Case No. IT-98-29/1-PT

Before:
Judge Alphons Orie, Presiding
Judge O-Gon Kwon
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision:
9 February 2005

PROSECUTOR

v.

DRAGOMIR MILOSEVIC

______________________________________

ORDER FOR FURTHER SUBMISSIONS ON THE GRAVITY OF THE CRIMES AND THE LEVEL OF RESPONSIBILITY OF THE ACCUSED

The Office of the Prosecutor:

Carla del Ponte

The Government of Bosnia and Herzegovina

per: The Embassy of Bosnia and Hercegovina to The Netherlands, The Hague

Counsel for the Accused:

Branislav Tapuskovic

THIS SPECIALLY APPOINTED CHAMBER ("the 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;

NOTING the "Motion by the Prosecutor under Rule 11bis with Annexes I, II, III" filed on 31 January 2005 whereby the Prosecution requests that a Trial Chamber order the referral of the case against Mr. Dragomir Milosevic ("Accused") to the authorities of Bosnia and Herzegovina ("Motion");

NOTING the President’s "Order Appointing a Trial Chamber for the Purposes of Determining Whether the Indictment Should Be Referred to Another Court under Rule 11bis," filed on 1 February 2005, whereby the President appointed this Chamber to determine whether the case against the Accused shall be referred to the authorities of Bosnia and Herzegovina pursuant to Rule 11bis of the Rules of Procedure and Evidence ("Rules");

CONSIDERING that the crimes charged in the Indictment were allegedly committed in Bosnia and Herzegovina and that the referral requested falls within the scope of Rule 11bis(A)(i) of the Rules;

NOTING that Rule 11bis(C) of the Rules provides that "Si] n determining whether to refer the case in accordance with paragraph (A), the Trial Chamber shall, in accordance with the Security Council resolution 1534 (2004), consider the gravity of the crimes charged and the level of responsibility of the accused;"

NOTING that Security Council resolution 1534 (2004) refers to "the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions;"

NOTING that Security Council Resolution 1503 (2003) recommended that the ICTY concentrate "on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and StransferC cases involving those who may not bear this level of responsibility to competent national jurisdictions;"

CONSIDERING that while the evaluation of whether a case should be referred to the authorities of a State is a two-step process, requiring consideration of (1) whether the gravity of the crimes charged and the level of responsibility of the Accused renders the case appropriate for referral because it involves intermediate or lower-rank accused, and (2) whether the State to which the Prosecution seeks to refer the case is a competent national jurisdiction whose legal system is compatible with the requirements of Rule 11bis(B), in the present case the Chamber deems it appropriate to consider the two issues separately;

CONSIDERING that the Indictment charges the Accused with 7 counts of violations of the laws or customs of war and crimes against humanity committed between 10 August 1995 and 21 November 1995 in the course of a campaign of shelling and sniping against the civilian population of Sarajevo;

CONSIDERING further that at the material time the Accused is alleged to have served as Corps Commander of the Sarajevo Romanija Corps, which controlled all the Bosnian Serb territory around Sarajevo, and to have been in a position of superior authority to approximately 18,000 military personnel;

CONSIDERING that the campaign of sniping and shelling against the civilian population of Sarajevo is alleged to have resulted in the killing and wounding of a large number of civilians and that the schedules to the indictment set forth only a small representative number of individual incidents for specificity of pleading;

CONSIDERING that the Accused is charged under all modes of liability pursuant to Article 7(1) as well as Article 7(3) of the Statute;

NOTING that while the Prosecution submits that the Accused was a very senior commander in the context of the SRK and the VRS, but not "one of the most senior leaders," detailed submissions on the gravity of the alleged offences, or the level of responsibility of the Accused in this case have not yet been provided;

CONSIDERING that the Chamber would benefit from submissions on those matters, including whether the "level of responsibility" in Rule 11bis(C) refers to the role of the Accused in the commission of the alleged offences, or to the position and rank of the Accused in the military hierarchy, or both; and whether special weight should be given to any particular considerations relating to the gravity of the alleged offences or the level of responsibility of the Accused;

PURSUANT TO Rules 11bis and 54 of the Rules,

ORDERS the Parties and INVITES the Government of Bosnia and Herzegovina to file submissions by 21 February 2005 on the following questions, including the weight to be given to each of them:

1. 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 11bis of the Rules?

2. Is the level of the responsibility of the Accused compatible with referral of the case to the authorities in Bosnia and Herzegovina under Rule 11bis of the Rules? In particular, does Rule 11bis(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?

REQUESTS the Registrar to transmit this order immediately to the Government of Bosnia and Herzegovina.

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

Done on this ninth February 2005
At The Hague,
The Netherlands

_________________________
Judge Alphons Orie,
Presiding Judge

[Seal of the Tribunal]