Case No.: IT-98-29/1-PT
Judge Alphons Orie, Presiding
Judge O-Gon Kwon
Judge Kevin Parker
Mr. Hans Holthuis
8 July 2005
DECISION ON REFERRAL OF CASE PURSUANT TO RULE 11 BIS
The Office of the Prosecutor:
Ms. Carla Del Ponte
The Government of Bosnia and Herzegovina
per The Embassy of Bosnia and Herzegovina to the Netherlands, The Hague
Counsel for the Accused:
Mr. Branislav Tapuskovic
The Government of Serbia and Montenegro
per The Embassy of Serbia and Montenegro to the Netherlands, The Hague
1. This Referral Bench1 of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seized of the “Motion by the Prosecutor under Rule 11 bis with Annexes I, II, and III” (“Motion”), filed on 31 January 2005, by which the Prosecution requests that the present case be referred to the authorities of Bosnia and Herzegovina under Rule 11 bis of the Rules of Procedure and Evidence (“Rules”).
2. Rule 11 bis, entitled Referral of the Indictment to Another Court, was adopted on 12 November 1997 and revised on 30 September 2002.2 Revision was necessary in order to give effect to the broad strategy endorsed by the Security Council for the completion of all Tribunal trial activities at first instance by 2008.3 This completion strategy was subsequently summarised in Security Council Resolution 1503 as one of “concentrating on the prosecution of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate….”4
3. Rule 11 bis in its current form reads:
(A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State :
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a case,
so that those authorities should forthwith refer the case to the appropriate court for trial within that State.
(B) The Referral Bench may order such referral proprio motu or at the request of the Prosecutor, after having given to the Prosecutor and, where applicable, the accused, the opportunity to be heard and after being satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out.
(C) In determining whether to refer the case in accordance with paragraph (A), the Referral Bench shall, in accordance with Security Council resolution 1534 (2004)5, consider the gravity of the crimes charged and the level of responsibility of the accused.
(D) Where an order is issued pursuant to this Rule:
(i) the accused, if in the custody of the Tribunal, shall be handed over to the authorities of the State concerned;
(ii) the Referral Bench may order that protective measures for certain witnesses or victims remain in force;
(iii) the Prosecutor shall provide to the authorities of the State concerned all of the information relating to the case which the Prosecutor considers appropriate and, in particular, the material supporting the indictment;
(iv) the Prosecutor may send observers to monitor the proceedings in the national courts on her behalf.
(E) The Referral Bench may issue a warrant for the arrest of the accused, which shall specify the State to which he is to be transferred to trial.
(F) At any time after an order has been issued pursuant to this Rule and before the accused is found guilty or acquitted by a national court, the Referral Bench may, at the request of the Prosecutor and upon having given to the State authorities concerned the opportunity to be heard, revoke the order and make a formal request for deferral within the terms of Rule 10.
(G) Where an order issued pursuant to this Rule is revoked by the Referral Bench, it may make a formal request to the State concerned to transfer the accused to the seat of the Tribunal and the State shall accede to such a request without delay in keeping with Article 29 of the Statute. The Referral Bench or a Judge may also issue a warrant for the arrest of the accused.
(H) A Referral Bench shall have the powers of, and insofar as applicable shall follow the procedures laid down for, a Trial Chamber under the Rules.
(I) An appeal by the accused or the Prosecutor shall lie as of right from a decision of the Referral Bench whether or not to refer a case. Notice of appeal shall be filed within fifteen days of the decision unless the accused was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the accused is notified of the decision.
4. The initial joint Indictment against Dragomir Milosevic and co-accused Stanislav Galic was confirmed on 24 April 1998. On 19 March 1999, leave was granted to sever the joint proceedings and on 26 March 1999 an amended indictment relating only to Dragomir Milosevic was filed. Dragomir Milosevic surrendered voluntarily to the authorities of Serbia and Montenegro on 3 December 2004 and was transferred to the Tribunal that same day.
5. On 31 January 2005, the Prosecutor filed the Motion requesting referral of the present case to the authorities of Bosnia and Herzegovina for trial at the appropriate domestic court.6 The following day the President of the Tribunal appointed the Referral Bench to consider whether the present case should be referred pursuant to Rule 11 bis of the Rules.7 On 9 February 2005, the Referral Bench ordered the parties and invited the Government of Bosnia and Herzegovina to file submissions on two questions, including the weight of each question:
a. Is the gravity of the crimes charged in the Indictment compatible with referral of the case to the authorities of Bosnia and Herzegovina under Rule 11 bis of the Rules?
b. Is the level of the responsibility of the Accused compatible with referral of the case to the authorities of Bosnia and Herzegovina under Rule 11 bis of the Rules? In particular, does Rule 11 bis (C) refer to the role of the Accused in the commission of the alleged offences, or to the position and rank of the Accused in the civil or military hierarchy, or to both?
6. On 21 February 2005 both the Prosecution and the Defence filed submissions in response to the Referral Bench’s order. The Defence submission also responded to the Motion.8
7. On 18 February 2005, at the instigation of counsel for the Accused, the Government of Serbia and Montenegro made a written submission in which it submitted that the present case should be referred to the authorities of Serbia and Montenegro.9 On 25 February 2005, the Government of Bosnia and Herzegovina submitted a response to the above-mentioned questions.10
8. The Indictment alleges that Dragomir Milosevic served as Chief of Staff of the Sarajevo -Romanija Corps (“SRK”) from around March 1993 and succeeded Major General Stanislav Galic as commander of the SRK on or about 10 August 1994.11 Dragomir Milosevic is charged with seven counts of violations of the laws or customs of war and crimes against humanity committed by the Sarajevo Romanija Corps (“SRK ”) under his command against the civilian population in Sarajevo, Bosnia and Herzegovina, from on or about 10 August 1994 to 21 November 1995.12 He is charged with individual criminal responsibility under both Article 7(1) and 7(3) of the Statute for each count.
9. The Indictment alleges that the SRK pursued a military strategy of shelling and sniping the inhabitants of Sarajevo, killing and wounding thousands of civilians.13 The Indictment furthermore alleges that from early April 1995 the SRK began to use large fragmentation bombs, designed to be dropped from aircraft, which were fitted to rocket propulsion units without guidance systems and which caused extensive material damage to property upon impact.14 The Indictment contains two “Schedules ” listing respectively 20 and 23 alleged acts of terror, shelling and sniping for which Dragomir Milosevic is allegedly responsible. It is noted in the Indictment that:
All Counts in this indictment allege the totality of the campaigns of sniping and shelling against the civilian population but the scale was so great that the Schedules to the individual groups of counts in this indictment set forth only a small representative number of individual incidents for specificity of pleading.15
10. The Indictment alleges that the SRK “formed a significant part of the VRS [Bosnian Serb Army] under the ultimate command of Ratko Mladic, Commander of the Main Staff and Radovan Karadzic […].”16 According to the Indictment, “during his period as Corps Commander of the SRK [Dragomir Milosevic] was in a position of superior authority to approximately 18,000 military personnel, formed into 10 brigades.”17 In his position as SRK commander, Dragomir Milosevic allegedly negotiated, signed and implemented an anti-sniping agreement, local cease-fire agreements, and participated in negotiations relating to heavy weapons and controlling access of UNPROFOR and other UN personnel to territory around Sarajevo.18
11. The Prosecution submits that the gravity of the crimes charged can be assessed from the Indictment in the present case and from the majority judgement against Stanislav Galic, Dragomir Milosevic’s former co-accused.19 Referring to this judgement, the Prosecution argues that “[t]he alleged crimes involve a pervasive and continuous campaign of shelling and sniping conducted at a large scale on an almost daily basis over many months.”20 The Prosecution considers that “[a]lthough these crimes are very grave, they were already tried before the International Tribunal in [Galic] and are now well documented in that judgement.”21 The Prosecution therefore concludes that:
If it is appropriate, as the Prosecution contends it is, to consider the level of this case in the context of the overall discharge of the Tribunal’s mandate, it is clear that its contribution to the historical record of the events during the conflict in the former Yugoslavia is reduced in importance. Had the trial of Stanislav Galic not taken place, and without the notorious events of the Sarajevo campaign having been fully addressed, there would have been no question of this Tribunal being able to say that it had properly fulfilled its mandate. As it is, it cannot be said, in the Prosecution’s view, that it is any longer imperative that the trial of Dragomir Milosevic is held in The Hague.22
12. As concerns the level of responsibility of the accused, the Prosecution submits that this “requires an assessment of two related factors: (a) the structural level of the accused, in terms of his or her place in a particular governmental-military -political hierarchy, and (b) the role of the accused himself or herself vis- à-vis the crimes charged.”23 Against this background, the Prosecution considers that:
[t]he accused in this case, as the corps commander of the SRK, was in a ‘very senior position’24 in the [VRS]. However within the context of the hierarchy of the VRS and the Republika Srpska authorities, he was not necessarily one of the most senior leaders. There are alleged perpetrators who occupied positions one to two tiers superior to his. These include Ratko Mladic, the commander of the Main Staff of the VRS, members of the Main Staff, Radovan Karadzic, the President of the Republika Srpska and designated Supreme Commander of its armed forces and other leading members of the government of the Republika Srpska. It cannot be said that the accused was the architect of the overall policy underpinning the alleged crimes and driving their commission. The role of a soldier, even of commanders who operate at the strategic level, is ultimately to execute policy rather than to fashion it. In addition, a prosecution of Dragomir Milosevic is likely to show that he inherited a military situation and continued an already well-established campaign.”25
The Prosecution therefore argues that although Dragomir Milosevic “was a very senior commander in the context of the SRK and VRS he was nevertheless a subordinate of Ratko Mladic and Radovan Karadzic.”26 Consequently, the Prosecution submits, “it is not imperative that this case be brought to trial at the International Tribunal as that of one of “the most senior leaders ” as it falls within the category of “cases involving intermediary and lower -level accused.”27
13. The Defence submits that the crimes with which Dragomir Milosevic has been charged are inherently very grave.28 The Defence also draws attention to the number of incidents in the two Schedules attached to the Indictment.29 The Defence contends that the gravity of the crimes charged does not support referring the present case.
14. As regards the level of responsibility of the accused, the Defence argues that the position of Milosevic, as SRK commander over 18,000 personnel answering “solely to the Commander of the VRS Main Staff and the Supreme Commander of that Army”30 “represents a commander of the highest level”.31 The Defence therefore argues that this does not support referral.
15. As for the gravity of the crimes charged, the Government of Bosnia and Herzegovina argues that the gravity is such that the present case is “more suitable for trial at the ICTY.”32 In responding to the Chamber’s question whether Rule 11 bis (C) refers to the role of the accused in the commission of the alleged crimes or to his position and rank in the relevant hierarchy, the Government of Bosnia and Herzegovina submits that if the alleged crimes are of such gravity that they are more suitable for trial at ICTY then the role of the accused in the commission of the crimes should be the determinative factor in deciding whether the case should be referred.33 In this respect, the Government of Bosnia and Herzegovina argues that “the relevant Security Council resolutions and public statements on the matter of referral show that the intention was to refer ‘intermediary and lower-level’ accused to competent national jurisdictions.”34 In regards the level of responsibility of the accused, the Government of Bosnia and Herzegovina compares the situation of Dragomir Milosevic with that of Stanislav Galic35 and Momir Talic36. It submits that the Accused, as commander, was “directly responsible for the events in Sarajevo described in the Indictment”,37 and that therefore his position and role do not meet the criteria of Rule 11 bis. The Government, however, concludes by stating that should the Referral Bench decide to refer the case it is prepared and able to deal with the case.38
16. In its submission, the Government of Serbia and Montenegro submits that it fulfils the requirements set forth in Rule 11 bis and that its judiciary is adequately prepared to accept the present case should it be referred.39 The Government does not make any further submissions relating to the applicability of Rule 11 bis to the present case.
17. In its recent decision pursuant to Rule 11 bis of the Rules in the case of Prosecutor v. Radovan Stankovic, the Referral Bench stated that:
[in] evaluating the level of responsibility of the Accused and the gravity of the crimes charged, the Referral Bench will consider only those facts alleged in the Indictment – they being the essential case raised by the Prosecution for trial – in arriving at a determination whether referral of the case is appropriate. The Bench will not consider facts put forth by the parties in their submissions which go beyond those alleged in the Indictment.40
The Referral Bench will follow the same approach in considering the present request.
18. The Referral Bench notes that the submissions of the Prosecution in relation to the issue of referral appear undetermined as the Prosecution begins its discussion on this issue in the Motion by stating that:
there are certain cases, which, although they would merit prosecution in the international forum, would also be suitable for prosecution before a competent national court. The present case is one of those that might be prosecuted either way.41
19. The Indictment depicts the besieging of Sarajevo as a campaign of the BiH conflict which “killed and wounded thousands of civilians of both sexes and all ages” and caused extensive material destruction.42 The two Schedules attached to the Indictment only set forth a small selection of the many incidents that allegedly occurred during the time period of the siege of Sarajevo relevant to the present case.43 The campaign of shelling and sniping extended throughout the whole fifteen months of Dragomir Milosevic’s alleged command of the SRK and was continuous in character. The Referral Bench notes that the Second Schedule to the Indictment contains a particularly serious shelling incident, which killed 43 persons and injured 75 persons. The Indictment also alleges that:
from early April 1995, the Romanija Corps began to deploy weapons against Sarajevo which had not previously been seen in the conflict. Large fragmentation bombs, designed to be dropped from aircraft, were fitted with specially adapted rocket propulsion units, but without any guidance system, and launched over Sarajevo. The bombs caused extensive damage to property within a wide radius of their impact. Houses and apartment buildings were destroyed or seriously damaged by the blast. The bombs killed or injured numerous civilians, some survivors suffering permanent injury, scarring or disability as a result of these massive explosions. These weapons also created terror amongst the civilian population.44
This escalation occurred during the time Dragomir Milosevic allegedly served as Corps commander.
20. The Referral Bench is not able to accept the Prosecution’s argument that all crimes committed during the siege have been sufficiently tried before the Tribunal in the Galic case. There are several observations to be made in this context. First, the Trial Chamber’s judgement in Galic is currently under appeal.45 Secondly, Rule 11 bis does not require the Referral Bench to consider whether an alleged criminal conduct has previously been “sufficiently tried” before the Tribunal or whether it is well documented; at this stage, the Referral Bench’s assessment only concerns whether the gravity of the crimes charged and the level of responsibility of the accused allow a referral or are more appropriate to demand a trial at the Tribunal. However, even if it were the case that Rule 11 bis required the Referral Bench to consider whether the crimes charged have been “sufficiently tried ” or well documented, the cases against Stanislav Galic and Dragomir Milosevic concern two entirely distinct periods of time. The Referral Bench cannot accept, therefore, that the factual incidents that were considered by the Galic Trial Chamber deal with the conduct alleged against Milosevic. As none of the conduct, with which the Accused is charged, has been tried by the Galic Trial Chamber, the alleged criminal campaign conducted by the SRK under Dragomir Milosevic has not been “fully addressed” as submitted by the Prosecution.46
21. During the period of the Indictment, Dragomir Milosevic is alleged to have served as permanent commander of the SRK, a Corps with around 18,000 soldiers formed into ten brigades. On the allegations to be advanced by the Prosecution, only the very highest level of military command was above Dragomir Milosevic. It would be true, on this basis, that he was a subordinate of Ratko Mladic and Radovan Karadzic, as the supreme military and civilian leaders, respectively.47 However, the Referral Bench is not able to accept that this is determinative. Dragomir Milosevic was, according to the Prosecution case, among the most senior military officers and exercised authority commensurate with his rank.
22. As noted above, the Prosecution supports its request for referral by arguing that “it cannot be said that the accused was the architect of the overall policy underpinning the alleged crimes and driving their commission. The role of a soldier, even of commanders who operate at the strategic level, is ultimately to execute policy rather than to fashion it.”48 The Referral Bench does not consider, however, that the phrase “most senior leaders” used by the Security Council is restricted to individuals who are “architects” of an “overall policy” which forms the basis of alleged crimes. Were it true that only cases against military commanders, who were at the highest policy-making levels of an army – in the case of the VRS the Republika Srpska highest political and supreme military levels – could not be referred under Rule 11 bis, this would diminish the true level of responsibility of many commanders in the field and those at staff level. This does not appear to be required by the resolutions of the Security Council nor is it their apparent effect. The Referral Bench therefore considers that individuals are also covered, who, by virtue of their position and function in the relevant hierarchy, both de jure and de facto, are alleged to have exercised such a degree of authority that it is appropriate to describe them as among the “most senior”, rather than “intermediate”.
23. In evaluating the position of Dragomir Milosevic, the Referral Bench notes in particular that he was the permanent, as opposed to an ad hoc or acting, commander of the SRK over a prolonged period exceeding a year and that there was only one echelon of military commanders, i.e. the highest military command, above him. It is the case against Dragomir Milosevic that he negotiated, signed and implemented anti- sniping and local cease-fire agreements, participated in negotiations relating to heavy weapons, and controlled access of UNPROFOR to territory around Sarajevo. Further, the SRK, within the context of the VRS, was a very large Corps formation encompassing some 18,000 soldiers. While it may be, as the Prosecution submits, that “a prosecution of Dragomir Milosevic is likely to show that he inherited a military situation and continued an already well-established campaign”,49 that does not lessen the seriousness of the crimes allegedly committed during the fifteen months of Milosevic’s alleged command nor does it lower his level of responsibility.
24. The campaign alleged in the Indictment and the crimes with which Dragomir Milosevic has been charged stand out when compared with other cases before the Tribunal, especially in terms of alleged duration, number of civilians affected, extent of property damage, and number of military personnel involved. It is also evident that the Prosecution’s case imputes significant authority to Dragomir Milosevic. The Referral Bench therefore concludes that the gravity of the crimes charged and the level of responsibility of the accused, particularly when they are considered in combination, requires that the present case be tried at the Tribunal. Therefore, there is no need to consider other factors.
For the forgoing reasons, THE REFERRAL BENCH
PURSUANT to Rules 11 bis of the Rules;
DENIES the Motion.
Done in English and French, the English text being the authoritative.
Judge Alphons Orie
Dated this eighth day of July 2005,
At The Hague
[Seal of the Tribunal]