Case No. IT-95-5-D 16th May 1995
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APPLICATION BY THE
PROSECUTION FOR A FORMAL REQUEST FOR DEFERRAL BY THE GOVERNMENT OF THE REPUBLIC
OF BOSNIA AND HERZEGOVINA OF ITS INVESTIGATIONS AND CRIMINAL PROCEEDINGS IN
RESPECT OF RADOVAN KARADZIC, RATKO MLADIC AND MICO STANISIC DECISION
Before:
Judge Karibi-Whyte (Presiding Judge) Judge Odio Benito
Judge Jorda
The Office of the Prosecutor:
Mr Graham Blewitt
Mr Grant Niemann
Amicus Curiae:
Madam Vasvija Vidovic
16th May 1995 10.30
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JUDGE KARIBI-WHYTE: Can we have
the appearances?
MR BLEWITT: Will it please the
Court, I appear on
behalf of the Prosecutor with Mr Niemann,
Senior Crown
Attorney.
JUDGE KARIBI-WHYTE: Can we have
the Amicus Curiae?
MADAM VIDOVIC: (original in
Bosnian): Vasvija Vidovic on
behalf of the Government of Bosnia and
Herzegovina.
JUDGE KARIBI-WHYTE: The Trial
Chamber will now read its
decision on the Application.
This is an application by Richard J.
Goldstone, Prosecutor of
the International Tribunal, made pursuant
to Article 9(2) of
the Statute of the International Tribunal
in accordance with
Rule 9(iii) of the Rules. The Application
is for the issue of
a formal request from this Trial Chamber
to the Government of
the Republic of Bosnia and Herzegovina
for the deferral to the
competence of the International Tribunal
of all investigations
and criminal proceedings involving Radovan
Karadzic, /Ratko
Mladic and Mico Stanisic being conducted
by the Government of
the Republic of Bosnia and Herzegovina
in the territory of the
former Yugoslavia since 1991, pursuant
to Rule 10 of the
Rules.
The Prosecutor states, and the Government
of the Republic
of Bosnia and Herzegovina has confirmed
in both its written
and oral submissions, that it is currently
conducting
investigations into war crimes and violations
of the criminal
laws of the Republic of Bosnia and Herzegovina.
Criminal
proceedings have been instituted by
the Government of the
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Republic of Bosnia and Herzegovina against
Radovan Karadzic,
the Bosnian Serb leader; Ratko Mladic,
the military commander
of the Bosnian Serb armed forces; and
Mico Stanisic, in charge
of Bosnian Serb internal affairs; in
respect of alleged war
crimes and violations of Articles 141,
142 and 151 of the
criminal law of the Socialist Federal
Republic of Yugoslavia,
as recognised by the Republic of Bosnia
and Herzegovina, which
include genocide, war crimes against
the civilian population,
and destruction of cultural and historical
monuments.
Various documents cited in the Prosecutor's
application
and mentioned at the hearing (documents
dated 12 June 1992, 17
August 1992, 26 December 1992 and 20
September 1993) indicate
that, one, the Higher Court Public Prosecutor's
Office in
Sarajevo submitted a request to the
Higher Court in Sarajevo
for the opening of an investigation
in respect of these
suspects, and secondly, the Military
Prosecutor's Office also
lodged a request for an investigation
involving the same
individuals to a District Military Court
relating to offences
which are within the jurisdiction of
the Tribunal. The
Prosecutor furthermore stated that contacts
between the
Ministry of Justice of the Republic
of Bosnia and Herzegovina
and the Prosecutor of the International
Tribunal have enabled
the investigative steps regarding the
suspects to be outlined.
It was confirmed at the hearing that
national arrest warrants
have been issued by the Government of
the Republic of Bosnia
and Herzegovina.
The Prosecutor states in the Schedule,
and it was
confirmed at the hearing, that he is
conducting investigations
into a wide range of violations which
are within the
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jurisdiction of the Tribunal, in particular
genocide, crimes
against civilians, and the destruction
of cultural and
historical monuments. It was also confirmed
at the hearing
that those violations are identical
to those in respect of
which investigations are being carried
out on Bosnian
territory. A significant focus of these
investigations
relates to persons in positions of authority
who are or were
responsible for serious violations of
international
humanitarian law in the former Yugoslavia.
The Prosecutor's
view is that the matter of the individual
criminal
responsibility of the three persons
in political, military or
police leadership positions must be
examined.
The Prosecutor has also initiated an
investigation into
the criminal responsibility of Radovan
Karadzic, Ratko Mladic
and Mico Stanisic arising out of indictments
already issued by
the International Tribunal against various
named individuals
for genocide, murder, rape, mistreatment
of civilians,
torture, and other offences allegedly
committed in the running
of detention camps.
Finally, the Prosecutor mentioned a
significant
investigation concerning the prolonged
siege of Sarajevo
(including attacks, considered unlawful
against civilian
members of humanitarian organisations,
United Nations
peacekeeping forces and humanitarian-aid
convoys).
The Prosecutor's investigations place
the main focus on
the positions of authority held by the
three suspects who are
allegedly guilty of serious violations
of international
humanitarian law in the territory of
the former Yugoslavia.
In the Schedule the involvement of Radovan
Karadzic, Ratko
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Mladic and Mico Stanisic is described, as was confirmed by the
representative of the Government of
the Republic of Bosnia and
Herzegovina at the hearing, as follows:
"Radovan Karadzic is one of the
main architects of the
(Serbian Democratic Party) political
programme, involving
extreme nationalist and ethnic policies
and objectives.
Radovan Karadzic became the first president
of the Bosnian
Serb administration in Pale. The constitution
of this
administration provides that the president
commands its armed
forces. Radovan Karadzic exercises his
power and control in
Pale, a town near Sarajevo. Radovan
Karadzic has acted as and
been dealt with internationally as the
president of the
Bosnian Serb administration in Pale.
In that capacity,
Radovan Karadzic has, inter alia, participated
in
international negotiations and has personally
made agreements
on such matters as ceasefires and humanitarian
relief that
have been implemented.
Ratko Mladic is a career military officer.
In the summer
of 1991, he was appointed to command
the 9th Corps of the
Yugoslav People's Army (JNA) in Knin
in the Republic of
Croatia. Subsequently, he assumed commands
of the forces of
the Second Military District of the
JNA, which effectively
became the Bosnian Serb army. In that
capacity he has
negotiated, inter alia, ceasefire and
prisoner exchange
agreements that have been implemented.
Mico Stanisic was the first minister
of internal affairs
of the Bosnian Serb administration in
Pale. In that capacity,
he was, inter alia, responsible for
the regular and specia
police forces at the regional and local
level in the territory
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under Bosnian Serb control. It is alleged
that those forces
were actively involved in organising
a campaign of terror
against the non-Serbian population of
Bosnia and Herzegovina."
The legal basis for these investigations
by the
Prosecutor is Article 7 of the Statute
of the International
Tribunal concerning individual criminal
responsibility, a
concept discussed in paragraphs 55 and
56 of the report of the
Secretary-General of the United Nations
dated 3rd May 1993.
Notwithstanding that national courts
are vested with
concurrent jurisdiction by Article 9
of the Statute of the
International Tribunal, the Prosecutor,
relying on Rule 9, is
proposing that a formal request be issued
to the Republic of
Bosnia and Herzegovina pursuant to Rule
10 of the Rules to
defer its investigations and criminal
proceedings in respect
of Radovan Karadzic, Ratko Mladic and
Mico Stanisic, to the
competence of the International Tribunal,
and to provide the
Prosecutor with all information concerning
its investigations.
The Prosecutor states that the continuation
by the
Government of the Republic of Bosnia
and Herzegovina of
investigations similar to those being
conducted by the
Prosecutor could have significant implications
for those
investigations, as set out in the Schedule.
In particular, the Prosecutor refers
to a number of
matters which may have implications
for his investigations or
any subsequent prosecutions. Matters
involving significant
factual questions include:
(i) witnesses may be exposed to greater
risks as their
identities and evidence will already
have been made public;
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(ii) witnesses may be unwilling, or
unable to testify for a
second time;
(iii) critical evidence stored in war
zones in the Republic of
Bosnia and Herzegovina could be damaged
or lost before use by
the International Tribunal;
(iv) witnesses may become confused as
to the scope and
authority of the two investigations;
(v) the International Tribunal is not
a party to the conflict
in the Republic of Bosnia and Herzegovina
and has a better
ability to obtain evidence worldwide;
(vi) deferral of these investigations
may encourage
governments and other sources to furnish
additional
information to the International Tribunal
that has thus far
not been provided.
Those involving significant legal issues
include:
(vii) issues relating to the principle
of non-bis-in-idem;
(viii) there is the potential inadvertently
to create
inconsistent sworn evidence;
(ix) issues relating to possible trials
in absentia which may
be held in the Republic of Bosnia and
Herzegovina;
(x) it would be undesirable and not
in the interest of justice
if the decisions of a national court
and of the International
Tribunal were to conflict.
The Government of the Republic of Bosnia
and Herzegovina,
appearing as Amicus Curiae, has indicated
in both its written
and oral submissions that it does not
oppose the issue of a
formal request by the Trial Chamber
for the deferral of all
investigations and criminal proceedings
in respect of Radovan
Karadzic, Ratko Mladic and Mico Stanisic.
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In discussing the submissions of both
the Prosecutor and
the Amicus Curiae, the Trial Chamber
proceeded as follows:
Article 8 of the Statutes of the International
Tribunal
extends its territorial jurisdiction
to the territory of the
former Socialist Republic of Yugoslavia,
including its land
surface, airspace and territorial waters,
beginning on 1st
January 1991.
Article 9 of the Statute provides as
follows:
"1. The International Tribunal
and national courts shall
have concurrent jurisdiction to prosecute
persons for serious
violations of international humanitarian
law committed in the
territory of the former Yugoslavia since
1st January 1991.
2. The International Tribunal shall
have primacy over
national courts. At any stage of the
procedure, the
International Tribunal may formally
request national courts to
defer to the competence of the International
Tribunal in
accordance with the present Statute
and the Rules of Procedure
and Evidence of the International Tribunal."
However, the right to primacy can only
be exercised on a
formal request to the national court
to defer to the
competence of the International Tribunal.
The Rules provide
the modus for the exercise of the right.
Rule 9 of the Rules provides as follows:
Where it appears to the Prosecutor that
in any such
investigations or criminal proceedings
instituted in the
national courts of any state:
(iii) what is in issue is closely related
to, or otherwise
involves, significant factual or legal
questions which may
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have implications for investigations
or prosecutions before
the Tribunal,
the Prosecutor may propose to the Trial
Chamber
designated by the President that a formal
request be made that
the national court defer to the competence
of the Tribunal.
To comply with the enabling provisions
for grant of the
application, the Prosecutor must therefore
establish that:
(a) national investigations or criminal
proceedings have been
instigated by the Republic of Bosnia
and Herzegovina in
respect of suspects including Radovan
Karadzic, Ratko Mladic
and Mico Stanisic;
(b) investigations are currently being
conducted by the
Prosecutor into crimes within the jurisdiction
of the
International Tribunal, including the
individual criminal
responsibilities of persons in political,
military and police
leadership positions, including Radovan
Karadzic, Ratko Mladic
and Mico Stanisic;
(c) what is in issue in the national
investigations or
criminal proceedings is closely related
to, or otherwise
involves significant factual or legal
questions which may have
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implications for the investigations
of the Prosecutor and any
subsequent proceedings before the International
Tribunal.
the Prosecutor may propose to the Trial
Chamber
designated by the President that a formal
request be made that
the national court defer to the competence
of the Tribunal.
To comply with the enabling provisions
for grant of the
application, the Prosecutor must therefore
establish that:
(a) national investigations or criminal
proceedings have been
instigated by the Republic of Bosnia
and Herzegovina in
respect of suspects including Radovan
Karadzic, Ratko Mladic
and Mico Stanisic;
(b) investigations are currently being
conducted by the
Prosecutor into crimes within the jurisdiction
of the
International Tribunal, including the
individual criminal
responsibilities of persons in political,
military and police
leadership positions, including Radovan
Karadzic, Ratko Mladic
and Mico Stanisic;
(c) what is in issue in the national
investigations or
criminal proceedings is closely related
to, or otherwise
involves significant factual or legal
questions which may have
implications for the investigations
of the Prosecutor and any
subsequent proceedings before the International
Tribunal.
The Trial Chamber notes that Radovan
Karadzic, Ratko
Mladic and Mico Stanisic are the subject
of investigations
instituted by the Government of the
Republic of Bosnia and
Herzegovina into the same alleged offences
being investigated
by the Prosecutor and that the investigations
and any criminal
proceedings that may be instituted by
the national courts of
the Republic of Bosnia and Herzegovina
in respect of the
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matters issued in paragraphs 2 and 3
hereof, relate to the
same issues. The Government of the Republic
of Bosnia and
Herzegovina does not contest these points.
The Trial Chamber further notes that
the Prosecutor is
investigating a wide range of allegations
covering offences
within the competence of the Tribunal
including genocide,
offences against civilians and destruction
of cultural and
historical monuments and that he is
examining the individual
criminal responsibilities of persons
in political military and
police leadership positions, including
Radovan Karadzic, Ratko
Mladic and Mico Stanisic. It does indeed
appear from the
application that the three named persons
hold such positions
of authority.
A reading of the Schedule clearly supports
the claim that
the investigations and proceedings instituted
by the
Government of the Republic of Bosnia
and Herzegovina in
respect of Radovan Karadzic, Ratko Mladic
and Mico Stanisic
involve significant factual or legal
questions which have an
impact on the investigations instituted
by the Prosecutor in
respect of serious violations of international
humanitarian
law in the territory of the former Yugoslavia.
The Trial
Chamber refers in particular to paragraphs
3.1 and 3.2 of the
Schedule.
These issues are not disputed by the
Government of the
Republic of Bosnia and Herzegovina.
Consequently, the Trial Chamber is satisfied
that the
Prosecutor has shown that the investigations
being carried out
by the Prosecutor and by the Government
of the Republic of
Bosnia and Herzegovina in respect of
Radovan Karadzic, Ratko
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Mladic and Mico Stanisic, involve the
same crimes, in
particular, genocide, offences against
civilians and
destruction of cultural and historical
monuments, and that the
issues in any criminal proceedings that
may be instituted by
the Government of the Republic of Bosnia
and Herzegovina in
respect of such crimes would involve
significant factual or
legal questions which may have implications
for investigation
or prosecutions before the International
Tribunal.
The Government of the Republic of Bosnia
and Herzegovina
has also made clear its intent to pursue
its investigations of
Radovan Karadzic, Ratko Mladic and Mico
Stanisic and to
proceed to trial in the absence of a
formal request for
deferral.
Proceedings in respect of persons in
positions of
authority before the International Tribunal
derive expressly
from Article 7 of the Statute of the
International Tribunal
and more particularly, from Articles
1, 2 and 3 thereof.
The punishment for the crimes allegedly
committed by such
individuals is also based on the general
principles of
international humanitarian law, and
derives in particular from
the precedents laid down by Nuremberg
and Tokyo; furthermore,
the principle of individual criminal
responsibility of persons
in positions of authority has been reaffirmed
in a number of
decisions taken by national courts,
and adopted in various
national and international legal instruments.
It follows from the above principle
that the that the official
capacity of an individual even de facto
in a position
of authority -- whether as military
commander, leader, or as
one in Government -- does not exempt
him from criminal
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responsibility and would tend to aggravate
it; and, moreover,
it is that position of authority which
would have enabled the
suspects to plan, instigate or order
the crimes in respect of
which the above mentioned investigations
have been conducted,
or given them the means to prevent the
said crimes, or at the
least to punish their perpetrators.
Accordingly, more so than those just
carrying out orders,
they would thus undermine international
public order; and
therefore the International Tribunal
established by the
international community to restore that
order is particularly
well-founded to invoke its primacy over
national courts, as
acknowledged in Article 9(2) of the
Statute of the
International Tribunal.
The Trial Chamber has already concluded
in paragraph 20
that the Prosecutor has established
the grounds laid down in
Rule 9(iii). In addition, the Trial
Chamber notes that the
International Tribunal is the appropriate
forum to try the
persons responsible for the kinds of
crimes covered by the
investigations currently being conducted
by the Government of
the Republic of Bosnia and Herzegovina
in respect of Radovan
Karadzic, Ratko Mladic and Mico Stanisic
and to examine the
individual criminal responsibilities
of persons in political,
military and police leadership positions.
Indeed, it could be
stated that it is one of the fundamental
purposes of the
International Tribunal to xercise its
primacy in such cases.
The Trial Chamber is satisfied that
deferral of the
investigations and proceedings which
are the subject of this
application is appropriate and, pursuant
to Article 9 of the
Statute and Rules 9 and 10, issues a
formal request for
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deferral to the Government of the Republic
of Bosnia and
Herzegovina as hereinafter set forth.
The Trial Chamber, based on the foregoing,
determines as
follows:
Considering all the matters before it
and addressed in
the public hearing, and considering
the requirements contained
in Rule 9(iii) of the Rules,
the Trial Chamber consisting of Judge
Karibi-Whyte, as
Presiding Judge, Judge Odio Benito and
Judge Jorda, being
seized of the Application made by the
Prosecutor,
hereby grants the said Application,
formally requests the Government of
the Republic
of Bosnia and Herzegovina, in respect
of serious violations of
international humanitarian law over
which the International
Tribunal has jurisdiction, as specified
in Articles 2 to 5 of
the Statute of the International Tribunal,
that the courts of
the Republic of Bosnia and Herzegovina
defer to the competence
of the International Tribunal in regard
to their
investigations and criminal proceedings
involving Radovan
Karadzic, Ratko Mladic and Mico Stanisic,
invites the Government of the Republic
of Bosnia and
Herzegovina to take all necessary steps,
both legislative and
administrative, to comply with this
formal request and to
notify the Registrar of the International
Tribunal of the
steps taken to comply with this formal
request, and,
requests that the Government of the
Republic of Bosnia
and Herzegovina forward to the International
Tribunal the
results of its investigations and a
copy of the records and
judgment, if any, of its national courts.
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The Trial Chamber requests the Registrar
of the
International Tribunal to notify the
Government of the
Republic of Bosnia and Herzegovina of
this, its decision and
formal request.
This is the decision of the Trial Chamber.
It is the
conclusion of the hearing of this Application.
(11.00)
(Tribunal adjourned)