IN TRIAL CHAMBER II
Judge Antonio Cassese, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge David Hunt
Dorothee de Sampayo Garrido-Nijgh
5 October 1999
DECISION ON MOTION TO DISMISS INDICTMENT
The Office of the Prosecutor:
Ms Joanna Korner
Mr Michael Keegan
Ms Ann Sutherland
Counsel for the Accused:
Mr John Ackerman
1. The accused (Radoslav Brdanin) has been charged with a crime against humanity, based upon persecutions on political, racial or religious grounds.1
2. The indictment alleges that:
(i) In 1992, actions were taken in certain areas of Bosnia and Herzegovina, including the Autonomous Region of Krajina ("ARK"), which resulted in the death or forced departure of most of the Bosnian Muslim and Bosnian Croat populations from those areas.2
(ii) These actions were taken by police units, paramilitary groups, Territorial Defence units and units of the Yugoslav Peoples Army.3
(iii) Crisis Staffs (later re-designated War Presidencies) were created at both the regional and municipal level as the bodies responsible for the execution of the majority of these actions.4
(iv) In May 1992, the ARK Crisis Staff publicly declared itself as the highest organ of authority at the regional level and that the implementation of its directions and orders was mandatory.5
(v) The essential members of the ARK Crisis Staff acted in concert in planning, instigating, ordering, committing or otherwise aiding and abetting the complete range of operations related to the conduct of the hostilities and destruction of Bosnian Muslim, Bosnian Croat and other non-Serb communities in the Autonomous Region of Krajina.6
(vi) The accused was a member of the ARK Crisis Staff, becoming its President, and as such was responsible for managing the work of the Crisis Staff, the implementation and co-ordination of Crisis Staff decisions and conclusions, reporting activities, and for signing its decisions and orders. He also convened, chaired and controlled the agenda of its sessions.
In addition, he played a significant role in the propagation of the propaganda campaign that was an essential element in the success of the plan to create a Serbian state.7
(vii) As such President, the accused had individual responsibility (within the meaning of Article 7.1 of the Tribunals Statute)8 for the physical take-over of the ARK municipality, the violent attacks on Bosnian Muslim and Bosnian Croat villages and areas, the forcible removal of non-Serbs from those areas, the killing and physical maltreatment of Bosnian Muslims and Bosnian Croats, the detention of non-Serbs in camps and other detention centres, and the forced transfer or deportation of Bosnian Muslims and Bosnian Croats from the area of the ARK. Each of those acts was done in order to achieve the expulsion of the Bosnian Muslim, Bosnian Croat and non-Serb populations from the area of the ARK because of their political, racial and religious identity. His was the most important position of executive authority in the ARK.9
(viii) The ARK Crisis Staff also had the authority to direct the Regional Centre for Public Security and the Public Prosecutor to investigate, arrest and prosecute any persons believed to have committed crimes within the ARK, whether in the camps or elsewhere, but it failed to take necessary and reasonable measures to prevent such crimes or to have the perpetrators thereof punished.10
(ix) As the President of the ARK Crisis Staff, the accused also had superior authority and thus responsibility (within the meaning of Article 7.3 of the Tribunals Statute)11 for the events described in paragraph (vii).12
3. Detailed particulars are given over ten paragraphs of the indictment of the allegation that the accused initiated a "three part plan" 13
(1) to create impossible conditions, involving pressure and terror tactics, that would have the effect of encouraging the non-Serbs to leave the area; (2) to deport and banish those who were reluctant to leave; and (3) to liquidate those non-Serbs who remained and who did not fit into the concept of the Serbian State.
The execution of that plan is alleged to have included 14
(1) the denial of fundamental rights to Bosnian Muslims and Croats, including the right to employment and freedom of movement;
(2) the wanton destruction of Bosnian Muslim and Bosnian Croat villages and areas, including the destruction of religious and cultural buildings in the areas attacked;
(3) the killing of Bosnian Muslims, Bosnian Croats and other non-Serbs;
(4) causing serious bodily or mental harm to Bosnian Muslims, Bosnian Croats and other non-Serbs;
(5) detaining Bosnian Muslim and Bosnian Croats under conditions of life calculated to bring about the physical destruction of a part of those populations; and
(6) the forced transfer or deportation of Bosnian Muslim and Bosnian Croats from areas of Bosnia and Herzegovina that had been proclaimed as part of the Serbian Republic of Bosnia and Herzegovinia.
4. This indictment was reviewed by Judge Rodrigues, and confirmed by him on 14 March 1999. The accused was detained on 6 July and transferred to The Hague where his initial appearance before the Tribunal took place on 12 July. Because of delays in assigning counsel, the time for filing motions pursuant to Rule 72 of the Rules of Procedure and Evidence ("Rules") was extended until 2 September.15
II The application
5. On 31 August, a "Motion to Dismiss Indictment" ("Motion") was filed by the accused, alleging that none of the material presented by the prosecution to Judge Rodrigues in support of the indictment pursuant to Rule 47(B) provides support for the allegations in the indictment in particular, that they did not establish that the accused had any authority over military matters in the ARK, that he played any part in ethnic cleansing or in the camps in the area, that he ordered (or could have ordered) any deportations, or that he knew or had reason to know that any of these things had been done and that there is no indication in the material as to how the accused voted at meetings of the Crisis Staff and whether he supported or rejected decisions of the Crisis Staff. It is alleged that the material presented by the prosecution in fact establishes the contrary of what is alleged in the indictment that the Bosnian Serb and Serb forces were in fact controlled by the General Staff of the Army of the Republika Srpska, through the Commanding General of the First Krajina Corps, and that those forces included the former Territorial Defence units, paramilitary forces and police forces engaged in combat operations.
6. The accused has argued that:
(1) the confirmation procedure is jurisdictional, and there can be no jurisdiction if that procedure is not properly followed,16 and
(2) the Tribunal has jurisdiction to try him upon any one count in an indictment only when the supporting material supports the existence of that count,17
hence his reliance upon Rule 72(A)(i) of the Rules. These are arguments which only became apparent in the accuseds Reply to the prosecutions Response to his Motion.
III Analysis and Rulings
7. The Trial Chamber does not accept either of these arguments of the accused. The first of the arguments may be disposed of briefly.
8. Assuming (without deciding) that it is open to the Trial Chamber to determine whether the procedure laid down by the Tribunals Statute and the Rules for the confirmation of an indictment has been followed, the accused has produced no evidence that the procedure was not followed on this occasion. All that the accused has alleged is that Judge Rodrigues was in error in his finding that the supporting material provided a prima facie case against him,18 and that the Statute and Rules "were not properly followed since an indictment was confirmed where there was no supporting evidence in the supporting materials".19 However, even if it be accepted for the purposes of argument that the supporting material did not establish a prima facie case, an error made by the judge in the resulting decision which he made does not establish that he did not properly follow the procedure. This first argument of the accused confuses form and substance. His real argument is the second.
9. Traditionally, the jurisdiction of a criminal court to try a particular person upon indictment is founded upon, and invoked by, the indictment itself, which must plead as material facts the fundamental elements of its jurisdiction its competence as to subject-matter (ratione materiae), persons (ratione personae), territory (ratione loci) and time (ratione temporis).20 The fundamental elements of this Tribunals jurisdiction are set out in Articles 1 to 8 of its Statute. Article 1 provides:
Competence of the International Tribunal
The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.
Articles 2 to 5 define the particular offences which the Tribunal has power to try. Article 6 gives to the Tribunal jurisdiction over natural persons. Article 7 provides the definition of individual criminal responsibility quoted earlier, which is consistent with the liability of accessories generally.21 Article 8 defines the Tribunals temporal and territorial jurisdiction consistently with Article 1.
10. There has not been, and there could not be, any submission that the indictment in the present case does not plead sufficient material facts to invoke the jurisdiction of the Tribunal to try the accused upon the charge laid. Where such a submission is made in relation to what is traditionally regarded as the jurisdiction of a criminal court, the court would examine the facts alleged in the indictment; it would not examine whether there was evidence available to the prosecution to establish the truth of those facts so alleged.
11. The accused, however, argues that the Tribunals Statute and the Rules impose requirements beyond what has traditionally been required to invoke the jurisdiction of a criminal court. For this argument, it is necessary to examine the particular provisions to which reference has been made. Article 18.4 provides:
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 charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber.
Article 19.1 provides:
The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
Rule 47, so far as it is said to be relevant, provides:
(B) The Prosecutor, if satisfied in the course of an investigation that there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal, shall prepare and forward to the Registrar and indictment for confirmation by a Judge, together with supporting material.22
(D) The Registrar shall forward the indictment and accompanying material to the designated Judge, who will inform the Prosecutor of the date fixed for review of the indictment.
(E) The reviewing Judge shall examine each of the counts in the indictment, and any supporting materials the Prosecutor may provide, to determine, applying the standard set forth in Article 19, paragraph 1, of the Statute, whether a case exists against the suspect.
12. It is clear that, so far as the Statute itself is concerned, it is only the indictment which needs to disclose a prima facie case. The Statute is thus in conformity with the traditional concept that the jurisdiction of a criminal court is founded upon, and invoked by, the indictment and the indictment alone. The Statute makes no reference to the supporting materials, which are introduced for the first time in Rule 47. It needs perhaps to be emphasised that the rules which the judges are authorised by Article 15 of the Statute to adopt may relate only to
[ ] the conduct of the pre-trial phase of the proceedings [ ] and other appropriate matters.23
The rules cannot themselves alter what is provided by the Statute.
13. The purpose of Rule 47(E), in ensuring that there is material available to support the material facts pleaded in the indictment, is in effect to equate the confirming judge to the grand jury (or committing magistrate) in the common law system or to the juge dinstruction in some civil law systems.24 However, the supporting material may not be used to fill in any gaps which may exist in the material facts so pleaded when determining whether a prima facie case exists in accordance with Article 19.1 of the Statute.25 That Article imposes a quite separate requirement upon the confirming judge.
14. It could perhaps be that, as the accused suggests,26 at least one purpose of the confirmation process is
[ ] to place a judicial authority between the Prosecutor and a potential defendant so that persons are not indicted and arrested upon whim, caprice or fanciful expectations.
But such a purpose does not impose any requirement upon the existence of the jurisdiction of the Tribunal beyond those requirements already imposed by the Statute. Article 19.2 makes it reasonably clear that the Statute requires the review and confirmation of the indictment in order to justify the issue of an arrest warrant.27 It is not to provide a limitation upon the Tribunals jurisdiction.
15. Again, therefore, even if it be accepted for the purposes of argument that the supporting material did not establish the prima facie case pleaded in the indictment, the jurisdiction of the Tribunal still depends solely upon what is pleaded in the indictment. Whether there is evidence to support any charge pleaded in the indictment is an issue to be determined as in both the common law and civil law systems - by the Trial Chamber, at the conclusion of the trial or (if the issue is raised) at the close of the prosecution case.28
16. There is no jurisprudence within this Tribunal which is directly in point. The decision of the Appeals Chamber in the Tadic Jurisdiction Appeal29 does not deal with the issue. There are a number of decisions of the Appeals Chamber on appeal from the Rwanda Tribunal in which it has had to determine whether a particular motion challenges the jurisdiction of that Tribunal (the availability of an appeal depending upon that circumstance), but they are of no assistance in relation to the present issue.30
17. There is, however, one decision of a Trial Chamber in this Tribunal which could perhaps be interpreted as referring to the issue. In Prosecutor v Djukic,31 the accused applied urgently to the Trial Chamber after the trial was said to have begun for an order that he be released, upon two grounds first, "the lack of evidence supporting the indictment" and, secondly, the gravity of his medical condition. In response, the prosecution applied for leave to withdraw the indictment upon the second of those grounds, to which the accused objected, requesting that the indictment be
withdrawn upon the first ground. The Trial Chamber ruled that an indictment could never be withdrawn upon medical grounds, no matter how critical. After considering that the Trial Chamber, notwithstanding that medical condition, could ensure that the accused would enjoy the equitable trial to which he was entitled, it then stated:
CONSIDERING furthermore that the withdrawal of the indictment as requested by the defence counsel S C also may not be accepted; that such a request is, in fact, not relevant at this stage of the proceedings; that the issue of alleged sufficient or insufficient evidence could only be reviewed at a later date, either during the review of the preliminary motions or during the trial proper;
CONSIDERING therefore that leave to withdraw the indictment cannot be granted,
The accused was nevertheless granted a provisional release upon the basis of his medical condition.
18. There is, with respect, some confusion apparent in the decision of the Trial Chamber (1) between the sufficiency of the supporting material produced for the purposes of confirmation (to which the accused appears to have been referring) and the sufficiency of the evidence produced in the trial to establish the charges laid, and (2) between a request by an accused that the indictment be withdrawn and an application by him that it be dismissed for insufficient evidence. Nor, with respect, is it clear what was intended by the phrase "the review of the preliminary motions", or how such a "review" could take place during the trial itself. This Trial Chamber sees no support in that decision for the present application.
19. The prosecution relies upon a decision of a Trial Chamber of the Rwanda Tribunal which, it is suggested, ruled that Rule 72 cannot be used in order to challenge the decision of a single judge confirming an indictment: Prosecutor v Nahimana.32 What the Trial Chamber said was this:33
[ ] the Chamber considers that neither Rule 47 nor Rules 72 and 73 of the Rules permit appeals against a decision rendered by a single Judge to confirm an indictment. Only in special circumstances can a preliminary motion raising objections against the form of the confirmation of an indictment be applied as an indirect means to obtain a review by a Trial Chamber of a confirming decision.
As no evidence has been produced in the present case that there has been an irregularity in the form of the confirmation proceedings, it is unnecessary to decide here whether a Trial Chamber can entertain a challenge as to the form of those proceedings. Although this Trial Chamber agrees with what appears to be implicit in that decision that the insufficiency of the supporting material does not provide a basis for challenging the jurisdiction of the Tribunal it prefers to base its decision upon the wording of the Statute, and it does not necessarily accept the reasoning of the Trial Chamber in Nahimana for that conclusion.
20. The Trial Chamber is satisfied that an insufficiency of the supporting material is irrelevant to the issue of the Tribunals jurisdiction. The challenge to that jurisdiction must therefore fail.
21. There is no provision in the Rules of Procedure and Evidence which permits a Trial Chamber to review the actual decision made by the confirming judge, by way of appeal or in any other way. Indeed, care is taken in the Rules to keep the functions of the confirming judge and of the Trial Chamber apart. For example, Rule 15(C) provides:
The Judge of the Trial Chamber who reviews an indictment against an accused, pursuant to Article 19 of the Statute and Rules 47 or 61, shall not sit as a member of the Trial Chamber for the trial of that accused.
Rule 50 provides that amendments to the indictment up to the time when evidence is presented to the Trial Chamber may not be permitted by the Trial Chamber but only by the confirming judge or another judge assigned by the President, and only thereafter by the Trial Chamber.
22. That is not to suggest that, if for any reason the Trial Chamber were to become aware of the contents of the supporting material presented by the prosecution to the confirming judge, its members would thereby automatically be disqualified from subsequently sitting on the trial of the accused. The intention of this division of functions is to avoid any contamination spreading from the ex parte nature of the confirming procedure to the Trial Chamber. Where the Trial Chamber has permitted an indictment to be amended, and thus must for the purpose of confirming that amended indictment review for itself the supporting material, that review is performed inter partes, in open court in the presence of the accused, and the amended indictment may be confirmed only after hearing both parties.34 The possibility of contamination spreading from the ex parte nature of the confirming procedure is therefore effectively eliminated.35
23. The fact nevertheless remains that there is no basis in the Rules of Procedure and Evidence upon which the Trial Chamber could review the decision of the confirming judge that the material provided by the prosecution to that judge supports the material facts pleaded in the indictment. The function of the Trial Chamber is, as stated earlier, to determine whether the evidence produced at the trial is sufficient to establish the charges pleaded in the indictment.
24. For the foregoing reasons, the Trial Chamber dismisses the Motion.
Done in English and French, the English text being authoritative.
Dated this 5th day of October 1999,
At The Hague,
Judge David Hunt
(at the request of the Presiding Judge)
[Seal of the Tribunal]