Press Release · Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 26 June 1997
CELEBICI CASE UPDATE : TRIAL CHAMBER REJECTS ACCUSED'S DELIC'S REQUEST FOR EXCULPATORY EVIDENCE
In a Decision of 24 June 1997, Trial Chamber II rejected a request by the accused Hazim Delic that the Prosecution provide to the defence copies of any documents in its possession which would negate Delic's guilt.
The Chamber found that "the Defence has failed to indicate the specific material it regards as exculpatory and which should be disclosed pursuant to Rule 68. Moreover, the Defence has failed to show prima facie that the information it seeks to be disclosed is in actual fact exculpatory."
In a motion filed on 21 April 1997, pursuant to Rule 68, the Defence of Hazim Delic requested the Trial Chamber to order the Prosecutor to turn over exculpatory evidence in its possession. In particular, it sought evidence (1) that the armed forces of the Republic of Serbia did not conduct their operations in accordance with the laws and customs of war; (2) that the Bosnian Serb
forces did not conduct their operations in accordance with the laws and customs of war; (3) that the Bosnian Serb forces were not commanded by a person responsible for his subordinates; (4) that the Bosnian Serb forces did not have a distinctive insignia, visible from a distance; and (5) that the Bosnian Serb forces did not carry their arms openly.
According to the Defence, such evidence would be exculpatory in that it would show that the detainees of Celebici camp were not legitimate prisoners of war (POWs), under the Third Geneva Convention (Geneva III), entitled to the benefits of that Convention, because they failed to meet the definition of POWs under Article 4 of Geneva III.
The Defence asserted that, according to Article 4(A)(2) of Geneva III, irregular armed forces are protected only if they comply with certain requirements, including conducting their operations in accordance with the laws and customs of war. "Evidence in the hands of the Prosecution which demonstrates the Bosnian Serb forces, to which some of the detainees at the Celebici camp
allegedly belonged, violated the laws and customs of war is exculpatory in the sense that it disproves one of the elements of the crime, the protected status of the victims." According to the Defence, the numerous indictments issued against the Bosnian Serbs by the Prosecutor show prima facie that the Prosecution possesses evidence of such violations of the laws and customs of war
committed the Bosnian Serb forces.
The Prosecution asserted in its response, filed on 2 May 1997, that it has already provided the Defence with all the necessary and relevant information, and that any additional information is completely irrelevant. In addition, it argued that the motion should be dismissed as the Defence had failed to establish a prima facie case that the evidence sought is in fact
exculpatory. According to the Prosecution, the people detained at Celebici were protected persons, either as civilians or as POWs, and it is unnecessary at this stage to determine their exact status.
The Prosecutor argued further that even if Bosnian Serb forces committed some violations of the laws and customs of war, and even if such violations were committed by some of the victims in this case, this would not mean that their protection under Geneva III as POW would be rescinded.
According to the Prosecutor, the irregular forces operating in the Konjic municipality did meet the conditions of Geneva III, as, in general, those forces were obeying the laws and customs of war. The Prosecutor considered that the conduct of irregular forces outside the Konjic region is irrelevant. Finally, the Prosecutor asserted that violations of the laws and customs of war can
never be justified by prior violations of such laws and customs by an opposing party, and it was therefore unnecessary for the Chamber to consider any evidence of violations of the laws and customs of war by the Yugoslav People's Army (JNA), the army of the FRY (VJ) and the Bosnian Serb Army (VRS).
In rejecting the Defence motion, the Trial Chamber first defined exculpatory evidence, under Rule 68, as "material which is known to the Prosecutor and which is favourable to the accused in the sense that it tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence".
It continued: "It is important for the exercise of the power to compel disclosure for the applicant to show that the Prosecutor knew of the existence of the material and that it is in his possession."
In addition, "(. . .) the Defence is required to make a prima facie showing of the exculpatory nature of the information which it seeks from the Prosecution."
Evidence that is exculpatory will also be material for the preparation of the defence. But requests for such evidence must be specific, and cannot take the form of a blanket request for any evidence that might negate an accused's guilt. "The Rules permitting disclosure of certain documents cannot be used freely as a means to obtain all information from the Prosecution and then
subsequently to determine whether it can be used or not."
The Chamber stated that in any case it failed to see how information about violations of the laws and customs of war by opposing forces could be considered exculpatory, noting that victims of alleged violations by the accused can be protected both as POWs under Geneva III and civilians, under Geneva IV.
In any case, prior violations of the laws and customs of war can never considered as justifications for retaliatory or later violations by an opposing side, it said. "This would only lead to a further excalation of criminal violence."