Case No.: IT-04-83-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
7 September 2005

PROSECUTOR

v.

RASIM DELIC

_____________________________________________

DECISION ON DEFENCE MOTION CHALLENGING JURISDICTION OF THE INTERNATIONAL TRIBUNAL

_____________________________________________

The Office of the Prosecutor:

Mr. Daryl A. Mundis
Ms. Tecla Henry-Benjamin
Ms. Marie Tuma

Counsel for Rasim Delic

Ms. Vasvija Vidovic

 

THIS TRIAL CHAMBER of 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 ("International Tribunal"),

BEING SEISED of a "Defence Motion Challenging Jurisdiction of the International Tribunal" filed on 27 July 2005 ("Motion") by the Defence of Rasim Delic (“Accused”) in which the Defence "requests the Trial Chamber to:

    1. Hold that the International Tribunal does not have jurisdiction over Counts 1 and 2 in the Indictment - in relation to alleged violations of 8 June 1993 in Maline Bikosi - as no superior to subordinate relationship existed between the Accused and the supposed perpetrators of these alleged violations;

    2. Order that the alleged ‘8 June 1993 Maline Bikoši violations’ be removed from Counts 1 and 2 of the Indictment; and

    3. Order the proceedings against the Accused to continue for the other charges and alleged violations in the Indictment."1

NOTING a "Prosecution Response to the Defence Motion Challenging Jurisdiction of the International Tribunal" filed on 5 August 2005 ("Response") by the Office of the Prosecutor ("Prosecution") in which the Prosecution requests that the Motion be denied,2

NOTING a "Defence Motion Seeking Leave to Reply to the Prosecution Response to the Defence Motion Challenging Jurisdiction of the International Tribunal" filed on 12 August 2005 ("Reply") by the Defence in which the Defence seeks leave to file the Reply and reiterates its request in the Motion,3

NOTING that the Indictment charges the Accused with 4 counts pursuant to Articles 3 and 7(3) of the Statute of the International Tribunal ("Statute") and that Counts 1 and 2 of the Indictment concern, inter alia, allegations of murder and cruel treatment perpetrated by the Mujahedin, or foreign Muslim fighters, in Maline/Bikosi on 8 June 1993, the day that the Accused allegedly assumed the post of Commander of the Main Staff of the Army of Republic of Bosnia and Herzegovina ("ARBiH"),4

NOTING that the Indictment alleges the Mujahedin "began arriving in Bosnia and Herzegovina sometime during the middle of 1992" and were incorporated and subordinated into the units of the ARBiH 3rd Corps,5

NOTING that the Defence requests the removal of the allegations concerning the events of 8 June 1993 in Maline/Bikosi because it submits that "it is materially not possible for the new position of the Commander of the Main Staff to have been created; for the Accused to have been appointed to hold this post; and for the Accused to have assumed his new functions and established the exercise of effective control over the units of the ARBiH - let alone the ‘Mujahedin’ - before the alleged violations in Maline Bikoši on 8 June 1993",6

NOTING that the Defence makes its request based upon the decision of the Appeals Chamber holding that "an accused cannot be charged under Article 7(3) of the Statute for crimes committed by a subordinate before the said accused assumed command over that subordinate",7

NOTING that the Prosecution submits that the "Motion presents factual issues which must be determined at trial, based on the totality of the evidence presented", rather than issues resolved under Rule 72(A)(i) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") as challenges to the jurisdiction of the International Tribunal,8

CONSIDERING that the Indictment does not charge the Accused under Article 7(3) of the Statute for crimes committed by his subordinates before the Accused assumed command over his subordinates; rather, the Indictment charges the Accused for crimes committed on the day that the Accused assumed his post as Commander of the Main Staff of the ARBiH,

CONSIDERING that the questions of whether, at the time of commission of the crimes on 8 June 1993, a superior-subordinate relationship existed between the Accused and the alleged perpetrators, and the Accused had effective control over them, are matters for trial.

PURSUANT TO Rule 72 of the Rules,

HEREBY DENIES the Motion.

 

Done in English and French, the English text being authoritative.

______________
Judge Patrick Robinson
Presiding

Dated this seventh day of September 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Motion, para. 20.
2. Response, para. 17.
3. Reply, paras 2 and 31.
4. Indictment, paras 12, 24-27. Other allegations of murder and cruel treatment concern the Kamenica Camp. See Indictment, paras 28-40.
5. Indictment, paras 12-13. According to the Indictment, the Accused "ordered the establishment within the A[R]BiH 3rd Corps area of responsibility of the "El Mujahed" unit comprised of foreign volunteers, with immediate effect, but not later than 31 August 1993." Indictment, para. 14.
6. Motion, para. 18.
7. "Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility", Prosecutor v. Hadzihasanovic et al., Case No. IT-01-47-AR72, 16 July 2003, para. 51. See Motion, paras 10-14.
8. Response, para. 2.