Case No.: IT-95-13/1-PT
IN TRIAL CHAMBER II
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Mr Hans Holthuis
19 June 2003
DECISION ON FORM OF THE INDICTMENT
The Office of the Prosecutor:
Mr Jan Wubben
Counsel for the Accused:
Mr Miroslav Vasic
- Trial Chamber II (“Trial Chamber”) of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991 (“Tribunal”) is seised of a series of Defence filings1
by which the Defence challenges the form of the Second Amended Indictment
in the present case, and the Prosecution’s responses2
thereto. The Defence generally alleges that the Prosecution has not set out
all of the relevant material facts and has provided insufficient supporting
evidence to allow the Defence to properly prepare its case. The Prosecution
submits that all relevant material facts have been provided and that the sufficiency
of the evidence is a matter for trial.
- There has been some confusion in previous filings in this case as to the
number of existing indictments against Mile Mrksic (“Accused”). The initial
indictment against the Accused and two others was confirmed by Judge Fouad
Riad on 7 November 1995.3 This indictment was
amended to include one other co-accused on 3 April 1996.4
A further amended indictment against all four was filed on 2 December 1997.5
Finally, on 1 November 2002 the Prosecution was given leave to file a further
amended indictment against the Accused alone.6
The Prosecution termed this indictment the “Second Amended Indictment”.7
For the sake of consistency and in order to avoid further confusion, this
Decision will adopt this term to refer to the latest indictment against the
- In the Second Amended Indictment, the Accused stands charged with various
offences allegedly committed subsequent to the Serb take over of the city
of Vukovar and surrounding areas in the Republic of Croatia. The Accused is
specifically charged in the Second Amended Indictment under both Articles 7(1)
and 7(3) of the Statute of the Tribunal (“Statute”),8
as follows :
(a) count 1: persecution as a crime against humanity (Article 5);
(b) count 2: extermination as a crime against humanity (Article 5);
(c) counts 3 and 4: murder as a crime against humanity (Article 5) and
as a violation of the law or customs of war (Article 3);
(d) count 5: imprisonment as a crime against humanity (Article 5);
(e) counts 6 and 8: torture as a crime against humanity (Article 5) and
as a violation of the laws or customs of war (Article 3);
(f) count 7: inhumane acts as a crime against humanity (Article 5); and
(g) count 9: cruel treatment as a violation of the laws or customs of
war (Article 3 ).
2. Preliminary comments
- As noted above, the challenge to the form of the Second Amended Indictment
that is addressed herein is set out in multiple filings authorised by the
Trial Chamber. The Defence was specifically instructed not to repeat arguments
set out in previous filings,9 but this instruction
was ignored. As a result, the filings overlap to a significant extent and
the Trial Chamber has had some difficulty succinctly summarising the Defence
arguments. This is not an acceptable practice. In the future, the Defence
shall adhere closely to instructions regarding filings that are issued by
the Trial Chamber failing which the Chamber shall apply the appropriate sanctions.
- The Trial Chamber also wishes to note that the Defence arguments were often
difficult to understand due to the poor use of language. While this may to
some extent result from translation difficulties, it is surely not solely
as a result of this. For the purposes of the current decision, the Trial Chamber
has summarised to the best of its ability the arguments as it understands
them. In the future, the Defence should take greater care in formulating its
arguments to ensure that they are correctly understood and that any eventual
decision may be prepared in a timely and efficient manner.
3. General pleading principles
- The general pleading principles that may be applicable to the present case
are as follows.
- Article 21(4)(a) of the Statute provides as one of the minimum rights of
an accused that he shall be entitled to be informed in detail of the nature
and cause of the charge against him. This provision also applies to the form
of indictments.10 This right translates into
an obligation on the Prosecution to plead the material facts underpinning
the charges in an indictment.11 The pleadings
in an indictment will therefore be sufficiently particular when it concisely
sets out the material facts of the Prosecution case with enough detail to
inform an accused clearly of the nature and cause of the charges against him
enabling him to prepare a defence effectively and efficiently.12
- The materiality of a particular fact is dependent on the nature of the
Prosecution case.13 A decisive factor in determining
the degree of specificity with which the Prosecution is required to particularise
the facts of its case in an indictment is the nature of the alleged criminal
conduct charged to the accused,14 which includes
the proximity of the accused to the relevant events.15
The precise details to be pleaded as material facts are of the acts of the
accused, rather than the acts of those persons for whose acts he is alleged
to be responsible.16
- Depending on the circumstances of the case, it may be required that with
respect to an Article 7(1) case against an accused, the Prosecution “indicate
in relation to each individual count precisely and expressly the particular
nature of the responsibility alleged”, in other words, that it indicates the
particular head or heads of liability.17 This
may be required to avoid ambiguity with respect to the exact nature and cause
of the charges against the accused,18 and to
enable the accused to effectively and efficiently prepare his defence. The
material facts to be pleaded in an indictment may vary depending on the particular
head of Article 7(1) responsibility.19
- In a case based upon superior responsibility, pursuant to Article 7(3),
the following are the minimum material facts that have to be pleaded in the
(a) that the accused is the superior20 (ii) of
subordinates, sufficiently identified,21 (iii) over
whom he had effective control - in the sense of a material ability to prevent
or punish criminal conduct22 - and (iv) for
whose acts he is alleged to be responsible;23
(b) the accused knew or had reason to know that the crimes were about
to be or had been committed by those others,24
and (ii) the related conduct of those others for whom he is alleged to be
responsible.25 The facts relevant to the acts
of those others will usually be stated with less precision,26
the reasons being that the detail of those acts (by whom and against whom
they are done) is often unknown, and, more importantly, because the acts
themselves often cannot be greatly in issue;27
(c) the accused failed to take the necessary and reasonable measures to
prevent such crimes or to punish the persons who committed them.28
- All legal prerequisites to the application of the offences charged constitute
material facts and must be pleaded in the indictment.29
With respect to the relevant state of mind (mens rea), either the specific
state of mind itself should be pleaded (in which case, the facts by which
that material fact is to be established are ordinarily matters of evidence,
and need not be pleaded ), or the evidentiary facts from which the state of
mind is necessarily to be inferred, should be pleaded.30
- Each of the material facts must usually be pleaded expressly, although
it may be sufficient in some circumstances if it is expressed by necessary
implication.31 This fundamental rule of pleading
is, however, not complied with if the pleading merely assumes the existence
of the pre-requisite.32
- Generally, an indictment, as the primary accusatory instrument, must plead
with sufficient particularity the material aspects of the Prosecution case,
failing which it suffers from a material defect.33
In the light of the primary importance of an indictment, the Prosecution cannot
cure a defective indictment by its supporting material and pre-trial brief.34
In the situation where an indictment does not plead the material facts with
the requisite degree of specificity because the necessary information is not
in the Prosecution’s possession, doubt must arise as to whether it is fair
to the accused for the trial to proceed.35 The
Prosecution is therefore expected to inform the accused of the nature and
cause of the case, as set out above, before it goes to trial. It is unacceptable
for it to omit the material facts in the indictment with the aim of moulding
the case against the accused in the course of the trial depending on how the
evidence unfolds.36 Where the evidence at trial
turns out differently than expected, the indictment may be required to be
amended, an adjournment may be granted or certain evidence may be excluded
as not being within the scope of the indictment.37
- The Prosecution is not required to plead the evidence by which such material
facts are to be proven.38
4. Defence objections relating to the insufficiency
of the pleading of material facts and supporting evidence
- The first set of Defence objections relate to the general insufficiency
of the material facts pleaded and the evidence supporting those material facts.
- The Defence submits that the Prosecution fails to comply with Article 18(4)
of the Statute and Rule 47(C) of the Rules by not submitting a summarised
presentation of the facts and charges against the Accused.39
This failure to make clear the nature of the responsibility alleged against
the Accused and the material facts by which that responsibility will be established,40
and in particular the precise link between those material facts and the Accused,41
means that the Defence is left without the elements necessary for the adequate
preparation of its case.42 Further, the Defence
submits that some of the allegations in the Second Amended Indictment are
not based on supporting material annexed to it.43
- In response, the Prosecution argues that it has met its obligations under
the Statute and Rules to plead the material facts upon which the charges are
based with a level of specificity that allows the Defence to prepare its case.44
The Prosecution distinguishes between the necessity of pleading material facts
and the evidence that tends to prove those facts, which is not required to
be pleaded.45 Further to this point, the Prosecution
submits that, the Initial Indictment against the Accused having already been
confirmed, the Trial Chamber is now restricted to the issue whether the Second
Amended Indictment pleads the required material facts to support the charges
it raises.46 There cannot be any evaluation of
the sufficiency of the evidence upon which the reviewing Judge based his confirmation
of the indictment.47
- The jurisprudence is clear that it is not necessary to plead in an indictment
the evidence which would tend to support the alleged material facts, and that
it is inappropriate at this stage of proceedings for the Defence to challenge
the sufficiency of the evidence.48 The Trial
Chamber finds it necessary, however, to distinguish between those material
facts which were part of the indictment as originally confirmed, and those
added subsequently. Concerning the original charges and material facts, it
is not at this stage possible for the Defence to challenge the sufficiency
of the evidence. However, it is acceptable for the Defence to challenge the
sufficiency of the evidence for charges that are newly added (5 counts in
the Second Amended Indictment) and for material facts newly added in support
of existing charges.49 Accordingly, in examining
below the specific challenges made by the Defence, this distinction will be
applied in determining the validity of their requests.
5. Defence preliminary objections to additional charges and heads of
- With respect to the new charges added in the Second Amended Indictment,50
the Defence makes two preliminary arguments that the addition of these counts
is invalid. Both of these arguments are made with reference to other indictments.
- First, it is argued that these counts were not levelled at Slavko Dokmanovic
(“Dokmanovic”), who was charged alongside the Accused in the 1996 and 1997
Amended Indictments, and therefore cannot legitimately be included in the
Second Amended Indictment against the Accused.51
This argument is also made with respect to the joint criminal enterprise alleged
in the Second Amended Indictment.52 The Prosecution,
correctly in the view of this Trial Chamber, submits that there is no requirement
in the Statute or the Rules that every accused be charged with every conceivable
offence that is supported by the evidence.53
It is for the Prosecution to choose how it wishes to plead its case, and which
charges it wishes to bring. This Defence argument is therefore rejected.
- In a related argument, the Defence submits that it is in some way a paradox
that these new and serious charges are made against the Accused when they
were not earlier levelled at Dokmanovic.54 In
response the Prosecution argues that there is nothing paradoxical about the
fact that the Accused, as senior military commander charged in the case, should
face more serious charges than Dokmanovic, who was a minor political leader.55
Paradox or not, the Trial Chamber again stresses that it is for the Prosecution
to choose how it wishes to plead its case. The argument is rejected.
- The Defence presents further arguments that are based on the same fallacious
thinking as that advanced in paragraph 24 below.56
The Defence argues that since the facts remain unaltered from the Initial
Indictment, and hence the Prosecution bears no new evidence, the question
arises why such charges were not included in that initial indictment “bearing
in mind that the International Law provisions and customs existed at the pertinent
time as well. According to the Defence, the answer to this question can only
be that the Prosecution has also felt at the time that there was no basis
for such charges”. The Prosecution is free to plead its case as it sees fit,
as long as it sets out the material facts. No adverse inferences may be drawn
from a change in pleading strategy in this instance. In this connection the
Defence also submits that the Prosecution is merely attempting to use this
case so as to enforce its position in other cases that it finds of greater
importance.57 Thus, it is alleged, the Accused
is being forced to defend himself from charges for which individuals of a
much higher rank are charged, in respect of the events that took place in
1991. The Trial Chamber emphasises that this argument is entirely unsubstantiated.
The Defence arguments are again rejected.
- In its second preliminary argument, the Defence focuses on the Initial
Indictment in this case. It submits that the introduction of new counts into
the Second Amended Indictment without the corresponding introduction of more
evidence is illogical and places the Accused in a far worse situation without
due reason.58 The Prosecution responds that the
only reason the Accused faces a more difficult position with respect to the
Initial Indictment is because if the new charges are included, he will have
to address the evidence at trial that will show he is guilty of these additional
charges.59 In effect, the Defence does not claim
any prejudice other than the difficulty of responding to additional charges.60
- The Defence argument on this point is ill founded. The Prosecution does
not have to “present (…) arguments as to why it desires to amend its allegations
in respect to the responsibility of the accused”61.
It may choose to plead the case as it wishes, as long as it sets out the material
facts that will allow the Defence to meet the case. The issue is not whether
amendments to the indictment prejudice the accused, but whether they do so
unfairly.62 There is no indication that
the new counts would in fact unfairly prejudice the Accused. This Defence
argument is accordingly rejected.
- Similarly, the Defence submits that broadening the indictment to include
the concept of joint criminal enterprise is unacceptable.63
No reasoning is advanced in support of this argument. Given that the joint
criminal enterprise mode of responsibility is clearly within the jurisdiction
of the Tribunal,64 the Prosecution is free to
plead it. This complaint is rejected.
- Taking a different approach to the additional counts pleaded, the Defence
submits that the “Prosecution has failed to provide evidence that would justify
the additional charges”.65 The Prosecution responds
that the additional charges are fully supported by the evidence which was
introduced at the time of the initial indictment.66
These new charges are the subject of individual challenges which the Trial
Chamber addresses below.
6. Defence objections relating to facts supporting charges
- The Defence makes a number of specific challenges to the form of the Second
Amended Indictment as it concerns the facts alleged in support of the ten
counts, which the Trial Chamber will deal with below in the order in which
they arise in the Second Amended Indictment. Overwhelmingly, the Prosecution
has responded that these challenges concern factual or evidentiary issues
that should be determined at the trial stage.67
- With respect to paragraph 8(c) of the Second Amended Indictment, concerning
JNA soldiers allegedly ordered or permitted by the Accused to transfer detainees
from the Vukovar hospital to Ovcara farm, the Defence requests that the Prosecution
specify which units of the JNA carried out these orders.68
The Trial Chamber notes that the Second Amended Indictment is to be read as
a whole, not as a series of paragraphs existing in isolation. The JNA soldiers
referred to in this paragraph may be identified by cross-referencing other
paragraphs in the Second Amended Indictment. The Belgrade-based 1rst Guards
Motorised Brigade, commanded by the Accused, is identified by the Prosecution
as the JNA Unit with primary responsibility for the attack on Vukovar and
the subsequent evacuation and detention of persons from Vukovar hospital.69
That this was the relevant unit for the purposes of paragraph 8(c) is confirmed
in paragraph 7(a), where there is also a reference to the involvement of a
military police battalion in the evacuation and detention of persons from
Vukovar hospital. The Defence request for greater precision is therefore refused.
- The Defence submits that the decision of the Great People’s Assembly SAO
SBWS (10 October 1991) referred to in paragraph 12 of the Second Amended Indictment
needs to be provided or the reference dropped.70
The Prosecution relies on this decision to allege a material fact, the attachment
of the Territorial Defence (“TO”) of the SAO SBWS to the JNA on a permanent
basis. This material fact was not pleaded in the Initial Indictment and therefore
was not confirmed on the basis of supporting evidence. The Defence objection
is upheld, and the Prosecution is ordered to provide a copy of the decision
- The Defence submits that claims in paragraph 17 of the Second Amended Indictment
that alleged crimes against humanity were part of a widespread and systematic
attack directed against the Croat and other non-Serb civilian population of
parts of Croatia, including Vukovar, are not supported by annexed material.
Specifically the Defence submits that some of the names of persons “on the
list” in the Second Amended Indictment could be Serb names.71
This objection goes directly to evidence proving a material fact, which need
not be pleaded at this stage. The objection is therefore refused.
- The alleged events set out in paragraph 19 of the Second Amended Indictment
begin in August 1991. The Defence submits that, because the Accused and his
unit arrived in Vukovar only on 30 September 1991, the Second Amended Indictment
must be limited by this time frame.72 The objection
is misconceived. The Prosecution has clearly pleaded that the charges against
the Accused relate to the period after the fall of Vukovar.73
This does not prevent the Prosecution from providing context for those charges
by way of background information. Such background facts will necessarily concern
a period prior to the alleged commission of crimes. The Defence objection
- The Defence submits that in paragraph 19 of the Second Amended Indictment,
it is unclear whether the Prosecution claims that Serb forces under the Accused’s
command took over places in Eastern Slavonia other than Vukovar before mid-October
1991. The Defence seeks this clarification and, if the Prosecution is making
such an assertion, an indication of which units were involved, who controlled
those units and clarification as to the Accused’s participation.74
Regarding the allegations of occupation, killings and forcing non-Serbs from
the area, the Defence request names of places of alleged events; names of
persons involved in the takeover of places; names of persons exercising power
after takeover; and the connection between the allegations and the Accused.75
The Prosecution responds that these are factual or evidentiary issues to be
determined at the trial stage.76
- These Defence objections need to be viewed in context. Paragraph 19 sets
out background information rather than material facts relevant to the counts
in the Second Amended Indictment. It is in relation to material facts dealing
with each count, rather than the background facts of a general nature only,
that the Accused is entitled to proper particularity in the indictment.77
The Defence request for clarification of these background facts is therefore
- The Defence also requests particulars with respect to the events described
in paragraph 20 of the Second Amended Indictment, regarding the siege, shelling,
occupation and clearance of Vukovar,78 as well
as the alleged expulsion of citizens therefrom.79
Again, this paragraph provides background information rather than material
facts in support of the counts of the Second Amended Indictment. The Defence
is therefore not entitled to further particulars. Furthermore, the Defence
argument regarding the timing of the Accused’s liability for the acts in this
paragraph is moot, as there are no charges in the Second Amended Indictment
based on these acts.80
- Paragraphs 22-24 of the Second Amended Indictment detail the alleged removal
of approximately 400 non-Serbs from Vukovar hospital, the transfer of about
300 of these by bus to JNA barracks and their treatment on arrival there.
The Defence requests that the Prosecution identify which units of the JNA
allegedly carried out these acts, specifying the persons in command and identifying
the soldiers who allegedly “molested and threatened”81
the prisoners within the barrack complex.82 As
stated above, the Second Amended Indictment should be read as a whole rather
than as isolated parts. The Trial Chamber finds that the Prosecution has already
clearly indicated that forces under the command of Veselin Sljivancanin, himself
subordinated to the Accused, carried out these acts.83
The Defence request is accordingly rejected. While it does not affect the
form of the indictment, however, the Trial Chamber recognises that greater
precision could be provided with respect to the identification of individuals
alleged to have committed the acts.84 The Prosecution
must disclose these particulars to the Defence.
- With respect to paragraph 25 of the Second Amended Indictment, and the
claim that it was agreed at the meeting of the government of SAO SBWS that
the JNA should merely transport persons to Ovcara where they would be left
under the control of the local Serb forces, the Defence argues that this implies
that the government of SAO SBWS had authority over the local Serb forces.85
The Defence further submits that this is inconsistent with claims in other
paragraphs of the Second Amended Indictment that the JNA also participated
in the confinement and killings, under the Accused’s command.86
The Trial Chamber, in agreement with the Prosecution,87
finds that these arguments do not concern the sufficiency of material facts,
but are rather issues to be resolved at trial. The Defence objections are
- Similarly, the Defence objects that paragraph 26 of the Second Amended
Indictment is somehow deficient because it claims that local forces were in
control at Ovcara and yet the Accused is charged with the unlawful detention
of civilians there.88 The Prosecution has pleaded
a case based on superior responsibility in which the Accused is alleged to
be the superior of these local forces. Whether or not this case can be proved
is a matter for trial. The Defence objection is rejected.
- The Defence seeks the precise identification of the Serb forces mentioned
in paragraphs 26-29 of the Second Amended Indictment, dealing with the transfer
of the detainees from the JNA barracks to the Ovcara farm and their eventual
transfer to a ravine approximately one kilometer south-east of Ovcara. In
these paragraphs the Prosecution refers variously to “Serb forces” or “Serb
soldiers”. The Defence submits that identification can be done by simply “affirming
that the forces that are mentioned in the paragraph were in fact members of
the Territorial Defence of Vukovar under the command of Miroljub Vujovic and
- Once again it is possible to answer much of the Defence objection by looking
elsewhere in the Second Amended Indictment. Paragraph 5 identifies those bodies
which collectively are identified as “Serb forces”.90
Paragraph 7(a) specifies that it was forces under the command of Veselin Sljivancanin
(i.e. soldiers in the 1rst Guards Motorised Brigade of the JNA, as well as
a military police battalion) that transferred the non-Serbs from the JNA barracks
to the Ovcara farm. Paragraph 7(e) specifies that Miroljub Vujovic and Stanko
Vujanovic had direct operational command of Serb Territorial Defence forces
responsible for the mistreatment and killing of non-Serbs taken from the Vukovar
Hospital to the Ovcara farm. In the view of the Trial Chamber, further specification
of the identity of the Serb forces referred to in these paragraphs is not
necessary. The request is rejected.
- The information set out in paragraph 7(e) of the Second Amended Indictment
also serves to respond to two other Defence requests for further clarifications.
The first concerns whether the soldiers leading prisoners out of trucks (in
paragraph 28 of the Second Amended Indictment) belonged to the JNA, the Territorial
Defence or paramilitary formations.91 The second
concerns the identification of the Serb authorities (whether civilian or military)
that collected information regarding the persons brought to Ovcara and their
role in the events specified.92 It is clear that
in both instances it was Serb TO forces under the command of Miroljub Vujovic
and Stanko Vujanovic that were responsible. These Defence requests are therefore
- Further specifications are sought by the Defence with respect to paragraph
27 of the Second Amended Indictment. In that paragraph there is a reference
to two women being present in Ovcara. The Defence seeks the identification
of these women.93 While evidence that supports
the claim that these women were at Ovcara is properly left for trial, their
identities must, if available to the Prosecution, be disclosed to the Defence.
- The Defence further objects to paragraph 31 of the Second Amended Indictment
in which the Prosecution asserts that women were allegedly killed at Ovcara
without providing any names in support of its claims.94
While the Prosecution is under an obligation to provide the best particulars
that it can in presenting its case, this does not affect the form of the Second
Amended Indictment.95 However, the Prosecution
will be ordered in the disposition of this decision to disclose to the Defence
the names of the women alleged in paragraph 31(a) to have been murdered.
- The Defence submits that in certain instances the new material facts pleaded
are not supported by the provided material, although it fails to provide the
necessary specification. This is alleged to be the case with respect to allegations
that the Accused is responsible for sexual violence, where no victims or perpetrators
are identified.96 It is also submitted that there
is no foundation in the provided material for the fact pleaded in paragraph
31(d) of the Second Amended Indictment that the Accused was responsible for
withholding necessary medical aid. Further, the Defence submits that the Prosecution
must specify the locations where medical aid was withheld.97
The Trial Chamber considers that these matters may be resolved during the
- The next Defence objection concerns the lack of precision in the pleading
of the relevant dates in paragraphs 33 and 34 of the Second Amended Indictment
concerning the extermination and murder charges. In paragraph 33, the Second
Amended Indictment states that the relevant events took place “?fgrom or about
20 November 1991 until 21 November 1991”. In paragraph 34, the timing of events
is given as “?dguring the evening hours of 20/21 November 1991”. The Defence
submits that the discrepancy between the dates given has an important effect
on the preparation of its case,98 and that the
Prosecution must “either claim that it is certain that the incident occurred
on the 20th November 1991 or not claim at all”.99
In response, the Prosecution submits that the language “from or about 20 November
1991 until 21 November 1991” is commonplace legal pleading language that in
no way prevents the Defence from preparing its case. It submits further that
the events which form the basis of the Second Amended Indictment against the
Accused cover a relatively limited period of time (between 17-21 November
1991) and a limited geographic area (Vukovar and areas within a few kilometres
of the city of Vukovar ).100 The Trial Chamber
agrees that the Second Amended Indictment is sufficiently specific in respect
of the timing of the acts pleaded in paragraphs 33 and 34 to allow the Defence
to prepare its case. The Defence objection is rejected.
- The next Defence objection concerns allegedly inconsistent Prosecution
claims concerning the forces responsible for the execution of detainees taken
to Ovcara farm. In paragraph 34 of the Second Amended Indictment it is alleged
that “Serb forces comprised of JNA units and the TO, volunteer and paramilitary
units acting in coordination and under the supervision of the JNA shot and
otherwise executed them”. The Defence submits that this is factually inconsistent
with paragraphs 26 -29 of the Second Amended Indictment where it is alleged
that the people at Ovcara were beaten and killed by members of the Territorial
Defence under the command of Miroljub Vujovic and Stanko Vujanovic. The Defence
accordingly requests that these claims be harmonised.101
In response, the Prosecution submits that this is an evidentiary issue, to
be determined at the trial stage.102
- The Trial Chamber finds that the objection raised regarding the inconsistency
in the pleading of the Prosecution case affects the ability of the Defence
to know the case against it. The Second Amended Indictment clearly states
that the TO formed part of the Serb forces under the authority of the Accused.
The Defence is entitled to know whether it was only the TO that was responsible
for the executions (as pleaded by the Prosecution in paragraphs 26-29 of the
Second Amended Indictment), or whether other parts of the “Serb forces” were
also involved (as pleaded in paragraph 34). The Prosecution is incorrect in
arguing that the Defence is challenging the accuracy of the facts alleged
– in fact, it is asking for precision as to what those facts are. The Prosecution
will be ordered to provide such clarification. This Defence objection is upheld
to the extent that the Prosecution is required to clarify the use of its terminology
(“Serb forces”, “Serb soldiers”) and to ensure that the identification of
those responsible for the alleged crimes in paragraphs 26-29 is factually
consistent with those identified as being responsible for the alleged crimes
in paragraph 34.
- In paragraph 38 of the Second Amended Indictment, the Prosecution alleges
that among the detainees were women, elderly men and patients from Vukovar
Hospital who were wounded or sick but did not receive any medical care. The
Defence requests a clarification whether these allegations pertain to prisoners
of Ovcara exclusively or to other locations as well.103
The Prosecution responds that this is an evidentiary issue, to be determined
at the trial stage.104 Once again, the Defence
is reading the paragraph concerned in isolation. It is quite clear that the
Second Amended Indictment is concerned with events which took place in and
around Vukovar, and that the only relevant place of detention is the Ovcara
farm. In paragraph 36 this is specified. The reference in paragraph 38 is
clearly to be read in light of what precedes and therefore makes sufficiently
clear that the allegations concern detainees at the Ovcara farm only. The
Defence request for clarification is rejected.
- The Defence makes a further request concerning the sick and wounded detainees
noted in paragraph 38 of the Second Amended Indictment, namely that as many
of them as possible should be identified.105
The Prosecution responds that this is an evidentiary issue, to be determined
at the trial stage.106 The Defence request effectively
seeks particulars regarding material facts and, as already stated, while the
Prosecution is under an obligation to provide the best particulars that it
can in presenting its case, this does not affect the form of the Second Amended
Indictment.107 However, the Prosecution will
be ordered to disclose to the Defence the names of as many of the sick and
wounded detainees referred to in paragraph 38 as are available to it.
- The Defence makes a different type of challenge with respect to, it would
appear, paragraph 38 of the Second Amended Indictment. It is submitted that
the Prosecution lacks consistency in naming categories of persons, with the
suggestion that city defence units and political activists have been omitted.
In addition, the Defence suggests that separating the patients and the sick
and wounded into two separate categories is illogical.108
The Trial Chamber rejects these Defence complaints. It is for the Prosecution
to choose how to plead its case. If the Defence wishes to make a specific
challenge to the way in which the Prosecution has done so, it can do this
7. Defence objections relating to the pleading of Article 7(1)
Joint Criminal Enterprise
- The Defence makes a number of general and specific objections regarding
the pleading in the Second Amended Indictment of a joint criminal enterprise
- First, the Defence submits that no evidence has been submitted by the Prosecution
that would suggest the existence of a JCE, especially in the form set out
in paragraph 6 of the Second Amended Indictment.109
In response, the Prosecution submits that it pleads the relevant material
facts in paragraphs 2, 7 and 8, and that the Second Amended Indictment must
be read as a whole and individual paragraphs must not be analysed in isolation
and out of context.110 The Prosecution submits
that all of the requisite elements of the JCE are pleaded: the Accused’s participation
(paragraphs 2, 5); the criminal purpose of the enterprise (paragraph 3); the
mens rea of the Accused with regard to the commission of the crimes
in furtherance of the enterprise (paragraph 4); the time and location of the
underlying criminal acts committed in connection with the enterprise (paragraphs 3,
6-9, 18-29); and the specific acts of the Accused which furthered the goal
of the enterprise (paragraphs 8 and 9).111
- Second, the Defence submits that there is a failure to precisely identify
the participants in the JCE. In paragraph 5 of the Second Amended Indictment
the Prosecution uses the imprecise term “known and unknown participants”.112
With reference to paragraphs 5 and 7 of the Second Amended Indictment, the
Defence submits that it is not clear “with whom did the accused act in conjunction,
nor did he act in fact indirectly” and that it “remains unclear if he is liable
for the acts and omissions, as well as what were the roles of the participants
according to the Prosecution’s claims, if they are not to be confined to the
allegations of the Indictment”.113 The Defence
submits that, in line with previous Tribunal decisions, all other participants
must be identified together with their relation to the Accused.114
- The Defence submissions with respect to the insufficiency of the material
facts regarding the participants in the JCE demonstrate an incomprehensible
reluctance or refusal to consider the Second Amended Indictment as a whole.
The Prosecution has clearly identified in paragraphs 5 through 7 the five
major co-participants in the alleged JCE.115
It is precisely stated that “for the purpose of the indictment participation
in the joint criminal enterprise charged in this indictment is limited to
Mile MRKSIC, Miroslav RADIC, Veselin SLJIVANCANIN, Slavko DOKMANOVIC,
Miroljub VUJOVIC and Stanko VUJANOVIC, and their subordinates”.116
Further, paragraphs 19, 20, 22-29 identify in a general way the criminal perpetrators
of the acts for which the Accused is alleged to be responsible.117
The Prosecution case regarding the participants in the JCE and their roles
for the purposes of the preparation of the Defence case is made abundantly
clear. In addition, there is no ambiguity as to whether the Accused is charged
with indirect or direct acts. He is charged under both Articles 7(1) and 7(3)
for all the alleged crimes committed by the other participants in the JCE,
as identified above. With respect to the Defence claim that there may be a
need for clarification regarding the roles, acts and omissions of the JCE
participants “if they are not to be confined to the allegations of the Indictment”,
the Trial Chamber is of the view that this requests is merely spurious. It
goes without saying that the Defence will never be required to meet a case
which is not set out in the Second Amended Indictment. The Defence objections
with respect to the identity of the JCE participants are rejected.
- The Defence further alleges a failure to identify the common goals and
agreements of the JCE.118 The Prosecution responds
that it has set out the criminal purpose of the enterprise in paragraph 3
of the Second Amended Indictment.119 The Trial
Chamber finds that the purpose of the JCE as set out in paragraph 3 sufficiently
identifies the common goals and agreements of the enterprise. The Defence
argument is rejected.
- The Defence submits that the allegation in paragraph 5 of the Second Amended
Indictment that the Accused participated in the basic form of JCE is inconsistent
with the alternatively alleged extended form of JCE alleged in paragraph 4.120
Further the Defence submits that the Prosecution must specifically identify
the Accused’s acts or conduct based on which it infers the Accused’s responsibility
and “thus it is not permissible to make the accused responsible for acting
in the alleged joint criminal enterprise, by both claiming him responsible
under the primary form of responsibility and the broad form of the responsibility
altogether (…) the Prosecution has to know whether its allegations would go
to charging the accused for acting as a main perpetrator in the JCE or to
charging the accused for aiding and abetting others to commit crimes (…) (t)he
Prosecution has to decide whether the accused shared the same intent with
other members of the joint criminal enterprise, or this is a case that the
crimes were committed by a person outside the intended joint criminal enterprise,
but which was nevertheless a natural and foreseeable consequence of affecting
the agreed joint criminal enterprise”.121
- Despite its protestations, the Defence objection appears to go to the permissibility
of charging under alternative heads of liability (or, in this case, alternative
forms of JCE liability).122 It is clear from
the Tribunal jurisprudence that it is permissible to plead the basic and extended
forms of JCE liability in the alternative on the basis that it is not always
possible for the Prosecution to know ahead of trial which of the two forms
of responsibility will be proved by the evidence.123
It is not, therefore, a question of proving responsibility under both forms,
but of maintaining the option of both forms pending the presentation of evidence,
at which time the Trial Chamber will establish which form, if any, is the
- Other Defence objections to the pleading of JCE in the Second Amended Indictment
are equally misguided. The Defence submits that allowing the Prosecution to
plead both forms of JCE would result in the Accused having “to defend himself
from one fact in two opposite ways, (…) therefore rendering any possibility
of a defence preparation impossible.”124 The
Defence further alleges that this “broadened form of responsibility” disables
the Accused from adequately preparing its defence and that the Prosecution
should thus be ordered to decide on what it actually desires to charge the
accused with.125 The Trial Chamber notes again
that the Prosecution is entitled to plead the basic and extended forms of
JCE liability in the alternative. The Defence submission that this may make
the preparation of its case more difficult or “impossible” has not been substantiated,
and does not justify a change in the Prosecution’s pleading approach. The
Second Amended Indictment clearly identifies those acts for which the Accused
is alleged to be responsible, as well as the modes of such responsibility.
The Defence objections are rejected.
- The Defence argues that, by charging the Accused as an accomplice within
a JCE, the Prosecution puts it in a more onerous position based on an identical
state of facts.126 Similarly, the Defence submits
that by presenting Accused’s responsibility “alternatively both as subjective
and objective”127 in paragraphs 4 and 9 of the
Second Amended Indictment, the Accused is placed in an onerous position.128
It is not the task of the Trial Chamber to ensure that the position of the
Defence is not onerous, but rather that it is not unfairly so. The
Prosecution correctly responds that the suggestion that pleading in the alternative
places an accused in a more onerous position and that it should therefore
be disallowed is without support in the Tribunal jurisprudence.129
This Defence objection is rejected.
Pleading different heads of responsibility under Article 7(1)
- The next set of Defence objections challenge the approach that the Prosecution
has adopted with respect to pleading various headings of responsibility under
- The Defence submits that the Second Amended Indictment does not specify
the elements of the Accused’s individual responsibility, but rather copies
the formulation of Article 7(1).130 As a result,
the Accused must defend himself from charges both as a perpetrator and as
an aider and abettor, which is “not common in the jurisprudence of the Tribunal”.131
The “Accused could not have at the same time ordered and abetted the crime,
nor could he have planned, committed and aided id est supported its
preparation.”132 The Accused must be informed
if the Prosecution claims that the Accused committed or ordered commission
of criminal acts or if he only aided and abetted.133
Further Defence arguments also focus on the alternative nature of the pleadings.134
- The Prosecution responds that, in paragraph 9 of the Second Amended Indictment,
all the bases for Article 7(1) are alleged.135
The Accused is charged in the alternative with all of the modes of liability
set out in Article 7(1), including liability as an aider and abettor. The
Second Amended Indictment need not limit or elect specific modes of liability
under Article 7(1). The Accused is on notice that all modes of liability under
7(1) are available to the finder of fact.136
The Prosecution submits that it is well settled in Tribunal jurisprudence
that pleading may be both in the alternative and cumulative, and that the
Defence arguments are based on a mistaken belief that pleading in the alternative
is not allowed.137
- As set out above in paragraph 9 of this decision, the Prosecution is obliged
to indicate the particular head or heads of Article 7(1) responsibility alleged
in order to enable the Accused to effectively and efficiently prepare his
defence. Contrary to the Defence submissions, however, the Prosecution is
not required to choose between different heads of responsibility. In this
case it has chosen to plead all the different heads of responsibility, as
is its right. It will be required to prove the existence of each of these
at trial. Further, despite Defence protestations to the contrary,138
the arguments advanced clearly challenge the approach of pleading heads of
responsibility in the alternative. Such an approach has clearly been accepted
within the Tribunal’s jurisprudence.139 The
Defence objections are therefore rejected.
- In addition to its general objections, the Defence makes a specific request
for clarification with respect to the Article 7(1) modes of liability pleaded
in paragraph 36 of the Second Amended Indictment, regarding the charges for
imprisonment, torture, inhumane acts and cruel treatment. The Defence submits
that the Prosecution must specify “whether the Accused is being charged with
ordering the detention of the relevant people or aiding it”.140
As noted above, the Prosecution is free to plead more than one mode of liability.
In paragraph 36 of the Second Amended Indictment, it has clearly done so.
The Trial Chamber finds that the case to be met by the Defence is clear and
that no clarification is necessary. The request is rejected.
8. Defence objections relating to the pleading of Article 7(3)
- The Defence also challenges the sufficiency of the material facts set out
by the Prosecution with respect to the superior command head of responsibility.141
Specifically, the Defence alleges that, in paragraph 10 of the Second Amended
Indictment, the Prosecution fails to clarify the material facts regarding
the relationship of the Accused to his subordinates, of which acts committed
by his subordinates the Accused knew or had reason to know, the identity of
the subordinates who committed such acts, and the type of acts committed and
measures that the Accused could have but failed to take.142
The Defence further submits that the Prosecution must specify, where possible,
the overall structure including those units under the command of the Accused,
their zones of responsibility and which units carried out the acts alleged
in the Second Amended Indictment.143 In response
to the Defence allegations, the Prosecution submits that the requisite material
facts are to be found in paragraphs 10-14 of the Second Amended Indictment.
Whether or not the Accused exercised actual control over the forces in question
is an evidentiary matter that must be determined at trial. The material facts
regarding his de jure and de facto control of the military forces
in Vukovar have been pleaded with the requisite specificity.144
- The jurisprudence of this Tribunal is clear with respect to the nature
of the material facts which need to be pleaded in a case based on superior
responsibility.145 Certain facts will necessarily
be stated with less precision than in a case based on Article 7(1) responsibility,
and in some cases it may be sufficient to identify the persons who committed
the alleged crimes and the victims by means of the category or group to which
they belong.146 The Trial Chamber finds that
the Prosecution has clearly identified in paragraphs 7 and 10-14 of the Second
Amended Indictment the command position occupied by the Accused and the individuals
and units subordinated to him. The material facts regarding the acts committed
and the individuals who committed them are set out throughout the Second Amended
Indictment and are generally the subject here of individual Defence objections
where it is submitted that such facts are insufficiently pleaded. The Trial
Chamber finds that the general Defence objections with respect to superior
responsibility are without merit, and they are accordingly refused, with one
exception. While the Prosecution notes the legal requirements that the Accused
must have known or had reason to know that his subordinates were about to
commit the crimes alleged or had done so and that he failed to take the necessary
and reasonable measures to prevent these crimes or to punish the persons who
committed them, it does not plead these as material facts in this case. On
this point only the Defence objection is upheld and the Prosecution is ordered
to amend the Second Amended Indictment accordingly.
- In a more general complaint, the Defence submits that because the perpetrators
of the crimes alleged were units which held persons under guard at Ovcara,
the Accused as a member of the Yugoslav People’s Army had neither command
nor responsibility over the said units.147 The
Prosecution has properly pleaded the material facts regarding the Accused’s
superior responsibility, including his superior position vis-à-vis these units.
Whether or not these facts are true is a matter to be resolved at trial. The
Defence objection is rejected.
- With respect to the paragraph 8(a) of the Second Amended Indictment, in
which the Prosecution alleges that the Accused “directed, commanded, controlled,
or otherwise exercised effective control over Serb forces engaged in the execution
of the purpose of the joint criminal enterprise as described in this indictment”,
the Defence requests clarification whether the Prosecution claims that the
Accused “commanded these forces whereby he indirectly led to the execution
of the joint criminal enterprise goal, or did he in fact have but a de
iure control over the said forces or yet a control of a de facto nature”148
The Trial Chamber draws the attention of the Defence to paragraph 13 of the
Second Amended Indictment, where both de iure and de facto control
- Pursuant to Rule 72,
(a) The Motion is hereby granted in part, as follows:
(i) The Prosecution is ordered to amend the Second Amended Indictment
in the terms set out in paragraphs 46 and 65 of this Decision; and
(ii) The Prosecution is ordered to disclose to the Defence the particulars
highlighted by the Trial Chamber in paragraphs 29, 35, 41, 42, 43 and
48 of this Decision, or show good cause why it cannot do so at this stage.
(iii) The amended indictment is to be filed no later than 12:00 on 21 July 2003.
A table indicating all the amendments and changes made to the indictment
shall be filed by the same time (reorganisation table).
(iv) The Defence is to file complaints, if any, resulting from the amendments
made in accordance with the above directions within thirty (30) days of
the filing of the amended indictment (i.e., no later than 12:00 on 20 August 2003).
(b) The remainder of the Motion is denied.
Done in both English and French, the English version being authoritative.
Dated this nineteenth day of June 2003
At The Hague,
[Seal of the Tribunal]
Footnote 1 - “Defense Response to Prosecution’s
Motion for Leave to File an Amended Indictment”, 2 October 2002 (“Defence Response”);
“Defense Preliminary Motion”, 29 November 2002 (“Defence Motion”); “Defence Reply
to the Prosecution’s Response to Accused’s Preliminary Motion Based on Defects
in the Form of the Indictment”, 6 January 2003 (“Defence Reply”).
Footnote 2 - “Prosecution’s Response to the Accused’s
Preliminary Motion Based on Defects in the Form of the Second Amended Indictment”,
13 December 2002 (“Prosecution Response”); “Prosecution’s Reply in Support of
Motion for Leave to File and Amended Indictment”, 30 October 2002 (“Prosecution
Footnote 3 - Prosecutor v Mrksic, Radic and Sljivancanin,
Case IT-95-13-I, Indictment, 7 November 1995 (“Initial Indictment”).
Footnote 4 - Prosecutor v Mrksic, Radic, Sljivancanin
and Dokmanovic (†), Case IT-95-13a-I, Indictment, 1 April 1996 (“1996 Amended
Indictment”); see also Prosecutor v Mrksic, Radic, Sljivancanin and Dokmanovic
(†), Case IT-95-13a-I, Amendement de l’acte d’accusation, 3 April 1996.
Footnote 5 - Prosecutor v Mrksic, Radic, Sljivancanin
and Dokmanovic (†), Case IT-95-13a-PT, Amended Indictment, 2 December 1997
(“1997 Amended Indictment”).
Footnote 6 - “Decision on Leave to File Amended Indictment”,
1 November 2002.
Footnote 7 - Prosecutor v Mrksic, Case IT-95-13/1,
Second Amended Indictment, 29 August 2002 (“Second Amended Indictment”).
Footnote 8 - Hereinafter, references to “Article” or
“Articles” would mean references to an Article or Articles of the Statute.
Footnote 9 - See “Decision on Leave to File Amended
Indictment”, 1 November 2002, in which the “Defence is granted leave to file a
motion on the form of the indictment but should restrict itself to arguments additional
to those already raised in the Defence Response”; and the “Decision on Request
for Leave to Reply”, 20 December 2002, in which the Defence is ordered to “restrict
its reply to new issues raised in the Prosecution’s Response and shall not repeat
arguments already advanced”.
Footnote 10 - Prosecutor v Kupreskic and Others,
Case IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic Appeal Judgment”),
Footnote 11 - Kupreskic Appeal Judgment (with
reference to Arts 18(4), 21(2) and 21(4)(a) and (b) of the Statute and Rule 47(C));
and Prosecutor v Hadzihasanovic, Alagic (†) and Kubura, Case IT-01-47-PT,
Decision on Form of Indictment, 7 December 2002 (“Hadzihasanovic Indictment
Decision”), par 8.
Footnote 12 - See Kupreskic Appeal Judgment,
par 88; Arts 18(4), 21(2) and 21(4)(a) and (b) of the Statute; and Rule 47(C)
of the Rules of Procedure and Evidence (“Rules”), which essentially restates Art 18(4).
Footnote 13 - Kupreskic Appeal Judgment, par 89.
Footnote 14 - Ibid, par 89.
Footnote 15 - Hadzihasanovic Indictment Decision,
par 10; Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on
Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001
(“First Brdjanin & Talic Decision”), par 18. It is essential for the accused
to know from the indictment just what that alleged proximity is: Prosecutor
v Brdjanin and Talic, Case IT-99-36-PT, Decision on Objections by Radoslav
Brdjanin to the Form of the Amended Indictment, 23 February 2001 (“Second Brdjanin
& Talic Decision”), par 13.
Footnote 16 - Second Brdjanin & Talic Decision,
Footnote 17 - See Prosecutor v Delalic and Others,
Case IT-96-21-A, Judgement, 20 Feb 2001 (“Celebici Appeal Judgment”), par 350.
See also Prosecutor v Deronjic, Case IT-02-61-PT, Decision on Form of the
Indictment, 25 October 2002 (“Deronjic Decision”), par 31.
Footnote 18 - See ibid, par 351; Prosecutor
v Aleksovski, Case IT-95-14/1-A, Judgement, 24 March 2000, par 171, fn 319
(with reference to Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on
Preliminary Motion on Form of Amended Indictment, 11 February 2000 (“First Krnojelac
Decision”), pars 59-60).
Footnote 19 - Eg, in a case where the Prosecution
alleges that an accused personally committed the criminal acts, the material facts,
such as the identity of the victim, the time and place of the events and the means
by which the acts were committed, have to be pleaded in detail (Kupreskic
Appeal Judgment, par 89), whereas, in a joint criminal enterprise case, different
material facts would have to be pleaded (see also Prosecutor Brdjanin
and Talic, Case IT-99-36-PT, “Decision on Form of Further Amended Indictment
and Prosecution Application to Amend”, 26 June 2001 (“Third Brdjanin & Talic
Decision”), pars 21, 22).
Footnote 20 - The Prosecution may also be ordered to
plead what is the position forming the basis of the superior responsibility charges
(Deronjic Decision, par 15).
Footnote 21 - Deronjic Decision, par 19.
Footnote 22 - Celebici Appeal Judgment, par 256
(see also pars 196-198, 266).
Footnote 23 - Statute, Art 7(3); see Hadzihasanovic
Indictment Decision, pars 11 and 17; see also First Brdjanin & Talic Decision,
par 19; Prosecutor v Krajisnik, Case IT-00-39-PT, Decision Concerning Preliminary
Motion on the Form of the Indictment, 1 August 2000 (“Krajisnik
Decision”), par 9; First Krnojelac Decision, par 9.
Footnote 24 - Statute, Art 7(3); see Hadzihasanovic
Indictment Decision, par 11; First Brdjanin & Talic Decision, par 19; Krajisnik
Decision, par 9.
Footnote 25 - Statute, Art 21(4)(a); Hadzihasanovic
Indictment Decision, par 11; Prosecutor v Krnojelac, Case IT-97-25-PT,
Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February
1999, par 38.
Footnote 26 - Hadzihasanovic Indictment Decision,
par 11; First Brdjanin & Talic Decision, par 19.
Footnote 27 - See Hadzihasanovic Indictment
Decision, par 11; First Brdjanin & Talic Decision, par 19; Prosecutor v
Kvocka, Case IT-99-30-PT, Decision on Defence Preliminary Motions on the Form
of the Indictment, 12 April 1999 (“Kvocka Decision”), par 17; First Krnojelac
Decision, par 18(A); Krajisnik Decision, par 9. The exact relationship
between this material fact and that of effective control, i.e. the material
ability of a superior to prevent or punish criminal conduct of subordinates,
need not be considered here.
Footnote 28 - Statute, Art 7(3); see Hadzihasanovic
Indictment Decision, par 11; First Brdjanin & Talic Decision, par 19 (rolling
facts (b) and (c) together); Krajisnik Decision, par 9.
Footnote 29 - Hadzihasanovic Indictment Decision,
Footnote 30 - Third Brdjanin & Talic Decision,
Footnote 31 - Hadzihasanovic Indictment Decision,
par 10; Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on
Form of Fourth Amended Indictment, 23 November 2001, par 12; First Brdjanin
& Talic Decision, par 48.
Footnote 32 - Hadzihasanovic Indictment Decision,
par 10; First Brdjanin & Talic Decision, par 48.
Footnote 33 - Kupreskic Appeal Judgment, par 114.
Footnote 34 - If the Defence is denied the material
facts as to the nature of the accused’s responsibility for the events pleaded
until the pre-trial brief is filed, it is almost entirely incapacitated from conducting
any meaningful investigation for trial until then (see Second Brdjanin
& Talic Decision, pars 11-13).
Footnote 35 - Kupreskic Appeal Judgment, par 92.
Footnote 36 - Ibid.
Footnote 37 - Ibid.
Footnote 38 - Ibid, par 88. It can be left open
whether the view expressed by the Appeals Chamber is an obiter dictum only,
and whether there may not be exceptional cases in which the Prosecution may be
required to plead the evidence in an indictment.
Footnote 39 - Defence Motion, pars 2, 4.
Footnote 40 - Defence Motion, par 16, Defence Reply,
pars 12, 15, 16.
Footnote 41 - Defence Motion, par 5.
Footnote 42 - Defence Motion, pars 4, 5, Defence Reply
Footnote 43 - Defence Reply, pars 16, 17.
Footnote 44 - Prosecution Response, pars 8, 20. Including
with regard to: the command position held by the Accused; the identity of the
participants in the joint criminal enterprise; the location and approximate time
of each criminal event; the person or persons involved in the crimes committed;
the manner in which the crimes were committed; the nature of the Accused’s participation
in the crimes; and the identities of the victims (Prosecution Response, par 8).
Footnote 45 - Prosecution Response, par 15.
Footnote 46 - Prosecution Response, pars 12, 30.
Footnote 47 - Prosecution Response, par 30.
Footnote 48 - See par 14 above.
Footnote 49 - “Although it is no longer necessary for
an amended indictment to be "confirmed" after the case has been assigned to a
Trial Chamber, leave will not be granted to add new allegations to an indictment
unless the prosecution is able to demonstrate that it has material to support
these new allegations - unless, of course, the evidence has already been given
and the indictment is being amended merely to accord with the case which has been
presented”, Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision
on Form of Fourth Amended Indictment, 23 November 2001, par 21.
Footnote 50 - Namely persecution (count 1), extermination
(count 2), imprisonment (count 5) and torture, both as a crime against humanity
(count 6) and as a violation of the laws or customs of war (count 8).
Footnote 51 - Defence Response, par 10; Defence Motion,
par 30 regarding persecution in particular.
Footnote 52 - Defence Response, par 6.
Footnote 53 - Prosecution Reply, par 9.
Footnote 54 - “It is somewhat of a paradox that the
Prosecution now wishes to charge the Accused with these additional charges if
one bears in mind that the Prosecution claims that even though the perpetrators
of the crimes against the victims in Ovcara were in fact members of the local
territorial defence units, these charges did not exist when a member of the government
of Eastern Slavonia, Baranje and Western Srem was tried, under whose command the
said units were.” (Defence Response, par 10)
Footnote 55 - Prosecution Reply, par 9.
Footnote 56 - Defence Response, par 11.
Footnote 57 - Defence Response, par 11.
Footnote 58 - Defence Response, pars 11, 12. See
also par 6, in which the Defence submits that the Accused “is placed in a
more difficult position id est he is expected to prove a fact which is
incompatible with both his own role and the role of the army to which he belonged”.
Footnote 59 - Prosecution Reply, par 10.
Footnote 60 - Prosecution Reply, par 12.
Footnote 61 - Defence Response, par 6.
Footnote 62 - See par 13 above. See also
Prosecution Reply, par 11.
Footnote 63 - Defence Motion, par 8.
Footnote 64 - See eg. Prosecutor v Milutinovic and
Others, Case IT-99-37-AR72, Decision on Drgoljub Ojdanic’s Motion Challenging
Jurisdiction –Joint Criminal Enterprise, 21 May 2003.
Footnote 65 - Defence Response, pars 7, 11; Defence
Motion, pars 8, 22, 25, 29.
Footnote 66 - Prosecution Response, par 30.
Footnote 67 - Prosecution Response, par 32.
Footnote 68 - Defence Motion, par 14.
Footnote 69 - Amended Indictment, par 11.
Footnote 70 - Defence Motion, par 19; Defence Reply,
Footnote 71 - Defence Motion, pars 22, 41.
Footnote 72 - Defence Motion, par 23.
Footnote 73 - See Second Amended Indictment
par 3: “The purpose of this joint criminal enterprise was the persecution of Croats
and other non-Serbs who were present in the Vukovar Hospital after the fall
of Vukovar, through the commission of crimes in violation of Articles 3 and
5 of the Statute of the Tribunal” (emphasis added).
Footnote 74 - Defence Motion, par 23.
Footnote 75 - Defence Motion, par 24.
Footnote 76 - Prosecution Response, par 32.
Footnote 77 - First Krnojelac Decision, par
Footnote 78 - Specifically, the Defence requests data
on the number of dead people, the circumstances and locations of deaths, and the
units responsible for deaths. See Defence Motion, par 25.
Footnote 79 - The Defence submits that it is not possible
to adduce from the material that the non-Serb population was forced out and that
there is evidence that they left voluntarily. See Defence Motion, par 25.
Footnote 80 - Defence Motion, par 25.
Footnote 81 - In par 24 of the Second Amended Indictment,
it actually reads that soldiers “humiliated and threatened” the detainees.
Footnote 82 - Defence Motion, par 27.
Footnote 83 - Second Amended Indictment, par 7(a).
Footnote 84 - See Third Brdjanin & Talic Decision,
par 59, for the principle that the identity of the victims and perpetrators are
not material facts in a case in which the accused is remote in proximity from
the crimes alleged to have been committed – rather, they are matters of evidence.
Footnote 85 - Defence Motion, par 35; Defence Reply,
Footnote 86 - Defence Reply, par 20.
Footnote 87 - Prosecution Response, par 32.
Footnote 88 - Defence Motion, par 31.
Footnote 89 - Defence Motion, par 28.
Footnote 90 - The Trial Chamber notes that the definition
of Serb forces given clearly includes “members of the JNA” and therefore rejects
the Defence argument that the reference to “Serb forces” excludes that they are
members of the JNA (Defence Reply, par 21).
Footnote 91 - Defence Motion, par 39.
Footnote 92 - Defence Motion, par 38.
Footnote 93 - Defence Motion, par 29; Defence Reply,
Footnote 94 - Defence Motion, par 31. In the Defence
Motion it is mistakenly stated that the relevant Indictment paragraph is 32.
Footnote 95 - First Krnojelac Decision, par
Footnote 96 - Defence Motion, pars 31, 36; Defence
Reply, par 21. The sexual violence allegations referred to would appear to be
those pleaded in pars 31(c) and 37 of the Second Amended Indictment, although
the relevant paragraphs have not been specified by the Defence.
Footnote 97 - Defence Motion, pars 31, 37.
Footnote 98 - Defence Motion, par 40.
Footnote 99 - Defence Reply, par 14.
Footnote 100 - Prosecution Response, par 23.
Footnote 101 - Defence Motion, par 33; Defence Reply,
Footnote 102 - Prosecution Response, par 32.
Footnote 103 - Defence Motion, par 37.
Footnote 104 - Prosecution Response, par 32.
Footnote 105 - Defence Motion, par 37.
Footnote 106 - Prosecution Response, par 32.
Footnote 107 - First Krnojelac Decision, par
Footnote 108 - Defence Motion, par 37.
Footnote 109 - Defence Motion, par 8.
Footnote 110 - Prosecution Response, par 19, fn 20.
Footnote 111 - Prosecution Response, par 21.
Footnote 112 - Defence Motion, pars 9, 30; Defence
Reply, par 12.
Footnote 113 - Defence Motion, pars 12, 13.
Footnote 114 - Defence Motion, par 26.
Footnote 115 - Prosecution Response, pars 21, 22.
Footnote 116 - Second Amended Indictment par 6.
Footnote 117 - Prosecution Response, par 22. The Trial
Chamber does not agree with the Prosecution submission in this paragraph that
the perpetrators have been identified “specifically”.
Footnote 118 - Defence Motion, par 9.
Footnote 119 - Prosecution Response, par 21. Par 3
of the Second Amended Indictment states “The purpose of this joint criminal enterprise
was the persecution of Croats or other non-Serbs who were present in the Vukovar
Hospital after the fall of Vukovar, through the commission of crimes in violation
of Articles 3 and 5 of the Statute of the Tribunal”.
Footnote 120 - Defence Motion, par 11.
Footnote 121 - Defence Reply, par 12.
Footnote 122 - The Defence states in its Reply that
“(…) the aforementioned Prosecution’s obligation cannot be questioned as a matter
of permissibility of an alternative an cumulative charging, because neither a
theoretical possibility if being responsible under both forms of responsibility
can be discussed, nor is there justification in the elements required for the
validation of the categories.” (Defence Reply, par 13).
Footnote 123 - Third Brdjanin & Talic Decision,
Footnote 124 - Defence Reply, par 13.
Footnote 125 - Defence Response, par 8.
Footnote 126 - Defence Response, pars 5, 6.
Footnote 127 - The Trial Chamber understands this
to mean responsibility under both the basic and extended forms of JCE.
Footnote 128 - Defence Motion, par 10.
Footnote 129 - Prosecution Response, par 27.
Footnote 130 - Defence Motion, par 7; Defence Reply,
Footnote 131 - Defence Reply, par 4.
Footnote 132 - Defence Motion, par 7; see also
par 17; Defence Reply, par 7.
Footnote 133 - Defence Reply, par 4.
Footnote 134 - The Defence asserts that, in par 7
of the Amended Indictment, the Prosecution presents its allegations in relation
to the Accused in an imprecise and alternative fashion (Defence Motion, par 13).
It states that the result of such an alternative presentation of responsibility
is that the Prosecution is claiming that the Accused is both “the co-perpetrator
as well as the co-participant” (Defence Motion, par 10). The Defence further objects
to “the fact that the Prosecution has presented its request for the individual
responsibility of the Accused as an accomplice in a joint criminal enterprise
in an alternative fashion.” (Defence Response, par 8). Whether participation in
a joint criminal enterprise in fact constitutes accomplice liability, disputed
by the Prosecution (Prosecution Reply, par 6), is a matter to be resolved at trial.
Footnote 135 - Prosecution Reply, par 4.
Footnote 136 - Prosecution Reply, par 7.
Footnote 137 - Prosecution Response, par 26.
Footnote 138 - The Defence submits that its objection
is not to alternative pleading, but to the imprecise allegations of the Prosecution
regarding the Accused’s conduct: Defence Reply, par 5.
Footnote 139 - See eg Celebici Appeal
Judgment, par 400, for cumulative charging.
Footnote 140 - Defence Motion, par 34.
Footnote 141 - Defence Motion, par 17.
Footnote 142 - Defence Motion, par 20.
Footnote 143 - Defence Motion, par 26.
Footnote 144 - Prosecution Response, par 22.
Footnote 145 - See par 10, supra.
Footnote 146 - See pars 8, 10, supra;
see also Prosecution Response, par 17.
Footnote 147 - Defence Response, par 10.
Footnote 148 - Defence Motion, par 15.