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:
13 December 2005

PROSECUTOR

v.

RASIM DELIC

________________________________________________________

DECISION ON DEFENCE MOTION ALLEGING DEFECTS IN THE FORM OF THE INDICTMENT AND ORDER ON PROSECUTION MOTION TO AMEND THE INDICTMENT

________________________________________________________

The Office of the Prosecutor:

Mr. Daryl A. Mundis
Ms. Tecla Henry-Benjamin
Ms. Marie Tuma
Mr. Matthias Neuner
Mr. Kyle Wood

Counsel for Rasim Delic:

Ms. Vasvija Vidovic

I. Introduction

1. This Trial Chamber is seized of a “Defence Motion Alleging Defects in the Form of the Indictment” (“Defence Motion”), filed on 27 July 2005 by the Defence of Rasim Delic (“Accused”) pursuant to Rule 72 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”). The Defence Motion challenges the Indictment issued against the Accused and requests (i) that certain allegations be removed from the Indictment; (ii) that counts be charged in the alternative; and (iii) that language in the Indictment be supplemented or amended. The Office of the Prosecutor (“Prosecution”) filed a “Prosecution Response to the Defence Motion Alleging Defects in the Form of the Indictment” on 5 August 2005 (“Prosecution Response”) and a “ Prosecution Corrigendum to Response to the Defence Motion Alleging Defects in the Form of the Indictment” on 10 August 2005 (“Corrigendum”). The Prosecution Response and Corrigendum request the deferral of a decision regarding one of the issues raised in the Defence Motion, and indicate either the willingness or opposition on the part of the Prosecution to amend parts of the Indictment as requested by the Defence. On 15 August 2005, the Defence filed a “Defence Motion Seeking Leave to Reply to the Prosecution Response to the Defence Motion Alleging Defects in the Form of the Indictment and Request for Variation of Time Limits Pursuant to Rule 127(A)( ii)” (“Defence Reply”), in which the Defence puts forth its position with respect to the Prosecution Response and reiterates the majority of its requests in the Defence Motion.

II. The Indictment and Related Procedural Background

2. On 16 February 2005, Judge Carmel Agius confirmed the Indictment and ordered that there be no public disclosure of the Indictment or of the supporting material until further order.1 Subsequently, Judge Agius vacated the order for non-disclosure “insofar as it pertains to the Indictment with specific reference to Rasim Delic.”2 On 25 February 2005, the President of the International Tribunal assigned the case to this Trial Chamber.3

3. On 16 March 2005, upon motion by the Prosecution, this Trial Chamber ordered that the names of three alleged sexual assault victims contained in the Indictment be substituted by pseudonyms for their privacy and protection.4 Consequently, on 17 March 2005, the Prosecution submitted the redacted Indictment dated 17 March 2005.5 This is the Indictment to which this Decision refers.

4. The Indictment charges the Accused with four counts of crimes constituting violations of the laws or customs of war—murder, rape and cruel treatment—under Article 3 of the Statute of the International Tribunal (“Statute”). The Accused is charged on the basis of his superior or command responsibility, pursuant to Article 7(3) of the Statute, as the Commander of the Main Staff of the Army of the Republic of Bosnia and Herzegovina (“ARBiH”).6

5. At his initial appearance before the International Tribunal on 3 March 2005, the Accused pleaded not guilty to all four counts in the Indictment.

III. General Pleading Principles

6. Pursuant to Article 18(4) of the Statute and Rule 47(C) of the Rules, an indictment must contain a concise statement of the facts of the case and the crime or crimes with which the accused is charged. These provisions should be interpreted in conjunction with the rights of the accused pursuant to Article 21(2) and Article 21(4)(a) and (b) of the Statute, which provide for the right of an accused to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence. This right translates into an obligation on the part of the Prosecution to plead the material facts underpinning the charges against the Accused. The pleadings in an indictment are sufficiently particular when they concisely set out the material facts with enough detail to inform the accused clearly of the nature and cause of charges against him, thereby enabling him to prepare a defence effectively and efficiently. The Prosecution is, however, not required to plead the evidence by which such material facts are to be proven.7

7. The materiality of a particular fact—such as the identity of the victim, the time and place of the offence, and the means by which the offence was committed—depends on the nature of the Prosecution case. A decisive factor is the nature of the alleged criminal conduct charged against the accused and, in particular, the proximity of the accused to the events alleged in the indictment.8 As the Appeals Chamber has held,

[a]s the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the Prosecution relies to establish his responsibility as an accessory or a superior to the persons who personally committed the acts giving rise to the charges against him.9

In this respect, the Trial Chamber notes that the Appeals Chamber has recently been seized of challenges to indictments based on the vagueness of their terms, and has strictly applied the requirement that the acts and conduct of the accused on which the Prosecution relies to establish criminal responsibility are material facts to be pleaded in an indictment.10

8. When an indictment is based on responsibility pursuant to Article 7(3) of the Statute, as is the Indictment in the present case, it should plead the following:

(a) (i) that the accused is the superior of (ii) subordinates sufficiently identified, (iii) over whom he had effective control—in the sense of a material ability to prevent or punish criminal conduct—and (iv) for whose acts he is alleged to be responsible ;

(b) the conduct of the accused by which he may be found to (i) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates, and (ii) the related conduct of those others for whom he is alleged to be responsible … ; and

(c) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.11

9. Where the state of mind with which the accused carried out his alleged acts is relevant, the Prosecution must plead either (i) the relevant state of mind as a material fact, in which case the facts by which that state of mind is to be established are ordinary matters of evidence, and need not be pleaded, or (ii) the facts from which the relevant state of mind is to be inferred.12

IV. The Defence Motion

10. The Defence Motion arranges the alleged defects in the Indictment under the headings A. “Defects Related to Counts 1, 2, 3 and 4”; B. “Defects Related to Legal Pleadings ”; and C. “Defects Related to Factual Allegations”. Although the Trial Chamber does not find that these headings accurately reflect the alleged defects, this Decision will discuss the Defence’s submissions under the headings provided in the Defence Motion.

A. Defects Related to Counts 1, 2, 3 and 4

(1) Count 1

The Parties’ Submissions

11. Paragraphs 35 and 36 of the Indictment provide:

35. On 11 September 1995, approximately 60 soldiers of the VRS were captured along with civilians, including three females, who had remained after Vozuca was taken. The captured group was briefly taken to Kesten, Zavidovici Municipality, and was then transferred to the Kamenica Camp.

36. With the exception of three female civilians, all of the approximately 60 VRS soldiers that were captured in Vozuca and subsequently taken to Kesten and then to Kamenica are missing and presumed dead. Those victims whose identities are known are set forth in Annex C in this Indictment.13

12. The Defence argues that the allegation in paragraphs 35 and 36 of the Indictment relating to the murder of approximately 60 soldiers of the Army of the Serbian Republic of Bosnia and Herzegovina (“VRS”) “is insufficient to allow the Accused to know the case he has to meet.”14 The Defence submits:

The Indictment fails to state with any degree of precision, whether the Prosecution’s case is that the 60 VRS soldiers would have been killed by subordinates of the Accused. It is not known either how, when and where these soldiers were allegedly killed, nor is the identity of the alleged perpetrators stated with sufficient precision.15

Accordingly, the Defence requests that the Prosecution “be ordered to set out the material facts of its case with enough detail to inform the Accused clearly of the nature and cause of Count 1 in relation to these 60 VRS soldiers, to enable him to prepare the case for the Defence.”16 If the Prosecution is not in a position to do so, the Defence requests that the allegations regarding these VRS soldiers be removed from the Indictment.17

13. The Prosecution requests a deferral of the decision on this matter since it is in the process of translating and analysing recently obtained additional evidence relating to Count 1 of the Indictment. After completion of its review, the Prosecution “anticipates that it will be in a better position to particularise paragraphs 34-39 of the Indictment ”.18 Nevertheless, the Prosecution submits that, in brief, its case is that these VRS soldiers were murdered by members of the El Mujahed19 unit of the ARBiH, under the command and control of the Accused.20

14. In its Reply the Defence opposes the deferral of the decision on this matter, and reiterates its request that the allegation be removed from the Indictment.21

Discussion

15. The allegation related to these 60 VRS soldiers includes the following information : that they were captured in Vozuca; that they were taken to Kesten and Kamenica Camp; and that they are now missing and presumed dead. A list of 14 of the names of these soldiers is included in an Annex to the Indictment entitled “Known Victims in the Kamenica Camp from the VRS soldiers who surrendered in and around Vozuca on 11 September 1995”.22 From this information in the Indictment, it is not clear if the Prosecution’s case is that these missing and presumed dead VRS soldiers were murdered, and if so, how the soldiers were murdered, what the identity of the alleged perpetrators is,23 and whether the Prosecution is alleging that the alleged perpetrators are subordinates of the Accused. Moreover, the Trial Chamber notes that the location of the alleged crimes and the timeframe during which they occurred are vague. It is unclear whether the Prosecution is alleging that all the crimes occurred in Kamenica Camp, or that some of the crimes occurred in other areas mentioned in the paragraphs, such as Vozuca and Kesten; it is also unclear whether the Prosecution is alleging that the crimes occurred sometime soon after the soldiers were captured on 11 September 1995, or after a considerably longer period. Thus, the Trial Chamber finds that the allegation related to these VRS soldiers is not pleaded with sufficient particularity to inform the Accused clearly of the nature and cause of charges against him, enabling him to prepare a defence effectively and efficiently.

16. With respect to the Prosecution’s request for deferral based on its anticipation that it would be “in a better position to particularise paragraphs 34-39 of the Indictment”,24 there is no justification which would permit such a request. The Indictment, as the primary accusatory instrument, must plead with sufficient detail the essential parts of the Prosecution case,25 and must not make vague allegations on the basis that they might be clarified when additional evidence is analysed.

17. For the foregoing reasons, the Defence request is granted. The Prosecution is ordered to provide the material facts pertaining to the death of these VRS soldiers, including whether it is the Prosecution’s case that these soldiers were murdered and, if so, how they were murdered, the identity of the alleged perpetrators, and their relationship with the Accused. Additionally, the Prosecution should include details as to approximately where and when these VRS soldiers were murdered. If the Prosecution is not in a position to provide the aforementioned material facts, it should remove the allegation from the Indictment.

(2) Count 2

The Parties’ Submissions

18. Trial Chamber II in Prosecutor v. Hadzihasanovic and Kubura noted that there was “not sufficient evidence that cruel treatment within the meaning of Article 3 of the Statute occurred in Maline on 8 June 1993” upon reviewing the seriousness of the injuries suffered by four individuals who survived the alleged massacre in Maline/Bikosi.26 Consequently, Trial Chamber II acquitted the two accused in that case of the count of cruel treatment relating to the crimes committed in Maline/Bikosi.27 During the time of the alleged event in Maline/Bikosi, the Accused Enver Hadzihasanovic is alleged to have been the Commander of the ARBiH 3rd Corps. The Accused Amir Kubura is alleged to have been the Chief of Staff of the ARBiH 3rd Corps 7th Muslim Mountain Brigade, temporarily acting as the substitute for Asim Koricic, the then-assigned Commander of the 3rd Corps 7th Muslim Mountain Brigade.28

19. The Defence argues that “the Accused in this case cannot be accused pursuant to Article 7(3) of the Statute for an alleged violation for which subordinate commanders were acquitted” in light of the Decision of Trial Chamber II in Prosecutor v. Hadzihasanovic and Kubura.29 In addition, the Defence submits that, considering that the Prosecution did not appeal the acquittal of the accused related to the allegation of cruel treatment in Maline /Bikosi, the Decision of Trial Chamber II “must be considered as final.”30 Accordingly, the Defence submits that the allegation in paragraph 26 of the Indictment should be removed from the Indictment.31

20. The Prosecution opposes the submission of the Defence and responds that the finding of Trial Chamber II is not binding;32 the fact that the Prosecution did not appeal this matter has no bearing on this issue;33 and the Defence “raises an evidentiary issue that is best left for resolution at trial and does not merit removal from the present Indictment at the pre-trial stage of the proceedings.”34

Discussion

21. The parties fail to recognise that the factual basis upon which Trial Chamber II rendered its decision in Prosecutor v. Hadzihasanovic and Kubura is different from the factual basis of the present case: the Indictment in Hadzihasanovic and Kubura specifically pleaded four named individuals as seriously wounded during the alleged event in Maline/Bikosi, and consequently Trial Chamber II reached its determination of acquittal of the Accused in that case based on evidence regarding these four individuals.35 However, in the present Indictment against this Accused there are at least two other named individuals in addition to those four named in the Hadzihasanovic and Kubura Indictment.36 Therefore, the Trial Chamber hearing the present case will reach a determination based on evidence regarding the factual basis of the present case. In other words, the acquittal of the Accused in Hadzihasanovic and Kubura on the factual basis of that case has no bearing on the Indictment in the present case.

22. For the foregoing reasons, the Defence request is denied.

(3) Counts 3 and 4

The Parties’ Submissions

23. The Defence argues that Counts 3 (Rape) and 4 (Cruel Treatment) relating to the events in Kamenica Camp between 11 September and 13 September 1995 should be charged in the alternative, since the Counts arise from the “same supposed conduct on the part of subordinates of the Accused”37 and the crime of cruel treatment “can be said to include rape as alleged in the Indictment.”38

24. The Prosecution responds that this is a matter of cumulative charging which is permissible in the jurisprudence of the International Tribunal.39

Discussion

25. The Trial Chamber notes that the Defence provides no legal basis for its request in two respects.40 First, if the Defence is raising issues concerning cumulative charging, it is in error since cumulative charging is permissible under the jurisprudence of the International Tribunal.41 Second, despite the Prosecution’s Response, the Trial Chamber notes that the matter raised may not even be relevant to the issue of cumulative charging in light of the fact that the underlying offences charged in Counts 3 and 4 include the allegation that the women were “beaten and kicked, hit with metal sticks and rifle butts and subjected to sexual assaults, including rape.”42 In this respect, it appears more appropriate to view the Counts as pertaining to different allegations and not as a matter of cumulative charging, that is, the act (s) of rape committed against the three women fall under Count 4 of the Indictment, while those acts not including rape fall under Count 3.

26. For the foregoing reasons, the Defence request is denied.

(4) Counts 1, 2, 3, and 4

The Parties’ Submissions

27. The Defence makes two arguments relating to Counts 1, 2, 3, and 4: (i) the pleading of “failed to take the proper steps” contained in paragraphs 27, 33, 40, and 43 of the Indictment is not the applicable standard;43 and (ii) “it is not clear from paragraphs 19, 23, 33, 40 and 43 of the Indictment what is the Prosecution’s case for each alleged event or Count in the Indictment.”44 Accordingly, the Defence requests (a) that the pleading of “failed to take the proper steps” be replaced with “failed to take the necessary and reasonable measures”;45 and (b) that the Prosecution “provide further information” and “clarify its case for each event alleged in the Count in the Indictment.”46

28. The Prosecution responds that it is prepared to make the replacements in paragraphs 27, 33, 40, and 43 of the Indictment as requested by the Defence,47 and states the following position regarding paragraphs 19, 23, 33, 40, and 43 of the Indictment:

Paragraphs 19 and 23 of the Indictment state the responsibility of the Accused Rasim DELIC pursuant to Article 7(3) of the Statute. Paragraph 33 of the Indictment sets forth the specific liability of the Accused DELIC pursuant to Article 7(3) of the Statute with respect to the events alleged in paragraphs 28-32 of the Indictment. Paragraph 40 of the Indictment sets forth the specific liability of the Accused DELIC pursuant to Article 7(3) of the Statute with respect to the events alleged in paragraphs 34-39 of the Indictment. Paragraph 43 of the Indictment sets forth the specific liability of the Accused DELIC pursuant to Article 7(3) of the Statute with respect to the events alleged in paragraphs 41-42 of the Indictment.48

29. The Defence replies that it is satisfied with the response from the Prosecution.49

30. The Trial Chamber is satisfied that, in the current circumstances in which the Prosecution submits that it is prepared to amend the Indictment in paragraphs 27, 33, 40, and 43 using the applicable legal standard, and the Defence indicates its satisfaction with the response from the Prosecution regarding paragraphs 19, 23, 33, 40, and 43, it need only order the Prosecution to amend the Indictment using the applicable legal standard as it proposes.

Defects Related to Legal Pleadings

(1) Paragraph 17 of the Indictment

The Parties’ Submissions

31. Paragraph 17 of the Indictment pleads:

In particular, as Commander of the Main Staff, Rasim DELIC exercised military command and control of the ASRCBiH in coordination with paramilitary forces and volunteer units, regular and reserve police forces re-subordinated to the ASRCBiH by the Ministry of Interior, as well as other civilian bodies, including regional and municipal crisis staffs.50

32. The Defence argues that paragraph 17 of the Indictment is unclear with respect to the subordinates over which the Accused allegedly exercised command and control. It submits:

If the Prosecution’s pleading is that the Accused exercised command and control over all army units, paramilitary forces, volunteers units as well as over regular and reserve police forces, this should be made clear and the basis for such a pleading must be provided. If however, the Prosecution is pleading that ‘non army forces’ were at times subordinated to the Accused, sufficient information in this regard must be provided. The alleged coordination with ‘other civilian bodies, including regional and crisis staffs’ is also imprecise. This should be clarified, including as a minimum, the identity of the said civilian bodies, the nature of the alleged relationship and the relevant time periods.51

33. The Prosecution responds that it is prepared to clarify the paragraph and proposes the following to replace paragraph 17 of the Indictment:

In particular, as Commander of the Main Staff of the ARBiH, Rasim DELIC exercised military command and control over the regular ARBiH forces throughout the Republic of Bosnia and Herzegovina, including the ARBiH 2nd Corps and 3rd Corps and the subordinate units of those Corps, including with respect to the 3rd Corps, the El Mujahed unit. Each ARBiH Corps had a Corps commander and command staff, all of whom were subordinated to Rasim DELIC. From 27 June 1992, all reserve units of the RBiH Ministry of Interior were re-subordinated to the ARBiH. As Commander of the Main Staff of the ARBiH, Rasim DELIC exercised command and control functions over such units.52

34. The Defence is not satisfied with the paragraph proposed by the Prosecution and submits that it is not possible to know from the proposal “which reserve units of the RBiH Ministry of Interior would have been re-subordinated to the ARBiH” and that “SfCurther precision must be given, in light of the existing paragraph whether this includes police, MUP or other paramilitary or volunteer units.”53 Further, the Defence argues that “StChe Prosecution should also be ordered to make it clear whether the factual allegations in respect of civilian bodies, including regional and municipal crisis staff is removed as it appears from the new para. 17.”54

Discussion

35. The Trial Chamber notes that all the crimes in the Indictment are alleged to have been perpetrated by members of either the Mujahedin55 or the El Mujahed unit.56 The Mujahedin is alleged to have been incorporated and subordinated within the units of the ARBiH 3rd Corps, including the 7th Muslim Mountain Brigade of the ARBiH 3rd Corps, while the El Mujahed unit is alleged to have been a unit, established by order of the Accused, of the ARBiH 3rd Corps.57 Further, the Indictment alleges that at all times relevant to the Indictment the ARBiH 3rd Corps was a “subordinate formation under the command and effective control of the accused, Rasim DELIC.”58 In effect, the Indictment pleads that the Mujahedin and the El Mujahed unit, which were subordinated to the ARBiH 3rd Corps, were under the command and effective control of the Accused. In light of these pleadings, paragraph 17 of the Indictment is unclear in alleging that the Accused “exercised military command and control of the ARBiH in coordination with paramilitary forces and volunteer units”.59 This is because the paragraph appears to introduce an allegation that the exercise of command and effective control by the Accused over the Mujahedin and/or the El Mujahed unit involved the coordination of the “non-regular” ARBiH forces—that is, paramilitary forces and volunteer units, regular and reserve police forces re- subordinated to the ARBiH by the Ministry of Interior, and civilian bodies, including regional and municipal crisis staffs.60 If this is the case, the Prosecution should plead such “non-regular” ARBiH forces, as they would constitute material facts.

36. With respect to the proposed amended paragraph 17 of the Indictment suggested by the Prosecution in its Response, the Trial Chamber notes that there is reference to the El Mujahed unit, but that there is no mention of the Mujahedin. Although the subordination of the Mujahedin to the units of the ARBiH 3rd Corps, including the 7th Muslim Mountain Brigade of the ARBiH 3rd Corps, is pleaded in paragraph 13 of the Indictment, and while the proposed amended paragraph 17 pleads that the Accused exercised military command and control over the ARBiH 3rd Corps, the Trial Chamber notes that it is necessary to add reference to the Mujahedin in the proposed amended paragraph. Additionally, the Trial Chamber does not see the relevance of the reference to the reserve units of RBiH Ministry of Interior in the penultimate line of the proposed amended paragraph, since there is no allegation in the Indictment regarding their activities with respect to the crimes charged against the Accused. Therefore, the Trial Chamber notes that the proposed amended paragraph is unsatisfactory so long as it makes reference to the reserve units without further explanation.

37. For the foregoing reasons, the Defence request is granted. The Prosecution is ordered to amend paragraph 17 of the Indictment and, if it decides to utilise the proposed amended paragraph, it should refer to the Mujahedin, and either remove the reference to the reserve units of the RBiH Ministry of Interior or provide further explanation as to its relevance.

(2) Paragraph 22 of the Indictment

The Parties’ Submissions

38. Paragraphs 21 and 22 of the Indictment provide:

21. At all times relevant to this indictment, an armed conflict existed in the territory of Bosnia and Herzegovina.

22. At all times relevant to this indictment, Rasim DELIC was required to abide by the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 1949 and Additional Protocols thereto. As the Commander of the ASRCBiH, Rasim DELIC was responsible for ensuring that military units under his command and effective control respected and applied these rules of international law. Moreover, Rasim DELIC was obliged by superior order to initiate proceedings for legal sanctions against individuals under their command and effective control who had violated the international law of war or international humanitarian law.61

39. The Defence argues that paragraph 22 of the Indictment is unclear since the nature of the armed conflict—that is, internal or international—is not pleaded in paragraph 21. Accordingly, the Defence requests that paragraph 22 of the Indictment be modified to plead “that the Accused was at all times required to abide by the ‘applicable’ laws and customs oSfC war. If however, the Prosecution’s case is that the Geneva Conventions and the Additional Protocols thereto find application in this case, the Prosecution should be ordered to provide the legal basis for this pleading.”62 The Defence submits that the laws applicable in internal and international conflicts are not the same, and that the issue the Defence raises is that the “exercise of command by the Accused can only be assessed in light of the laws applicable at the time”.63

40. The Prosecution responds that “it is not required to characterise the armed conflict, since the applicable law is the same in either type of armed conflict”, and that paragraphs 21 and 22 of the Indictment clearly set forth the legal obligation of the Accused “to obey the laws and customs of war, including the 1949 Geneva Conventions and 1977 Additional Protocols.”64

Discussion

41. The Accused is charged pursuant to Article 3 of the Statute, which governs violations of the laws or customs of war applicable to both internal and international armed conflicts.65 In this respect, a distinction should be made with charges made pursuant to Article 2 of the Statute, which governs grave breaches of the Geneva Conventions of 1949 applicable only to international conflicts.66 If the Prosecution had pleaded violations of Article 2 of the Statute, necessitating the establishment of the armed conflict as international, the internationality of the conflict would have been a material fact which would need to be pleaded in the Indictment.67 However, this is not the case in the Indictment against the Accused. The Accused is charged with offences relating to murder, rape, and cruel treatment allegedly committed by his subordinates, specifically as violations of the laws or customs or war pursuant to Article 3 of the Statute. None of these offences requires that the conflict be international in character for the charges to be made out.

42. This is not to say that the character of the conflict may never be relevant where an accused is charged pursuant to Article 3 of the Statute; there may be offences charged pursuant to Article 3 of the Statute that would require internationality to be established under customary international law.68 If the Prosecution seeks to allege violations of the laws or customs of war pursuant to Article 3 of the Statute, the character of which requires under customary international law—as a general element—that the conflict be international, then the Prosecution would be required to plead internationality. However, no such offences arise on the current Indictment. The position taken by the Prosecution in its response, along with the reaffirmation of this position in the Status Conference of 3 November 2005,69 are clear indications that the Prosecution does not intend to establish the commission of any offence for which proof of an international armed conflict is required.

43. For the foregoing reasons, the Defence request is denied.

(3) Paragraph 10 of the Indictment

The Parties’ Submissions

44. Paragraph 10 of the Indictment pleads:

From May 1992 until at least January 1994, the ASRCBiH participated in an armed conflict with the Croatian Defence Council (hereafter: HVO) and the Army of the Republic of Croatia (hereafter: HV). In particular, in April 1993 and in early summer of 1993, ASRCBiH 3rd Corps units launched a series of heavy attacks against the HVO including, but not limited to, the municipalities of Bugojno, Busovaca, Kakanj, Maglaj, Novi Travnik, Travnik, Vares, Vitez, Zavidovici, Zenica and Zepce. The ASRCBiH operations culminated in a massive attack between 7 and 13 June 1993 within, inter alia, the municipalities of Kakanj, Travnik and Zenica.70

45. The Defence argues that paragraph 10 of the Indictment, concerning the armed conflict between the ARBiH and the Army of the Republic of Croatia (“HV”), is defective as (i) “[i]t is not known where this conflict took place, what was the nature of the conflict or whether this is an allegation which is even material to the charges laid against the Accused”;71 and ( ii) reference to ARBiH “operations” is unclear.72 Accordingly, the Defence requests that the Prosecution (a) “clarify the allegation of armed conflict between the ARBiH and the HV or if this allegation is not material to the charges against the Accused, that it be removed”;73 and (b) make clear whether the reference to “operations” is to “combat activities ”.74

46. The Prosecution responds that (i) it is prepared to insert language that the armed conflict, commencing from May 1992 and lasting until at least January 1994 between the ARBiH, on the one hand, and the Croatian Defence Council (“HVO”) and HV, on the other, occurred in central Bosnia, and that the nature of the armed conflict need not be pleaded;75 and (ii) reference to ARBiH operations culminating in a massive attack is “clear, precise and justified.”76 Further, the Prosecution “anticipates that evidence will be adduced at trial that points to the involvement of the HV in the conflict in Central Bosnia.” 77

47. The Defence is not satisfied with the proposal of the Prosecution and submits that it must be made clear “SwChether the Prosecution’s case is that the HV from Croatia was helping and fighting with the HVO against the ARBiH or whether the HV was itself fighting the ARBiH which was thus fighting two complete armies in addition to the VRS”.78

Discussion

48. In light of the determination above in respect of the nature of the armed conflict,79 the Trial Chamber finds that reference to the armed conflict between the ARBiH and the HV is not relevant for the purposes of pleading any of the charges made against the Accused in the Indictment.

49. With respect to the second request concerning the reference to “operations”, the Trial Chamber notes that the Defence has not been clear in its submissions in the Defence Motion and has not offered a further explanation in its Defence Reply. The Trial Chamber does not see the ambiguity in the reference to “operations”, and understands it to be activities of the ARBiH which include direct combat activities.

50. For the foregoing reasons the Defence request is granted in part. The Prosecution is ordered to delete the reference to the HV in paragraph 10 of the Indictment. The Defence request is otherwise denied with respect to paragraph 10.

Defects Related to Factual Allegations

The Parties’ Submissions

51. The Defence argues that (i) the acronym “ABiH” used in the Indictment is incorrect and that the correct acronym is “ARBiH”;80 (ii) the village of Celic where the Accused was born is not located in Lopare municipality, but in Celic municipality;81 and (iii) reference to the Serbian Republic of Bosnia and Herzegovina in paragraph 8 of the Indictment is “factually and legally incorrect.”82 Accordingly, the Defence requests that (a) the correct acronym of “ARBiH” be used throughout the Indictment;83 (b) paragraph 1 of the Indictment be amended to refer to the Celic municipality;84 and (c) paragraph 1 of the Indictment be amended to reflect that “[t]he Serbian Republic of Bosnia and Herzegovina was never recognized and never existed as anything other than an illegal entity on the territory of the Republic of Bosnia and Herzegovina, where the war started.”85

52. The Prosecution responds that it is prepared to substitute the acronym “ABiH” for “ARBiH”; and indicate in the Indictment that Celic, located in Lopare municipality at the time of the birth of the Accused, now lies in Celic municipality.86 With respect to the reference to the Serbian Republic of Bosnia and Herzegovina, the Prosecution submits that, although the Defence’s proposal has “no effect on the Indictment,” it is prepared to insert a sentence reading: “On 12 August 1992, the name of the Serbian Republic of Bosnia and Herzegovina was changed to Republika Srpska.”87

53. The Defence is satisfied with the proposal in the Prosecution Response relating to the replacement of the acronym “ABiH” with “ARBiH” and the reference to Celic municipality as the current name of the municipality where the village of Celic is located.88 However, it is not satisfied with the proposal in the Prosecution Response regarding reference to the “Serbian Republic of Bosnia and Herzegovina”. It argues that

[i]n the context of a command responsibility case, the fact that the Accused was the Commander of the only legitimate army defending the territory of the Republic of Bosnia and Herzegovina, a significant part [of] which was invaded and occupied by two illegal armed forces—the VRS and the HVO—not to mention the army from the Republic of Croatia—the HV—has a direct and significant bearing on the reasonable and necessary measures which could be taken by the Accused to prevent subordinates from committing violations or to punish them if they did.89

In making its argument, the Defence submits that the Prosecution has information “favo[u]rable to the Accused”90 and that such information should be included in the Indictment to avoid “portraying the situation in RBiH in a one-sided manner to the detriment of the Accused.”91

Discussion

54. The Trial Chamber finds that the Indictment should be amended to use the acronym “ARBiH” and refer to the municipality of Celic. With respect to the reference to the “Serbian Republic of Bosnia and Herzegovina”, the Trial Chamber finds that the Defence provides no legal basis for its request. Moreover, in light of the arguments in the Defence Reply, it is evident that the issues raised by the Defence are matters of evidence to be adduced at trial. Finally, the Trial Chamber notes that it is unaware of any obligation on the part of the Prosecution to plead information favourable to an accused in its primary accusatory instrument and that, if the Prosecution is in possession of material favourable to the Accused in terms of its exculpatory nature, it is under an obligation to disclose it to the Defence pursuant to Rule 68 of the Rules.

55. For the foregoing reasons the Defence requests regarding the acronym ARBiH and Celic municipality are granted and the Prosecution shall be ordered to amend the Indictment as it proposes. The Defence request regarding the reference to the “Serbian Republic of Bosnia and Herzegovina” is denied.

V. Additional Matters

(A) Status of the Confidential and Ex Parte Filings

56. The Defence requests access to filings related to the confidential and ex parte “Prosecution Motion to Redact Indictment and to Redact Witness Statements that Formed Part of the Supporting Materials”, filed on 15 March 2005 (“Prosecution Motion to Redact”).92 The Prosecution does not oppose this request.93

57. The Trial Chamber finds that the request of the Defence is moot since the ex parte status of the filings related to the Prosecution Motion to Redact was lifted on 1 July 2005 pursuant to the order of the pre-trial Judge.94 It has been communicated to the Trial Chamber that the relevant filings were sent to the Defence on 1 July 2005.95

(B) Kamenica Camp

58. In the Prosecution Response, the Prosecution indicates that it would like to insert a sentence in the Indictment clarifying that “Kamenica Camp” and the “Gostovici Camp” are one and the same because some of its witnesses refer to Kamenica Camp as the “Gostovici Camp” due to its location in the Gostovic Valley next to the river Gostovici.96 The Defence does not oppose this insertion.97

59. The Trial Chamber finds that the proposal of the Prosecution brings clarity to the Indictment and orders the Prosecution to amend the Indictment as it proposes in the Prosecution Response.

VI. Application for Leave to Amend the Indictment

60. The Trial Chamber is seized of several filings in relation to the Prosecution’s confidential and partially ex parte “Submission of Proposed Amended Indictment and Application for Leave to Amend”, filed on 31 October 2005 (“Motion Seeking Leave to Amend”), in which the Prosecution seeks the Trial Chamber’s leave, pursuant to Rule 50(A) of the Rules, to amend the 15 February 2005 Indictment, and appends the proposed Amended Indictment and supporting materials.98 The Defence filed its “Response to Prosecution’s Submission of Proposed Amended Indictment and Application for Leave to Amend” on 21 November 2005 (“Defence Response to Motion Seeking Leave to Amend”), requesting the Trial Chamber to deny the Motion Seeking Leave to Amend the Indictment on grounds that, inter alia, it fails to establish a prima facie case against the Accused and is prejudicial to his right to a fair trial.99 On 28 November 2005, the Prosecution filed an “Application to Reply to and Reply to Defence Response to Prosecution’s Submission of Proposed Amended Indictment and Application for Leave to Ammend [sic]” (“Prosecution Reply”), arguing that the proposed Amended Indictment does indeed establish a prima facie case and does not unfairly prejudice the rights of the Accused.100

61. On 18 November 2005, the Prosecution submitted a “Motion Concerning Proposed Amended Indictment and Pre-Trial Scheduling Matters” (“Prosecution Stay Motion”), in which it requests an opportunity to assess the impact of the findings in the recent Halilovic Trial Judgement and in the upcoming Hadzihasanovic and Kubura Trial Judgement on the allegations in the proposed Amended Indictment.101 To this end, the Prosecution petitions the Trial Chamber either to stay the proceedings with respect to the proposed Amended Indictment “until 30 days after the rendering of the Hadzihasanovic & Kubura Trial Chamber Judgement” or, in the alternative, to “[p]ermit the Prosecution to withdraw without prejudice the proposed Amended Indictment, with the full understanding that the Prosecution will seek leave to amend and re-submit a proposed Amended Indictment after the rendering of the Hadzihasanovic & Kubura Trial Chamber Judgement.”102 The Defence objects to the Prosecution Stay Motion in its “Response to Prosecution Motion Concerning Amended Indictment and Pre-Trial Scheduling Matters”, filed on 2 December 2005 (“Defence Response to Stay Motion”), and requests that the Trial Chamber either deny the Prosecution Stay Motion, or grant the Prosecution leave to withdraw the proposed Amended Indictment with prejudice.103

62. Neither the Rules nor the jurisprudence of the Tribunal put forward an express time limit within which the Prosecution must file a motion for leave to amend the indictment. Pursuant to Rule 50(A)(i)(c) of the Rules, after a case has been assigned to a Trial Chamber, the Prosecution may amend the indictment, at any time,104 “with the leave of that Trial Chamber”.105 Nevertheless, as this Trial Chamber has held, “the test for whether leave to amend will be granted is whether allowing the amendments would cause unfair prejudice to the accused”,106 and one of the key factors to be taken into consideration in determining unfair prejudice is the stage of the proceedings at which the motion seeking leave to amend is made.107 The closer to trial the Prosecution makes its motion seeking leave to amend, the more likely it is that the Trial Chamber will deny the motion on the ground that to grant leave to amend would cause unfair prejudice to the accused by, for example, depriving him of an adequate opportunity to prepare an effective defence.108

63. The pre-trial Judge in this case has already evinced his concern that any motion to amend the Indictment should not unduly delay the proceedings or adversely affect their fairness, and has issued two Orders imposing time limits for the filing of the current Motion Seeking Leave to Amend.109 The Trial Chamber shares the concern that unfair prejudice and undue delay may result if the Indictment is amended at too late a stage of the proceedings, and emphasises that, at some point, the Accused must be able to proceed with preparing his case in full knowledge of all the charges that have been or will be brought against him. Therefore, while the Trial Chamber, in the interests of “ensur[ing] that the real issues in the case [are] determined”,110 will permit the Prosecution to withdraw without prejudice the Motion Seeking Leave to Amend so that it may assess the impact of Halilovic and Hadzihasanovic and Kubura on the proposed Amended Indictment, the Chamber will order the Prosecution to submit any new motion to amend the Indictment within the time limit specified in the Disposition, infra.111

VII. Disposition

64. Pursuant to Rules 72, 126 bis and 127 of the Rules, the Trial Chamber hereby ORDERS as follows:

(a) The Accused is GRANTED leave to file the late Defence Reply.

(b) The Defence Motion is GRANTED in part, and the Prosecution shall amend the Indictment by

(i) (1) providing the material facts related to the death of approximately 60 VRS soldiers, including whether it is the Prosecution’s case that these soldiers were murdered and, if so, how they were murdered, the identity of the alleged perpetrators, their relationship with the Accused, and the details as to approximately where and when these VRS soldiers were murdered, or (2) removing this allegation from the Indictment, if it is not in a position to provide the aforementioned material facts;

(ii) pleading that the Accused “failed to take the necessary and reasonable measures” in paragraphs 27, 33, 40, and 43 of the Indictment instead of “failed to take proper steps”;

(iii) amending paragraph 17 of the Indictment in light of the discussion contained in paragraphs 35–37 of this Decision;

(iv) deleting the reference to the HV in paragraph 10 of the Indictment;

(v) replacing the acronym “ABiH” in the Indictment with “ARBiH” and inserting “Republic ” in paragraph 3 of the Indictment;

(vi) providing the clarifications related to the Celic municipality as it proposes to do in paragraph 3 of the Corrigendum; and

(vii) providing the clarifications related to the Kamenica Camp as it proposes to do in paragraph 22 of the Prosecution Response.

65. Pursuant to Rules 50 and 54 of the Rules, the Trial Chamber hereby ORDERS as follows:

(a) The Prosecution Stay Motion is GRANTED in part.

(b) The Prosecution is GRANTED leave to withdraw without prejudice the Motion Seeking Leave to Amend the Indictment.

(c) The Prosecution shall file its new motion seeking leave to amend the Indictment within 30 days of the rendering of the Trial Judgement in Prosecutor v. Hadzihasanovic and Kubura.

66. The Defence Motion and the Prosecution Stay Motion are DENIED in all other respects.

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

__________________
Patrick Robinson
Presiding

Dated this thirteenth day of December 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Prosecutor v. Delic, Case No. IT-04-83-I, [Ex Parte and Under Seal] Decision on Review of Indictment and Order for Non-Disclosure, 16 February 2005.
2 - Prosecutor v. Delic, Case No. IT-04-83-I, Confidential and Ex Parte Order to Vacate in Part the Order for Non-Disclosure, 23 February 2005, p. 3. In a subsequent Decision, the confidentiality and ex parte status of this filing was lifted. See Prosecutor v. Delic, Case No. IT-04-83-I, Order Lifting the Confidentiality of the Order to Vacate in Part and Order for Non-Disclosure, 28 February 2005, p. 2.
3 - Prosecutor v. Delic, Case No. IT-04-83-I, Order Assigning a Case to a Trial Chamber, 25 February 2005, p. 2.
4 - Prosecutor v. Delic, Case No. IT-04-83-PT, [Confidential and Ex Parte] Decision on Prosecution Motion to Redact Indictment and to Redact Witness Statements that Formed Part of the Supporting Materials, 16 March 2005, pp. 2–3.
5 - See Prosecutor v. Delic, Case No. IT-04-83-PT, Indictment, 17 March 2005 (“Delic Indictment”).
6 - Ibid., paras. 19, 23.
7 - Prosecutor v. Perisic, Case No. IT-04-81-PT, Decision on Preliminary Motions, 29 August 2005 (“Perisic Trial Decision”), para. 5; Prosecutor v. Pavkovic, Lazarevic, Đordevic, and Lukic, IT-03-70-PT, Decision on Vladimir Lazarevic’s Preliminary Motion on Form of Indictment, 8 July 2005 (“Lazarevic Trial Decision”) (both citing Prosecutor v. Kupreskic, Kupreskic, Kupreskic, Josipovic, Papic, and Santic, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic et al. Appeal Judgement”), paras. 88–89).
8 - Perisic Trial Decision, supra note 7, para. 6 (citing Kupreskic et al. Appeal Judgement, supra note 7, para. 89).
9 - Prosecutor v. Galic, Case No. IT-98-29-AR72, Decision on Application by Defence for Leave to Appeal, 30 November 2001, para 15. For instance where, as here, the Accused is alleged to be in a senior leadership position and is not alleged to have personally perpetrated any of the underlying substantive crimes in the Indictment, less precision is required. See Perisic Trial Decision, supra note 7, para. 6 (citing Prosecutor v. Kvocka, Radic, Zigic, and Prcac, Case No. IT-98-30/1-A, Judgement, 28 February 2005 (“Kvocka et al. Appeal Judgement”), para. 65).
10 - Perisic Trial Decision, supra note 7, para. 6 (citing Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordic and Cerkez Appeal Judgement”), paras. 144, 147 and Kvocka et al. Appeal Judgement, supra note 9, para. 42). See also Lazarevic Trial Decision, supra note 7, para. 9.
11 - Perisic Trial Decision, supra note 7, para. 8; Lazarevic Trial Decision, supra note 7, para. 10 (both citing Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgement, 29 July 2004, para. 218 (footnotes omitted)).
12 - Perisic Trial Decision, supra note 7, para. 9 (citing Lazarevic Trial Decision, supra note 7, paras. 8–9).
13 - Delic Indictment, supra note 5, paras. 35–36.
14 - Defence Motion, para. 15.
15 - Ibid.
16 - Ibid., para. 19.
17 - Ibid., para. 20.
18 - Prosecution Response, para. 7.
19 - The El Mujahed unit is alleged to have been established by order of the Accused on 13 August 1993, and subordinated to the ARBiH 3rd Corps until its disbandment on 12 December 1995. See Delic Indictment, supra note 5, para. 14.
20 - Prosecution Response, paras. 7–8.
21 - Defence Reply, paras. 19–21.
22 - Delic Indictment, supra note 5, Annex C.
23 - In recent decisions, this Trial Chamber has held that if the identity and/or role of certain subordinates are not known, then the category to which they belong should be specified. See Perisic Trial Decision, supra note 7, para. 35; Lazarevic Trial Decision, supra note 7, para. 34.
24 - Prosecution Response, para. 7.
25 - Kupreskic et al. Appeal Judgement, supra note 7, para. 114.
26 - Prosecutor v. Hadzihasanovic and Kubura, Case No. IT-01-47-T, Decision on Motions for Acquittal Pursuant to Rule 98 bis of the Rules of Procedure and Evidence, 27 September 2004, paras. 54–55.
27 - Ibid., para. 55.
28 - Prosecutor v. Hadzihasanovic and Kubura, Case No. IT-01-47-PT, Third Amended Indictment, 26 September 2003 (“Hadzihasanovic and Kubura Third Amended Indictment”), paras. 3, 6.
29 - Defence Motion, para. 24.
30 - Ibid., para. 23.
31 - Ibid., para. 25. See also Defence Reply, paras. 24–26.
32 - Prosecution Response, para. 9 (citing Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 114 (“The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.”)).
33 - Prosecution Response, para. 10.
34 - Ibid., para. 11.
35 - Paragraph 39(c) of the Hadzihasanovic and Kubura Indictment reads: The massacre on 8 June 1993 in Bikosi— … Among the killed were the following persons: … Seriously wounded were Berislav MARJANOVIC, Zdravko PRANJES, Darko PUSELJA, and Zeljko PUSELJA. Hadzihasanovic and Kubura Third Amended Indictment, supra note 28, para. 39(c).
36 - Paragraph 26 of the Indictment against the Accused reads: At least six individuals received serious gunshot wounds in this massacre, but otherwise survived, including Pavo BARAC, Marijan BOBAS, Berislav MARJANOVIC, Zdravko PRANJES, Darko PUSELJA, and Zeljko PUSELJA. Delic Indictment, supra note 5, para. 26.
37 - Defence Motion, para. 28.
38 - Ibid., para. 28. See also ibid., para. 29, Defence Reply, para 29.
39 - Prosecution Response, para. 12 (citing Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-A, Judgement, 20 February 2001 (“Celebici Appeal Judgement”), para. 400).
40 - See Defence Motion, paras. 26–29; Defence Reply, para. 29.
41 - Moreover, the Trial Chamber notes that cumulative convictions under different statutory provisions, but based on the same conduct, are permissible “if each statutory provision involved has a materially distinct element not contained in the other.” Celebici Appeal Judgement, supra note 39, para. 412. See also Kordic and Cerkez Appeal Judgement, supra note 10, paras. 1032–1033.
42 - Delic Indictment, supra note 5, para. 41.
43 - Defence Motion, para. 32.
44 - Ibid., para. 33.
45 - Ibid., para. 32.
46 - Ibid., para. 34.
47 - Prosecution Response, para. 13.
48 - Ibid., para. 14.
49 - Defence Reply, paras 31, 33–35.
50 - Delic Indictment, supra note 5, para. 17.
51 - Defence Motion, para. 37.
52 - Prosecution Response, para. 16.
53 - Defence Reply, para. 37.
54 - Ibid.
55 - The Mujahedin, or foreign Muslim fighters, are alleged to have begun arriving in Bosnia and Herzegovina sometime during the middle of 1992 and to have been “incorporated and subordinated” into the units of the ARBiH 3rd Corps, including the 7th Muslim Mountain Brigade of the ARBiH 3rd Corps after its formation on 19 November 1992. See Delic Indictment, supra note 5, paras 12–13.
56 - Ibid., paras. 25, 28–29, 33, 40, 43.
57 - Ibid., paras. 13–14.
58 - Ibid., para.15.
59 - Ibid., para. 17 (emphasis added).
60 - Ibid., para. 15.
61 - Ibid., paras. 21–22.
62 - Defence Reply, para. 39.
63 - Defence Motion, para. 38 (emphasis in original).
64 - Prosecution Response, para.17 (emphasis in original).
65 - See Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 89 (holding that Article 3 of the Statute is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5 of the Statute, more specifically (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other that those classified as “grave breaches” by those Conventions; (iii) violations of Common Article 3 and other customary rules on internal conflicts; and (iv) violations of agreements not binding upon parties to the conflict, considered qua treaty law); ibid., para. 137 (holding that the International Tribunal has jurisdiction over crimes committed in violation of Article 3 of the Statute regardless of whether they occurred within an internal or international armed conflict).
66 - Ibid, para. 84.
67 - See Prosecutor v. Brdanin and Talic, Case No. IT-99-36-PT, Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001, paras 49, 52.
68 - See Prosecutor v. Hadzihasanovic and Kubura, Decision Pursuant to Rule 72(E) as to Validity of Appeal, 21 February 2003, para. 12, in which a three-judge Bench of the Appeals Chamber deciding on the validity of an appeal regarding jurisdictional challenges in respect of an indictment charging the Accused pursuant to Article 3 of the Statute, but without classifying the nature of the conflict, stated that “the prosecution should not be permitted to rely upon the imprecision of its current pleading in order to put forward a case that the armed conflict was international in character without a further amendment to its indictment to make this expressly clear.” The Bench proceeded to state, however, that “it is sufficient for present purposes to treat the Amended Indictment as pleading that the armed conflict was internal in character, or in the alternative that it was international in character.” Ibid. But see Prosecutor v. Hadzihasanovic and Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 7, in which the Appeals Chamber, deciding on a jurisdictional issue regarding superior responsibility, stated that it took “no position on whether the amended indictment should be treated as pleading only an internal armed conflict; it will proceed on the assumption that it can relate to such a conflict.”
69 - Prosecutor v. Delic, Case No. IT-04-83-PT, T. 60 (3 November 2005).
70 - Delic Indictment, supra note 5, para. 10.
71 - Defence Motion, para. 40.
72 - Ibid., para. 42.
73 - Ibid., para. 41.
74 - Ibid., para. 42.
75 - Prosecution Response, para. 18.
76 - Ibid., para. 21.
77 - Ibid., para. 20.
78 - Defence Reply, para. 41.
79 - See supra paras. 41–42.
80 - Defence Motion, para. 44.
81 - Ibid., para. 46.
82 - Ibid., para. 47.
83 - Ibid., para. 45.
84 - See ibid., para. 46.
85 - Ibid., para. 48.
86 - Prosecution Response, para. 4; Corrigendum, para. 3.
87 - Prosecution Response, para. 6.
88 - Defence Reply, paras. 12–13.
89 - Ibid., para. 14.
90 - Ibid., para. 16.
91 - Ibid., para. 17.
92 - Defence Motion, para. 11.
93 - Prosecution Response, para. 3.
94 - The order was made following the Status Conference of 29 June 2005.
95 - Court Records sent a confirmation via electronic mail on 1 July 2005 indicating that the filings were faxed to the Defence.
96 - Prosecution Response, para. 22. See also Delic Indictment, supra note 5, para. 29.
97 - In the Defence Reply, the Defence did not address this proposal from the Prosecution.
98 - The Prosecution has also submitted two other versions of the proposed Amended Indictment in response to orders of the pre-trial Judge: (1) the “Prosecution’s Submission of Redacted Proposed Amended Indictment”—a public version of the proposed Amended Indictment—filed on 3 November 2005; and (2) the “Prosecution’s Submission of Proposed Corrected Amended Indictment, Red-Line Proposed Amended Indictment and Corresponding Tables”, filed on 11 November 2005.
99 - Defence Response to Motion Seeking Leave to Amend, paras. 55–56.
100 - Prosecution Reply, para. 20.
101 - Prosecution Stay Motion, paras. 6, 8, 10.
102 - Ibid., para. 13 (emphasis in original).
103 - Defence Response to Stay Motion, paras. 35–36.
104 - See Prosecutor v. Martic, Case No. IT-95-11-PT, Decision on the Prosecution’s Motion to Request Leave to File a Corrected Amended Indictment, 13 December 2002, para. 21 (“Rule 50 of the Rules neither provides any parameters as to the exercise of discretion by a Chamber when seized [of] a Motion to grant leave to amend an indictment nor does it contain any express limits of such discretion.”); Prosecutor v. Milosevic, Case No. IT-02-54-T, Order Granting Leave to Amend the Croatia Indictment, 4 November 2002, p. 3 (granting Prosecution motion seeking leave to amend the Croatia Indictment some nine months after the start of trial).
105 - Rule 50(A)(i)(c) of the Rules.
106 - Prosecutor v. Halilovic, Case No. IT-01-48-PT, Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment, 17 December 2004 (“Halilovic Trial Decision”), para. 22.
107 - See ibid., para. 23. See also Prosecutor v. Karemera, Ngirumpatse, Nzirorera, and Rwamakuba, Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003 (“Karemera et al. Appeal Decision”), para. 13.
108 - See Prosecutor v. Seselj, Case No. IT-03-67-PT, Decision on Prosecution’s Motion for Leave to Amend the Indictment, 27 May 2005, para. 5; Halilovic Trial Decision, supra note 106, paras. 22–23; Prosecutor v. Brdanin and Talic, Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001 (“Brdanin and Talic Trial Decision”), para. 50.
109 - See Prosecutor v. Delic, Case No. IT-04-83-PT, Order of Pre-Trial Judge Arising from Status Conference, 8 July 2005 (“Delic Trial Decision”), p. 2 (setting a deadline of 30 September 2005); Prosecutor v. Delic, Case No. IT-04-83-PT, Decision on Prosecution’s Request for Additional Time to Seek Leave to Amend the Indictment, 29 September 2005, p. 3 (extending the deadline to 31 October 2005 upon being shown good cause for such an extension). The Trial Chamber notes that the 8 July 2005 Order was in response to the Prosecution’s own submission, at the Status Conference of 29 June 2005, that it would be in a position to file a motion for leave to amend the Indictment no later than the end of October 2005. See Prosecutor v. Delic, Case No. IT-04-83-PT, T. 33–34 (29 June 2005). The Prosecution Stay Motion is the first time that the Prosecution has raised before the Trial Chamber its purported need to assess the Halilovic and Hadzihasanovic and Kubura Trial Judgements in order to file a motion to amend the Delic Indictment, even though it is likely that the Prosecution knew as of the 29 June 2005 Status Conference that neither Judgement would be rendered before the end of October 2005.
110 - Brdjanin and Talic Trial Decision, supra note 108, para. 50. See also Karemera et al. Appeal Decision, supra note 107, para. 15, in which the Appeals Chamber held as follows: [A] Trial Chamber must examine the effect that the Amended Indictment would have on the overall proceedings. Although amending an indictment frequently causes delay in the short term, the Appeals Chamber takes the view that this procedure can also have the overall effect of simplifying proceedings … by improving the Accused’s and Tribunal’s understanding of the Prosecution’s case, or by averting possible challenges to the indictment or the evidence presented at trial. The Appeals Chamber finds that a clearer and more specific indictment benefits the accused, … because the accused can tailor their preparations to an indictment that more accurately reflects the case they will meet, thus resulting in a more effective defence.
111 - Cf. Delic Trial Decision, supra note 109, p. 2 (ordering the Prosecution to file its motion for leave to amend the Indictment by 30 September 2005); Prosecutor v. Mrskic, Radic, and Sljivancanin, Case No. IT-95-13/1-PT, Decision on Form of Consolidated Amended Indictment and on Prosecution Application to Amend, 23 January 2004, p. 22 (ordering the Prosecution to file a modified Consolidated Amended Indictment “by no later than 6 February 2004”); Prosecutor v. Milosevic, Case No. IT-02-54-T, Scheduling Order Concerning Amending the Croatia and Bosnia Indictments, 17 September 2002, p. 3 (ordering the Prosecution to amend the Bosnia and Croatia Indictments and to file them by 26 September 2002); Prosecutor v. Krnojelac, Case No. IT-97-25-PT, Order on the Prosecutor’s Motion for an Extension of Time to File an Amended In[d]ictment, 25 March 1999, p. 2 (ordering the Prosecution to file an Amended Indictment by 23 April 1999).