Press Release · Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 11 December 1996
DELIC CASE (Celebici): THREE APPEALS JUDGES REJECT THE LATEST APPLICATION OF THE ACCUSED
The accused sought leave to appeal against the Decision denying his motion on the form of the indictment.
In a Decision dated 6 December 1996, an Appeals Bench rejected the application of the accused Hazim DELIC seeking leave to appeal against the Decision of 15 November 1996 by which Trial Chamber II denied his motion based on defects in the form of the indictment (see Press Release 129).
This application for leave to appeal was filed on 22 November under Rule 72(B)(ii) of the Rules of Procedure and Evidence, and was considered by the three following Judges of the Appeals Chamber: Antonio CASSESE (President), Haopei LI and Jules DESCHÊNES (see Press Release 131).
The findings of the Appeals Bench
After an analysis of the five arguments raised in the application, the Bench determined that the Applicant had failed to show "a serious cause".
The arguments raised in the application, and the findings of the Bench, are:
1. That the Tribunal has not established its jurisdiction in this case:
The Bench ruled that "since the Accused's motion did not raise the issue of jurisdiction before the Trial Chamber, the issue cannot be raised for the first time before the Appeals Chamber".
2. That the indictment is incomplete and/or violates the principle nullum crimen sine lege:
The Bench held that "provided that it is clear in each count of the Indictment which serious violation of international humanitarian law is being charged [under the Statute of the Tribunal], it matters little whether the Indictment refers to, for example, Article 2 of the Statute or to the relevant Articles of the Geneva Conventions of 1949(...)The Bench takes the view that
Articles 2,3,4, and 5 of the Statute are shorthand for the corresponding norms of international humanitarian laws and that if there is any dispute as to those norms, this a matter for trial, not for pre-trial objections to the form of the indictment".
3. That the indictment is vague:
The Bench found that "the Trial Chamber did not fully address this issue", raised in the Defendant's motion, namely that many charges contain mutually exclusive, alternative formulations of guilt, e.g. "knew" versus "had reason to know" or "failed to prevent" versus "failed to punish".
Nevertheless, the Bench "considers that this is not a grave error on the Trial Chamber's part" since these "sets of alternatives, recognised in military manuals and under international humanitarian law, do not render the indictment fatally vague".
But the Bench affirmed that in the future "the Prosecutor should make clear the precise line of conduct and mental element alleged".
4. That the indictment fails to separate distinct charges for crimes individually committed and for crimes charged as a superior, and therefore subjects the accused to the danger of "double jeopardy" and/or falls foul of the principle non bis in idem:
The Bench noted that "the Trial Chamber rejected this objection(...)with reason".
However, the Bench also pointed out that the Accused's concern was justified in one respect, "namely the failure in those counts which charge command responsibility for the acts of the subordinates, to refer to the statutory source for liability, i.e. Article 7(3) of the Tribunal's Statute.(...).Nevertheless there is no possibility in this Indictment of the Accused being mistaken
as to which Article is being referred to when the "knew or had reason to know" formula is employed".
5. That the indictment alleges facts which are false:
The Bench upheld the Trial Chamber's decision that "factual issues [are] to be determined at trial".