IN THE TRIAL CHAMBER

Before:
Judge Claude Jorda, Presiding
Judge Almiro Rodrigues
Judge Mohamed Shahabuddeen

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 3 March 2000

THE PROSECUTOR

v.

TIHOMIR BLASKIC

_______________________________________________

JUDGEMENT

_______________________________________________

The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman

ANNEX

Abbreviations

ABiH
Muslim Army of Bosnia-Herzegovina

BH
Republic of Bosnia-Herzegovina

BRITBAT
UNPROFOR British Battalion

ICRC
International Committee of the Red Cross

ECMM
European Commission Monitoring Mission

UNPROFOR
United Nations Protection Force

HDZ
Croatian Democratic Community

HOS
Croatian Defence Forces

HV
Army of the Republic of Croatia

HVO
Croatian Defence Council

HZHB
Croatian Community of Herceg-Bosna

JNA
Yugoslav People’s Army

UN
United Nations

FRY
Federal Republic of Yugoslavia (Serbia and Montenegro)

SDA
Party of Democratic Action

SDS
Serbian Democratic Party

SIS
HVO Security and Information Service

TO
Bosnian Territorial Defence

VJ
Army of the FRY

VRS
Army of Republika Srpska

CBOZ
Central Bosnia Operative Zone

Players

Miro Andric
HV Colonel, he was later the "number two at the joint command of the BH armed forces" before returning to the HV in Croatia.

Mate Boban
President of the HZHB and Commander-in-Chief of the HZHB military forces.

Janko Bobetko
HV General, southern front commander.

Mario Cerkez
Commander of the HVO Vitez Brigade.

Filip Filipovic
HVO Colonel in Travnik.

Darko Gelic
Liaison officer for General Blaskic to the UNPROFOR

Enver Hadzihasanovic
ABiH 3rd Army Corps Commander.

Dario Kordic
Vice-President of the HZHB.

Ignac Kostroman
Secretary-General of the HZHB and the HDZ in BH.

Pasko Ljubicic
Military Police Fourth Battalion Commander.

Dzemo Merdan
ABiH Chief-of-Staff.

Slobodan Milosevic
President of the FRY.

Milivoj Petkovic
HV General, HVO headquarters Chief-of-Staff.

Slobodan Praljak
HV General, former Croatian deputy national defence minister in Zagreb, he was replaced by Petkovic as HVO Chief-of-Staff on 27 July 1993.

Ivica Rajic
HVO operative zone 3 Commander (in Kiseljak).

Ante Roso
HV General in charge of the Livno region, he replaced Praljak as HVO Chief-of -Staff in October 1993.

Bruno Stojic
Head of the HZHB Defence Department.

Gojko Susak
Croatian Minister of Defence.

Franjo Tudjman
President of the Republic of Croatia.

Anto Valenta
President of the HDZ in Vitez, deputy president of the HDZ for the HZHB, vice president of the HVO (April 1993).

Ivica Zeko
Deputy commander of the CBOZ responsible for intelligence activities.

Units

Brigades

a) HVO regular brigades

Ban Jelacic

Located in Kiseljak and commanded by Mijo Bozic and, later, Ivica Rajic.

Bobovac
Located in Vares and commanded by Emil Harah.

Frankopan
Located in Guca Gora, Travnik and commanded by Ilija Nakic.

Jure Francetic
Located in Zenica (until 14 May 1993 at the latest) and commanded by Zivko Toti c.

Kotromanic
Located in Kakanj and commanded by Neven Maric.

Kralj Tvrtko
Located in Sarajevo and commanded by Slavko Zelic.

Nikola Subic Zrinski
Located in Busovaca and commanded by Dusko Grubesic.

Stjepan Tomasevic
Located in Novi Travnik and commanded by Zeljko Sabljic.

Viteska
Located in Vitez and commanded by Mario Cerkez.

III XP
Located in Zepce and commanded by Ivo Lozancic.

Zenica 2nd Brigade
Located in Zenica (until 14 May 1993 at the latest) and commanded by Vinko Baresic).

b) ABiH Chief-of-Staff

3rd Corps

Located in Zenica and commanded by General Hadzihasanovic, the 3rd Corps commanded the ABiH brigades in central Bosnia.

7th Muslim Brigade

Brigade forming part of the 3rd Corps command structure, particularly well equipped and comprised in part of foreign soldiers (Mujahedin).

325th Mountain Brigade
3rd Corps Brigade in Vitez.

Military Police

Fourth Battalion

Located in Travnik. Commanded initially by Zvonko Vukovic who was replaced on 18 January 1993 by Pasko Ljubicic. Pasko Ljubicic was removed from his position on 23 July 1993 and replaced by Marinko Palavra. In July 1993, the Fourth Battalion was renamed the Seventh Battalion.

Seventh Battalion

See the Fourth Battalion.

Special Units

Bruno Busic

Located in Travnik and commanded by the "director of the Defence Department". The unit left the CBOZ before the April 1993 conflict

Dzokeri
Anti-terrorist units formed within the Military Police (Fourth Battalion). Located in the bungalows in Nadioci (still called "Swiss chalet"). The immediate commander was Vlado Santic whose headquarters were in the Hotel Vitez. Anto Furundzija was appointed commander, subordinate to Vlado Santic.

Ludwig Pavlovic

Located at the Dubravica school (with the Vitezovi).

Maturice
Formed from the Ban Jelacic brigade. Located in Kiseljak.

Tvrtko II
Located in Nova Bila.

Vitezovi
Located at the Dubravica school. Its members were former HOS members. Commanded by Colonel Darko Kraljevic and his deputy Niko Krizanac.

Zuti
HVO Frankopan Brigade unit. Located at the Guca Gora school in Travnik and commanded by Zarko Andric (nicknamed "Zuti").

Others

Domobrani

So-called Home Guard units positioned in each village pursuant to a decision of the Mostar Ministry of Defence dated 8 February 1993.

SIS

Commanded in the CBOZ by Ante Sliskovic, office at the Hotel Vitez.

HOS
Commanded in Bosnia by Jadranko Jandric who was replaced by Mladen Holman before being incorporated into the HVO prior to 16 April 1993.

 

I. INTRODUCTION

A. The Tribunal

1. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter "the Tribunal") was established by the Security Council 1 pursuant to Chapter VII of the Charter of the United Nations.

B. The Indictment

2. General Tihomir Blaskic 2 was initially indicted along with five other accused in a single indictment, The Prosecutor v. Dario Kordic et al, confirmed on 10 November 1995 3 . The indictment charged the accused alone with 13 counts. An Order of Judge McDonald dated 22 November 1996 authorised a new indictment to be filed, The Prosecutor v. Tihomir Blaskic, which incorporated seven new counts.

3. Further to the amendment, the Defence filed four preliminary motions all relating to the amended indictment. The first requested that portions of the indictment alleging "failure to punish" liability be struck out on the ground that it did not constitute an offence falling under the jurisdiction of the Tribunal 4 . The Trial Chamber rejected the request of the Defence since it deemed that, in most cases, such a failure also constituted a failure to prevent other crimes from being committed 5 .

4. The Defence submitted a second preliminary motion so as to receive a more detailed explanation of the criteria for the intent required for the charges alleging command responsibility 6 . The Trial Chamber did not grant the Motion on the ground that it related to the subject-matter of the prosecution and was premature at that stage of the proceedings 7 .

5. In a third preliminary motion, the Defence also requested the Trial Chamber to reject those counts under Article 2 of the Tribunal’s Statute based on a failure to plead adequately the existence of an international armed conflict 8 . The Motion was rejected because the Trial Chamber considered that the Prosecutor did not have to present proof at this stage of the proceedings that such a conflict did occur and that the formal validity of the indictment was in no manner undermined thereby 9 .

6. This Judgement responds to the indictment The Prosecutor v. Tihomir Blaskic as amended for the second time on 25 April 1997 further to the Decision of the Trial Chamber on the fourth and last preliminary motion tendered by the Defence for the dismissal of the indictment based upon defects in the form thereof 10 . The Trial Chamber had granted the Defence Motion in part and ordered the Prosecutor to add details relating to the times and places of the facts characterised, the role of the accused and the type of responsibility alleged, pursuant to the criteria set down by Article 18(4) of the Statute and Sub-rule 47(B) of the Rules of Procedure and Evidence (hereinafter "the Rules"). Following a fresh Defence motion, the Trial Chamber deemed that some of the amendments to the indictment did not comply with its previous Decision 11 . The Prosecutor ultimately withdrew count 2 of the indictment 12 .

1. The general context and form of responsibility incurred

7. The indictment of 25 April 1997 (hereinafter "the indictment") contains twenty counts including six grave breaches of the Geneva Conventions (counts 5, 8, 11, 15, 17 and 19), eleven violations of the laws or customs of war (counts 2, 3, 4, 6, 9, 12, 13, 14, 16, 18 and 20) 13 and three crimes against humanity (counts 1, 7 and 10) under Articles 2, 3 and 5 of the Tribunal’s Statute respectively. The crimes alleged in the indictment were purportedly committed in the context of "serious violations of international humanitarian law against Bosnian Muslims" by members of the armed forces of the Croatian Defence Council (hereinafter "the HVO") between May 1992 and January 1994 14 , in the municipalities of:

Vitez, Busovaca, Kiseljak, Vares, Zepce, Zenica, Duvno, Stolac, Mostar, Jablanica , Prozor, Capljina, Gornji Vakuf, Novi Travnik, Travnik, Kresevo and Fojnica, all in the territory of the Republic of Bosnia and Herzegovina 15 .

However, it emerges from the specific counts that the particular municipalities mentioned as the setting for the crimes with which the accused is charged are Vitez , Busovaca, Kiseljak and Zenica.

8. The indictment states that, throughout the period under consideration, a state of international armed conflict and partial occupation existed in the territory of the Republic of Bosnia and Herzegovina 16 .

9. Tihomir Blaskic was appointed commander of the HVO armed forces headquarters in central Bosnia on 27 June 1992 and occupied the position throughout the period covered by the indictment. In this position and pursuant to Article 7(1) of the Statute, he was accused of having, in concert with members of the HVO, planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of each of the crimes alleged. In addition or in the alternative, Tihomir Blaskic was accused of having known or having had reason to know that subordinates were preparing to commit those crimes or that they had done so and that he had not taken the necessary and reasonable measures to prevent the said crimes from being committed or to punish the perpetrators.

2. The crimes charged

10. The indictment brought by the Prosecutor groups the facts imputed to General Blaskic into six distinct categories.

a) Persecution

11. Under count 1, Tihomir Blaskic is accused of a crime against humanity for persecution 17 of the Muslim civilian population of Bosnia 18 throughout the municipalities of Vitez, Busovaca, Kiseljak and Zenica on political, racial or religious grounds from May 1992 to January 1994 19 . The persecution was allegedly implemented through a widespread, large-scale and systematic attack upon towns, villages and hamlets inhabited by Bosnian Muslims 20 . During and after the attack, Bosnian Muslim civilians were allegedly murdered and subjected to serious bodily harm 21 whilst dwellings, buildings, private property, livestock and businesses belonging to Bosnian Muslims as well as their institutions dedicated to religion or education were all allegedly plundered and wilfully destroyed 22 . Furthermore, the Prosecutor alleged that hundreds of Bosnian Muslim civilians were systematically arrested, interned, treated inhumanly 23 , intimidated and coerced to leave their homes or forcibly transferred by the HVO to zones outside the municipalities of Vitez, Busovaca and Kiseljak. The forcible transfer of civilians was allegedly described "by HVO representatives as a voluntary or humanitarian transfer of civilians […]" 24 . The persecutions allegedly resulted in a considerable reduction of the Bosnian Muslim civilian population within the three municipalities 25 .

b) Unlawful attacks upon civilians and civilian objects

12. Under counts 2 to 4, Tihomir Blaskic was accused of three violations of the laws or customs of war 26 for the unlawful attacks upon civilians and civilian objects and for the destruction, not justified by military necessity, which were allegedly perpetrated in the towns and villages of Ahmici, Nadioci, Pirici, Santici, Ocehnici, Vitez, Stari Vitez, Rotilj and Zenica 27 .

c) Wilful killing and serious bodily injury

13. Under counts 5 to 10, Tihomir Blaskic was prosecuted for wilful killing and serious physical and mental injury to civilians, allegedly committed from January 1993 to January 1994 in the municipalities of Vitez, Busovaca, Kiseljak and Zenica 28 . The crimes thus alleged were prosecuted as two serious breaches of the Geneva Conventions 29 , two violations of the laws or customs of war 30 and two crimes against humanity 31 .

d) Destruction and plunder of property

14. Under counts 11 to 13, Tihomir Blaskic was accused of a serious breach of the Geneva Conventions 32 and two violations of the laws or customs of war 33 for the large-scale plunder and destruction of Bosnian Muslim dwellings, buildings, businesses, private property and livestock between January 1993 and September 1993 , and more specifically in Ahmici, Nadioci, Pirici, Santici, Ocehnici, Vitez, Stari Vitez, Donja Veceriska, Gacice, Loncari, Behrici, Svinjarevo, Gomionica, Gromiljak , Polje Visnjica, Visnjica and Rotilj in April 1993, in Tulica and Han Ploca/Grahovci in June 1993, again in Stari Vitez in August 1993 and in Grbavica in September 1993 34 .

e) Destruction of institutions dedicated to religion or education

15. Under count 14, Tihomir Blaskic was accused of a violation of the laws or customs of war 35 for the destruction or wilful damage done to Bosnian Muslim institutions dedicated to religion or education between August 1992 and June 1993 – in Duhri in August 1992, Busovaca, Stari Vitez and Svinjarevo in 1993, Ahmici, Kiseljak, Gromiljak and Kazagici in April 1993, Hercezi, Han Plo ca and Tulica in June 1993 and Visnjica in September 1993 36 .

f) Inhumane treatment, taking of hostages and use of human shields

16. Counts 15 to 20 concern the cruel and inhumane treatment inflicted from January  1993 to January 1994 on Bosnian Muslims detained at facilities controlled by the HVO 37 , the taking of Bosnian Muslim civilians as hostages between January 1993 and January 1994 to obtain prisoner exchanges and the cessation of Bosnian military operations against the HVO 38 and, lastly, the use of Bosnian Muslim civilians between January 1993 and April 1993 as human shields to protect the HVO positions 39 . In this respect, the Prosecutor charged the accused with three grave breaches of the Geneva Conventions 40 and three violations of the laws or customs of war 41 .

C. The main stages of the proceedings

17. Following Judge McDonald’s confirmation of the initial indictment on 10 November  1995, the warrants of arrest ordering the transfer of the accused were sent to the authorities of the Federation of Bosnia-Herzegovina of the Republic of Bosnia-Herzegovina and to the authorities of the Republic of Croatia 42 . Copies of the indictments and warrants of arrest were subsequently sent to IFOR 43 upon an Order of Judge Jorda. Lastly, Judge Vohrah issued a warrant of arrest ordering the transfer of Tihomir Blaskic to the Kingdom of The Netherlands on 28 March 1996 44 .

18. Tihomir Blaskic voluntarily gave himself up to the International Tribunal on 1 April 1996 and, pursuant to Rule 62 of the Rules, his initial appearance hearing was held on 3 April 1996 before Trial Chamber I composed of Judge Jorda, presiding , Judge Deschênes and Judge Riad. The accused pleaded "not guilty" to all the counts brought against him in the initial indictment. On 4 December 1996, Tihomir Blaski c pleaded "not guilty" to the new counts confirmed against him 45 following the first amendment of the indictment on 22 November 1996. The second amendment of the indictment on 25 April 1997 did not bring any new counts against the accused who, for that reason, did not have to enter a new plea.

19. The proceedings against Tihomir Blaskic before the Tribunal were complex and at each stage gave rise to many questions, often without precedent. Accordingly, during the fourteen-month pre-trial phase, the Tribunal rendered eighty-two interlocutory decisions. The trial proper commenced on 24 June 1997 46 and lasted a little over two years, closing on 30 July 1999. During this stage of the proceedings, seventy-eight interlocutory Decisions were rendered, 158 witnesses heard and more than one thousand three hundred exhibits filed 47 . The French version of the transcript runs to more than 18,300 pages. This chapter is intended to recall the various stages of the lengthy proceedings in brief and according to the issues. However, it will not deal with the issues relating to the indictment, which were examined in the previous chapter or the proceedings relating to binding Orders for the production of documents addressed to some States.

1. Issues relating to the composition of the Trial Chamber

20. The Trial Chamber hearing the present case was initially composed of Judge Jorda , presiding, Judge Deschênes and Judge Riad. Since Judge Deschênes was unable to continue sitting in the case, the President of the Tribunal ordered the temporary assignment of Judge Li pursuant to Sub-rule 15(F) of the Rules 48 . On 18 April 1997, Judge Deschênes resigned for medical reasons and was replaced on 16 June 1997 by Judge Shahabuddeen who was assigned to the case in an Order of the President 49 on the same day of his appointment to the Tribunal.

21. Sub-rule 15(F) was implemented for a second time when Judge Riad became unavailable for approximately three months for medical reasons. Upon consulting with the parties at two status conferences 50 , the Presiding Judge of the Trial Chamber, Claude Jorda, submitted a report to the President of the Tribunal expressing his preference for Judge Riad to be replaced given the circumstances 51 . The said report recalled that the Prosecutor favoured a solution which would enable Judge Riad to continue reviewing the case and mentioned the document filed by the accused reiterating his conditional consent to the continuation of the proceedings following the assignment of a new Judge 52 . In view of these developments , the President of the Tribunal ordered the assignment of Judge Almiro Rodrigues and the resumption of proceedings before the newly composed Trial Chamber 53 .

2. Issues relating to the detention of the accused

22. The Trial Chamber considers that in this instance it is appropriate to distinguish between the requests for modification to the detention conditions presented to the President of the Tribunal pursuant to Rule 64 of the Rules and the Motions for provisional release submitted to the Trial Chamber by the accused pursuant to Rule 65 of the Rules. Although in this case, the requests were filed at the same time, they will be examined successively in this chapter.

a) Motions for modification to the detention conditions of the accused

23. On the same day as Tihomir Blaskic’s surrender to the Tribunal, Defence Counsel submitted to the President of the Tribunal pursuant to Rule 64 of the Rules a motion for modification to the conditions of detention of the accused. The President authorised that the accused be detained under strict conditions outside the United Nations Detention Unit facilities "within the confines of a residence designated by the Netherlands authorities" 54 . The detention conditions were later modified, in particular as regards family visits and movement of the accused outside 55 . Nonetheless , following serious threats to the security of General Blaskic, these detention conditions were abandoned in a Decision of the Tribunal and the accused was transferred to the United Nations Detention Unit 56 .

b) Motions for provisional release of the accused

24. Defence Counsel to Tihomir Blaskic twice presented a motion for provisional release pursuant to Rule 65 of the Rules. The first gave rise to a Decision dated 25 April 1996 and the second to a Decision dated 20 December 1996. In both instances the Trial Chamber rejected the Motion upon reviewing all the elements to be taken into consideration 57 .

3. Issues relating to evidence

25. Throughout the trial, the administration of the evidence gave rise to many motions relating both to the disclosure obligations of the parties and to the admissibility of the evidence. One of the characteristics of this case is that the questions relating to disclosure obligations, which typically arise at the pre-trial phase, persisted through the trial itself. It is also appropriate to deal with the unprecedented matter of access to confidential documents in related "Lasva Valley" cases and the lengthy procedure for Orders addressed to States for the production of documents .

a) Disclosure obligations

26. Seised of a Defence motion 58 , the Trial Chamber rendered a Decision on 27 January 1997 setting out how it interpreted the scope of the parties’ disclosure obligations under Rules 66, 67 and 68 of the Rules 59 .

Pursuant to former Sub-rule 66(A) of the Rules, the Trial Chamber initially took up a broad interpretation of the notion of disclosure by concluding that all the prior statements of the accused appearing in the Prosecutor’s case-file had to be disclosed to the Defence without delay whatever their nature or origin. The Judges further stated that the same criteria were to apply mutatis mutandis to the prior statements of the witnesses under that same Sub-rule 66(A). Nonetheless, the Trial Chamber attached two reservations to this interpretation, grounded on Sub- rules 66(C) and 70(A) of the Rules respectively.

Secondly, on the issue of the disclosure of the Prosecution witnesses’ names to the Defence provided for under Sub-rule 67(A), the Trial Chamber found that all the names of the witnesses had to be disclosed "at the same time in a comprehensive document which thus permits the Defence to have a clear and cohesive view of the Prosecution’s strategy and to make the appropriate preparations" 60 .

Thirdly, the Trial Chamber evaluated the scope and methods of application of Rule 68 of the Rules relating to the Prosecutor’s disclosure of exculpatory material. It recalled that the obligation was boundless and unquestionably fell upon the Prosecutor alone, though under the control of the Trial Chamber, if only because she was in possession of the said exculpatory material. However, the Trial Chamber drew a parallel between the evidence identified under Sub-rule 66(B) of the Rules "material to the preparation of the Defence" and Rule 68 exculpatory evidence. Applying the case- law on the interpretation of Sub-rule 66(B) in the Celebici case 61 to Rule 68, it therefore deduced that where the Defence contested the Prosecutor’s execution of her obligations it "must present a prima facie case which would make probable the exculpatory nature of the materials sought" 62 .

27. The Trial Chamber subsequently heard fresh motions on the matter during the same trial and clarified its case-law of 27 January 1997.

Hence, in response to a Defence motion, the Trial Chamber reviewed the notion of prior statements in the light of its foregoing case-law on the subject and found that topographical maps, personal journals and radio logs could not be likened to prior statements of witnesses within the meaning of Sub-rule 66(A) of the Rules and did not need to be disclosed to the Defence 63 . The matter was also raised in respect of written orders of Tihomir Blaskic. The Trial Chamber assessed, however, that these were documents within the meaning of Sub-rule 66(B) of the Rules and fell under Sub-rule 66(A):

all statements made by the accused during questioning in any type of judicial proceedings which may be in the possession of the Prosecutor, but only such statements 64 .

The Defence also approached the Trial Chamber in order to have the statements of a third party presented by a witness at a hearing disclosed to it. The Judges limited the field of application of Sub-rule 66(A) of the Rules to the statements of only those witnesses whom the Prosecutor actually meant to call 65 , in addition to the elements provided to the confirming Judge in support of the indictment .

28. In respect of application of Sub-rule 67(A) of the Rules on disclosure to the Defence of the names of the Prosecution witnesses called to appear, the Prosecutor was instructed to provide the Trial Chamber and the Defence with the list of the witnesses whom she intended to call to appear at least two working days beforehand 66 . The Trial Chamber did not adjudge it appropriate at this stage to rule on the proceedings as regards the reciprocal prior disclosure of the names of Defence witnesses 67 . It was only just before the Defence began to present its case that the Trial Chamber ordered that the names and identifying information of the Defence witnesses whom the Defence intended to call and the summary of the facts on which their testimony would bear be disclosed at least seven days before their appearance 68 . This was done for the purposes of a faster and more efficient conduct of the proceedings and pursuant to Rule 54 of the Rules.

29. Being seised of a Defence motion, the Trial Chamber clarified its initial case-law on the interpretation of Rule 68 of the Rules and stated that it assumed that the Office of the Prosecutor was acting in good faith. However it reserved the possibility to verify on a case by case basis the potential failures and, at time of trial, draw the necessary conclusions as regards the probative value to be given to the evidence in question 69 .

b) The exception to the disclosure obligation set down in Rule 70 of the Rules

30. Pursuant to Sub-rule 70(A) of the Rules:

reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case , are not subject to disclosure or notification

The Trial Chamber took note that the accused, appearing as a witness in accordance with Sub-rule 85(C) of the Rules, relied upon his personal notes made during the preparation of his defence which included a war diary kept by his assistant and a military logbook of activities held at the headquarters. The Judges were of the opinion that these materials did not constitute internal documents within the meaning of Sub-rule 70(A) of the Rules and considered it appropriate and in the interests of justice to be able to view them. In so doing and where need be, they ordered the Defence or the Federation of Bosnia-Herzegovina to disclose them to the Trial Chamber 70 . The Defence replied that it no longer had these materials in its possession. 71

31. The other paragraphs under Rule 70 of the Rules deal with the exception to the disclosure obligation set down in Rules 66, 67 and 68 of the Rules. The Trial Chamber acknowledged that this was an exceptional and strictly governed right which benefited mutatis mutandis the accused and was intended to allow the use of confidential source information which, failing the said provision, would allegedly prove unusable 72 . In light of several Prosecution and Defence submissions 73 within the terms of Rule 70, the Judges stated its conditions of applicability and its limits.

32. In accordance with Rule 70 of the Rules, the Trial Chamber held that the information specified must meet several conditions, that is: be in the applicant’s possession ; have been disclosed confidentially - the holder or holding entity being the sole judge of its confidentiality; and have been used for the sole purpose of collecting new evidence which, contrary to initial information, did not enjoy Rule 70 protection . 74

33. Pursuant to Sub-rule 70(B) of the Rules, the transmission and use in evidence of information responding to the criteria specified above are subject to the consent of the person or entity providing them. The Trial Chamber nevertheless firmly recalled the limits of this protection where the rights of the Defence were involved and affirmed that once the person or entity holding the information had consented to its use in evidence it had to be disclosed without undue delay to the Defence and that the person or entity concerned could not determine whether and, where applicable , when it was appropriate to disclose the said information 75 . The Trial Chamber further observes that recourse to this provision of the Rules allowed highly confidential evidence to be presented to the Trial Chamber, in particular by former representatives of the government of a member State of the United Nations .

c) The admissibility of the evidence

34. The admissibility of the evidence presented at trial was also the subject of Decisions on several occasions. The principle embodied by the case-law of the Trial Chamber on the issue is the one of extensive admissibility of evidence - questions of credibility or authenticity being determined according to the weight given to each of the materials by the Judges at the appropriate time.

35. In this respect, it is appropriate to point out that the Trial Chamber authorised the presentation of evidence without its being submitted by a witness. The Trial Chamber relied on various criteria for this. At the outset, it is appropriate to observe that the proceedings were conducted by professional Judges with the necessary ability for first hearing a given piece of evidence and then evaluating it so as to determine its due weight with regard to the circumstances in which it was obtained , its actual contents and its credibility in light of all the evidence tendered. Secondly, the Trial Chamber could thus obtain much material of which it might otherwise have been deprived. Lastly, the proceedings restricted the compulsory resort to a witness serving only to present documents. In summary, this approach allowed the proceedings to be expedited whilst respecting the fairness of the trial and contributing to the ascertainment of the truth.

36. Nonetheless, the discussions between the parties as to how evidence was to be administered were generally animated and acrimonious. By way of example, the Trial Chamber notes the following submissions.

Initially, the Defence filed a standing objection to the admission of hearsay with no inquiry as to its reliability. The Trial Chamber rejected this objection on the ground that Sub-rule 89(C) of the Rules authorises the Trial Chamber to receive any relevant evidence which it deems has probative value and that the indirect nature of the testimony depends on the weight which the Judges give to it and not on its admissibility 76 .

The Defence raised a similar issue regarding the authenticity of documents produced during testimony. The Trial Chamber found that any documentary evidence produced by a party and identified by a witness was admissible and that any dispute over its authenticity did not derive from its admissibility but from the weight which it would be appropriate to give to it 77 .

Furthermore, the Trial Chamber was confronted with the problem of the admission of the statement of a deceased witness which had been given under oath to the Prosecutor’s investigators. The Judges considered this to be clearly one of the exceptions to the principle of oral witness testimony, in particular for cross-examination, accepted in the different national and international legal systems and therefore they admitted the said statement in evidence but reserved the right to give it the appropriate weight when the time came 78 .

Finally, in order to assist the Judges in their search for the truth, the Trial Chamber authorised that the statement of a witness who had already appeared before it be admitted into evidence. In so doing, it considered that pursuant to Rule 89 of the Rules it could admit any relevant document with probative value and reserve the right to evaluate freely the weight to be given to it at the end of the trial 79 .

d) Access to the confidential documents in related Lasva Valley cases

37. On 16 September 1998, Defence for the accused Dario Kordic and Mario C erkez (hereinafter "the Kordic-Cerkez Defence") filed a motion for access to the non-public materials in this case, that is, the hearing transcripts, exhibits , Orders and Decisions concerning events, facts and witnesses at issue in their related case, with the Trial Chamber hearing the case The Prosecutor v. Tihomir Blaskic (hereinafter "the Blaskic Trial Chamber") 80 . On 12 November 1998, the Trial Chamber hearing the case The Prosecutor v. Dario Kordic and Mario Cerkez (hereinafter "the Kordic-Cerkez Trial Chamber ") issued, at the same time, a Decision on the matter in which it requested the Trial Chambers concerned to give their reasoned opinion on the review of the issues raised and to indicate whether the Motion could be granted and if so under what confidentiality and protective measure conditions 81 .

38. The Blaskic Trial Chamber rendered its Opinion on 16 December 1998 pursuant to the Decision of the Kordic-Cerkez Trial Chamber 82 . Bearing in mind that the two cases had at the outset formed part of one and the same indictment, the Trial Chamber affirmed that the Prosecutor was compelled to disclose to the Kordic-Cerkez Defence all statements or evidence within the meaning of Rules 66 and 68 of the Rules. Nonetheless, the Judges stated that protective measures granted to witnesses by the Blaskic Trial Chamber must apply ipso facto to the parties in the Kordic-Cerkez case and proposed a set of tightened measures in order to offset the increased risk of breaches of confidentiality due to the greater number of persons in possession of confidential information. These additional measures included, inter alia, limitation on access to confidential documents to a single responsible custodian and the use of separate pseudonyms in the two cases.

39. Subsequently, the Blaskic Trial Chamber rendered another Decision on the disclosure to the Kordic-Cerkez Defence of a confidential transcript of a statement given by a witness appearing for the Defence. The Blaskic Trial Chamber recalled that, although the Defence was not subject to the same disclosure obligations as the Prosecutor, with the exception of the materials tendered under Rule 70 of the Rules the Prosecutor remained subject to her Rule 66 and 68 obligations with no distinction being made between the public or confidential nature of the documents concerned 83 .

40. On 17 January 2000, the Blaskic Trial Chamber authorised the Prosecutor’s use of a confidential document belonging to the Blaskic Defence, subject to the appropriate protective measures being taken by the Kordic-Cerkez Trial Chamber. The Blaskic Defence did not contest the principle by which the document was disclosed to the Judges and the Defence in the Kordic-Cerkez case 84 .

e) Orders for production of documents

41. This Trial Chamber conducted several parallel proceedings relating to the forced production of documents by certain States and entities. Beforehand, it is appropriate to point out that both the Prosecution and the Defence resorted to these proceedings . In addition, it must be recorded that the Trial Chamber was not necessarily informed of whether the measures it ordered were properly executed. It is incumbent upon the requesting party to refer any difficulties to the Trial Chamber which, however , does not intervene, or only marginally so, in the hand-over of the documents requested .

i) Proceedings regarding the Republic of Croatia

42. The issue of a subpoena duces tecum ordering the production of documents had been pending in the Blaskic case since 10 January 1997, the date on which the Prosecutor requested a Judge to issue a subpoena duces tecum to Croatia . The Judge issued just such a subpoena duces tecum on 15 January 1997 to Croatia and Mr. Gojko Susak, then Minister of Defence 85 . Her Order listed the documents to be produced by 14 February 1997 at the latest. Croatia declared in a letter dated 10 February 1997, first, that it adjudged that any request addressed to its Minister as a government official was ungrounded as , according to the Statute and the Rules, a request for assistance had to be addressed to a State and, second, that as a sovereign State, it could not accept to comply with the order of the subpoena duces tecum "but respecting its obligations under the Tribunal’s Statute reiterateSdC its readiness for full co-operation under the terms applicable to all States" 86 . On 19 February 1997, Judge McDonald held a hearing at which a representative from Croatia expressed an identical view. That same day, the Prosecutor issued an official request for assistance to the Republic of Croatia pursuant to Rule 39 of the Rules asking for the same categories of documents 87 . The discussions continued for several months before Trial Chamber II ruled, on 18 July 1997, on the power of the Tribunal to issue subpoenae duces tecum 88 and the Appeals Chamber rendered a subsequent ruling 89 .

43. On 29 October 1997, the Appeals Chamber ruled pursuant to Rule 108 bis of the Rules on the Request of the Republic of Croatia filed on 25 July which requested inter alia that the 18 July Decision of Trial Chamber II be reviewed and set aside and the subpoena duces tecum of 15 January 1997 be quashed 90 . In its Judgement, the Appeals Chamber decided that neither a State nor its ex officio official agents could be the subject of a subpoena duces tecum and stated the conditions under which a potential binding Order to a State to produce documents or other items could be issued and the rights and duties of the State concerned. Moreover, the Appeals Chamber set the criteria which any motion for an Order for the production of documents had to meet 91 . These criteria were: 1) an exact description of the documents requested (as opposed to broad categories); 2) the relevance of the documents to the trial; 3) comparatively simple execution of the Order; and 4) a sufficient time-period for the State to comply 92 . Furthermore, it established the "possible modalities of making allowance for national security concerns" 93 .

44. On 12 January 1998, the Prosecutor, relying on Article 29 of the Statute 94 , filed a motion "for the issuance of a binding Order on the Republic of Croatia for the production of documents". The Trial Chamber granted the Motion and issued confidentially and ex parte the Order of 30 January 1998 95 in which it instructed that the documents requested be provided to the Office of the Prosecutor in the shortest possible time and by 27 February 1998 at the latest . On 13 February 1998, the Republic of Croatia filed a Request pursuant to Rule 108 bis of the Rules for the Order of 30 January 1998 to be reviewed and stayed 96 . A lengthy dispute ensued during which the Trial Chamber strove, within the context of the Appeals Chamber decision, to obtain production of those documents which it deemed relevant whilst taking account of the national security concerns expressed by the Republic of Croatia .

45. On 15 and 16 April 1999, following many procedural episodes, the Trial Chamber consequently heard a civil servant duly empowered by the Republic of Croatia to put forward its concerns, especially regarding national security. The proceedings allowed it to be established that the Republic of Croatia had disclosed only a very limited number of documents. Furthermore, the Republic of Croatia transmitted directly to the Trial Chamber some documents which the Prosecutor had refused on the ground that they were not responsive to her successive motions. The documents essentially touched on the humanitarian aid transited through the Republic of Croatia bound for Bosnia -Herzegovina and on the treatment given to refugees to Bosnia-Herzegovina. They could in no manner be construed as responding to the Prosecutor’s motions, interesting though they might be.

46. Finally, on 16 November 1999, the Appeals Chamber found that there was reason to reject the Request for review of the Republic of Croatia without prejudice to the rights of the parties to raise an issue further to the present Judgement 97 .

ii) Other proceedings

47. Other proceedings for the production of documents were undertaken against States and other entities. The spirit of co-operation of the entities came to the fore at hearings organised to enable a procedure for executing Trial Chamber decisions to be passed which took into account the legitimate confidentiality and security concerns of these entities. On a State level, some responses provided by the Croatian part of the Croat-Muslim Federation appeared to contradict other elements in the possession of the Trial Chamber, including the accused’s statements 98 .

4. Issues relating to the appearance and protection of victims and witnesses

48. On 17 June 1996, the Trial Chamber rendered its first Decision granting protective measures to Prosecution witnesses. It observed that there were exceptional circumstances covered by Sub-rule 69(A) of the Rules and authorised the sole disclosure to the Defence, by 1 September 1996 at the latest, of versions of the witnesses’ statements which had been redacted of names and identifying information until the witnesses were placed under the Tribunal’s protection 99 . Having rejected the Request of the Prosecutor for an ex parte hearing 100 , on 18 September 1996, the Trial Chamber heard the parties in closed session regarding the Prosecutor’s request for release from her obligations pursuant to the Decision of 17 June 1996 through a general Order to the Defence for non-communication of witness identification information. In its Decision of 2 October 1996, the Trial Chamber ordered that all the redacted statements be disclosed in their unabridged versions within fifteen days as well as the ten statements still not communicated from before 1 December 1996, failing which the testimony could not be used in trial . The Defence was bound by a non-disclosure obligation in respect of the identification information under pain of contempt of the Tribunal 101 . This measure imposed on the Defence was subsequently to be the focus of a general Order prohibiting it from:

disclos[ing] to the public or to the media the name of the witnesses residing in the territory of the former Yugoslavia or any other information which would permit them to be identified, unless absolutely necessary for the preparation of the Defence 102 .

Prior to the Defence commencing its case, the Trial Chamber held that there was reason to apply mutatis mutandis the relevant provisions of the Rules to the Defence witnesses who accordingly enjoyed protection under the same terms 103 .

49. In all, thirty-three witness testified in closed session. Each time that tightened protection was required for witnesses who were heard in open session, the Trial Chamber went into private session.

50. The matter of anonymous testimony was raised by the Prosecutor in respect of two of her witnesses. The Trial Chamber asserted on the matter that:

the victims and witnesses merit protection, even from the accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media 104 .

Concurring with the conclusions of the Trial Chamber hearing the case The Prosecutor v. Dusko Tadic 105, the Judges nevertheless deemed that the fundamental exceptional circumstance which would justify that anonymity be granted to one or several witnesses, namely an ongoing armed conflict in central Bosnia, no longer existed.

51. The Defence requested that several Defence witnesses enjoy safe-passage, failing which they would refuse to appear. Mindful of the need to respect the principle of appearance of witnesses in person, the Trial Chamber granted such immunity limited ratione materiae to the facts within the Tribunal’s jurisdiction, ratione temporis to seven days at the most after the said witnesses had finished testifying and ratione loci to the territory of the Netherlands and those territories crossed by the said witnesses when travelling from this country to their country of origin 106 .

52. Lastly, some witnesses requested the authorisation of the Trial Chamber to testify by video-link. Accordingly and bearing in mind the situation in the territory of the former Yugoslavia and the crucial command role played by the witness, the Trial Chamber permitted General Milivoj Petkovic 107 to testify by video-link from Zagreb 108 .

5. Issues relating to the length of proceedings

53. The Trial Chamber always took care to ensure that the ongoing trial, already long in itself, was not subject to additional delays and guaranteed the accused that he would be tried without undue delay, a guarantee provided for by Article 21(4)( c) of the Statute. Once the parties had "agreed on the need to limit the number of hearing days which they would use respectively for the presentation of their evidence", the Trial Chamber was moved by a concern for vigilance to set the number of hearing days each party would be authorised to use for the presentation of their evidence. Thus, the Prosecution and the Defence were accorded seventy-five and sixty hearing days respectively 109 . The rebuttal and rejoinder each took a little over the equivalent of one hearing day .

54. With a mind to enable the expeditious and efficient conduct of the trial, the Trial Chamber decided that when one of its members was exceptionally and temporarily unable to sit, it would proceed by deposition as provided for under Rule 71 of the Rules . Sub-rule 71(A) sets forth that, in the interests of justice and at the request of one of the parties, the Trial Chamber may in exceptional circumstances order depositions be taken by a duly mandated presiding officer. Upon obtaining the consent of the accused, the Trial Chamber granted the joint Motion of the parties to implement such a procedure and mandated the two remaining members of the Trial Chamber as presiding officers whilst the case-file relative to the depositions was subsequently transmitted to the full Trial Chamber. 110

6. The issue of the dismissal of some counts following the presentation of Prosecution evidence

55. After the close of the Prosecution case, the Defence filed a motion based on Rule 54 of the Rules alleging that, in legal terms, the Prosecutor had not managed to present evidence which enabled her to establish sufficient grounds justifying the proceedings brought against the accused. It consequently requested that fifteen counts be dismissed and that the scope of the five remaining counts be restricted 111 .

Upon the basis of new Rule 98 bis of the Rules and the foregoing Tribunal case-law grounded on Rule 54 of the Rules, the Trial Chamber confined the review of the Motion to only those theoretical cases where the Prosecutor had allegedly failed to provide the factual proof of one of the counts and a strong legal prima facie case in support of her allegations. In so doing, the Judges observed that none of the counts could be dismissed, in whole or in part, at this stage of the trial 112 .

7. The summoning of Trial Chamber witnesses pursuant to Rule 98 of the Rules

56. On 25 March 1999, the Trial Chamber ordered proprio motu the appearance of several witnesses in accordance with Rule 98 of the Rules 113 . At this stage of the proceedings, when the principal Prosecution and Defence witnesses had been heard, it held that in order to ascertain the truth about the crimes ascribed to the accused it was vital to make appear General Philippe Morillon 114 , Mr. Jean-Pierre Thébault 115 , Colonel Robert Stewart 116 , General Enver Hadzihasanovic 117 , General Milivoj Petkovic 118 and the successive commanders of the Seventh Muslim Brigade, namely, Colonels Serif Patkovic, Amir Kubara and Asim Koricic 119 .

57. The Trial Chamber rendered several subsequent Orders for each of the witnesses concerned in order to set the date and modalities of their testimony, the protective measures which they would enjoy and the subjects on which they were invited to testify. In this respect, it is appropriate to note that a procedure was established which ensured that the witness could give a spontaneous but not pre-drafted statement whilst guaranteeing the equality of the parties who were granted equal time to put their questions. The questions were restricted to the witnesses’ initial statements and were, in fact, asked before those of the Judges 120 .

8. The procedure for determining the sentence

58. The Judges proved their flexibility in letting the witnesses testify, where need be, on elements which might have appeared more specifically relevant to determining a possible sentence, at the very least once the Rules were amended to provide for trials’ being one single stage 121 . This held all the more true for the accused whom the Defence called in this context even before the start of his cross-examination as a witness. The Prosecution did not present any witnesses in this respect.