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ICTY Weekly Press Briefing - 3rd Mar 1999

ICTY Press Briefing - 3 March 1999

note that this is not a verbatim transcript of the Press Briefing. It is merely
a summary.

ICTY Weekly
Press Briefing

Date: 3 March 1999

Time: 11.30 a.m.


Today, Jim Landale, the ICTY Spokesman, made the following announcements:

First, I’d
like to announce that this Friday, 5 March at 9 o’clock the Czech Minister
of Justice, Mr. Otakar Motejl, will be visiting the Tribunal. And, next Tuesday,
the Prime Minister of Luxembourg will be visiting the Tribunal. We will be sending
out more detailed press releases on those visits in the coming days.

In view of the
anticipated start of the Kordic and Cerkez trial, scheduled for 12 April, Trial
Chamber III has ruled on five joint defence motions:

1. On 1 March
1999, Trial Chamber III dismissed a joint defence motion to "strike
all counts arising under Article 2 or Article 3 of the Tribunal’s Statute
(namely Grave breaches of the Geneva conventions and Violations of the laws
or customs of war) for failure to allege a nexus between the conduct of the
accused and an international armed conflict"
. This will be ruled upon
during the trial.

2. On the same
day, the Trial Chamber also dismissed a joint defence motion "to dismiss
the amended indictment due to the illegal foundation of the Tribunal"
The motion also called for the case against the accused to be dropped and for
the accused to be released from custody immediately.

In reaching its
decision, the Trial Chamber noted that all the arguments raised by the defence
had been addressed by the Appeals Chamber in its "Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction" in the Prosecutor vs.
Dusko Tadic
. Considering the points in this motion and a similar application
during the Prosecutor v. Kanyabashi at the International Criminal Tribunal
for Rwanda, and "considering therefore that the International Tribunal
has been created by the Security Council pursuant to Article 41 of Chapter VII
of the United Nations Charter, and that it has therefore been properly established
by law,
" the Trial Chamber dismissed the motion.

3. Also on 1 March,
Trial Chamber III dismissed a joint defence motion "to dismiss all allegations
of planning and preparation under Article 7(1) as outside the jurisdiction of
the Tribunal or as unenforceable

In its motion,
the defence cited the Nuremburg Charter, Control Council Law No. 10 and the
jurisprudence of the International Military Tribunal for the Trial of Major
War Criminals at Nuremburg to argue that there was no basis in customary international
law for "the incrimination of preparation and planning" and
that "criminal liability for mere planning and preparation of offences
is, bar exceptional circumstances, prohibited".

In it response
to the motion, the Prosecution argued that the Nuremburg and Tokyo Tribunals
"did in fact hold persons responsible for the planning and preparation
of offences,…; that the defence was confusing the planning and preparation
of offences not completed with those that were in fact complete; that it is
well established in international law that the planning and preparation of offences
in violation of international humanitarian law are punishable; and that the
jurisprudence of the International Tribunal and the International Criminal Tribunal
for Rwanda (ICTR) confirms this".

The Trial Chamber
considered that "it is established in customary international law that
the planning and preparation of violations of international humanitarian law
are punishable, and that the principle of legality (….) is not violated
by the prosecution of or conviction for planning and preparation of completed

Finally, the Trial
Chamber considered that Article 7 of the Statute, as well as jurisprudence in
the Prosecutor v. Tadic and the Prosecutor v. Akayesu at the ICTR,
confirmed that "criminal responsibility may flow from the planning and
preparation of offences under the Statutes of the International Tribunals, where
the offences were completed"

4. The Trial Chamber
also ruled on a defence motion to dismiss or alternatively to order the Prosecutor
to elect between counts in the indictment.

In coming to their
decision, the Trial Chamber considered that "the Prosecutor may be justified
in bringing cumulative charges when the Articles of the Statute referred to
are designed to protect different values and when each Article requires proof
of a legal element not required by the other, and that in the instant case both
requirements are met"
. They also considered the fact that "cumulative
charging has been permitted in the practice of the International Tribunal"

The Trial Chamber
ruled to dismiss the motion.

5. Finally, the
following day on 2 March, Trial Chamber III dismissed a joint defence motion
to strike paragraphs 20 and 22 and all references to Article 7(3) relating to
superior criminal responsibility as providing a separate or an alternative basis
for imputing criminal responsibility.

Copies of those
decision will be available to those who want them later today and we also have
copies of the "Pre-Trial Brief Addressing the Factual and Legal Issues"
in the Kunarac case.

Also a reminder
that at 2.30 tomorrow afternoon in the Simic and Others case there will be a
hearing in Courtroom III on the "motion for evidentiary hearing on the
arrest, detention and removal Stevan Todorovic and for an extension of time
to dismiss the indictment"
. It’s a public hearing so you’re
all welcome to attend.



Noting the
silence concerning the deferral request and asked what that meant, Landale
answered that no determination had been made yet by the Trial Chamber as to
the compliance or non-compliance of the authorities in the FRY.

Asked whether
the visa requests for Kosovo were still pending, Blewitt answered that they
were and that some visa request had been added. Blewitt added that the request
had not been granted and that he had received an indication that the Office
of the Prosecutor (OTO) would receive a letter from the Embassy for the Federal
Republic of Yugoslavia in the near future. He said that he did not know the
content of the letter.

Asked if the
added visa requests were for Kosovo, Blewitt answered that they were not restricted
to Kosovo.

Asked if the
OTP had received the results of the Finnish inquiry into the Racak massacre,
Blewitt replied that he expected to receive a copy of the report. He added
that he would not receive a copy directly from the Finnish team but from Germany,
to whom the report would be presented in their capacity as the President of
the European Union. He indicated that the OSCE could possibly be another source.