IN THE TRIAL CHAMBER

Before: Judge Gabrielle Kirk McDonald, Presiding

              Judge Ninian Stephen

              Judge Lal C. Vohrah

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 2 October 1996

 

PROSECUTOR

v.

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELI
C
ESAD LANDZO also known as "ZENGA"

___________________________________________________________

DECISION ON MOTION BY THE ACCUSED ZEJNIL DELALIC
BASED ON DEFECTS IN THE FORM OF THE INDICTMENT

_________________________________________________________

 

The Office of the Prosecutor:

Mr. Eric Ostberg

Ms. Teresa McHenry

Counsel for the Accused:

Ms. Edina Residovic, for Zejnil Delalic

I. INTRODUCTION

On 3 July 1996, the accused, Zejnil Delalic, submitted to this 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 ("International Tribunal") a Motion Based on Defects in the Form of the Indictment ("Motion") pursuant to Rules 72 and 73 of the International Tribunal’s Rules of Procedure and Evidence ("Rules"). The Office of the Prosecutor ("Prosecution") responded in writing to the Motion on 23 July 1996 ("Prosecution’s Response"). Prior to that date, the Defence had submitted several documents in support of a pending motion in which he requested provisional release. After determining that these documents were potentially relevant to the Motion, on 7 August 1996 the Trial Chamber directed the Prosecution to respond to the supplementary material. On 14 August 1996, the Prosecution submitted its Response to the Materials Filed by Delalic in Support of the Motion for Provisional Release as far as they Relate to his Motion on Defects in the Form of the Indictment ("Response to Materials"). The parties orally presented arguments with regard to the Motion on 20 August 1996.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and the oral arguments of the parties,

HEREBY ISSUES ITS DECISION.

II. DISCUSSION

A. Background

1. The Indictment in which Zejnil Delalic is charged ("Indictment") includes a total of 49 counts against the accused and three other persons. It was originally confirmed on 21 March 1996. The Prosecution alleges in the Indictment that Zejnil Delalic was the Commander of the First Tactical Group of the Bosnian Muslim forces from June to November 1992 and that his responsibilities included authority over the Celebici camp and its personnel. In that capacity, Zejnil Delalic is charged in counts 13, 14, 33-35, 38, 39 and 44-48 with command responsibility for specific instances of killing, torture, cruel treatment, acts causing great suffering or serious injury, inhuman treatment, and unlawful confinement of civilians.

2. The Defence alleges variously that the Indictment is vague, undefined, contradictory, and ungrounded. The Motion specifically challenges paragraphs 2, 3 and 7, as well as the alleged lack of specificity of the underlying crimes for which Zejnil Delalic is charged with command responsibility. In bringing the Motion, the Defence seeks the rejection of all charges against Zejnil Delalic, or in the alternative, an order by the Trial Chamber for the Prosecution to submit a more precise Indictment.

3. The Prosecution opposes the Motion primarily on the ground that it raises questions of evidence which are not appropriate for consideration in a motion on the form of the indictment. In regard to the remaining challenges, the Prosecution maintains that the Indictment provides the accused with sufficient notice of the nature of the crimes with which he is charged and complies with Article 18(4) of the Statute of the International Tribunal ("Statute") and Sub-rule 47(B) of the Rules. The Trial Chamber will address each argument set forth in the Motion separately.

B. Applicable Provisions

4. The Motion is brought pursuant to Rule 72, which authorises the filing of preliminary motions, and Rule 73, which sets out a non-exhaustive list of the motions that an accused may submit. Rule 73 provides, inter alia, that an accused may make "objections based on defects in the form of the indictment." Articles 18 and 21 of the Statute and Sub-rule 47(B) provide the foundation for the arguments articulated in the Motion. Article 18, which details the process of investigation and preparation of an indictment, provides in paragraph 4:

Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber.

Sub-rule 47(B) reiterates this concept, providing that "[t]he indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged." In addition, sub-paragraph 4(a) of Article 21 provides that an accused is entitled "to be informed promptly and in detail in a language which he understands of the nature and cause of the charges against him", and sub-paragraph 4(b) allows an accused "adequate time and facilities for the preparation of his defence . . . ".

C. Analysis

1. Questions of Fact

5. The Defence argues that several statements in the Indictment are factually incorrect. These statements are found primarily in the second and third paragraphs of the Indictment. In response, the Prosecution argues that challenges to the validity of the facts should not be addressed by the Trial Chamber in a motion on defects in the indictment.

6. Paragraph 2 of the Indictment reads in relevant part:

Beginning in the latter part of May 1992, forces consisting of Bosnian Muslims and Bosnian Croats attacked and took control of those villages containing predominantly Bosnian Serbs within and around the Konjic municipality. The attackers forcibly expelled Bosnian Serb residents from their homes, and held them at collection centres. Many of the women and children were confined in a local school or in other locations. Most of the men and some women were taken to a former JNA facility in Celebici . . . . There, the detainees were killed, tortured, sexually assaulted, beaten, and otherwise subjected to cruel and inhuman treatment. . . .

 

7. The Defence first asserts that the circumstances at the time dictate that forces loyal to the Government of Bosnia and Herzegovina could not have "attacked and taken control of" their own territory, but instead had "liberated" a previously taken, occupied and fortified area. Thus, the Defence claims, the Indictment is vague. However, this argument has no merit. The phrase "attacked and took control of" is simply a factual characterisation that does not suggest fault or authority of the accused. Moreover, this allegation is not the substance of the charges in the Indictment, as exhibited by its inclusion in the section entitled "Background". Finally, as a statement of fact, this phrase is not appropriately challenged via this motion. Indeed, inasmuch as this statement serves as a basis for any of the charges brought against the accused in the Indictment, it will fall upon the Prosecution to prove all of the necessary elements of those charges in order to support the Prosecution’s interpretation of the facts. Accordingly, disagreement with the facts is not a sufficient basis on which to rest a claim that the Indictment is defective.

8. The second Defence challenge to this paragraph is that, as a whole, it is contradictory to the actual events that took place. The Defence maintains that because the capture of participants in armed conflict is not a violation of the Geneva Conventions 1, the Indictment is vague without a precise statement of which individuals were brought to collection centres. This argument may be disposed of in a similar manner as the first. As previously stated, a motion on the form of the indictment is inappropriate for factual challenges. In addition, because this paragraph only contains introductory information about the situation and does not make any specific charges against any of the accused named in the Indictment, there is no basis for a determination of vagueness. As previously stated, this paragraph simply provides the background information and does not purport to hold Zejnil Delalic liable for the actions articulated therein.

9. The Defence’s final complaint regarding paragraph 2 of the Indictment, namely that it contradicts the later statement in paragraphs 9 and 10 of the Indictment that a state of international armed conflict and partial occupation existed in Bosnia and Herzegovina, is somewhat ambiguous. Because of the Defence’s lack of elucidation on this issue, the Trial Chamber can only conclude that this assertion is based on the fact that all contingents named in the paragraph - Bosnian Croats, Bosnian Muslims, and Bosnian Serbs - are Bosnian nationals and the conflict at issue occurred in Bosnia and Herzegovina. This, however, does not reveal an inconsistency in the allegations. Simply because the particular exchange at issue in this Indictment directly involved Bosnians, it does not follow that the entire conflict in the area was not international. In order for a conflict to be deemed international, there is no requirement that international forces were activated in every area of the country; indeed, the Appeals Chamber of the International Tribunal has determined that "[i]t is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict." Prosecutor v. Tadic, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (No. IT-94-1-AR72, App. Ch., 2 Oct. 1995). Because the Defence does not contest that the crimes alleged in this Indictment took place as a part of or result of the wider conflict occurring in Bosnia and Herzegovina, there is no basis for a claim of inconsistency.

10. The Defence alleges that the third paragraph of the Indictment also contains patently inaccurate information. This paragraph falls within the section entitled "The Accused" and states:

Zejnil DELALIC, born 25 March 1948, co-ordinated activities of the Bosnian Muslim and Bosnian Croat forces in the Konjic area from approximately April 1992 to at least September 1992 and was the Commander of the First Tactical Group of the Bosnian Muslim forces from approximately June 1992 to November 1992. His responsibilities included authority over the Celebici camp and its personnel.

Contrary to these allegations, the Defence asserts that Zejnil Delalic was an ordinary soldier until 2 May 1992, when he was given special authorisation by the War Presidency and by the Commander of the Territorial Defence headquarters in Konjic to perform a part of the logistic affairs for six months. Motion at p. 2. On 9 May 1992, the Defence alleges, Zejnil Delalic was given a similar authorisation by the Minister of Defence of the Republic of Bosnia and Herzegovina. Id. The Defence states that he was appointed to the position of Co-ordinator between Konjic defence forces and the War Presidency on 18 May 1992 and, on 27 July 1992, he was appointed Commander of the First Tactical Group by the Republic of Bosnia and Herzegovina Armed Forces Headquarters. According to the Defence, this command group had a specific zone of activity and a specific military task. Id. Moreover, according to the Defence, the allegation in this paragraph that Zejnil Delalic had "authority over the Celebici camp" is not supported by the evidence that was submitted with the Indictment. The Defence grounds this argument in its belief that the witness statements relied on by the Prosecution cannot be treated as evidence because of their vagueness and inaccuracies and because the two witness statements on which the Prosecution relies are from witnesses who allegedly have ulterior motives in bringing such charges against Zejnil Delalic.

11. It is evidenced clearly by the Defence assertions that these objections are based on factual arguments and do not support a claim of a defective indictment. Indeed, the Defence concedes that the Prosecution relied on witness statements in support of its allegations. Moreover, the witness statements themselves purportedly serve as support at this stage for the Prosecution’s allegation of de facto superior authority. As stated earlier, such arguments are not appropriate in a motion on defects in the form of the indictment and cannot be evaluated at this time. Instead, as the Prosecution correctly declares, "[d]isputed matters of fact must be decided at trial, after a full opportunity for the presentation of evidence." Response to Materials at p. 3. Whether or not the allegations listed in the Indictment are true ultimately will be determined at trial.

2. Allegations of Vagueness

12. The remainder of the Defence’s challenges to the Indictment involve claims of vagueness. The Defence’s first allegation regarding vagueness is found in its assertion that the Indictment does not contain particulars in respect to those named in the Indictment over whom Zejnil Delalic allegedly had superior authority. In a similar vein, the Defence cites paragraph 7 of the Indictment as "completely undefined" insofar as the Prosecutor claims, without further elaboration or support, that Zejnil Delalic was in a position of "superior authority to all camp guards and . . . other persons who entered the camp and mistreated detainees." The Defence also contests the statement that Zejnil Delalic "knew or had reason to know that subordinates . . . were mistreating detainees" and that he "failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators". The Defence next alleges that the factual description of the injuries attributable to the co-accused Hazim Delic and Esad Landzo should be precise in regard to time and place of occurrence and the manner in which they were committed. Specifically, the Defence calls for detailed information on the victims and a full description of the time, place, location and manner in which every individual crime was committed.

13. In response, the Prosecution argues that "[c]ertainly such detail is not required in the indictment, and indeed, such is not even required at trial." Prosecution’s Response at p. 5. It is the Prosecution’s view that if it is proved that Zejnil Delalic "held [the] several posts specifically set out in the indictment" having authority over the personnel and the camp, this is sufficient to establish that he was a superior. Moreover, the Prosecution argues that, in regard to the actions alleged by the co-accused Hazim Delic and Esad Landzo, the Indictment contains the appropriate concise statements of facts called for by both the Statute and Rules.

14. The International Tribunal has addressed challenges to indictments in three other decisions: Prosecutor v. Tadic, Decision on Defence Motion on Form of Indictment (No. IT-94-1-T, Tr. Ch. II, 14 Nov. 1995) ("Tadic Indictment Decision"); Prosecutor v. \ukic, Decision on Preliminary Motions of the Accused (No. IT-96-20-T, Tr. Ch. I, 26 Apr. 1996) ("Dukic Preliminary Motion Decision"); and most recently in regard to another accused in this case, Prosecutor v. Delalic, Mucic, Delic, and Landzo, Decision on the Accused Mucic’s Motion for Particulars (No. IT-96-21-T, Tr. Ch. II, 26 June 1996) ("Mucic Particulars Decision").

15. In the Tadic case, the defence argued that paragraphs four through twelve of the indictment were vague because they only listed approximate dates and did not give the accused a clear indication of the charges against him. The Trial Chamber found that the approximate dates listed in paragraphs five through twelve of that indictment fulfilled the requirement of the Rules. However, in coming to that determination, the Trial Chamber noted that if the defence determined that the material currently before it was not adequate to permit the preparation of the defence, it should seek further particulars under Rule 54. Tadic Indictment Decision at 8. The Trial Chamber found differently in regard to paragraph four of that indictment, which at that time provided 2:

Between about 23 May 1992 and 31 December 1992, Dusko TADIC participated with Serb forces in the attack, destruction and plunder of Bosnian Muslim and Croat residential areas, the seizure and imprisonment of thousands of Muslim and Croats under brutal conditions in camps located in Omarska, Keraterm and Trnopolje, and the deportation and/or expulsion of the majority of Muslim and Croat residents of opstina Prijedor by force or threat of force. During this time, Serb forces, including Dusko TADIC, subjected Muslims and Croats inside and outside the camps to a campaign of terror which included killings, torture, sexual assaults, and other physical and psychological abuse. By his participation in these acts, Dusko TADIC committed . . .

Count 1:

a CRIME AGAINST HUMANITY recognised by articles 5(h) (persecution on political, racial and/or religious grounds) and 7(1) of the Statute of the Tribunal; and,

Count 2:

a CRIME AGAINST HUMANITY recognised by articles 5(d) (deportation) and 7(1) of the Statute of the Tribunal; and,

Count 3:

a GRAVE BREACH recognised by Article 2(g) (unlawful deportation or transfer or unlawful confinement of a civilian) and 7(1) of the Statute of the Tribunal.

The Trial Chamber found that this paragraph did not give the accused a specific statement of the facts of the case and of the crimes with which he was charged because it alleged at least six distinct types of conduct over a period of seven months. The Trial Chamber determined that there should be a clear identification of particular acts of participation by the accused in such an attack. In regard to the third count, the Trial Chamber determined that the indictment failed to clarify which of the three different acts alleged - deportation, transfer, or confinement - were being charged against the accused. Accordingly, the Trial Chamber granted the Prosecution leave to amend the indictment if it desired to maintain the charge. Id. at 9-14.

16. In the \ukic case, Trial Chamber I reviewed the argument of the defence that the indictment was not specific because it made general allegations about the shelling of civilian targets in Sarajevo from May 1992 to about December 1995 without specifically stating the date, time, identity of those responsible, or targets. Trial Chamber I concluded that because of the serious nature of the allegations against the accused, he was entitled to receive all necessary information to prepare his defence and that the indictment did not demonstrate the appropriate level of precision required by the Trial Chamber in the Tadic Indictment Decision, noting specifically that it did not contain any identification of the acts or omissions of the accused \orde \ukic in the preparation or planning of his alleged criminal acts. Accordingly, the Trial Chamber invited the Prosecutor to make appropriate modifications to preserve the counts in the relevant part of the indictment. \ukic Preliminary Motions Decision at 16-18.

17. Most recently, this Trial Chamber reviewed a similar claim in the Mucic Particulars Decision. Because that decision addressed the current Indictment, it is perhaps the most relevant to this analysis. In that motion, the defence challenged, via a preliminary motion requesting full particulars, portions of paragraphs 7, 22, 29, 31, 33, 34, 35, 36 and 37. The allegations in the Indictment in regard to which the defence sought additional information fit into three categories: (1) the accused’s knowledge of certain acts of his subordinates; (2) "the accused’s failure to take necessary and reasonable measures to prevent or punish certain acts by his subordinates"; and (3) specific statements of certain acts by the accused and his subordinates. In reviewing the motion, the Trial Chamber first determined that the Indictment as stated against the accused Zdravko Mucic is not vague. Specifically, the Trial Chamber stated that the

command responsibility charges against the accused (counts 13, 14, 33-35, 38, 39, 44, 45) are based on particular actions by his subordinates. The place, the approximate date and the names of the alleged victims are provided. On the issue of the involvement of the accused, the Prosecution asserts that Zdravko Mucic was the commander of the Celebici camp and therefore had command responsibility for the acts alleged. The direct responsibility charges (counts 46-49) relate to a prolonged course of conduct - i.e., the inhumane conditions at the camp, the unlawful confinement of civilians and the plunder of property. The factual allegations underlying these charges indicate the approximate time period during which the conduct occurred, describe the underlying conduct with specificity and provide some information about the participation of the accused and others. In sum, each count of the indictment against Zdravko Mucic gives him warning of the nature of the crimes with which he is charged and sets out the factual basis of the charges. Thus, to the extent that the accused’s motion seeks to challenge the indictment on vagueness grounds, it is rejected.

Mucic Particulars Decision at 6.

18. The standard set forth thus far by the Trial Chambers does not support the arguments of the Defence. In this case, the contested paragraphs give relatively specific dates of the occurrences with a range of the dates during which the incidents allegedly occurred. Moreover, all of the incidents are alleged to have occurred at or near the Celebici camp, and the manner in which the actions are described as occurring is adequately described at this stage of the proceedings. Moreover, by virtue of Zejnil Delalic having authority over the Celebici camp and its personnel - if this eventually proves true - there is a sufficient basis on which to base the claim that he knew or should have known of the mistreatment. Finally, as the Prosecution argues, it is nearly impossible to provide, as the Defence requests, a detailed description of a failure to take necessary and reasonable measures to prevent or to punish subordinates. As declared in the Mucic Particulars Decision, "[t]his request is more a search for the Prosecution’s view of the applicable law than a solicitation of particular facts in the Prosecution’s possession." Mucic Particulars Decision at 13.

19. In summary, unlike the challenged paragraph 4 of the Tadic indictment, the Indictment as against Zejnil Delalic articulates each charge specifically and separately. Moreover, there is a satisfactory identification of the particular acts of participation by Zejnil Delalic. Similarly, unlike the original \ukic indictment, the dates and actions over which Zejnil Delalic is said to have superior authority are relatively specific. Paragraph 7 of the Indictment simply describes the Prosecution’s basis for believing the accused has command responsibility for the crimes that are subsequently described in the Indictment. This paragraph of the Indictment, read in conjunction with the third paragraph which names the accused as Commander of the First Tactical Group of the Bosnian Muslim forces with authority over the Celebici camp and its personnel, is not deficient. It contains a concise statement of the facts on which the charges are based as well as the crimes with which Zejnil Delalic is charged. As the Trial Chamber found in the Mucic Particulars Decision, the Indictment here is sufficient to put Zejnil Delalic on notice of the charges against which he must defend. Thus, taking into account the "summary nature" of an indictment and its purpose to "very succinctly demonstrate [ ] that the accused allegedly committed a crime" 3, there has been no showing that the Indictment in this case is defective, and the Motion is rejected insofar as it challenges the Indictment on grounds of vagueness. However, the Defence may be justified in seeking additional information from the Prosecution.

 

 

3. Request for Particulars

20. In the alternative to a rejection of all charges against Zejnil Delalic, the Defence requests from the Prosecution more precision in the allegations in the Indictment and additional information. The Defence seeks particulars regarding: (1) the source of Zejnil Delalic’s authority over Celebici camp, its guards, and all those who entered the camp and mistreated detainees; (2) the grounds for the allegation of Zejnil Delalic’s authority over those named in the Indictment; (3) the allegations of injuries with which the co-accused Hazim Delic and Esad Landzo are charged; and (4) the specific dates of the alleged actions of the camp guards, visitors, and those named in the Indictment for whom Zejnil Delalic was responsible. The Prosecution contends that the Defence has in its possession all of the information it needs to prepare an adequate defence.

21. Such a request, sometimes referred to as a request for particulars, has been endorsed in both the Tadic Indictment Decision at 8 and the Mucic Particulars Decision at 7 for proceedings before the International Tribunal. These two Decisions taken together eloquently describe the process and standard to be employed by the Trial Chamber in evaluating such requests. Before submitting a motion for particulars, the defence must first make a direct request to the Prosecution for the information, specifying the counts in question, the reasons that the material already in the defence’s possession is not sufficient, and the particular information that will remedy the inadequacy. Tadic Indictment Decision at 8. If the Prosecution fails to comply with the request, the defence may then submit a motion to the Trial Chamber that states "with particularity the respect in which a specified count, read in the light of the paragraph which precedes it, is said to require any and what further particulars." Id. In deciding a motion for particulars, the Trial Chamber considers whether the requested particulars are necessary "in order for the accused to prepare his defence and to avoid prejudicial surprise." Mucic Particulars Decision at 9 (referring to Wayne R. LaFave & Jerold H. Israel, Criminal Procedure at p. 823 (2d ed. 1992) and 11(2) Halsbury’s Laws of England at 923 (1990)). Importantly, the Trial Chamber has noted that a motion for particulars is only properly directed to the sufficiency of the indictment and is not to be used to obtain the discovery of evidentiary material. Id. However, because discovery provides the defence with protection against prejudicial surprise at trial and gives it adequate information for preparing a meaningful defence, its availability is relevant to this analysis. Id.

22. Attached to its Response to Materials, the Prosecution in this case supplied supplemental evidence to the Trial Chamber in support of its arguments, particularly in relation to Zejnil Delalic’s alleged position of authority. The Prosecution provided statements in which witnesses report that Zejnil Delalic was in charge of the Celebici camp and that as Co-ordinator he received a copy of an Investigative Commission’s report indicating abuses in the camp. In addition, the Prosecution refers to statements and documentation, including a judgement from the Mostar Military Court, indicating that Zejnil Delalic became Commander of the First Tactical Group in June or early July and that during this time he had command over the Celebici camp. Moreover, there is documentation signed by Zejnil Delalic concerning the camp prisoners, and the Prosecution asserts that the Defence has been supplied with documents showing that, in his capacity as Commander of the First Tactical Group, Zejnil Delalic gave orders in August 1992 to his co-accused Zdravko Mucic, the Camp Commander. Finally, the Prosecution notes that it has evidence, including witness statements, indicating that Zejnil Delalic participated in a commanding role in the situation that resulted in the imprisonment of many of the detainees; that Zejnil Delalic acted as the head of the armed forces in the area; that Zejnil Delalic ordered that the camp be created; that he selected his co-accused Zdravko Mucic as the commander of the camp; that he had authority to release prisoners; and that he had authority over who entered and did not enter the camp. These documents, which were provided to the Defence, certainly provide enough information to Zejnil Delalic to allow him to prepare his defence in respect to the first two categories for which the Defence seeks particulars, and the Defence request for additional particulars is denied.

23. In regard to the third and fourth categories requesting additional information on the injuries attributed to the co-accused Hazim Delic and Esad Landzo and further specifics about the actions cited in the Indictment, there is also sufficient information on which Zejnil Delalic can prepare a defence. The Prosecution has included in the Indictment the names of those injured, the general time-frame in which the incidents allegedly occurred, and those who are alleged to be responsible for the actions. In addition, the Indictment sets forth with adequate specificity the injuries with which the co-accused Hazim Delic and Esad Landzo are charged and gives a relatively precise time period during which the incidents are alleged to have occurred. There is no basis for a finding that Zejnil Delalic will suffer from any prejudicial surprise in regard to these allegations. Accordingly, the Defence request for particulars in regard to the last two categories is also denied.

4. Cumulative Nature of the Charges

24. The Defence’s final challenge to the Indictment is that the charges against Zejnil Delalic contain "several legal qualifications for the same actions, which without any base multiplies the responsibility of the accused." Motion at p. 6. The Defence argues that this is not permitted in many central European criminal law systems, including that of the former Yugoslavia. The identical issue was raised before the Trial Chamber in the Tadic case. There, the Trial Chamber declined to evaluate the argument on the basis that the matter is only relevant to the penalty considerations if the accused is ultimately found guilty of the charges in question:

In any event, since this is a matter that will only be at all relevant insofar as it might affect penalty, it can best be dealt with if and when matters of penalty fall for consideration. What can, however, be said with certainty is that penalty cannot be made to depend upon whether offences arising from the same conduct are alleged cumulatively or in the alternative. What is to be punished by penalty is proven criminal conduct and that will not depend upon technicalities of pleading.

Tadic Indictment Decision at 17. This reasoning is similarly applicable here. Accordingly, this challenge to the Indictment is also denied.

III. DISPOSITION

For the foregoing reasons,

the Trial Chamber,

pursuant to Rule 72,

HEREBY DENIES in all respects the Defence Motion on Defects in the Form of the Indictment.

 

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

 

Gabrielle Kirk McDonald

Presiding Judge

Dated this second day of October 1996

at The Hague

The Netherlands

[Seal of the Tribunal]


 

1. Geneva Convention for the Amelioration of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; and Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.

2. The Tadic Indictment was later amended effective 14 December 1995.

3. Dukic Preliminary Motions Decision at 16 (taking note of the nature of an indictment and rejecting Defence argument of defective indictment based on allegedly incorrect nature of indictment).