Decision on Motion by Momir Talic for provisional Release

IN TRIAL CHAMBER II

Before:
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun

Registrar:
Mr Hans Holthuis

Decision of:
28 March 2001

PROSECUTOR

Radoslav BRÐANIN & Momir TALIC

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DECISION ON MOTION BY MOMIR TALIC
FOR PROVISIONAL RELEASE

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The Office of the Prosecutor:

Ms Joanna Korner
Mr Nicolas Koumjian
Mr Andrew Cayley
Ms Anna Richterova
Ms Ann Sutherland

Counsel for Accused:

Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic

1 Introduction

1. Pursuant to Rule 65 of the Tribunal’s Rules of Procedure and Evidence (“Rules ”), the accused Momir Talic (“Talic”) seeks provisional release pending his trial .¹ The application is opposed by the prosecution.² Talic has relied upon a witness in support of his application, and he requested an oral hearing.³ An oral hearing took place as requested.⁴

2. Talic is charged jointly with Radoslav Brdanin (“Brdanin”) with a number of crimes alleged to have been committed in the area of Bosnia and Herzegovina now known as Republika Srpska. Those crimes may be grouped as follows:

(i) genocide⁵ and complicity in genocide ;⁶

(ii) persecutions,⁷ extermination,⁸ deportation⁹ and forcible transfer (amounting to inhumane acts),¹⁰as crimes against humanity;

(iii) torture, as both a crime against humanity¹¹ and a grave breach of the Geneva Conventions;¹²

(iv) wilful killing¹³ and unlawful and wanton extensive destruction and appropriation of property not justified by military necessity,¹⁴ as grave breaches of the Geneva Conventions; and

(v) wanton destruction of cities, towns or villages or devastation not justified by military necessity¹⁵ and destruction or wilful damage done to institutions dedicated to religion,¹⁶ as violations of the laws or customs of war.

Each accused is alleged to be responsible both individually and as a superior for these crimes.

3. The allegations against the two accused assert their involvement in a plan to effect the “ethnic cleansing” of the proposed new Serbian Territory in Bosnia and Herzegovina (the area now known as Republika Srpska) by removing nearly all of the Bosnian Muslim and Bosnian Croat populations from the areas claimed for that territory .¹⁷ They are alleged to have been responsible for the death of a significant number of Bosnian Muslims and Bosnian Croats within the Autonomous Region of Krajina (“ARK”), and for the forced departure of a large proportion of the Bosnian Muslim and Bosnian Croat populations from that region, between 1 April and 31 December 1992.¹⁸ Talic is alleged to have been the Commander of the 5th Corps/1st Krajina Corps, with responsibility for implementing the policy of incorporating the ARK into a Serb state.¹⁹

4. Despite the repetition in the current indictment of the allegation that Talic “committed” the crimes charged within the meaning of Article 7.1 of the Tribunal’s Statute, it is conceded by the prosecution that it has no evidence that he physically perpetrated the crimes himself.²⁰ The bases asserted for his individual criminal liability²¹ are that, in various ways, he aided and abetted those who did physically perpetrate them,²² or participated with them in their criminal enterprise with the common purpose of removing the majority of the Bosnian Muslim and Bosnian Croat inhabitants from the planned Serbian state.²³ The basis asserted for his criminal responsibility as a superior²⁴ is that he knew or had reason to know either that the forces under his control were about to commit those crimes and failed to prevent them doing so, or that they had committed those crimes and he failed to punish them for having done so.²⁵ Previous decisions in these proceedings give greater detail of these allegations .²⁶

5. Talic was arrested on 25 August 1999. He has made two previous applications for release, each of them unsuccessfully based upon an assertion that his detention was unlawful.²⁷ Neither application was for provisional release pursuant to Rule 65(B), and the rejection of those motions has therefore been ignored for present purposes.

2 The relevant provision

6. Rule 65(A) states that an accused may not be released except upon an order of a Chamber. Rule 65(B) provides:

Release may be ordered by a Trial Chamber only after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

The host country has been heard.

3 The material put forward by the parties

7. Talic has filed with his Motion a signed document entitled “Promise and Guarantee ”, by which he undertakes (so far as is presently relevant) that, in the event of being provisionally released, he will remain within the Municipality of Banja Luka , he will surrender his passport to the International Police Task Force (“IPTF”) in Banja Luka, he will report once a day to the Public Security Centre there, he will permit the IPTF to monitor his presence at the local police station and by making random visits (to check upon his whereabouts), and that he will not contact any other person charged in the indictment, he will not disturb or contact in any manner any person who may be a witness in the case, and he will not discuss this case with any person other than his counsel. Talic undertakes also to observe strictly all modifications which may be ordered to the conditions of his provisional release or its revocation.

8. The Motion asserts that Talic –

[…] proposes to provide a bail bond, in the amount set by the Tribunal, in order to assure the Tribunal of his presence at trial and the protection of others.²⁸

There is no reference to this in the document presently signed by Talic, but the Trial Chamber accepts that such a bond would be executed by Talic in the event that it is made a condition of his provisional release.

9. Talic has also filed with his Motion a document entitled “Guarantees by the Government of Republika Srpska”, signed by Milorad Dodik as the Prime Minister, by which the Government guarantees:

[…] that the Public Security Centre in Banja Luka will ensure that the accused reports to the police station on a daily basis, keep a logbook and submit a monthly report confirming that the accused has complied with his obligations and inform the International Criminal Tribunal immediately should the accused fail to report […and] that the accused will be immediately arrested should he attempt to flee or should he be in breach of one of his obligations as notified to Bosnia-Herzegovina by the International Tribunal and so inform the Tribunal in order that it may prepare his transfer to the Tribunal.

10. This Guarantee was signed by Mr Dodik on 10 November 2000, the day before the elections in Bosnia in which Mr Dodik lost office. Following a submission by the prosecution that it was unclear what effect, if any, a guarantee from Mr Dodik would have had on any future Governments,²⁹ Talic submitted that a State remains bound by its international commitments even after a change of Government.³⁰ Talic subsequently filed two further documents, each entitled “Conclusion”, signed by the current Prime Minister of Republika Srpska (Mladen Ivanic), and sealed with the Seal of that Government. In one of the documents, the new Government “adopted the position and accepted the guarantees for Mr Momir Talic” given in the previous document,³¹ and in the other it confirmed the “previously provided guarantees for General Momir Talic”.

11. Talic also called as a witness the current Minister of Internal Affairs for Republika Srpska, Mr Perica Bundalo.

12. In his statement,³² Mr Bundalo attested to the capacity of the Government of Republika Srpska “and its organs” to ensure the Guarantees which had been given, and that Talic will appear before the Tribunal. He said that the organs have the resources to monitor the movements and activities of Talic. Mr Bundalo’s Ministry, which is responsible for the police , was prepared to assign a police patrol to follow Talic day and night, thereby precluding any possibility of escape or illegal contact. It would guarantee that the witnesses enjoy “appropriate” protection if their names are supplied. Reports would be made daily to Mr Bundalo to ensure that the obligations of Republika Srpska to the Tribunal are respected.

13. In his evidence, Mr Bundalo confirmed what had been said in his statement. He said that he has been given assurances by his colleagues in the Ministry that there were the necessary personnel – with special training in surveillance and security ³³ – and technical requirements to carry out the guarantees.³⁴ He conceded that the intelligence service of Republika Srpska was not under the control of his Ministry, it being accountable only to the President of Republika Srpska and, to a lesser extent, to the Prime Minister.³⁵ He attested to the great respect which Talic enjoys among the people and the Army .³⁶

14. In cross-examination, Mr Bundalo said that his government would accept only those obligations undertaken by Mr Dodik’s government which it considers it should in each particular case.³⁷ He accepted that the issue of his government’s co-operation with this Tribunal was a challenge and a hard question,³⁸ and he admitted that this was a sensitive question for his government.³⁹ He said that, as his government had been elected only on 12 January, it was not in a position to undertake any specific moves to arrest anyone against whom Tribunal indictments were outstanding⁴⁰ – they had not had the time yet to discuss such arrests.⁴¹ When asked during his cross-examination about any efforts made to arrest Radovan Karadžic (the former Prime Minister of Republika Srpska whose indictment was publicly disclosed in 1995),⁴² Mr Bundalo replied “I know the name”, but he said that he did not know where Karadžic lived.⁴³ He nevertheless expressed his personal conviction that his government would address the issue of co-operation with the Tribunal from a different standpoint and in a different way to that of the previous government.⁴⁴

15. Finally, Talic asserts that, in order to carry out a peace mission, he was put in command of the armed forces of Republika Srpska with the consent of the United Nations and NATO authorities, that he travelled to the seat of NATO in Brussels several times, and that, at the time when he was arrested, he was attending an OSCE meeting in Vienna to which he had expressly been invited by the United Nations military authorities.⁴⁵

4 The contentions of the parties, analysis and findings

16. Talic submits that, in the light of the presumption of innocence in his favour ,⁴⁶ the Tribunal’s Statute and Rules , by making detention the rule rather than the exception, run contrary to the relevant international norms,⁴⁷ which are identified .⁴⁸ The purpose of such norms, Talic submits, is to require provisional release once his continuing detention ceases to be reasonable.⁴⁹

17. The Trial Chamber does not accept that the Tribunal’s Statute and Rules make detention the rule rather than the exception. The Rules previously required an applicant for provisional release to establish, in addition to the matters presently specified in Rule 65, the existence of “exceptional circumstances” in order to obtain such release. This requirement was removed in December 1999. However, because the applicant for provisional release must still satisfy the Trial Chamber that – to use the words of Rule 65(B) – he “will appear for trial and, if released, will not pose a danger to any victim, witness or other person”, it cannot be said that provisional release is now the rule rather than the exception. The particular circumstances of each case must be considered, in the light of the provisions of Rule 65 as it now stands.⁵⁰

18. Placing a substantial burden of proof on the applicant for provisional release to prove these two matters is justified by the absence of any power in the Tribunal to execute its own arrest warrants; in the event that a person granted provisional release does not appear for trial or interferes with a witness, the Tribunal is dependent upon local authorities and international bodies to act on its behalf.⁵¹ The challenge to the validity of the Tribunal’s Statute and Rules is rejected.

19. The primary reason put forward by Talic justifying his application for provisional release is the failure of the previous indictment – which has been referred to as the amended indictment – to provide an adequate factual basis to enable him to identify the charges against him.⁵² His counsel described the inadequacy of that indictment, after Talic had spent so long in detention , as the “very heart of this matter”,⁵³ making this application “well grounded”.⁵⁴

20. The Trial Chamber has already upheld the objection by Talic to the adequacy of the amended indictment.⁵⁵ A new indictment has now been filed.⁵⁶ The Trial Chamber has not considered the adequacy of this new indictment. Talic has nevertheless argued that the inadequacy of the previous indictment is such that it provided no valid basis for his detention.⁵⁷ This argument was not elaborated in the Motion or in argument, but it appears to be at least similar to one or more of those put forward in support of the two motions for release earlier filed by Talic and dismissed by the Trial Chamber.⁵⁸

21. The detention of an accused person is justified in accordance with the Tribunal’s procedures by the issue of the arrest warrant, which in turn is justified by the review and confirmation of the indictment which is served.⁵⁹ Once the indictment has been confirmed, the only issue as to the validity of the indictment is whether it pleads sufficient facts to support the charges laid. That is an issue to be determined in a preliminary motion pursuant to Rule 72 challenging the form of the indictment. No such issue was raised by Talic in the preliminary motion which he filed and which has been dealt with.⁶⁰ The Trial Chamber does not propose to re-consider that issue in the present application .

22. The fact that an indictment is inadequate is unlikely ever to be sufficient, by itself, to warrant the provisional release of an accused. Where this inadequacy is of such a nature that it causes the trial to be delayed, that fact may , in the appropriate case, enliven the discretion which the Trial Chamber discussed in its decision refusing provisional release to Brdanin.⁶¹ Talic has complained that the period during which he has been in custody, without a resolution of the procedural formalities or the production of a credible indictment or the disclosure of the prosecution’s statements and exhibits, infringes international norms; he asserts that a decision upholding his continued detention would be tantamount to forcing him to accept the procedural failures acknowledged by the prosecution .⁶² Notwithstanding the time taken in resolving the procedural irregularities for which the prosecution has been responsible , the Trial Chamber does not accept that the time which Talic has spent in custody exceeds what is reasonable in this Tribunal.⁶³ Nor does the Trial Chamber accept that the stage has yet been reached where the delays caused by the procedural irregularities will cause the trial to be delayed . It would not have been heard yet in the ordinary course. Unfortunately, there is a long backlog of cases awaiting hearing in which cases the accused persons were taken into custody before the accused in this case. This argument is rejected.

23. Talic submits that the indictment was in any event factually inaccurate. He says that its factual basis was contradicted in 1999 by Lt General Satish Nambiar , who had been Commander and Head of Mission of the UN Forces in the former Yugoslavia in 1992-1993.⁶⁴ Talic also says that the indictment fails to take into account the history of Yugoslavia’s disintegration process,⁶⁵ and that it relies in the main upon a political assumption that he had participated or was complicit in a resolve on the part of the political authorities of Republika Srpska to commit genocide .⁶⁶ However, an objection to the form of an indictment is not an appropriate procedure for contesting the accuracy of the facts pleaded.⁶⁷

24. Talic also submits that criminal responsibility cannot be imposed upon an accused person unless it is based upon that person’s individual responsibility, and that , as the case put forward by the prosecution does not involve such individual responsibility on his part, it runs contrary to all international norms.⁶⁸ The Trial Chamber does not accept the assertion that the indictment does not allege an individual responsibility on the part of Talic. Both the previous and the current indictments allege that he aided and abetted those who physically perpetrated the crimes charged. That asserts an individual responsibility on the part of Talic. Insofar as this submission was intended to challenge the notion of command responsibility referred to in Article 7.3 of the Tribunal’s Statute, the existence of such a responsibility at the relevant time is now well accepted in the Tribunal’s jurisprudence.⁶⁹ The Trial Chamber is bound by that jurisprudence.

25. Reference has already been made to the material provided by Talic directed to the real issues which are in dispute in the present application – whether Talic will appear for trial and, if released, will not pose a danger to any victim, witness or other person.⁷⁰ Talic submits that the guarantees which have been provided and which he is prepared to provide will assure the Trial Chamber that this is the case.⁷¹

Appearance for trial

26. In the Brdanin Decision, the Trial Chamber referred to the fact that Republika Srpska has never arrested any persons indicted by the Tribunal. It concluded that, where an accused person seeking provisional release was a high level Government official at the time of the events which are alleged against him and has very valuable information which he could disclose to the Tribunal, if minded to co-operate with the prosecution for mitigation purposes,⁷² there would be a substantial disincentive for Republika Srpska to enforce its guarantee to arrest, for the first time, an indicted person within its territory.⁷³ The recent arrest of one Milomir Stakic has not changed that situation.⁷⁴

27. It is clear that, as the Commander of the forces alleged to have committed the crimes for which he is charged as having responsibility, Talic is in the same position in this regard as was Brdanin so far as the Government of Republika Srpska is concerned . It is true that there is now a new Government of that entity, but the Trial Chamber prefers to wait to see whether that new Government demonstrates by its actions that it will arrest persons indicted by the Tribunal who are within its territory before its promises to do so are accepted.⁷⁵ There are many such indicted persons within its territory who could be arrested by it. The Trial Chamber was not persuaded by the evidence of Mr Bundalo that this will be done.

28. Talic has sought to deflect the conclusion of the Trial Chamber in the Brdanin Decision identified in paragraph 26 by the submission that, as he has indicated his willingness to appear at trial by the guarantees he is offering, Republika Srpska would not prevent him from surrendering himself to the Tribunal.⁷⁶ The Trial Chamber observes that a willingness by Republika Srpska to permit Talic to surrender where he is willing to do so is hardly the same as a guarantee to arrest him if he is not willing to do so. The guarantee that Republika Srpska will arrest him where he is not willing to appear for trial is an essential element in his case that he will appear for trial.

29. Talic has argued that the role carried out by the Stabilisation Force (“SFOR ”) in the detention and transfer of indicted persons to the Tribunal has been assimilated to that of a police force in domestic legal systems.⁷⁷ The Trial Chamber observes that the comparison upon which Talic relies was made by one judge in a Separate Opinion appended to a Trial Chamber decision; there is no support for it in the Decision to which the Separate Opinion was appended.⁷⁸ The views of that judge do not assist Talic in persuading the Trial Chamber that he will appear for trial. The Dayton Peace Agreement⁷⁹ does not require SFOR to operate as the Tribunal’s police force. It appears that SFOR is given authority to arrest persons indicted by the Tribunal, but that it is presently placed under no obligation to do so.⁸⁰ Whether or not that is so, the North Atlantic Council – under whose authority, direction and political control the original Implementation Force (“IFOR”) operated, and under which SFOR now operates in the place of IFOR⁸¹ – has expressed its understanding of SFOR’s obligation to arrest as being that it –

[…] should detain any persons indicted by the International Criminal Tribunal who come into contact with SSFORC in its execution of assigned tasks, in order to assure the transfer of these persons to the International Criminal Tribunal.⁸²

The use of the word “should” demonstrates the reality that SFOR does not accept any legal obligation on its part to arrest anyone. The resolution does not even contemplate any obligation upon SFOR to seek out indicted persons in order to arrest them. The inaction by SFOR during the period following the publication of the SFOR Decision only underlines the unfortunate fact that reliance cannot be placed upon SFOR to arrest indicted persons who fail to appear for trial, in the way a police force may be expected to act in domestic legal systems.

30. In relation to the “Promise and Guarantee” signed by Talic himself, the Trial Chamber accepts that, because the original indictment was a sealed one, Talic was not given the opportunity to surrender voluntarily to the Tribunal if he had wished to do so and thus demonstrate in a very clear way his willingness to appear for trial before the Tribunal. For this reason, the Trial Chamber does not take into account the fact that Talic did not voluntarily surrender.⁸³ However, the Trial Chamber accepts that Talic has reason enough for not wanting to appear. He has been charged with very serious offences for which, if convicted , he faces a very substantial sentence because of his high level position in relation to those crimes.⁸⁴ The Trial Chamber also accepts that, as a matter of common experience, any person in the position of Tadic, even if he is innocent, is likely to take advantage of the refuge which Republika Srpska presently provides to other high-level indicted persons,⁸⁵ and notwithstanding the “bail bond” which he is prepared to execute.⁸⁶

31. It is nevertheless asserted that Talic is willing to appear.⁸⁷ No evidence was given by Talic himself in support of this assertion. The Trial Chamber drew the attention of his counsel to the statement made by Talic at the time he pleaded to the amended indictment:⁸⁸

As far as I know, all the crimes that were done by military personnel in war are tried by military courts or international military courts or the warring states. This is logical and just because the military prosecution and military justice system is there to deal with the army and has the best knowledge of military organisation […]. I personally feel that justice and law would be satisfied only if I were to be tried by a military court of law; that is to say, Generals who have taken part in civil wars […].

His counsel replied that this statement had been made in a completely different context, when no guarantee had been considered and when Talic had not seen the exhibits in the case. Counsel suggested that Talic could not be criticized today for what he had said earlier. He suggested that the best thing to do may be to ask Talic directly about the statement he made. The Trial Chamber pointed out that it was a matter for counsel to decide whether Talic should be asked about the statement , but he was not called as a witness for that purpose.⁸⁹

32. The Trial Chamber regards this statement by Talic as important in the context of all the matters to which reference has been made. Talic has strongly expressed a personally held belief that justice and law would not be satisfied in a trial conducted by the Tribunal. The Trial Chamber respects the rights of Talic to hold such an opinion, but upon the basis of all of the material before it – viewed in the light of the opinion which he stated, and in the absence of evidence from him which demonstrated a clear willingness on his part to appear for trial notwithstanding that opinion – the Trial Chamber is not satisfied that Talic will appear for trial .

Interference with witnesses

33. The prosecution has repeated a submission which it had made during Brdanin’s application for provisional release. It says that, because Talic has had revealed to him the identity of witnesses (in accordance with Rule 66), and because he intends to return to the locality where the crimes are alleged to have been committed and where the witnesses live, it is very seriously concerned about his potential to interfere with victims and witnesses and his heightened ability to exert pressure on them.⁹⁰

34. In the Brdanin Decision, the Trial Chamber did not accept that this heightened ability of an accused person to interfere with victims and witnesses, by itself, suggests that he will pose a danger to them.⁹¹ It cannot just be assumed that every one charged with a crime under the Tribunal’s Statute will, if released, pose a danger to victims or witnesses or others.⁹² The Trial Chamber did not accept the logic employed by the prosecution – that, once it has complied with its obligation under Rule 66 to disclose to the accused the supporting material which accompanied the indictment and the statements of the witnesses it intends to call, the accused thereafter should not be granted provisional release because his mere ability to exert pressure upon them is heightened.⁹³

35. In repeating its submission in the present case, the prosecution relies once more upon a Trial Chamber decision in Prosecutor v Blaškic.⁹⁴ The passage to which reference is made is in the following terms:⁹⁵

CONSIDERING, furthermore, that it is not certain that, if released, the accused would not pose a danger to any victim, witness or other person; that the knowledge which, as an accused person, he has of the evidence produced by the Prosecutor would place him in a situation permitting him to exert pressure on victims and witnesses and that the investigation of the case might be seriously flawed.

As the Trial Chamber observed in the Brdanin Decision, that decision does not state that this heightened ability of an accused person to interfere with witnesses establishes that he will pose a danger to them.⁹⁶ As this Trial Chamber has pointed out (earlier in the present case), protective measures for witnesses delaying the disclosure of their identity to the accused and their defence teams will not be granted by a Trial Chamber unless some objective foundation is demonstrated for fears expressed that they will be interfered with .⁹⁷ The situation can be no different in relation to the decision which a Trial Chamber must make in relation to the grant of provisional release to an accused person pending trial.

36. Insofar, as the Trial Chamber in the Blaškic case appears to have considered that the mere existence of a heightened ability of an accused person to interfere with witnesses is sufficient to refuse that person provisional release, this Trial Chamber does not, with respect, accept that decision as correct. It was given as long ago as 1996, in a formal decision which does not reveal the reasoning which led the Trial Chamber to that conclusion. A lot of water has passed under the bridge since then. Careful consideration has since been given to where the balance should lie in resolving the tension between the due regard to be paid to the protection of victims and witnesses and the full respect for the rights of the accused. The conclusion reached by this Trial Chamber (also earlier in the present case) is that Article 20.1 of the Tribunal’s Statute makes the rights of the accused the first consideration, and the need to protect victims and witnesses the secondary one.⁹⁸ This was conceded by the prosecution.⁹⁹ Those rights include the right of an accused person to be released from custody pending trial where – to repeat the words of Rule 65(B) – he has satisfied the Trial Chamber that, inter alia, he “will not pose a danger to any victim, witness or other person”. The heightened ability of an accused person to interfere is relevant to the determination of that issue, but its mere existence is not sufficient in itself to deny provisional release.

37. On the other hand, it is argued by Talic that an accused who has been provisionally released has no interest in contacting the witnesses, as he knows that any such action on his part would occasion the revocation of his provisional release; such an action would be contrary to his own character, principles and morals.¹⁰⁰ The Trial Chamber observes, first, that this statement could hardly be said to be one of universal application. It depends upon whether any particular accused believes that his action will be discovered. Secondly, it provides no guarantee that the contact will not be made indirectly through an intermediary.

38. However, in view of the finding that the Trial Chamber is not satisfied by Talic that he will appear for his trial, it is unnecessary to make a finding as to whether , if released, Talic will pose a threat to any victim, witness or other person. In those circumstances, it is unnecessary to examine the likelihood that, if released , Talic would show to the authorities of Republika Srpska redacted witness statements – even if directly and specifically necessary for the preparation of his case – knowing that they would be able to identify that witness from the content of the statement, thus revealing to them the identity of witnesses in whose favour protective measures have been granted. This was an issue raised indirectly late last year in relation to the likelihood that his defence team may have done so.¹⁰¹ Nor is it necessary in those circumstances to say anything in relation to the arrangement proposed by Mr Bundalo’s Ministry of Internal Affairs, that the police would provide “appropriate” protection for prosecution witnesses if their names were supplied,¹⁰² other than to point out that there might well be difficulties involved in such a procedure.

39. The Trial Chamber does not propose to reject the application upon the basis that Talic has failed to satisfy it that he will not pose a threat to any victim , witness or other person. It simply makes no finding upon that issue.

5 A new pleading issue

40. Reference was made earlier to the inclusion in the Further Amended Indictment of the allegation that Talic “committed” the crimes charged within the meaning of Article 7.1 of the Tribunal’s Statute, notwithstanding the concession by the prosecution that it has no evidence that he physically perpetrated the crimes himself.¹⁰³ The prosecution has claimed that it is entitled to do so because it has relied upon a case of his participation in a common purpose to perpetrate those crimes. The Trial Chamber does not accept that claim.

41. Article 7.1 provides:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

The prosecution claims that, in Prosecutor v Tadic,¹⁰⁴ the Appeals Chamber held that a common purpose was comprehended by the word “committed ” in Article 7.1.¹⁰⁵

42. The Trial Chamber does not so interpret the Tadic Conviction Appeal Judgment . The relevant passages in the Judgment for present purposes are in the following terms:

186. […] Article 7(1) also sets out the parameters of personal criminal responsibility under the Statute. Any act falling under one of the five categories contained in the provision may entail the criminal responsibility of the perpetrator or whoever has participated in the crime in one of the ways specified in the same provision of the Statute.

187. Bearing in mind the preceding general propositions, it must be ascertained whether criminal responsibility for participating in a common criminal purpose falls within the ambit of Article 7(1) of the Statute.

188. This provision covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law. However, the commission of one of the crimes envisaged in Articles 2, 3, 4 or 5 of the Statute might also occur through participation in the realisation of a common design or purpose.

Then – after an extensive review of the existence of “common design”, also called “common purpose”, in customary international law – the Appeals Chamber held that common purpose was “a form of accomplice liability”:

220. In sum, the Appeals Chamber holds the view that the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal

43. A “form of accomplice liability” cannot be the same as the liability for the physical perpetration of the crime by the accused himself. The Appeals Chamber’s description of Article 7.1 as covering “first and foremost the physical perpetration of a crime by the offender himself” expresses the natural and ordinary meaning of “committed” in the collocation in which it is used in Article 7.1. Common purpose as a “form of accomplice liability” is more naturally comprehended within the words “otherwise aided and abetted in the planning, preparation or execution” in Article 7.1. To permit the prosecution to include within the word “committed”, when used in the collocation of Article 7.1, both the physical perpetration of the crime by the accused himself and his participation in a common purpose to perpetrate that crime would virtually ensure the ambiguity in the pleading which the Appeals Chamber has now twice criticised.¹⁰⁶

44. The prosecution relies upon the Appeals Chamber’s use of the word “commission ” in the second sentence of par 188 as coming to the opposite conclusion. However , in the light of the clear description of common purpose as a “form of accomplice liability” after the Appeals Chamber’s extensive review of the concept, it is obvious that the word “commission” in this context was used in its generic sense, not in the particular sense of the word when used in the collocation of Article 7.1.

45. It is the task of Trial Chambers to ensure that indictments are not ambiguous . The arguments of the prosecution in this case necessarily lead to ambiguity. They are rejected.

6 Disposition

46. For the foregoing reasons, the application by Momir Talic for provisional release pending his trial is refused.

Done in English and French, the English text being authoritative.

Dated this 28th day of March 2001,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Presiding Judge

[Seal of the Tribunal]

1- Request for Release, 8 Dec 2000 (“Motion”).
2- Prosecution’s Response to “Motion for Release” Filed by Counsel for the Accused Momir Talic, 20 Dec 2000 (“Response”).
3- Motion, III. Guarantees Provided by General Talic, B. Guarantees by the Public Authorities, par 2 (tenth unnumbered page, English translation).
4- The hearing was on 2 February 2001, such date having been selected by the Defence as the earliest when they would be ready to proceed.
5- Count 1, Article 4(3)(a) of the Tribunal’s Statute.
6- Count 2, Article 4(3)(e).
7- Count 3, Article 5(h).
8- Count 4, Article 5(b).
9- Count 8, Article 5(d).
10- Count 9, Article 5(i).
11- Count 6, Article 5(f).
12- Count 7, Article 2(b).
13- Count 5, Article 2(a).
14- Count 10, Article 2(d).
15- Count 11, Article 3(b).
16- Count 12, Article 3(d).
17- Further Amended Indictment, dated 9 Mar 2001 and filed 12 Mar 2001, pars 5-6. Although the Motion was based upon the previous indictment (dated 17 Dec 1999), referred to as the “amended indictment”, it is more realistic, and therefore preferable, to consider the Motion upon the basis of the current indictment. Talic is not prejudiced by such an approach, because the Trial Chamber has also considered his argument based upon the inadequacy of the previous indictment: pars 19-22, infra.
18- Ibid, pars 36, 50-51, 58-59.
19- Ibid, pars 12-13, 15.
20- Prosecutor’s Further Amended Indictment, 12 Mar 2001, par 4. This new pleading point is considered in Section 5, infra.
21- Tribunal’s Statute, Article 7.1.
22- Further Amended Indictment, pars 24-26, 33.
23- Ibid, par 27.
24- Tribunal’s Statute, Article 7.3.
25- Further Amended Indictment, par 25.
26- Decision on Motions by Momir Talic for a Separate Trial and for Leave to File a Reply, 9 Mar 2000, par 4; Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 Feb 2001 (“Talic Decision on Form of Indictment”), par 2. Note, however, that these decisions were based upon the previous indictment (the amended indictment) in which the allegations are not entirely identical to those in the current indictment (the Further Amended Indictment).
27- Motion for Release, 1 Dec 1999, par 4; dismissed: Decision on Motion for Release, 10 Dec 1999, par 18; Motion for Release, 18 Dec 2000, par 3; dismissed: Decision on Motions by Momir Talic (1) to Dismiss the Indictment, (2) for Release, and (3) for Leave to Reply to Response of Prosecution to Motion for Release, 1 Feb 2000 (“Decision on Second Motion for Release”), par 23; Leave to Appeal refused: Prosecutor v Brdanin and Talic, Case IT-99-36-AR73.2, Decision on Request to Appeal, 1 Mar 2000, p 3.
28- Motion, III. Guarantees Provided by General Talic, A. Personal Guarantees, par 2 (ninth unnumbered page, English translation); see also the Reply, par 3.1.
29- Response, par 17.
30- Application for Leave to Reply and the Reply to the Prosecutor’s Response of 20 December 2000, 11 Jan 2001 (“Reply”), par 3. Reliance is placed upon “the London Protocol” of 1831.
31- This document included a direction that was not to be published in the Official Gazette of Republika Srpska.
32- Declaration of the Minister in the Government of Republika Srpska, filed with Addition to the Request for Release Dated 8 December 2000, 26 Jan 2001.
33- Transcript, 2 Feb 2001, p 241.
34- Ibid, pp 233-234.
35- Ibid, pp 242-243.
36- Ibid, p 231.
37- Ibid, p 236.
38- Ibid, p 236. The new President of Republika Srpska, Mirko Šaravic, was quoted by Reuters as having used those terms in his inaugural address when sworn in as President: Response, par 17.
39- Ibid, p 237.
40- Ibid, p 237.
41- Ibid, p 239.
42- Prosecutor v Karadžic and Mladic, Review of Indictment, (1995) II ICTY JR 1153.
43- Transcript, p 245.
44- Ibid, pp 237-239.
45- Reply, par 4.
46- Reference is made to the Universal Declaration of Human Rights, Article 11(1): Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. The International Covenant on Civil and Political Rights (“International Covenant”), Article 14(2): Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. The European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”), Article 6(2): Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The American Convention on Human Rights (“American Convention”), Article 8(2): Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. The African Charter on Human and Peoples Rights, Article 7(1)(b): Every individual shall have […] the right to be presumed innocent until proved guilty by a competent court or tribunal. The Tribunal’s Statute, Article 21.3: The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute. The Statute of the International Criminal Court, Article 66: 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2.The onus is on the Prosecutor to prove the guilt of the accused.
47- Motion, Second, Third, Seventh and Eighth unnumbered pages (English translation); Reply, par 2.
48- International Covenant, Article 9(3): It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial […]. European Convention, Article 5(3): Everyone arrested or detained […] shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. American Convention, Article 7(5): Any person detained […] shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial. [Footnotes continued next page] Resolution 43/173 adopted by the UN General Assembly, Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, 9 Dec 1998, Principle 38: […] a person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial subject to the conditions that may be imposed in accordance with the law.
49- “Neumeister” Case, Judgment of 27 June 1968, Series A, Judgment and Decisions (European Court of Human Rights), Vol 8 (“Neumeister Case”), par 4 (p 37): Until conviction he [an accused] must be presumed innocent, and the purpose of the provision under consideration [Article 5(3) of the European Convention] is essentially to require his provisional release once his continuing detention ceases to be reasonable.
50- Decision on Motion by Radoslav Brdanin for Provisional Release, 25 July 2000 (“Brdanin Decision”), pars 12-13; Leave to Appeal refused: Prosecutor v Brdanin and Talic, Case IT-99-36-AR65, Decision on Application for Leave to Appeal, 7 Sept 2000 (“Brdanin Leave Decision”), p 3. The many decisions at Trial Chamber level supporting the statement in the text are identified in footnotes 31 and 32 of the Brdanin Decision.
51- Brdanin Decision, par 18; Brdanin Leave Decision, p 3.
52- Motion, fourth unnumbered page (English translation).
53- Transcript, 2 Feb 2001, pp 228-229.
54- Ibid, p 247.
55- Talic Decision on Form of the Indictment.
56- Further Amended Indictment, dated 9 Mar 2001, filed 12 Mar 2001.
57- Motion, fourth unnumbered page (English translation).
58- Decision on Motion for Release, 10 Dec 1999; Decision on Second Motion for Release. Leave to appeal from the Decision on Second Motion for Release was refused: Decision on Request to Appeal, 1 Mar 2000.
59- Decision on Second Motion for Release, pars 18-21.
60- Talic Decision on Form of the Indictment.
61- Decision on Motion by Radoslav Brdanin for Provisional Release, 25 July 2000 (“Brdanin Decision”), pars 22-25; Leave to Appeal refused: Prosecutor v Brdanin and Talic, Case IT-99-36-AR65, Decision on Application for Leave to Appeal, 7 Sept 2000 (“Brdanin Leave Decision”).
62- Motion, seventh and eighth unnumbered pages (English translation).
63- Brdanin Decision, pars 24-28.
64- Motion, fifth and sixth unnumbered pages (English translation). The letter from General Nambiar, dated 6 Apr 1999, is annexed to the Motion.
65- Ibid, sixth unnumbered page (English translation).
66- Reply, par 2.
67- Prosecutor v Delalic, Case IT-96-21-T, Decision on the Accused Mucic’s Motion for Particulars, 26 June 1996, pars 7-8; Prosecutor v Blaškic, Case IT-95-14-PT, Decision on the Defence Motion to Dismiss the Indictment Based upon Defects in the Form Thereof, 4 Apr 1997, par 20; Prosecutor v Kupreškic, Case IT-95-16-PT, Order on the Motion to Withdraw the Indictment Against the Accused Vlatro Kupreškic, 11 Aug 1998, p 2; Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb 1999, par 20.
68- Ibid, seventh unnumbered page (English translation).
69- See, for example, the Judgment of the Appeals Chamber in Prosecutor v Delalic, Case-IT-96-21-A, Judgment, 20 Feb 2001, pars 189-198.
70- Section 3, supra.
71- Motion, eighth unnumbered page (English translation).
72- See Rule 101(B)(ii).
73- Brdanin Decision, par 15.
74- Milomir Stakic, a Bosnian Serb, was indicted on 13 March 1997 in relation to crimes alleged to have been committed in the area which is now Republika Srpska. He was arrested late last week in the territory of the Federal Republic of Yugoslavia by the authorities there. It has not been suggested that the authorities of Republika Srpska played any part in that arrest.
75- Talic suggests that the recent surrender to the Tribunal of her own accord by Biljana Plavšic (described as “the former President of Republika Srpska”) can be no better demonstration that the highest ranking officers from the Republika Srpska are fully cooperating with the Tribunal, so that guarantees given by such officials should be given their full value: Reply, par 3.2. With all due respect to counsel for Talic, this submission appears to the Trial Chamber to be a complete non sequitur.
76- Motion, tenth unnumbered page (English translation).
77- Ibid, tenth unnumbered page (English translation).
78- This comparison was made in the Separate Opinion of Judge Robinson, in Prosecutor v Simic, Decision on Motion for Judicial Assistance to be Provided by SFOR and Others, 18 Oct 2000 (“SFOR Decision”), par 6.
79- General Framework Agreement for Peace in Bosnia and Herzegovina, and associated documents.
80- The legal situation is discussed in helpful detail by Susan Lamb, “The Powers of Arrest of the International Criminal Tribunal for the Former Yugoslavia”, British Year Book of International Law (1999), 167 (in particular at 188-194). Her conclusion is that the better view is that, under both the Dayton Peace Agreement and customary international law, SFOR has authority to arrest persons indicted by the Tribunal, but that it is under no obligation to do so.
81- SFOR Decision, pars 39-42.
82- Resolution of 16 Dec 1995, quoted by Susan Lamb (at 191).
83- Brdanin Decision, par 17.
84- The Trial Chamber emphasises that the prospect of a very substantial sentence is only one of the factors which it has taken into account: cf the following two decisions of the European Court of Human Rights: Neumeister Case, par 10; Stogmuller Case, 10 Nov 1969, A 9, par 15.
85- Ibid, par 16.
86- Paragraph 8, supra.
87- Motion, tenth unnumbered page (English translation).
88- 11 Jan 2000, Transcript, pp 63, 64.
89- 2 Feb 2001, Transcript, pp 248-250.
90- Response, pars 18-19.
91- Paragraph 19.
92- Prosecutor v Delalic, Case IT-96-21-T, Decision on Motion for Provisional Release Filed by the Accused Zejnil Delalic, 25 Sept 1996 (filed 1 Oct 1996), par 34.
93- Brdanin Decision, par 19.
94- Case IT-95-14-T, Decision Rejecting a Request for Provisional Release, 25 Apr 1996 (English version filed 1 May 1996).
95- Ibid, p 5 (English version).
96- Paragraph 19, footnote 48.
97- Decision on the Motion by Prosecution for Protective Measures, 3 July 2000 (“First Protective Measures Decision”), par 26; Decision on Second Motion by Prosecution for Protective Measures, 27 Oct 2000 (“Second Protective Measures Decision”), par 19; Decision on Fourth Motion by Prosecution for Protective Measures, 15 Nov 2000 (“Fourth Protective Measures Decision”), par 16.
98- First Protective Measures Decision, par 20; Second Protective Measures Decision, par 18.
99- Ibid.
100- Motion, ninth unnumbered page (English translation).
101- Fourth Protective Measures Decision, par 13; Decision on Motion by Prosecution for Order to Defence Counsel, 30 Nov 2000, par 10; Defence Observations on the Decision of 30 November 2000, 8 Dec 2000.
102- Paragraph 12, supra.
103- Paragraph 4, supra.
104- Case IT-94-1-A, Judgment, 15 July 1999 (“Tadic Conviction Appeal Judgment”).
105- Prosecutor’s Further Amended Indictment, 12 Mar 2001, par 3(i).
106- Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgment, 24 Mar 2000, par 171, footnote 319, citing Prosecutor v Krnolejac, Decision on Preliminary Motion on Form of Amended Indictment, 11 Feb 2000, par 60; Prosecutor v Delalic, Case IT-96-21-A, Judgment, 20 Feb 2001, par 351.