IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Ms Dorothee de Sampayo Garrido-Nijgh
11 May 2000
DECISION ON FORM OF SECOND AMENDED INDICTMENT
The Office of the Prosecutor:
Mr Dirk Ryneveld
Ms Peggy Kuo
Ms Hildegard Uertz-Retzlaff
Counsel for the Accused:
Mr Mihajlo Bakrac
Mr Miroslav Vasic
1. Milorad Krnojelac ("accused") has been charged with crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war. The general nature of the case against him and of the offences with which he has been charged are adequately described in the two decisions already given by the Trial Chamber in relation to the form of the previous indictments filed by the prosecution in this case.1
2. An issue raised in both decisions was the sufficiency of the pleading concerning the individual responsibility of the accused for the offences charged pursuant to Article 7(1) of the Tribunals Statute. A distinction was drawn between the allegation that the accused had himself committed those offences (referred to as his "personal" responsibility) and the allegation that he had planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of those offences (referred to as his "aiding and abetting" responsibility).2
3. In the First Decision, the prosecution was ordered to identify, in relation to each count or group of counts, the material facts (but not the evidence) upon which it relies to establish the individual responsibility of the accused for the particular offence or group of offences charged.3 In the Second Decision, the prosecution was ordered to identify, so far as it was possible to do so, the victim or victims, the places and the approximate dates of the offences charged and the means by which it was alleged that the accused himself committed those offences, or in the alternative to withdraw from the charge of individual responsibility the allegation that the accused "personally" committed those offences.4
4. The prosecution, in its second amended indictment,5 took neither course. Instead, it pleaded for the first time a "common purpose" case, in the following terms:
5.1 MILORAD KRNOJELAC, from April 1992 until August 1993, while acting as the camp commander at the Foca KP Dom,together with the KP Dom guards under his command and in common purpose with the guards and soldiers specified elsewhere in this indictment, persecuted the Muslim and other non-Serb male civilian detainees at the KP Dom facility on political, racial or religious grounds.6
5. In par 5.2, the "common plan" in the execution of which the accused is alleged to have "participated [ ] or aided and abetted" is identified as "involving":
(a) the prolonged and routine imprisonment and confinement within the KP Dom facilityof Muslim and other non-Serb male civilian inhabitants of Foca municipality and its environs;
(b) the repeated torture and beatings of Muslim and other non-Serb male civilian detainees at KP Dom;
(c) numerous killings of Muslim and other non-Serb male civilian detainees at KP Dom;
(d) the prolonged and frequent forced labour of Muslim and other non-Serb male civilian detainees at KP Dom; and
(e) the establishment and perpetuation of inhumane conditions against Muslim and other non-Serb male civilian detainees within the KP Dom detention facility.
The participation of the accused in the "prolonged and routine imprisonment of non-Serb civilians under inhumane conditions" is identified in the same paragraph as:
[ ] by providing the detention facilities, by being in the position of camp administrator and by establishing living conditions characterised by inhumane treatment, overcrowding, starvation, forced labour, and constant physical and psychological assault.
6. Paragraph 5.2 goes on to identify further the nature of the accuseds participation in the various elements of the "common plan" and those with whom he is alleged to have acted in concert. The allegations are that the accused, acting as the camp commander:7
(i) (in concert with other high-level prison staff) established a pattern of torture and beatings whereby guards took the detainees out of the cells and brought them to the interrogation rooms and provided the office in which these day-time interrogations and beatings took place;
(ii) (in concert with political leaders or military commanders and other high-level prison staff) prepared lists of detainees to be further beaten during night-time interrogations and established a daily routine for these beatings;
(iii) (in concert with other high-level prison staff) ordered the guards to beat detainees even for minor violations of the prison rules;
(iv) (in conjunction with his subordinates) subjected the other detainees to collective punishment;
(v) (in concert with other high-level prison staff) participated by ordering the punishment; and
(vi) (in concert with other high-level prison staff) formed and began to supervise a workers group of approximately seventy of the detainees with special skills of whom most were kept imprisoned from the Summer of 1992 until 5 October 1994 for the primary purpose of being used for forced labour.
7. Paragraph 5.2 also alleges that the accused participated in the beatings of detainees referred to:
[ ] by allowing the Serb military personnel to enter the prison and assault the detainees whenever they wanted and by instructing his guards to lead the soldiers to the cells and select detainees for beatings; he encouraged and approved assaults by the guards.
He is also alleged to have participated in the beatings and killing of non-Serb civilian detainees:
[ ] by ordering and supervising the actions of his guards and allowing military personnel access to the detainees for this purpose.
Finally, par 5.2 alleges that the accused assisted in the deportation or expulsion of the majority of Muslim and non-Serb males from the Foca municipality by selecting detainees from the KP Dom for deportation to Montenegro.
II The complaints made by the accused
(a) Paragraph 5.2 of the second amended indictment
8. The accused has filed a Preliminary Motion pursuant to Rule 72 of the Tribunals Rules of Procedure and Evidence complaining, inter alia, that the form in which par 5.2 has been pleaded is insufficiently precise.8 He asserts that the indictment is deficient in not identifying (a) the essence of the common plan,9 (b) the authors of that plan (and, if unknown, their category as a group) and whether they were civil or military authorities, (c) whether the plan was intended for the Municipality of Foca only or for the entire territory of Bosnia and Herzegovina, (d) the persons designated to execute the plan (and, if unknown, their category as a group), (e) the relationship between the accused and those persons, and (f) the acts which the accused is alleged to have done in person, those which he is alleged to have aided and abetted or supported others to do, and those for which he is alleged to have command responsibility.
9. This complaint raises an issue as to the true nature of the "common purpose" case now pleaded for the first time in the second amended indictment. The availability of a common purpose case under the Tribunals Statute was upheld by the Appeals Chamber in Prosecutor v Tadic.10 Such a case is described by the Appeals Chamber, variously (and apparently interchangeably), as a common criminal plan,11 a common criminal purpose,12 a common design or purpose,13 a common criminal design,14 a common purpose,15 a common design,16 and a common concerted design.17 The common purpose is also described, more generally, as being part of a criminal enterprise,18 a common enterprise,19 and a joint criminal enterprise.20
10. The second amended indictment does not define the term "common purpose", but in pars 5.1-2 it speaks in general of the accused acting "in concert" (or "in conjunction") with others as part of a "common plan". In order to achieve some measure of consistency, the Trial Chamber intends in this decision to refer to this newly pleaded case as one in which the accused is alleged to have shared a common purpose with others as part of a joint criminal enterprise to commit the crime against humanity (based upon persecution) charged in Count 1 to which pars 5.1-2 relate.
11. In the Tadic Conviction Appeal Judgment, the Appeals Chamber held, in summary, that the notion of common design "as a form of accomplice liability" was firmly established in customary international law and available under the Tribunals Statute.21 It identified the notion of common design as being applied by customary international law in three distinct categories of cases:
First, in cases of co-perpetration, where all participants in the common design possess the same criminal intent to commit a crime (and one or more of them actually perpetrate the crime, with intent). Secondly, in the so-called "concentration camp" cases, where the requisite mens rea comprises knowledge of the nature of the system of ill-treatment and intent to further the common design of ill-treatment. Such intent may be proved either directly or as a matter of inference from the nature of the accuseds authority within the camp or organisational hierarchy. With regard to the third category of cases, it is appropriate to apply the notion of "common purpose" only where the following requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise, and to further individually and jointly the criminal purposes of that enterprise; and (ii) the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose.22
As the indictment is silent on the subject, it is unnecessary for present purposes to consider the last of those categories, where the offence charged falls outside the scope of the common purpose of those engaged in the joint criminal enterprise but which is nevertheless within the contemplation of the accused as a possible incident of that enterprise.
12. What is clear from all of the law relating to a joint criminal enterprise is that the prosecution needs to rely upon such a case only where it is unable to establish beyond reasonable doubt that the accused was the person who personally committed the offence charged. It is also reasonably clear from the circumstances in which the prosecution came to plead the common purpose case, as already described that the prosecution is indeed unable to establish beyond reasonable doubt that the accused personally committed the offence charged, and that it relies merely upon the inferences available from "the nature of the accuseds authority" within the KP Dom.23
13. The Trial Chamber interprets the second amended indictment as substituting the common purpose case now pleaded for the allegation of personal liability which arises from inclusion of the word "committing" in par 4.9, upon the basis that the prosecution is unable to plead the information which it was ordered by the Second Decision to include in this indictment. Its case is now that, although it cannot establish that the accused personally committed the offence charged in Count 1, it will prove that he participated with a common purpose as part of a criminal enterprise to commit that offence. Such a case does not exclude the possibility that the accused did in fact personally commit those offences; however, the prosecution will not be leading evidence in an endeavour to establish beyond reasonable doubt that he personally did so unless it has first obtained leave and, if necessary, made an amendment to the indictment. It may, of course, rely upon any evidence which may emerge during the trial and which establishes that fact.
14. The Trial Chamber recognises the validity of such an approach, and it is satisfied that the accused is not thereby prejudiced by the absence of the particulars which had been ordered provided that the common purpose case has been pleaded with sufficient particularity. To that issue the Trial Chamber will turn, after making the point that the common purpose case could have been better and more logically pleaded. However, the clumsiness of its expression does not render it deficient in form.
15. The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The prosecution must establish (1) the existence of that joint criminal enterprise, and (2) the participation in it by the accused.
As to (1): A joint criminal enterprise exists where there is an understanding or arrangement amounting to an agreement between two or more persons that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
As to (2): A person participates in that joint criminal enterprise either:
(i) by participating directly in the commission of the agreed crime itself (as a co-perpetrator); or
(ii) by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime;24 or
(iii) by acting in furtherance of a particular system (for example, of persecution) in which the crime is committed by reason of the accuseds position of authority or function, and with knowledge of the nature of that system and the intent to further that system.25
If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.
16. In order to know the nature of the case he must meet, the accused must be informed by the indictment of:
(a) the nature or purpose of the joint criminal enterprise (or its "essence", as the accused here has suggested),
(b) the time at which or the period over which the enterprise is said to have existed,
(c) the identity of those engaged in the enterprise so far as their identity is known, but at least by reference to their category as a group, and
(d) the nature of the participation by the accused in that enterprise.
Where any of these matters is to be established by inference, the prosecution must identify in the indictment the facts and circumstances from which the inference is sought to be drawn.
17. The only deficiency in the second amended indictment in relation to those matters lies in the identification of those who are alleged to have been engaged in the enterprise with the accused. In par 5.1, the others are identified as the guards and soldiers "specified elsewhere in this indictment". This is inconsistent with the terms of par 5.3, in which the prosecution limits its case on the crime against humanity charged in Count 1 to the participation of the accused in the acts and omissions described in par 5.2. The open-ended reference in par 5.1 to any of the guards or soldiers specified anywhere else in the indictment is far too wide; indeed, nowhere else in the indictment does the prosecution "specify" any guards and soldiers by name or other positive identification. The Motion does not specifically object to the width of this description in par 5.1, but in this context the prosecution cannot in fairness be permitted to go outside those paragraphs which are said to relate to Count 1 for its identification of the guards and soldiers involved in other words, beyond the persons specified in par 5.2.
18. In par 5.2, the persons alleged to have participated with the accused in the joint criminal enterprise are described only by categories "high level prison staff", "political leaders", "military commanders" and "subordinates". The Second Decision required the prosecution to make it clear in the indictment itself that (if this were the case) it was unable properly to identify any such persons referred to, and only then could it identify them in the best way it was able to,26 such as describing them by their "category" (or their official positions) as a group.27 The assertion by the prosecution, in its response to the Motion,28 that it had set forth the information "to the extent that information is known by the Prosecution" does not satisfy that requirement.29
19. The Trial Chamber nevertheless believes that both the parties and the Chamber have spent more than enough time already during the pre-trial period of this case endeavoring to ensure that the indictment is pleaded properly. In the light of the statement in its Response that the prosecution is unable to identify these persons any better than it has, and as this is the only defect in the form of the second amended indictment which the accused has been able to demonstrate in his Motion, it would serve no useful purpose after all this time to require the prosecution to plead a third amended indictment simply to fulfil the obligation which it had to make that statement in the current indictment. The Trial Chamber stresses however, that it would not be appropriate for the prosecution to fail to comply with that obligation in other indictments.
(b) Paragraphs 5.4-5.6
20. The accused asserts that paragraphs 5.4 to 5.6 contain contradictory allegations which cause confusion.30
21. Paragraph 5.4 alleges that certain Muslim male detainees were "beaten" in the prison yard by the prison guards or by soldiers in the presence of regular prison personnel, "as described in paragraphs 5.5 and 5.6". Paragraph 5.5 describes how soldiers forced certain detainees upon their arrival at KP Dom to line up against the prison wall with their hands above their heads, and then beat, kicked and hit them with rifle butts. Paragraph 5.6 describes how guards beat other detainees upon their arrival at KP Dom. The accused is alleged by par 5.4 to have participated in these "beatings": (i) by granting soldiers access to the detainees and by instructing his guards not to intervene, and (ii) by encouraging and approving assaults by the guards.
22. The Trial Chamber sees no contradiction or confusion in these paragraphs. The words "beaten" and "beatings" in par 5.4 are general in nature, and include all of the conduct by the soldiers described in par 5.5 and of the guards described in par 5.6. The instruction not to intervene which the accused is alleged to have given to his guards is clearly referable to the actions of the soldiers described in par 5.5. The clear implication is that the prison guards would otherwise have been in a position to intervene when the soldiers beat the detainees. In those circumstances, the absence of any express allegation to that effect in par 5.5 does not render the form of the indictment defective. The accused is alleged to bear responsibility for having instructed the guards not to intervene when the soldiers beat the detainees.
23. All of this was discussed in the First Decision,31 and was the subject of further consideration in the Second Decision.32 If there were confusion now in the second amended indictment (which the Trial Chamber does not accept), it was present also in at least the first amended indictment, but it induced no such complaint at the time. The Trial Chamber has already pointed out to counsel for the accused that the opportunity given by Rule 50(C) to file a preliminary motion alleging defects in the form of an amended indictment is directed to the material added by amendment. That opportunity cannot be used to raise issues in relation to the amended indictment which could have been raised in relation to the earlier indictment but were not.33 Counsel was reminded of this point at the recent Status Conference.34
24. The complaint is rejected.
(c) Paragraphs 5.4-5.6, 5.21, 5.23, 5.25, 5.27-5.29
25. The accused complains that, although the prosecution has complied with the directions given in the Second Decision to state in relation to certain nominated paragraphs that (if it were the case) it was unable properly to identify any particular persons referred to,35 the prosecution has failed to do so in relation to the above paragraphs now nominated in the Motion.36
26. There is no suggestion that these paragraphs are significantly different from the corresponding ones in the previous indictment, and no such complaint was made in relation to that indictment. For the reasons already given, it is too late to complain now.
(d) Paragraph 5.22
27. Paragraph 5.22 commences:
Local and military police, in concert with the prison authorities, interrogated the detainees after their arrival at the KP Dom. MILORAD KRNOJELAC, in concert with other high-level prison staff, established a pattern whereby guards took the detainees out of their cells and brought them to the interrogation rooms.
The accused complains that it is not clear whether the reference to "prison authorities" means:
[ ] the leading staff of the prison or not, whether the prison authorities are civil or military, whether the accuseds relationship with such authorities is subordinate or superior.37
The same expression "prison authorities" was used in the corresponding paragraph in the previous indictment. It did not excite any such complaint at that time and, for that reason alone, the complaint now made for the first time is rejected. In any event, the accused is described in par 3.1 of both this and the previous indictment as "the commander of the KP Dom" and "in a position of superior authority to everyone in the camp".
28. The accused complains that the expression "established a pattern" is unclear.38 The previous indictment referred to "a pattern established" by the accused.39 There is no difference. No complaint was made then, and none may therefore be made now. The prosecution has cured the ambiguity criticized in the Second Decision,40 by expressly alleging the accuseds responsibility to have been one of aiding and abetting.
29. Both of these complaints are unjustified, and they are rejected.
III Application for oral argument
30. The accused has proposed that the Trial Chamber should assess the need for oral argument concerning this Motion once the prosecution has responded.41
31. The Trial Chamber has already discussed the general practice of the Tribunal not to hear oral argument on motions prior to the trial unless good reason is shown for its need in the particular case.42 Counsel for the accused has not identified any particular issues upon which he wishes to put oral argument or explained why he was unable to put those arguments in writing. The Trial Chamber sees no need for oral argument upon this Motion.
32. For the foregoing reasons, Trial Chamber II dismisses the Motion.
Done in English and French, the English text being authoritative.
Dated this 11th day of May 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]