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The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic, Vladimir Santic (a/k/a "Vlado") - Case No. IT-95-16-T |
"Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque"
17 February 1999
Trial Chamber II (Judges
Cassese [Presiding], May and Mumba)
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Decision
(1) requesting that the Defence not ask fact witnesses about the character
of the accused and, as much as possible, that it use affidavit evidence
in accordance with Rule 94 ter to corroborate character witness
testimony, absent the objection of the Prosecution, and (2) not allowing
the defence of tu quoque and limiting the admissibility of evidence
not directly related to the alleged events.
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Introduction
The present written Decision was rendered further to the Trial Chamber’s oral rulings at a hearing on 15 February 1999. This hearing dealt with "(1) the permissibility or otherwise of adducing evidence of the good character of the accused, and (2) the impermissibility of adducing evidence to prove a tu quoque defence". The issues are discussed in turn.
Evidence of Good Character
The Trial Chamber held that, in general, evidence of the good character of the accused prior to the commission of the alleged crimes rarely has probative value since by their very nature the alleged crimes may be committed by persons without a criminal record or history of violence. Furthermore, as a general principle of criminal law, such evidence is generally inadmissible as a demonstration of the accused’s propensity to act accordingly. The Trial Chamber further considered that the issue is not a material dispute in this case since the Prosecution had conceded expressly that all the accused were of good character prior to the alleged crimes.
Nonetheless, in the interests of justice, the Trial Chamber allowed each accused to call at least one exemplary character witness and requested that, as much as possible the Defence, submit affidavits corroborating the testimony pursuant to Rule 94 ter, subject to no objection by the Prosecution. As regards fact witnesses, however, the Defence was requested not to ask questions about the accused’s character because doing so would entail unnecessary repetition.
The Defence of Tu Quoque
The defence of tu quoque concerns the allegation that the opposing party to the conflict committed similar atrocities and, in the case in point, also included the allegation that that party was responsible for the commencement of the said conflict. Following its Decision on Defence Motion to Summon Witness of 3 February 1999 and its ruling at the hearing of 15 February 1999, the Trial Chamber held that evidence to prove such a defence is inadmissible because it does not tend to (dis)prove any of the allegations against the accused. In its Decision of 3 February 1999, the Trial Chamber had ruled that the principle of tu quoque does not apply to international humanitarian law since that body of law creates obligations erga omnes (contractantes) and not obligations based on reciprocity.
The Trial Chamber found, however, that evidence of events beyond the main geographical focus of the indictment may be admissible insofar as it is not repetitious and is duly circumscribed and intended to rebut the allegations, explain the behaviour of the accused or provide information concerning the organisation and activities of the armies involved. Before adducing such evidence, the Defence was requested to state its purpose.