IN THE TRIAL CHAMBER
Judge Claude Jorda, Presiding
Judge Haopei Li
Judge Fouad Riad
Mr. Jean-Jacques Heintz, Deputy Registrar
4 April 1997
DECISION ON THE DEFENCE MOTION TO DISMISS THE INDICTMENT BASED UPON DEFECTS IN THE FORM THEREOF (VAGUENESS/LACK OF ADEQUATE NOTICE OF CHARGES)
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Russell Hayman
Mr. Gregory Kehoe
Mr. William Fenrick
Mr. Anto Nobilo
Mr. Russell Hayman
1. On 16 December 1996, the Defence submitted to Trial Chamber I a preliminary motion to dismiss the indictment based on defects in the form of the indictment (vagueness/lack of adequate notice of charges) (hereinafter "the Motion"). The Prosecutor, in opposition to the Defence, responded to the Motion on 20 January 1997 (hereinafter "the Response"). The Defence replied to the Response in a brief filed on 3 February 1997 (hereinafter "the Reply"). The Trial Chamber heard the parties at a hearing on 12 and 13 March 1997.
The Trial Chamber would first analyse the claims and arguments of the parties and then the disputed points of fact and law.
I) Analysis of the claims and arguments of the parties
2. The Defence motion concerns the amended indictment, confirmed on 22 November 1996, of which the accused was officially notified by the Trial Chamber on 4 December 1996 during a public hearing. It replaces the initial indictment which was confirmed on 10 November 1995.
The Defence considers that the crimes ascribed to the accused in the amended indictment are vague and contain no details as to the alleged criminal behaviour of the accused nor the circumstances of time and place nor of those concerning the victims.
In consequence, the accused cannot properly prepare his defence and risks exposing himself to double jeopardy.
It has been requested that the Prosecutor file a new amended indictment, failing which, the Trial Chamber should dismiss all the counts which have remained vague .
3. The Prosecutor requested that the Motion of the accused be rejected; she asserts that she has satisfied the legal obligations imposed by the Statute of the International Criminal Tribunal for the former Yugoslavia (hereinafter the Statute) and the Rules of Procedure and Evidence (hereinafter the Rules) in respect of the presentation of indictments. Nonetheless she states that she is prepared to amend the drafting of the indictment in respect of precision regarding place.
4. Two methods of legal reasoning can be distinguished in the Defences argument in support of its preliminary motion:
The first relates to the general presentation of the indictment which it considers does not comply with the provisions of the Statute and the Rules nor with the standards appearing in international instruments on human rights and applied by the major legal systems. The reasoning leads the Defence to denounce the vagueness of the indictment in respect of the place and time the alleged crimes were committed and of the identity of the victims and the participants in the crimes.
The second relates to the vagueness in respect of the very elements which constitute the offences identified, namely: an objective element such as the existence of an international armed conflict in support of the charge based on Article 2 of the Statute and the intentional element relating to the supposed conduct of the accused , inter alia to characterise command responsibility. Thus, for some of the charges, the lack of precision as to those elements which constitute violations totally invalidate those counts of the indictment and should simply be withdrawn . Specifically, these are:
- unlawful attacks on civilians and civilian objects (counts 2 and 3);
- destruction and plunder of property (count 10);
- devastation not justified by military necessity (count 11);
- destruction or wilful damage to institutions dedicated to religion or education (count 12);
- taking civilians as hostages (count 16);
- taking of hostages (count 17).
5. The Trial Chamber will now consider each of the legal questions in light of the arguments of both parties - in their written presentations and during the hearing - as well as in light of the actual content of the amended indictment.
A. General presentation of the indictment
6. The Defence states (Point A of the Motion) that an indictment must allege in detail the facts supporting each element of the offence charged.
In support of its thesis, it invokes the relevant articles of the Statute (Articles 18(4) and 21(4)(a)) and Sub-rule 47(B) of the Rules as well as Article 14 of the International Covenant on Civil and Political Rights (hereinafter the International Covenant) and Article 6 of the European Convention of Human Rights and Fundamental Freedoms (hereinafter the European Convention on Human Rights). It recalls that the aim of these various provisions is to allow the accused to prepare a proper defence for the charges against him. Most national legal systems contain the same requirement.
7. The Prosecution interprets the texts referred to by the Defence more restrictively and is supported by the case-law of this Tribunal.
For the Office of the Prosecutor, the indictment must provide a concise description of the crimes charged and of the participation of the accused and his subordinates . This complies with the relevant texts of the Statute and the Rules, with the first decisions rendered by the Tribunal in the matter and with the interpretation generally given to the international legal instruments cited by both parties. The accused must then be informed in detail as to the nature and cause for the charges against him. The Prosecutor requests that the Trial Chamber confirm that she has satisfied her legal obligations.
8. In order to determine which of the arguments put forward is valid, the Trial Chamber considered that it needed to interpret the texts of its own Statute and Rules. It will do so in light of the decision rendered both by the Tribunal and other courts.
9. Article 18(4) of the Statute states:
Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is accused under the Statute. (italics added)
Article 21(4)(a) of the Statute states:
In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.
The Rules further expound on these provisions in Sub-rule 47(B):
The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.
10. A literal reading of these texts leads the Trial Chamber to the observation that everything in an indictment which concerns the facts of the case must be stated or recounted concisely (Article 18(4) of the Statute) and (Sub-rule 47(B) of the Rules). The accused must be informed promptly and in detail of the nature and cause of the charges - which must be distinguished from the facts themselves in the case insofar as those facts are, to some extent, the necessary but not necessarily sufficient support for the indictment (Article 21(4)(a) of the Statute).
The latter text does not contradict the two previous ones referred to above. The purpose of all the provisions is to guarantee to the accused the fundamental rights recognised as his, that is: to be informed of the charges against him and to be in a position to prepare his defence in due time.
11. However, the guarantees are not the same at all stages of the proceedings. In this respect, a distinction should be made between the time the accused is informed of the indictment for the first time and the phase devoted to the preparation of his defence since the latter occurs between the issuance of the indictment and the start of the trial.
The information describing the charges contained in the indictment is set forth inter alia for the purpose of the accuseds initial appearance provided for in Sub-rule 62 (ii) of the Rules. The notification which is part of the initial appearance should occur shortly after the confirmation of the indictment, as provided for in Sub-rule 47(B) of the Rules. The recounting of the facts of the case at that stage must be concise.
The preparation of his defence by the accused assumes a more detailed level of information which may not be available at the time the indictment is framed. Article 21(4)(a) of the Statute moreover explicitly provides that this take place promptly , even if the time period must be as short as possible. The text speaks of the nature and cause of the indictment, a concept which includes not only the acts but also the evidence in support of the indictment. Article 21(4)(a) - a general principle of the accuseds right to receive the most complete information regarding the charges against him in order for him to prepare his defence under the best conditions - establishes the context for the accuseds exercising his right to disclosure of evidence collected against him by the Prosecutor. This right is established by Rule 66 and following of the rules. Sub-rule 66(A), like Article 21(4)(a) of the Statute , states: as soon as practicable after the initial appearance of the accused and adds that the Prosecutor must give to the accused copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused or from prosecution witness , which indeed suggests that the information contained in the indictment when it was confirmed and at the time of the initial appearance does not contain the same type of information to be made available to the accused.
It is therefore necessary to distinguish between the issuance of the indictment which is governed by Article 18(4) of the Statute and Sub-rule 47(B) of the Rules and the disclosure of evidence which is, rather, governed by Article 21(4) of the Statute and Rule 66 et seq. of the Rules - although not exclusively so governed . Both rights are included in the same concept which aims to guarantee that the accused will be in a position to prepare his defence in due time with complete knowledge of the matter.
In the case at hand, the Trial Chamber moreover had the occasion to rule on the disclosure of evidence to be made available to the accused in its recent decision of 27 January 1997. It does not intend to return to this question since the present contention deals with the alleged defects in the form of the indictment.
In respect of this indictment, the Trial Chamber stresses that, at this stage of the proceedings, the standard to be exercised is one only of prima facie (Article 18(4) of the Statute) and sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal ... (Sub-rule 47(A) of the Rules).
12. As regards the relevant international instruments to which reference should be made, as the Secretary-General suggests in his Report1 - the Trial Chamber takes note of the similarity of the wording of articles 14 3 . (a) of the International Covenant and Article 6 (3)(a) of the European Convention on Human Rights with that of Article 21(4)(a) of the Statute.
Article 6 (3)(a) of the European Convention on Human Rights:
Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
Article 14(3)a) of the International Covenant:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
- (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.
13. Nevertheless, the Trial Chamber considers that it must now review how the various texts have been interpreted, specifically by the courts or organs having jurisdiction to apply or to analyse them.
2. Interpretation and application of the texts
14. It must first be observed that the accused does not cite the sources of the comments on the International Covenant and the European Convention on Human Rights which appear to support his thesis.
The Trial Chamber will review successively the commentaries of the United Nations Human Rights Committee on the International Covenant and then the case-law of the European Court of Human Rights and that of the International Tribunal:
a) The International Covenant
15. The United Nations Human Rights Committee, following its review of the reports submitted by States which identify the problems which may arise in the application of the Covenant, considered that as regards Article 14, paragraph 3(a): the specific requirements of sub-paragraph 3(a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based.2
The Trial Chamber notes that in view of this comment, the Prosecutor is obliged to specify, other than the legal provisions referred to, the facts in support of the indictment. The Committee gave no further guidance as to the nature and cause of the accusations against the accused.3 However, the Trial Chamber also notes that the information which the accused needs to prepare his defence must not only appear in the indictment, that is, in writing , because the charge may be made orally or in writing.
b. Case-law of the European Court of Human Rights
16. In light of this case-law, the Trial Chamber considers that the information required by the accused need not appear only in the indictment.
Thus, in the decision Kamasinsky v. Austria of 19 December 19894, the European Court considered that oral explanations dealing merely with the titles of the offences stated in the indictment (which was drafted in a language the accused did not understand) were, according to the provisions of Article 6.3 (a) of the European Convention, sufficient to inform the accused of the nature and causes of the accusations against him.
Thus, in the decision De Salvador Torres v. Spain of 24 October 19965, the Court also considered that although a difference existed between the legal characterisation of the crimes for which he was indicted and those of which he was convicted, the accused had been sufficiently informed - in the sense of Article 6.3 of the European Convention on Human Rights - of the elements of the accusation against him from the time of the start of the proceedings. In another case also involving a discrepancy between the initial legal characterisation and that selected for the conviction, the Court, reasoning analogously, based itself on the concept of clarity of the legal classification given to the findings of fact or minimum recourse to logic required apparently for the identification of the applicable text.6
c. Case-law of the Tribunal.
17. The Tribunal has had several occasions to rule on the question of defects in the form of the indictment alleged by the Defence.
(i) in the case The Prosecutor v. Dusko Tadic (IT-94-I-T)7
18. The point of the decision which concerns this discussion relates to imprecision of the allegations against Dusko Tadic8. The Defence considered that, for each of the counts, the specific conduct of the accused at a specific date and place should have been indicated instead of merely having stated that it was a unique and factual description of both the criminal offence and the participation of the accused in that offence.9
Trial Chamber II made a distinction between two cases:
- for a whole series of counts, the Trial Chamber considered that since the indictment identified the accused, stated paragraph by paragraph the facts of each incident , and specified clearly the particular provisions of international humanitarian law that had been violated, the provisions of Sub-rule 47(B) of the Rules had been complied with10.
- then, referring to Article 21(4)(a) of the Statute, the Trial Chamber made arrangements for the manner in which, under its supervision, the additional material would be made available to the accused in accordance with Sub-rules 66(A) and 67(A) of the Rules11.
- however, the preliminary motion was deemed to be justified for another set of counts concerning inter alia the alleged conduct of the accused. The Trial Chamber considered that paragraph 4 clearly enough does not, in its very generalised form, provide the accused with any specific, albeit concise, statement of the facts of the case and of the crimes with which he is charged. It says nothing specific about the accuseds conduct, about what was the nature and extent of his participation in the several courses of conduct which are alleged....12 And the Trial Chamber concluded that if the Prosecution is to persist in relation to the matters alleged in that paragraph, the indictment should be further amended so as to provide the necessary degree of specificity.13
(ii) in the case The Prosecutor v. Dorje Djukic (IT-96-20-T)14
19. As regards the information appearing in the indictment which the Defence claimed was imprecise, although it is true that the Trial Chamber took note of the summary nature of the indictment15, it also considered that at this stage of the proceedings, the indictment meets the relevant provisions of the Statute and the Rules conditional on its being understood that each of the parties will have to prove its allegations during the trial on the merits .16
However, the Trial Chamber considered that it had to point out the excessively vague or ambiguous character of the indictment (which it did for paragraph 7). Nonetheless , although it invited the Prosecutor to make such modifications as he deems necessary if he intends maintaining the counts17, the Trial Chamber also noted the fact that the Prosecutor indicated that further evidence will be submitted as part of the process of disclosure.18
By this decision, the Trial Chamber intended already to emphasise the distinction pointed out above between the minimum demands required for the presentation of the indictment to the accused and all the guarantees which the accused must enjoy after the indictment in respect of the subsequent production of additional or supplementary evidence permitting him to prepare his defence in due time. In this case, Trial Chamber I also referred to the Tadic case-law.
(iii) in the case The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo (IT-96-21-T).
20. In light of the arguments of the parties in the case The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo (IT-96-21-T), Trial Chamber II (as well as the Appeals Chamber) identified certain principles regarding the function and content of an indictment by considering that:
1) the principal function of the indictment is to notify the accused in a summary manner19 as to the nature of the crimes of which he is charged and to present the factual basis for the accusations20.
2) the indictment must contain certain information which permits the accused to prepare his defence (namely, the identity of the victim, the place and approximate date of the alleged crime and the means used to perpetrate it)21 in order to avoid prejudicial surprise22.
Furthermore, the Appeals Chamber specified that the use of alternative characterisations of the facts, which is accepted in military manuals and international humanitarian law, does not render the indictment fatally vague, although, whenever possible, the Prosecutor should clearly indicate the precise line of conduct and mental element alleged23.
3) a preliminary motion on the form of the indictment is not the appropriate framework for contesting the facts24.
4) the question of knowing whether the allegations appearing in the indictment are vague will, in the final analysis, be settled at trial25.
d) in conclusion of this entire analysis, the Trial Chamber considers that:
21. - an indictment, by its very nature and given the very initial phase in which it is reviewed, is inevitably concise and succinct. Such is the meaning, such is the spirit of the texts governing the proceedings of the International Tribunal, themselves inspired by international standards and their interpretation.
- with respect to this single aspect of the general presentation of the indictment , the Defence confuses the minimum right granted to it by virtue of a presentation , however succinct, of facts and charges made against it, with the right to be promptly provided with far more detailed information so that it may prepare its defence.
- with respect only to the principles underlying the form and the presentation of the amended indictment against General Blaskic, as confirmed on 22 November 1996 , it is obvious that the review of the said indictment generally satisfies the provisions of the Statute and the Rules on the presentation of indictments.
-nevertheless, in line with the case-law established by the Tribunal, the Trial Chamber will review each of the motions filed by the accused in support of the preliminary motion; this review being limited, however, to considering the extent to which an accused was in a position to prepare his defence in due time given the more or less detailed information provided to him by the Prosecutor in the indictment, and in the indictment alone.
B. Review of the indictment
1. Review of the indictment from the perspective of vagueness/ with regard to the location and time of the alleged events, and to the identity of the victims and the participants
a) With regard to the location of alleged events (point C of the Motion)
22. With regard to location (point C.), the Defence considers that the use of expressions such as
- "including, but not limited to"(paragraphs 6.1 to 7: (Count 1), (paragraph 9 (Counts 4 to 9)), (paragraph 10 (Counts 10 to 13) and paragraphs 12 and 15 (Counts 14 to 19)).
- "attacks in, among others, the following towns and villages"
casts doubt as to the exact locations where the alleged acts were supposedly committed .
The Trial Chamber agrees with the Defence that expressions such as "including, but not limited to" or "among others" are vague and subject to interpretation and that they do not belong in the indictment when it is issued against the accused.
The Trial Chamber takes note of the proposed amendments to the indictment on this point suggested by the Prosecutor in her response brief of 18 January 1997.
The Trial Chamber requests that such amendments be made by 18 April 1997 at the latest.
b) With regard to the time of alleged events (Point D of the Motion)
23. With regard to the time when the crimes were allegedly committed, the Defence points to the use of expressions such as
- "from about May 1992 to about April 1994"
- "from about January 1993 to about January 1994" (repeated throughout the indictment ),
which, due to their lack of specificity, make it impossible for the accused to prepare his defence properly, particularly, as regards the establishment of an alibi.
The Prosecutor bases her arguments on the decision of Trial Chamber II of 14 November 1995 and submits that, in that Decision, Judge McDonald stated that in respect of a charge under Article 5 of the Statute, the charges did not regard a particular act but a type of conduct. Accordingly, the Prosecutor extends the reasoning to all the counts and explains that they charge a type of conduct covering an extended period of time.
The Trial Chamber refers to the view it expressed above as to the inevitably succinct and summary nature of an indictment at the time it is issued.
Nevertheless, succinct or summary as it may be, an indictment cannot permit itself to be overly vague. The adverb "about", whenever used, must therefore be stricken . The context in which it was used should, however, be kept in mind.
The Prosecutor seeks to characterise command responsibility as incurred by the accused under Articles 7 (1) and 7 (3) of the Statute. The accused's role as a colonel in the HVO and, subsequently, as a general appointed commander of the HVO throughout the times material to this indictment, as well as his conduct, are decisive for clearly specifying this type of responsibility. As a consequence, any indictment specifying with a certain degree of vagueness - rather marginal as it is in this case - the overall time period in which grave violations of international humanitarian law allegedly took place, does not formally contravene the general rules governing the presentation of indictments.
Such a conclusion may be inferred by analogy from the above mentioned The Prosecutor v. Tadic Decision26.
Further specification as to the dates of the alleged events inevitably takes place during the procedural stages following the presentation to the accused of the indictment , specifically when the evidence is disclosed.
In this respect, the Trial Chamber refers the parties to its Decision on the Production of Discovery Materials dated 27 January 1997.
c) With regard to the identity of victims (point E) and of the participants (point F)
24. The Defence maintains that the indictment fails to set forth sufficient factual allegations regarding the identity of victims. The victims are identified only as "Bosnian Muslims" or "persons protected by the Geneva Conventions of 1949". The Defence stresses that a core element of any charge arising under Article 5 of the Statute is that the alleged victim be a civilian.
Similarly, the alleged perpetrators of such acts are also merely identified as "agents of the HVO" ( point F). The Defence argues that if these agents are not identified, command responsibility cannot be inferred.
The Prosecutor submits that the identity of some of the victims cannot be ascertained because of the wounds they sustained. As to the members of the HVO who allegedly took part in crimes charged, many managed to disguise their identity. Furthermore , the Prosecutor also points out that the identity of some of the soldiers was provided to the accused in the supporting material which it provided.
The Trial Chamber can only take note of the objective reasons which did not always permit the Prosecutor to identify many of the victims and participants with precision .
It points out however that since 16 December 1996, which is the date the Defence filed its Motion, the Defence has been in a position to inspect a large body of evidence and that it is in the light of such evidence that the Judges might, if appropriate, rule that the Defence was not able to prepare its case. The Trial Chamber does not, at this stage, have at its disposal all the material provided to the accused by the Prosecution. Furthermore, the evaluation by the Judges as to the incompleteness of some of the allegations - specifically as to the compliance with the provisions of Articles 5 and 7(3) of the Statute - is, of course, a part of the hearing on the merits and will be settled at trial.
The Trial Chamber therefore rejects this point of the Motion.
2. Review of the indictment from the point of view of vagueness /lack of specificity as to the components of the offences charged .
25. With regard to points B - allegations regarding the existence of an international armed conflict - G - the accused's role in the underlying conduct - H - the required mens rea for command responsibility - I, J and K - failure to adequately allege a required element of the offences charged under Articles 2 and 3 of the Statute , the Defence Motion argues not only factual or evidentiary vagueness, but also substantive vagueness as to the offences charged, which, if not corrected, would completely vitiate the indictment, as least as regards some of the charges.
a) As to the failure to set forth any factual allegations supporting the Prosecutor's legal conclusions regarding the existence of an international armed conflict (Point B of the Motion)
26. Within the scope of the present debate on the argument concerning preliminary motions, the Defence filed another motion on the same day to dismiss Counts 4, 7 , 10, 14, 16 and 18 because of the failure to adequately plead existence of an international armed conflict27. Although the two preliminary motions are presented as different in nature and foundation, one being an objection based on lack of jurisdiction under Sub-rule 73 (A)(i) of the Rules - as mentioned above - the other being an objection based on defects in the form of the indictment (the one treated in this decision) under Sub-rule 73 (A) (ii) of the Rules - , both Motions have in common that they deal with whether or not an international armed conflict existed in support of the counts established for grave breaches of the Geneva Conventions of 1949.
In the present Motion, the Defence itself refers to its argument in support of an objection based on lack of jurisdiction. As regards this aspect of the question , the Trial Chamber can only refer the Defence to the decision rendered today on that issue.
27. With regard to the aspect of the Motion referring more specifically to the failure to sufficiently allege existence of an international armed conflict, the Defence states that it is insufficient to characterise the existence of such an armed conflict only once in paragraph 5.1 and to rely on no factual allegation which would permit invoking such an international conflict between the HVO and another army.
At this stage of the proceedings, the Trial Chamber does not consider it necessary to rule in any way as to the nature of the armed conflict which may have existed at the time of the events in order to characterise legally the charges against the accused deriving from Article 2 of the Statute.
The Trial Chamber would only point out that, in the Tadic case, the Appeals Chamber, in a split decision which gave rise to several separate opinions, concluded that in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts .28
Therefore, the Chamber notes, in the case at hand, that the notion of an international armed conflict would be a prerequisite to the application of Article 2 of the Statute regarding the grave breaches of the 1949 Geneva Conventions.
28. The question is essentially one of knowing whether or not the Prosecution satisfied its obligations by stating in the indictment (paragraph 5.1) that "at all times relevant to this indictment, a state of international armed conflict and partial occupation existed on the territory of the Republic of Bosnia and Herzegovina".
There can be no doubt that the Prosecution was under the obligation to state its intention to charge the accused with a violation of Article 2 of the Statute in all the legal components which are part of the charge, including the requirement that an international armed conflict existed.
Should it be inferred from the above that the Prosecution was under the obligation to provide for this specific case the evidence which would shed light on the components of the said conflict?
The Trial Chamber is not of such an opinion. Besides the fact that the Office of the Prosecutor appears to have provided a "Memorandum on Jurisdiction" to the Defence , above all, the question is to know whether the accused has been and is in a position to prepare his defence when faced with the assertion that an international armed conflict existed on the alleged territory where he is said to have committed the crimes.
The Trial Chamber notes that the international characterisation of an armed conflict is an issue intimately involving questions of both law and fact. These elements will be discussed at trial.
The mere mention of an international character of the conflict, at the stage concerning us here, already allows the accused to comprehend the situation and prepare his defence as soon as the accusation is made. The accused is therefore not in a position to claim any prejudicial surprise on this count.29
The Trial Chamber consequently rejects this point of the Motion.
b) With regard to the failure to properly allege the accused's role in the underlying conduct (Point G of the Motion)
29. The Defence puts forward several arguments in support of its Motion:
i) vagueness which, for example, takes the following form in the indictment: " inter alia persecution", and which does not permit the accused to defend himself against such unspecified charges;
ii) the contradiction in alleging concurrently three alternative theories of command responsibility against the accused, that is , the one based on Article 7(1) - referring to a superior who planned, abetted, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime (...);
the one based on Article 7(3) - referring to the one who "knew or had reason to know that his subordinate was about to commit (such acts)" and consequently failed to take the necessary measures to prevent such acts and, under the same article, the failure to punish the perpetrators of the crimes;
iii) the lack of factual allegations in support any of these theories, which obfuscates the accused's actual role in the alleged events;
iv) lastly, ascribing the crimes charged to other persons who allegedly acted " in concert" with the accused does not leave the latter in a position to identify the exact role he allegedly played.
30. With respect to points i) and iv), the Trial Chamber - as it has already had the opportunity to stress in respect of vagueness as to the location of the alleged events (see above B.1.(a)) - reminds the Prosecutor of the general need to avoid using overly vague and open-ended expressions or formulas in the indictment which might give rise to different interpretations.
With respect to points ii) and iii) which are related to the legal foundation of the responsibility and the underlying conduct of the accused, the Trial Chamber first notes that the Defence has filed, within these same proceedings, another preliminary motion regarding the mens rea required for charges alleging command responsibility
Many of the arguments pleaded therein, including the interpretation to be given to the provision of the Statute in respect of the person who "knew or had reason to know" that his subordinate was about to commit such acts, are repeated in the instant Motion.
The Trial Chamber refers the Defence to the Decision on the mens rea motion handed down in this case this day.
31. The Defence also invokes the contradiction which would arise in ascribing to the accused each of the theories of individual criminal responsibility provided for in Article 7 of the Statute.
It is appropriate first to refer to paragraph 56 of the Secretary-General's Report which did not rule out the possibility that "a person in a position of superior authority should be held individually responsible for giving the unlawful order to commit a crime" but that he "should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates".
In principle, an interpretation of the Report, together with plain common-sense , permits the Trial Chamber to infer that although one and the same individual may be prosecuted on the basis of both theories, this can be done only for distinct acts.
A reading of the provisions of the Statute reveals the existence of two distinct types of responsibility: the one referred to in Article 7(1), which will be called direct command responsibility and the one referred to in Article 7(3) which will be called indirect responsibility. The latter may encompass several facets in the elements required (the theoretical or actual knowledge of the act on the point of being committed, the failure to prevent and the failure to punish). The question is therefore one of knowing whether an accused can, by a single criminal act, violate both legal provisions. In some national jurisdictions, this is known as a position where a single act constitutes more than one offence or, more generally, as conflicting legal characterisations.
It is not the role of the Trial Chamber reviewing the preliminary motion on defects in the form of the indictment as it now stands to rule on whether the proceedings instituted against the accused must be based on Article 7(1) or 7(3). In addition , the Trial Chamber would not have all the necessary elements at its disposal to make such a ruling.
32. The Trial Chamber, however, recalls the principles stated above and drawn both from the spirit and letter of the texts as well as from the interpretation provided to date (see above A.2.d).
It can thus be inferred that an indictment, however succinct and concise, must set forth, pursuant to Article 18(4) of the Statute and Sub-rule 47 (B) of the Rules , the crime or crimes with which the accused is charged or a concise statement of the facts of the case. This minimum right must be granted to the accused as of his initial appearance. Yet, a thorough examination of the amended indictment by the Trial Chamber reveals that, as the case now stands, out of the present 19 charges alleged against the accused, the latter is not in a position to distinguish the count or counts charged under either Article 7(1) or Article 7(3) of the Statute . Can it be considered that each count may somehow fall under either type of responsibility ? Such a question can, in theory, be answered in the affirmative since the concept of concurrent legal characterisations has been identified and is known in national criminal law.
The Trial Chamber is, however, of the opinion that, in international humanitarian law, more than in any other area, it is incumbent upon the Prosecutor to specify the type of responsibility under which a criminal act falls as promptly and as far as may be practicable as soon as the indictment has been issued. Indeed, even though the Statute admittedly intends to make no distinction between each of the responsibilities listed in paragraphs 1 to 4 of Article 7, respectively, inasmuch as it does not provide each of them with its own different and specific legal status, the Defence does not find itself in the same situation if the charges against the accused fall under Article 7(1) or under Article 7(3). The challenged indictment must therefore be reviewed in the light of whether or not the accused has been able to prepare his defence. Yet it must be noted that the Prosecutor merely stated the two types of individual criminal responsibility falling under Article 7(1) and Article 7(3 ) of the Statute respectively in paragraphs 5.6 and 5.7 of paragraph 5 of the indictment under the heading "General Allegations". All the counts then describe the alleged acts as having been committed by the accused "by his order or with his knowledge ".
When reviewed from this strict point of view, which is more than merely technical in respect of the rights of the Defence, the amended indictment, confirmed on 22 November 1996, has even been changed for the worse when compared to the initial indictment confirmed on 10 November 1995. In the latter, in fact, each count was presented alternatively and in more detail as to the acts committed, which permitted the Defence to prepare itself in respect of either type of responsibility under better conditions.
In conclusion, the Trial Chamber is of the opinion that the indictment should be amended as to the nature and the legal basis of the criminal responsibility for which the accused is liable. Nothing prevents the Prosecutor from pleading an alternative responsibility (Article 7(1) or 7(3) of the Statute), but the factual allegations supporting either alternative must be sufficiently precise so as to permit the accused to prepare his defence on either or both alternatives. The required level of precision is important, if only in order to permit the accused to demonstrate the impossibility of being held responsible both directly for his own deeds and indirectly those of his subordinates.
c) With regard to the failure to properly allege the required mental state (Point H of the Motion)
33. The Defence submits that the failure to indicate or to allege mens rea constitutes a defect in form which inter alia affects Counts 1, 2, 3, 10 to 13 and 14 to 19. By way of illustration, the Defence cites Count 1 relating to crimes against humanity sanctioned by Article 5 (h) of the Statute - persecutions on political, racial and religious grounds.
Applying the principles it has just identified, the Trial Chamber states that the admittedly succinct facts and the characterisation - taken literally from the text of the Statute - permit the accused, as soon as he has learned of the indictment , to be fully aware of the charges against him and to start preparing his defence .
Lastly, with respect to command responsibility, the Trial Chamber recalls that the Defence was able to obtain material to prepare its case as soon as the indictment had been notified to the accused inasmuch as the indictment sufficiently notified the accused with regard to the time and place of the alleged events, as confirmed by the Trial Chamber. The accused, whose rank and position as head of the HVO are not disputed, can therefore not invoke surprise and is thus not unable to challenge all of the factual ingredients, including the mental element, of the Prosecutors charge.
The Motion is consequently rejected on this point.
d) With regard to the lack of specific allegations in support of certain charges deemed to be substantive and which, unless they are modified, must be stricken from the indictment (Points I, J and K of the Motion)
34. The point apparently common to all three Defence Motions would be that the Prosecutor seemingly failed to specify the elements of the offences charged. The counts concerned should simply be stricken.
It should first be noted that:
- Point I relates to Counts 2, 3, 10 and 11 and respectively: a violation of the laws and customs of war (Article 3 of the Statute (Counts 2, 3 and 11)) and a grave breach of the 1949 Geneva Conventions (Article 2 (d) of the Statute (Count 10));
- Point J relates to Counts 12 and 13 and respectively: a violation of the laws and customs of war under Articles 3 (d) and 3 (e);
- Point K relates to Counts 16 and 17 and respectively: a grave breach of the 1949 Geneva Conventions (Article 2 (h) (Count 16) and a violation of the laws and customs of war (Article 3 of the Statute and Common Article 3 (taking of hostages) of the Geneva Conventions (Count 17).
35. At this stage of the proceedings, the Trial Chamber does not intend to conduct an exhaustive review of the various legal components of the offences charged. The parties will argue all the legal and factual elements of the accusation at trial .
However, in conformity with the principles it has just identified in this Decision , the Trial Chamber will conduct a twofold examination of whether or not, in all the relevant counts, the accused has been informed in the manner granted to him by the basic texts and whether or not he has been given sufficient time to prepare his defence.
i) With regard to Point I of the Motion
36. Article 3 of the Statute "Violations of the laws and customs of war" is referred to by the Prosecutor in support of Counts 2, 3, 10 and 11, in order to cover "unlawful attacks on civilians and civilian objects" as well as "devastation not justified by military necessity".
To be sure, in respect of Counts 2 and 3, related as they are to Article 3 of the Statute, the Prosecutor fails to refer to one of the 5 sub-charges listed in Article 3, and, in particular, to those indicated in paragraphs 3(b) and 3(c).
Nonetheless, aside from the fact that the Defence has apparently not misunderstood the indictment, it should be noted that the list of violations appearing in Article 3 is not exhaustive. Moreover, the Appeals Chamber stressed that "Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5 of the Statute30.
The Trial Chamber is nevertheless of the opinion that the Prosecutor would fulfil her obligations as recalled above, thus permitting the Defence to prepare itself under optimum conditions, if the facts referred to in paragraph 8 were presented with a greater degree of precision and, more importantly, characterised in accordance with one of the sub-paragraphs of Article 3 of the Statute.
With regard to Counts 10 and 11, it appears that the Prosecutor did adequately refer to the relevant provisions - both Articles 2 (d) and 3 (b) of the Statute - in support of her indictment. At the very most, a degree of factual vagueness in the indictment can be noted - as already pointed out in this Decision regarding other portions of the indictment to which the Trial Chamber is requesting the Prosecutor to add - if she has not already done so - specific or supplementary information as to the time and place of the events.
ii) With regard to Point J of the Motion
37. Article 3 of the Statute is referred to by the Prosecutor in support of Counts 12 and 13 to cover the violations appearing in paragraph 3 (d) "destruction or wilful damage done to institutions dedicated to religion or education" and paragraph 3 (e) "plunder of public or private property".
The Trial Chamber grants the point of the Defence Motion stating that not one religious or educational institution alleged to have been destroyed has been identified. The Prosecutor must therefore be more specific as to her allegations.
The Trial Chamber is nonetheless of the opinion that at the indictment stage an exhaustive list of plundered public or private property cannot be demanded because wars characteristically bring in their wake massive and large-scale destruction. The information on this subject, which the Prosecutor must provide to the Defence , may be brought by any other evidentiary means not necessarily available when the indictment is issued. Nevertheless, the onus of precision remains that of the Prosecutor who, during trial proceedings, must satisfy the required degree of specificity by all means.
iii) With regard to Point K of the Motion
38. Article 2 of the Statute Grave breaches of the Geneva Conventions", the basis of Count 16, is referred to by the Prosecutor to cover "the taking of civilians as hostages" under paragraph 2 (h). Article 3 of the Statute and Common Article 3 of the Geneva Conventions are referred to for the same facts, that is, the taking of Bosnian Muslims as hostages.
The Defence's argument is not irrelevant when it asserts that the Prosecutor, in her succinct statement of facts, suggests (paragraph 14) that the Muslims concerned were participants in the fighting. In so doing, the Defence highlights the difficulty of making the various legal provisions referred to by the Prosecutor coincide. In her Response, moreover, the Prosecutor does demonstrate a greater awareness of the difficulty and, essentially, uses Common Article 3 of the Geneva Conventions.
The question in fact is to identify in what capacity the Bosnian Muslims were allegedly used in exchanges.
The Trial Chamber first notes that, in this specific case, the statement of facts is overly concise and that such conciseness may might lead the Defence to prepare an inappropriate strategy.
Furthermore, the method of concurrent charges used by the Prosecutor has reached its limit here, and it would be appropriate to decide whether the taking of civilians as hostages falls under the precise scope of Article 2 of the Statute or, rather , under the broader scope of Article 3 of the Statute and Common Article 3 of the Geneva Conventions of 1949.
The Trial Chamber invites the Prosecutor to redraft paragraph 14 of the indictment so as to provide the accused with a statement of facts which will permit him to prepare his defence, either under Article 2 or under Article 3 of the Statute. Should both characterisations be chosen - which can be done - it is nonetheless incumbent on the Prosecutor to specify which exchanges of individuals ascribed relate to civilians , which to soldiers, or even which to "(...) inhabitants of an occupied territory , who, on the approach of the enemy spontaneously take up arms to resist the invading forces (...) (Article 4 (6) of the Geneva Convention on the Treatment of Prisoners of War).
39. FOR THE FOREGOING REASONS
Trial Chamber I
Ruling inter partes and unanimously,
CONSIDERING the Defence Motion dated 16 December 1996 "to dismiss the indictment based on defects in the form of the indictment (vagueness/lack of adequate notice of charges)",
STATES that there is no reason to dismiss the amended indictment (point A of the Motion), subject to the following:
REJECTS the point of the motion that the amended indictment fails to set forth any factual allegation supporting the Prosecutor's legal conclusion regarding the existence of an international armed conflict (Point B of the Motion);
NOTIFIES the Prosecutor of its invitation to supplement the amended indictment in the points of claim related to the place of the events alleged in paragraphs 6.1 to 7 (Count 1), paragraph 9 (Counts 4 to 9), paragraph 10 (Counts 10 to 13) and paragraphs 13 to 15 (Counts 14 to 19) and, as appropriate,
ORDERS such amendments to be made by 18 April 1997 at the latest (Point C of the Motion);
REJECTS the points of claim related to the time when the alleged events took place (Point D of the Motion);
REJECTS, as the case stands, the points of claim relating to the identity of the victims (Point E of Motion) and to that of the perpetrators (Point F of the Motion);
ORDERS the Prosecutor to amend by 18 April 1997 at the latest paragraphs 5.6 and 5.7 of the amended indictment relating to the accused's role in the acts charged by providing sufficient factual indications in support of the types of responsibility invoked pursuant to the provisions of Articles 7(1) and 7(3) of the Statute (Point G of the Motion);
REJECTS the point of claim relating to the lack of precision in the amended indictment in respect of the mens rea of the accused at the time the acts were allegedly perpetrated (Point H of the Motion);
ORDERS the Prosecutor to specify and to characterise the facts referred to in paragraph 8 (Counts 2 and 3 of the amended indictment) in conformity with one of the sub-paragraphs of Article 3 of the Statute by 18 April 1997 at the latest (Point I of the Motion);
ORDERS the Prosecutor, to amend, as appropriate, by 18 April 1997 at the latest, paragraph 10 of the amended indictment with the required specific and supplementary allegations as to the time and place of the crimes as defined in Articles 2 (d) and 3 (b) of the Statute (Counts 10 and 11) (Point I of the Motion);
ORDERS the Prosecutor to add further precision to paragraph 10 (Count 12) of the amended indictment relating to institutions dedicated to religion or education alleged to have been destroyed (Point J of the Motion) by 18 April 1997 at the latest ;
REJECTS, as the case stands, the point relating to the destruction and plunder of public or private property (paragraph 10 (Count 13)) (Point J of the Motion);
ORDERS the Prosecutor to further specify by 18 April 1997 at the latest the facts contained in paragraph 14 of the amended indictment so as to make it possible for the accused to prepare his defence either under Article 2 or Article 3 of the Statute and, where appropriate, to identify more specifically the categories of the population to which the persons taken hostage allegedly belonged (Point K of the Motion);
REJECTS all of the other points of claim.
Done in French and English, the French version being authoritative.
Done this fourth day of April 1997
At the Hague
Presiding Judge of Trial Chamber I
(Seal of the Tribunal)
1- Paragraph 106 of the Secretary-Generals Report states: It is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights...