Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
29 August 2005
DECISION ON PRELIMINARY MOTIONS
Office of the Prosecutor:
Mr. Chester Stamp
Mr. Karim Agha
Mr. Frederic Ossogo
Counsel for the Accused:
Mr. James Castle
1. This Trial Chamber is seised of four preliminary motions filed by Momcilo Perisic (“the Accused”) under Rule 72 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”). The motions challenge the Indictment issued against him and request that (i) certain counts be “struck” from the Indictment and (ii) certain language in the Indictment be supplemented or amended. The Prosecution has opposed the motions on the ground that the Indictment fully complies with the requirements of the Tribunal’s Statute.1
II. The Indictment and Related Procedural Background
2. On 22 February 2005, the Prosecution filed an Indictment against the Accused.2 Judge Antonetti confirmed the Indictment two days later.
3. The Indictment charges the Accused with eight counts of crimes against humanity (murder, persecutions, extermination and “inhumane acts”) under Article 5 of the Statute of the Tribunal, and five counts of violation of the laws or customs of war (murder, attacks on civilians) under Article 3 of the Statute. These offences allegedly took place during attacks in Zagreb, Sarajevo and Srebrenica between August 1993 and November 1995. The Accused is charged on the basis of both his individual criminal responsibility as an aider and abettor pursuant to Article 7(1) of the Statute and his “command responsibility” pursuant to Article 7(3) of the Statute.
4. At his initial appearance before the Tribunal on 9 March 2005, the Accused pleaded not guilty to all 13 counts in the Indictment.
III. General Pleading Principles
5. Article 18(4) of the Statute and Rule 47(C) of the Rules provide that an indictment shall contain a concise statement of the facts and the crimes with which an accused is charged. These provisions should be interpreted in conjunction with Article 21 (2) and Article 21(4)(a) and (b) of the Statute, which provide for the right of an accused to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.3 This right translates into an obligation on the part of the Prosecution to plead the material facts underpinning the charges against the Accused.4
6. The materiality of a particular fact — such as the identity of the victim, the time and place of the offence and the means by which the offence was committed — depends on the nature of the Prosecution case.5 A decisive factor is the nature of the alleged criminal conduct charged against the accused, and in particular, the proximity of the accused to the events alleged in the indictment.6 “‘As the proximity of the accused person to those events becomes more distant’” (for instance where, as here, the Accused is alleged to be in a senior leadership position and is not alleged to have personally perpetrated any of the crimes in the Indictment), “‘less precision is required’” in an indictment’s description of them.7 “‘[E]mphasis is placed [instead on] the conduct of the accused … [on] which the Prosecution relies to establish his responsibility as an accessory or a superior to the persons who personally committed the acts giving rise to the charges against him.’”8 The Appeals Chamber has recently been seised of challenges to indictments based on the vagueness of their terms and has strictly applied the requirement that the acts and conduct of the accused on which the Prosecution relies to establish criminal responsibility are material facts to be pleaded in an indictment.9
7. When an indictment is based on criminal responsibility under Article 7(1) of the Statute, the Prosecution may be required to indicate in relation to each individual count the nature of the responsibility charged, i.e. the particular form of participation being alleged under Article 7(1).10 The material facts to be pleaded will vary according to the particular head of Article 7(1) that is charged. For example, if the Prosecution alleges that an accused personally committed the criminal acts in question, the indictment should include details which explain this allegation, such as the identity of the victim, the time and place of the events, and the means by which the offence was committed. If, on the other hand, the Prosecution relies on a theory of joint criminal enterprise, then the Prosecutor must plead the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.11
8. When an indictment is based on responsibility under Article 7(3) of the Statute, it should plead:
(a) (i) that the accused is the superior of (ii) subordinates sufficiently identified, (iii) over whom he had effective control — in the sense of a material ability to prevent or punish criminal conduct — and (iv) for whose acts he is alleged to be responsible;
(b) the conduct of the accused by which he may be found to (i) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates, and (ii) the related conduct of those others for whom he is alleged to be responsible … and
(c) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.12
9. Where the state of mind with which the accused carried out his alleged acts is relevant, the Prosecution must plead either (i) the relevant state of mind as a material fact, in which case the facts by which that state of mind is to be established are ordinary matters of evidence, and need not be pleaded, or (ii) the facts from which the relevant state of mind is to be inferred.13
IV. The Motions
A. Motion to Strike Counts Alleging Responsibility for “Other Inhumane Acts”
The Parties’ Submissions
10. The Defence alleges that counts 3, 7 and 11 of the Indictment should be deleted because they are “unduly vague.”14 These counts allege that in Sarajevo and Zagreb the Accused committed “other inhumane acts” as a crime against humanity under Section 5 (i) of the Statute of the Tribunal.15 According to the Defence, the Indictment “does not state with particularity what the other inhumane acts are and how the defendant is responsible for these other acts” and, as a result, they should be struck from the Indictment.16
11. The Prosecution states that other “[i]nhumane acts pursuant to Article 5(i)” are a residual category of acts which are of “similar seriousness to the other acts enumerated in Article 5”, “cause serious mental or physical suffering” and are “performed intentionally by the accused” or his subordinate.17 It then argues that the “unlawful wounding and injuring of civilians” in Sarajevo and Zagreb and “the unlawful wounding, injuring, and forcible transfer of persons ” in Srebrenica alleged in the Indictment “amount to inhumane acts within the meaning [of] Article 5(i)”,18 and concludes on this basis that the allegations regarding inhumane acts should remain intact.19
12. Trial Chambers have held that an indictment charging an accused with “inhumane acts ”20—without a clear indication of what the inhumane acts are—is impermissibly vague. The Djukic Trial Chamber, for instance, noted that:
General Djukic is accused of having committed a crime against humanity as provided for in Article 5(i), other inhumane acts of the Statute …. [T]he Trial Chamber considers that the indictment does not demonstrate the level of precision required [under Tribunal case law because it]… does not provide indications as to the nature of the other inhumane acts he allegedly committed. The Trial Chamber therefore invites the Prosecutor to make the modifications he deems necessary if he intends to maintain the counts appearing in paragraph 7 of the indictment.21
13. On the other hand, this Trial Chamber in Mejakic found an indictment charging the accused with inhumane acts sufficiently precise when (i) the count relating to inhumane acts referenced another paragraph in the indictment which laid out acts and conduct that were the basis of the persecutions charge, and (ii) the “Statement of Facts” provided that:
[The] Omarska and Keraterm camps … operated in a manner designed to discriminate and subjugate … non-Serbs by inhumane acts and cruel treatment. These acts included the brutal living conditions imposed on the prisoners. There was a deliberate policy of overcrowding and lack of basic necessities of life, including inadequate food, polluted water, insufficient or non-existent medical care and unhygienic and cramped conditions.22
14. In the Perisic Indictment there is no indication of what the “other inhumane acts” being charged are, and it is thus distinguishable from the indictment in Mejakic. Although the Prosecution asserts, in its response to the motion, that “inhumane acts” refers to “unlawful wounding and injuring”23 in the case of Zagreb and Sarajevo, and to “unlawful wounding and injuring and forcible transfer of persons”24 in the case of Srebrenica, this assertion is not an accurate reflection of the actual text of the Indictment as currently formulated. The text of the Indictment simply fails to identify which of the acts mentioned in the Indictment correspond to the “inhumane acts” with which the Accused is being charged and the requisite linkage needs to be clarified. This Defence motion therefore has merit. However, the relief requested by the Defence — to simply strike the count — is unwarranted because the Prosecution should first be given an opportunity to clarify the Indictment. The Chamber will therefore order the Prosecution to amend the Indictment to clarify what “other inhumane acts” under Article 5(i) of the Statute are being charged against the Accused.
B. Motion to Strike Portions of the Indictment alleging Responsibility for Reckless Acts
The Parties’ Submissions
15. The Defence requests that the Chamber strike all but three25 of the counts in the Indictment on the ground that one sentence in the Indictment makes these counts unsustainable. This sentence states that “civilians were either specifically targeted or were the subject of reckless fire” and appears twice in the Indictment, once in the description of the shelling and sniping in Sarajevo and the other in the description of the shelling of Zagreb.26
16. According to the Defence, recklessness is not the requisite mens rea “[w]ith respect to the crimes alleged in Sarajevo and Zagreb”, namely (i) murder as a crime against humanity (ii) murder as a war crime (iii) attacks on civilians as a war crime and (iv) persecutions and extermination as crimes against humanity.27 Therefore, the Defence alleges, these charges must be dropped.28
17. Focusing first on crimes against humanity, the Defence points out that according to the Preamble to Article 5 of the ICTY Statute, the Tribunal has the power to prosecute only “persons responsible for the … crimes [enumerated in Article 5] when committed in armed conflict … and directed against any civilian population ”; recklessness is not enough. 29 In addition the Defence alleges that the seven counts in the Indictment that relate to murder as a war crime and murder as a crime against humanity — counts 1, 2, 5, 6, 9, 10 and 12 — “must … be stricken” because the mens rea for murder requires intentional conduct and not recklessness.30 Finally, the Defence argues that the allegations regarding violations of the laws or customs of war through attacks on civilians under Article 3 (counts 4 and 8) and persecutions and extermination under Article 5 (counts 12 and 13) “also embody the concept of willful behavior directed purposely at a target population, not the concept of recklessness”, and thus should be deleted from the Indictment for the same reason.31
18. The Prosecution points out that the Defence “grounds its assertions on paragraphs 42 and 51 of the indictment[,] where the term ‘reckless’ is used to describe the crimes committed … in Sarajevo and … in Zagreb”32, and that the word reckless is not even used in relation to the crimes allegedly committed in Srebrenica, such as persecutions and extermination. Therefore, it concludes, counts 9, 10, 12 and 13 — relating to the events in Srebrenica — are outside the scope of the requested relief. In regard to the remaining counts (1, 2, 4, 5, 6, 8), alleging murder under Articles 3 and 5 and attacks on civilians under Article 3, the Prosecution argues that “direct intention or recklessness constitute the relevant mens rea for these crimes”, so the motion should be denied with regard to them as well.33
19. The Prosecution is correct to point out that the phrase “civilians were either specifically targeted or were the subject of reckless fire” only appears in the sections of the Indictment discussing the counts concerning Sarajevo and Zagreb, and not Srebrenica. Indeed, the Defence admits this in its motion.34 When read in context, therefore, it is clear that the allegation of recklessness does not relate to the Srebrenica counts (9-13) and any motion to strike the crimes charged in those counts on the ground that recklessness is not the correct mens rea should therefore be dismissed.
20. On the other hand, the statement regarding recklessness is made in regard to the counts relating to the shelling of Zagreb and the shelling and sniping in Sarajevo which allege (i) murder as a war crime and crime against humanity and (ii) attacks on civilians as a war crime. The motion should also fail in regard to the counts charging these crimes, however, because the mens rea for each of these crimes may be established by a showing of recklessness.
21. As the Celebici Trial Chamber has found, the mens rea for murder35 is based on the concept of “wilfulness”, and this concept includes not only direct intent but also “indirect intention” or recklessness.36 This Trial Chamber accordingly finds that while ordinary negligence does not suffice as the mens rea for murder, the requisite mens rea may be established by wilful behaviour in the form of either a direct intent to kill or recklessness that death may ensue as a consequence of an accused’s deliberate conduct.37 For this reason, the Defence argument that the Chamber should strike the counts in the Indictment relating to murder under Articles 3 and 5 of the Statute is rejected.
22. The counts relating to “attacks on civilians” also should not be struck because recklessness satisfies the mens rea requirement for this crime as well. As the Galic Trial Chamber put it, the mens rea for attacks on civilians “incorporates the concept of recklessness.”38 This is because the intent requirement for this crime, as with the crime of murder, is based on the concept of wilfulness and “the notion of ‘wilful[ness]’ incorporates the concept of recklessness, whilst excluding mere negligence. The perpetrator who recklessly attacks civilians acts ‘wilfully.’”39 Thus the Defence argument that the Chamber should strike the counts regarding attacks on civilians under Article 5 of the Statute is rejected.
23. This still leaves open the question of whether the reference in the Indictment to reckless acts prevents the Prosecution from establishing that such acts were crimes against humanity because crimes against humanity must be “directed against any civilian population.”40 According to the Appeals Chamber, the phrase “directed against” requires that the civilian population be the primary object of the attack, not just an incidental victim.41 Here, although the Defence cites only the phrase: “civilians were either specifically targeted or were the subject of reckless fire”, the full sentence reads: “civilians were either specifically targeted or were the subject of reckless fire in areas where civilians were known to have been.”42 The Prosecution also makes clear elsewhere in the Indictment that the shelling of Zagreb was in the “civilian areas in the city”43 and that the shelling and sniping in Sarajevo was “onto civilian areas.”44 If forces engage in deliberate shelling or sniping in an area known to be populated by civilians, they are acting in the knowledge that civilian deaths will likely, if not probably, result. Thus civilians cannot be said to be merely “incidental ” victims of such an attack.45 For this reason, the requirement that crimes against humanity be “directed against” a civilian population has been adequately pleaded in the Indictment, and the Defence argument to the contrary is rejected.
24. For the reasons outlined in the preceding paragraphs, this motion is denied.
25. The Chamber notes, however, a defect in the Indictment that was not raised by the Defence. This defect relates to the mens rea that must be pleaded for persecutions: a requirement that acts of persecution be carried out with “specific intent to discriminate on political, racial, or religious grounds”46 and that an aider and abettor to the crime “be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime.”47 The Indictment does not explicitly plead this state of mind, or facts from which it can be inferred, and the Trial Chamber therefore orders the Prosecution to amend the Indictment in order to specify these facts.48
C. Motion to Strike Portions of the Indictment Alleging Command Responsibility
The Parties’ Submissions
26. According to the Defence, there are two problems with the Indictment’s allegations regarding command responsibility. First, the Indictment charges the Accused with “crimes [that] were committed in part by troops who were not the subordinates of the defendant but rather of another entity”, the army of the Republica Srpska or that of Serbia Krajina.49 Second, even assuming that the officers of the SVK and VRS armies were Perisic’s subordinates, the Indictment constitutes an improper attempt to extend responsibility to a commander for crimes in which his alleged subordinates “participated” but which they did not physically perpetrate.50
27. This second argument is based on the premise that the language of Article 7(3) requires a subordinate to have “committed” criminal acts and that “committing” means physically perpetrating the crime. Thus, according to the Defence, participation by subordinates in crimes as planners, instigators, orderers or aiders and abettors is not legally sufficient to state a claim because under Article 7(3) “command responsibility cannot extend to the acts of a subordinate who did not actually commit the criminal act.”51 Consequently, the Chamber is requested to either strike the sections of the Indictment which allege command responsibility or, in the alternative, to order that the Prosecution make further specifications regarding “whether and how a particular subordinate of the defendant is criminally responsible for the criminal acts set forth in Schedules A-C of the indictment.”52
28. The Prosecution argues that this motion “has raised an issue that is not properly raised at this stage in the proceedings.”53 It does not, in the Prosecution’s view, amount to a challenge to jurisdiction pursuant to Rule 72(A)(i), because it “do[es] not allege that no crime was committed under [Articles] 2-5.”54 Rather, it is “an argument as to the elements and application of a particular mode of participation ”, which is a “matter for argument at trial.”55
29. The Prosecution argues in addition that the Defence’s interpretation of the doctrine of command responsibility is too narrow. According to the Prosecution, an Accused could be found guilty under Article 7(3) for crimes committed by his subordinates under any of the modes of participation enumerated in Article 7(1).56 The Defence does not, according to the Prosecution, offer any support for its narrow interpretation of the doctrine and this interpretation would lead to illogical results because, for instance, a “superior who has reason to know that his subordinates are about to engage in criminal conduct may very well not know what mode of criminal conduct they will engage in; nevertheless, he has the duty [under article 7(3)] to prevent that conduct.”57 Moreover, the Prosecution argues, the Defence’s narrow interpretation of command responsibility is at odds with the object and purpose of Article 7(3), which is to criminalise unlawful behaviour generally.58 Finally, the Prosecution proffers that the Krstic trial judgment “can be seen to support the position that all forms of participation of subordinates fall within Article 7(3)” because the Trial Chamber in that case found that Article 7(3) responsibility had been established where Krstic’s subordinates were simply “involved in conducting [an] execution” and were no more than “aware of [its] genocidal objectives.”59
30. The Defence’s first argument — that the alleged perpetrators of the crimes charged in the Indictment were not the subordinates of the Accused — is essentially a dispute about facts, so it is not ripe for resolution by the Trial Chamber at this stage. An objection to the form of the indictment is not an appropriate proceeding for contesting the accuracy of the facts pleaded. Thus the question of whether or not an accused was actually responsible as a superior for the acts of his subordinates is a question of fact for determination at trial.60 It is sufficient that “[t]he Prosecution has properly pleaded the material facts regarding the Accused’s superior responsibility, including his superior position vis-à-vis [his subordinates]. Whether or not these facts are true is a matter to be resolved at trial.”61
31. The second argument, alleging that legally the liability of a commander under Article 7(3) is limited to the conduct of subordinates that can be characterised as “physical perpetration”, is also rejected. The Defence does not cite any authority for its proposition that “committing” under Article 7(3) is limited to physical perpetration and, moreover, the question of whether the Accused’s subordinates “committed” crimes, by physical perpetration or otherwise, can only be determined at trial. Thus although the acts or omissions of the alleged subordinates are themselves material facts that must be pleaded, whether responsibility pursuant to Article 7(3) may in effect arise from these acts or omissions is a matter to be resolved at trial and does not concern the form of the Indictment.62 The motion is denied.
D. Motion for Specificity
The Parties’ Submissions
32. The Defence argues that, in relation to the allegation of command responsibility, it “has a particularized need for the Indictment to be specific as to the name of the subordinates and the acts which they committed.”63 As a result, the Defence “seeks an order requiring the prosecution to provide with specificity the identity and roles of each officer who is alleged to have been a subordinate of the defendant and [that] subordinate’s role in the commission of the crimes alleged.”64
33. The Prosecution argues that if the motion for specificity is determined to be a request for more particulars, then the motion can be answered by providing such particulars, but that the Defence will not have demonstrated that the Indictment is in any way defective.65 In addition, it points to paragraphs 43, 47 and 58 of the Indictment, “each of which specifically plead the identity of subordinates and the form of their criminal participation, specifically that they ‘planned, instigated, ordered, committed, or otherwise aided and abetted’” criminal activity.66 It further alleges that in paragraphs 40-43, 47-52 and 56-59 the Indictment “describes precisely” the “criminal acts of the Accused’s subordinates.”67
34. The Accused makes two separate arguments alleging a lack of specificity. The first is that the Indictment does not identify – by name and role – each officer who was a subordinate of the Accused. As currently drafted, the Indictment provides the name and position of approximately 50 of the Accused’s subordinates68 and identifies the rest as a group which is comprised of:
i. all VJ personnel who were seconded to the VRS and SVK;
ii. all members of the VJ serving in regular units of the VJ who were “sent on assignments outside of the FRY and engaged in activities within the FRY in support of the SVK and VRS”69, and
iii. all VRS and SVK personnel who began their military service in these armies but who received training from the VJ and were “thereafter remunerated and promoted within the VJ.”70
35. In the Prosecution’s view, this is sufficient. In the Trial Chamber’s view, however, the identity of the officers subordinate to the Accused who committed acts relevant to the charges in the Indictment under Article 7(3) constitute material facts to be pleaded in the Indictment and the Prosecution is under an obligation to give all the particulars which it is able to give.71 The Prosecution admits that it is in a position to provide further particulars regarding the identity and role of the Accused’s subordinates at this stage72 and it is thus ordered to do so. If the identity and/or role of certain subordinate officers is not known, then the category to which they belong should be specified, if this has not already been done in the current Indictment.
36. With regard to the acts of each subordinate, on the other hand, the Trial Chamber is of the view that they have been adequately pleaded. The Appeals Chamber has made clear that “[t]he precise details to be pleaded as material facts [in an indictment] are the acts of the accused, not the acts of those persons for whose acts he is alleged to be responsible.”73 This is especially true in cases, such as this, in which “the large scale on which the crimes are alleged to have occurred, and the [remote] role and conduct alleged against … the Accused” make it difficult for the Prosecution to provide specific details about the crimes of a commander’s subordinates.74
37. Keeping this standard in mind, paragraphs 40 to 43, 47 to 52 and 56 to 59 of the Indictment do sufficiently describe the allegedly criminal acts of the Accused’s subordinates. For instance, the Indictment states that:
38. In addition, specific instances of shelling are described in Schedules A and C (including details as to when and where the shells landed, a rudimentary description of the place which was the “origin of fire” and the names of victims), specific instances of sniping are described in Schedule B (including the names of victims and details regarding their injuries), and details regarding the Srebrenica killings are provided in Schedule D.
39. For these reasons, the part of the motion requesting more specificity regarding subordinates’ acts is denied.
40. For these reasons, pursuant to Rule 72 of the Rules, this Trial Chamber hereby orders :
(a) The Defence Motion to Strike Portions of the Indictment Alleging Responsibility for Other Inhumane Acts is granted in part, and the Prosecution is ordered to amend the Indictment to clarify what “other inhumane acts” are being charged against the Accused;
(b) The Defence Motion to Strike Portions of the Indictment Alleging Responsibility for Reckless Acts is denied;
(c) The Defence Motion to Strike Portions of the Indictment Alleging Command Responsibility is denied;
(d) The Defence Motion for Specificity is granted in part and the Prosecution is ordered to specify the identity and role of each officer who is a subordinate of the Accused alleged to have committed crimes for which the Accused is responsible. If the identity of certain of these subordinate officers is not known, then the category to which they belong should be specified, if this has not already been done in the Indictment ;
(e) The Prosecution is ordered to amend the Indictment to specify the mens rea required for the crime of persecutions or the facts from which this mens rea may be inferred.
The amended Indictment is to be filed no later than Monday 26 September 2005.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this 29th day of August 2005
At The Hague
[Seal of the Tribunal]