Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision of:
3 July 2003

PROSECUTOR
v.
NASER ORIC

The Office of the Prosecutor

Mr. Ekkehard Withopf
Mr. Jayantha Jayasuriya

Counsel for the Accused

Ms. Vasvija Vidovic
Mr. John Jones

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”),

BEING SEISED OF a “Preliminary Motion Regarding Defects In The Form of The Indictment” filed on 22 May 2002 (“Motion”) by the Defence for Naser Oric (“Accused ”), alleging numerous defects in the form of the indictment against the Accused (”Indictment”)¹ and consequently seeking an order to amend the Indictment,

NOTING the “Prosecution’s Response to Preliminary Motion Regarding Defects In The Form of The Indictment” filed on 4 June 2003 (“Response”) by the Office of the Prosecution (“Prosecution”), seeking the dismissal of the Motion, but stating the intention of the Prosecution to amend two aspects of the Indictment,²

NOTING that the Indictment concerns events that occurred in Bosnia and Herzegovina (“BiH”) between 10 June 1992 and 20 March 1993 and provides that during the relevant times, the Accused held various military positions including Commander of the Potocari Territorial Defence, Commander of the Srebrenica Territorial Defence Headquarters ³ and Commander of the Joint Armed Forces of the Sub-Region Srebrenica,⁴

NOTING that the Indictment charges the Accused with individual criminal responsibility under Article 7, paragraph 1, of the Statute of the International Tribunal (“Statute ”), for the crimes of wanton destruction of cities, towns or villages not justified by military necessity and plunder of property committed by certain military units in villages and hamlets in Srebrenica, Bratunac and Vlasenica municipalities during the period of 10 June 1992 and 8 January 1993,⁵

NOTING that the alleged responsibility of the Accused under Article 7, paragraph 1, of the Statute is based on the failure of the Accused to take reasonable measures to prevent wanton destruction of cities, towns or villages and to punish the perpetrators who committed such crimes, as well as his active involvement in the attacks during which such wanton destruction was caused, instigated the commission of the crimes and aided and abetted the perpetrators of these crimes,⁶

NOTING that the Indictment also charges the Accused with individual criminal responsibility under Article 7, paragraph 3 of the Statute, for the crimes of (i ) murder and cruel treatment of Serb individuals detained in the Srebrenica Police Station and in the building behind the Srebrenica Municipal Building by members of the Military Police under the command and control of the Accused during the period of 24 September 1992 and 20 March 1993; and the (ii) wanton destruction of cities , towns, or villages not justified by military necessity and plunder of public or private property by certain military units under the command and control of the Accused during the period of 10 June 1992 and 8 January 1993,⁷

NOTING that the alleged responsibility of the Accused under Article 7, paragraph 3, of the Statute is based on the failure of the Accused, a superior who knew or had reason to know that his subordinates, whom the Accused exercised effective control over, were about (i) to plan, prepare or execute the imprisonment, killings and/ or cruel treatments of the detained Serb individuals or had done so; and (ii) to commit such wanton destruction and plunder or had done so, and the Accused failed to take necessary and reasonable measures to prevent such acts or to punish perpetrators thereof,⁸

NOTING that the alleged responsibility of the Accused under Article 7, paragraph 3, of the Statute is based on the exercise of effective control by the Accused over his subordinates related to the alleged crimes contained in the Indictment, pursuant to both the de jure and de facto military authority of the Accused ,⁹

NOTING that the Annexe to the Indictment provides further details – the disintegration of the former Socialist Federal Republic of Yugoslavia, the proclamation of the Serbian Autonomous Region of Herzegovina, the transformation of the remaining Yugoslav People’s Army (“JNA” later renamed the Yugoslav Army) into the Army of the Serbian Republic of Bosnia and Herzegovina (“VRS”) and the continued support of the VRS by the JNA,¹⁰

NOTING that the Prosecution seeks to amend two aspects of the Indictment; (i) to insert in the seventh line of paragraph 21, after the words “superior order ,” the phrase “namely the order of the Presidency of Bosnia and Herzegovina dated 23 August 1992;” and (ii) to replace in the third line of paragraph 36 of the Indictment , the words “including, but not limited to,” with the word “namely,”¹¹

CONSIDERING that an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential part of the Prosecution case,¹² but that the entire background context need not be pleaded in the Indictment,

CONSIDERING that the Prosecution need not provide in the indictment any evidence or a summary of evidence it intends to rely upon to prove its case at trial,¹³

CONSIDERING that an indictment is not defective when, taken as a whole, it makes clear to an accused (1) the nature of the responsibility alleged against him and (2) the material facts, but not the evidence, by which his particular responsibility will be established,¹⁴

CONSIDERING that the material facts that must be pleaded in the indictment with respect to allegations of individual responsibility arising from the superior responsibility of the accused are (1) the relationship between the accused and those who committed the alleged acts; (2) the conduct of the accused by which he may be found to have known or had reason to know that the acts were about to be done or had been done, by those others; and (3) that the accused failed to take the necessary and reasonable measures to prevent such crimes or to punish the persons who committed them, and that the Prosecution has pleaded these material facts in the Indictment against the Accused,¹⁵

CONSIDERING that the details as to the specific individuals who committed the alleged crimes and for whom the Accused is held responsible, the exact dates of the alleged crimes and the evidence such as the military regulations that the Prosecution intends to rely upon, are not material facts required to be pleaded in the Indictment,¹⁶

CONSIDERING that the amendments to the Indictment proposed by the Prosecution do not include new charges, but are aimed at clarifying any perceived ambiguities in the Indictment,

CONSIDERING THEREFORE that there has been no breach of the Accused’s right as provided in the Statute, to be informed promptly and in detail of the nature and cause of the charges against him so that he may adequately prepare his defence .

PURSUANT TO Rule 72 of the Rules of Procedure and Evidence

HEREBY DISMISSES THE MOTION

AND ORDERS the Prosecution to file an amended indictment containing the proposed amendments within 30 days from the date of this decision.

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

__________________
Richard May
Presiding

Dated this third day of July 2003
At The Hague
The Netherlands

[Seal of the Tribunal]