, being the basis for the charges, point to the fact that the act committed obviously constitutes a war crime. The domestic authorities must not be allowed to circumvent the request for approval by The Hague by circumventing the correct classification and thus a particular factual allegation pointing to the commission of a war crime.⁷⁴⁷ If a person was arrested on suspicion of a war crime prior to the entering into force of the Rules of the Road, the Parties could not be expected to release that person before obtaining approval by the ICTY. However, the domestic authorities had to obtain the approval “without delay”, i.e., within a time limit of one month from the date of the entry into force of the Rules of Road.⁷⁴⁸ As the approval by the ICTY is not based on any allegation from the indictment, but on the assessment as to whether the produced evidence suffice to launch an investigation and to issue a detention order, the approval would practically fail if the indictment was modified. A different case would be if the charges are modified both in facts and law to such an extent that it may be concluded that the approval does not legitimate the indictment any more.⁷⁴⁹ The violation of the Rules of the Road cannot be justified by referring to the principle male captus bene detentus; it is a principle which applies to the right relating to extradition and plays no role in the application of the Rules of the Road.⁷⁵⁰

If the domestic law stipulates an obligation to examine the measures of deprivation of liberty, and it is not fulfilled within the prescribed time limits, the deprivation of liberty will be unlawful.⁷⁵¹