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TRIAL CHAMBER I 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 ("the Tribunal");

NOTING Rules 54, 73 and 94 of the Rules of Procedure and Evidence (hereinafter "the Rules");

NOTING the "Prosecutor’s Motion for Judicial Notice of Adjudicated facts" filed on 11 January 1999 and listing in its Annex I 583 paragraphs from the judgements in Prosecutor v. Dusko Tadic ("the Tadic judgement") and Prosecutor v. Zejnil Delalic, et al. ("the Celebici judgement"), (hereafter, "the Prosecutor’s motion dated 11 January 1999");

NOTING the decision of Trial Chamber III in this case dated 19 March 1999 taking judicial notice of facts contained in paragraphs 1 to 6, 8, 10 to 17, 21 to 70, 74, 78 to 87, 89, 96 to 113, 115 to 125 of the Annex I of the Prosecutor’s Motion;

NOTING the appeal judgement of 15 July 1999 in case number IT-94-1-A, Prosecutor v. Dusko Tadic, and in particular paragraph 148;

NOTING the submissions of the parties following the Prosecutor’s Motion of 11 January 1999 and in particular:

NOTING the "Defence Proposal for Admission of Adjudicated Facts” filed by the accused Radic on 2 February 2000, in which he agrees to judicial notice of the facts from the Tadic judgement with the exception of those listed in paragraphs 421 and 422 of the annex to the Prosecutor’s motion; and the "Motion of the Defence of the Accused Milojica Kos Concerning the Admission of Adjudicated Facts" dated 9 February 2000;

NOTING the "Prosecution’s Response to Defence Motions for the Admission of Adjudicated Facts" dated 14 February 2000, in which the Prosecutor argues that if judicial notice is taken of the facts from Tadic, such decision should apply to all accused, whether or not they consent;

NOTING the "Order on Judicial Notice" dated 17 February 2000 requiring the defence to respond to the previous pleadings and specify which paragraphs, if any, in the annex to the Prosecutor’s motion dated 11 January 1999 they find objectionable;

NOTING the “Defence Motion Pursuant to the Trial Order Dated 17 February 2000” filed by Zigic on 22 February 2000, in which he objects to the taking of judicial notice;

HAVING HEARD the Prosecution and defence of the accused persons, Kvocka, Kos, Radic et Zigic, in a status conference on 24 February 2000, at which time the parties stated that they had reached an agreement on the facts contained in 444 out of the 583 paragraphs proposed by the Prosecutor in the annex I to her motion dated 11 January 1999;

HAVING HEARD the defence of the accused Prcac at the Status Conference on 12 April 2000, in which he also accepted the facts included in the 444 paragraphs just mentioned;

NOTING the "Prosecution’s Rule 65 ter (E) (ii) Motion for Judicial Notice" dated 28 April 2000 requesting the Trial Chamber to take judicial notice of the facts contained in the 444 paragraphs mentioned about and to draw legal conclusions and in particular, to declare that the facts establish beyond a reasonable doubt the common elements of Articles 3 and 5 of the Statute, notably: that there was an armed conflict in the times and places alleged in the indictment; that the victims of the acts and omissions alleged in the indictment were persons taking no active part in the hostilities pursuant to Article 3 common to the Geneva Conventions of 1949; that there was a nexus between the acts or omissions alleged in the indictment and the armed conflict; that there was an ongoing widespread or systematic attack against the Bosnian Muslim and Bosnian Croat population in the times and places alleged in the indictment; that the acts or omissions alleged in the indictment were committed as part of or in the context of that widespread or systematic attack; and that the acts or omissions alleged in the indictment were committed during an armed conflict, whether international or internal in character;

NOTING "Defence Response to Prosecution’s Motion for Clarification of Additional Matters and Prosecution’s Rule 65 Motion for Judicial Notice" dated 2 May 2000 in which the defence of Radic agrees to the judicial notice of the facts contained in the aforementioned 444 paragraphs but objects to drawing the legal conclusions related to Articles 3 and 5 of the Statute;

NOTING the "Response of the Accused Kos to the Prosecution’s Rule 65ter (E) (ii) Motion for Judicial Notice Filed on 28 April 2000," in which he agrees to the judicial notice of the facts contained in the 444 paragraphs but opposes any Trial Chamber finding that the adjudicated facts establish beyond a reasonable doubt the common elements of the crimes under Articles 3 and 5 of the Statute;

NOTING the "Prosecution’s Reply to Defence Response to "Prosecution’s Motion for Clarification of Additional Matters and Prosecution’s Rule 65 Motion for Judicial Notice"" dated 19 May 2000, in which the Prosecutor contends that the arguments raised by the accused Radic are without merit;

NOTING the "Defence Reply to Prosecution’s Reply to Defence Response to "Prosecution’s Motion for Clarification of Additional Matters and Prosecution’s Rule 65 Motion for Judicial Notice”” of Radic (dated 23 May 2000 but filed 30 May 2000, following the authorization by the Trial Chamber to file a reply), in which the defence stresses its belief that drawing conclusions that the agreed upon adjudicated facts prove beyond a reasonable doubt the common elements of Articles 3 and 5 would be the practical equivalent of turning that agreement into a guilty plea;

HAVING HEARD the parties, and in particular the Defense of all accused, during the status conference dated 6 June 2000;

CONSIDERING that the defence of the accused Radic opposes the Trial Chamber’s drawing legal conclusions on the common elements of Articles 3 and 5 of the Statute on the grounds that Rule 94 authorizes judicial notice of facts but not legal conclusions; that the parties are not allowed to resolve legal issues through mutual negotiation; that consent to a finding on the common elements could be considered to be a confession of guilt; that the common elements of Articles 3 and 5 may only be considered at the same time as individual criminal responsibility is considered pursuant to Article 7(1) and 7(3) of the Statute; that there was a widespread and/or systematic attack in Bosnia and Herzegovina not only on the Muslim and Croat civilian population, but also on the Serb population; and that the armed conflict did not have an international character;

CONSIDERING that the defence of the accused Kos opposed the Trial Chamber’s drawing legal conclusions on the common elements of Articles 3 and 5 of the Statute on the grounds that Rule 94 is intended to cover facts and not the legal conclusions inferred from those facts, as was held by Trial Chamber III in its decision of 25 March 1999 in Prosecutor v. Simic; and that such legal findings have no biding force except between the parties in respect of a particular case;

CONSIDERING that the Prosecutor argues that the Trial Chamber has the inherent power to draw legal conclusions from facts established beyond a reasonable doubt at any time in the proceeding; that the importance of the judicial notice by the trial chamber of the 444 adjudicated facts agreed to by the parties is that those facts are proven beyond a reasonable doubt, and conclusions may therefore be drawn from them; that in most national judicial systems, issues concerning the jurisdictional elements of crimes are often determined in limine; that during the 24 February 2000 status conference, the defence of the accused Radic accepted “the positions presented in the Tadic judgement, and the elements on the basis of which such judgement was made” and the defence of Kvocka said “we accept all the facts that are relevant to the jurisdiction of the Tribunal, the conflict, the fact that it was an armed conflict, the question of the nature and the ethnicity of the prisoners and so on"; that the question of the existence of the common elements of Articles 3 and 5 is completely distinct from the determination of the individual criminal responsibility of the accused, such that establishment of those elements cannot be deemed a confession;

CONSIDERING that the Prosecution believes that the defence of the accused Radic is partially correct when it says that parties are not authorized to resolve legal issues, including the common elements of the offences, by mutual negotiation, but that parties can make an agreement pursuant to Rule 65ter and that, while the Trial Chamber is not bound by a potential agreement between the parties about those elements, it may accept the agreement as a basis for making findings about the existence of the common elements;

CONSIDERING that the amended indictment dated 31 May 1999 charges the accused with violations of the laws and customs of war and crimes against humanity in Bosnia-Herzegovina in the Prijedor municipality and in particular in the Omarska, Keraterm and Trnopolje camps between 26 May and 30 August 1992; and that the accused Ducko Tadic was convicted of crimes committed in the same places between 23 May and 31 December 1992, and his appeal is completed and his conviction has now become final; that the Celebici judgement (the Trial Chamber observes that it is now on appeal) also concerns the conflict in Bosnia-Herzegovina at the same time;

CONSIDERING that the parties accepted, during the status conferences on 24 February 2000 and 12 April 2000, that it was in the interests of justice, and in particular of expediting the trial, that judicial notice should be taken of facts included in 444 out of the 583 paragraphs listed by the Prosecutor from the Tadic and Celebici cases, which are relevant to the present case, since this would relieve the parties from presenting proof on uncontested issues regarding the historical context, geography, military and administrative situation of the Prijedor municipality between 23 May and 31 December 1992;

CONSIDERING that the Trial Chamber notes that Rule 94 permits it to take judicial notice of adjudicated facts from other proceedings of the Tribunal relating to matters at issue in the current proceedings; that Trial Chamber III already took judicial notice of facts included in 94 out of the 444 paragraphs in its aforementioned decision dated 19 March 1999 concerning the accused Kvocka, Kos, Radic and Zigic; that there exists an agreement between the parties about the facts included in 444 of the paragraphs mentioned in the Prosecutor’s motion dated 11 January 1999; that the Trial Chamber informed the parties that it took note of the agreement;

CONSIDERING that even if Rule 94 is concerned only with judicial notice of facts and documentary evidence, no provision in the Statute or the Rules forbids the Trial Chamber, having taken account of the rights of the accused, from drawing legal conclusions based on facts thereby established beyond a reasonable doubt;

CONSIDERING that the Defense of the accused was given the opportunity to make its argument at the Status Conference on 6 June 2000, whether any legal conclusion about the common elements of Articles 3 and 5 of the Statute could be based on the agreed adjudicated facts; that the Defense of the accused Kos, supported by the Defense of the accused Prcac, submitted that some of the required elements of Articles 3 and 5 of the Statute could be based upon the agreed facts;

CONSIDERING that the Trial Chamber agrees with the Defence that it is still up to the Prosecution to prove the individual responsibility of the accused for the crimes in the indictment;

CONSIDERING that it results necessarily and incontestably from the facts that the parties have agreed upon and which the Trial Chamber is taking judicial notice of, that there was an armed conflict, accompanied by a widespread and systematic attack on the Muslim and Croat civilian population, in the times and places alleged in the indictment; and it further is included in these agreed upon facts that the existence of the Omarska, Keraterm and Trnopolje camps and the mistreatment of the prisoners in those camps was linked to the armed conflict and to the widespread and systematic attack on the civilian population¹;

CONSIDERING that the determination so made by the Chamber does not indicate in itself that the accused are responsible for the commission of the alleged crimes; and that it is up to the Prosecutor to prove such responsibility under Article 7(1) and Article 7(3) of the statute, and that the defence is entitled to raise its arguments on these points in the full exercise of its rights;

TAKES JUDICIAL NOTICE of the facts contained in paragraphs 1 to 330², 332, 334 to 339, 342, 343, 345 to 366, 475 to 492, 519 to 583 in the annex I to the motion of the Prosecutor dated 11 January 1999;

DECIDES that at the times and places alleged in the indictment, there existed an armed conflict; that this conflict included a widespread and systematic attack against notably the Muslim and Croat civilian population; and that there was a nexus between this armed conflict and the widespread and systematic attack on the civilian population and the existence of the Omarska, Keraterm and Tronpolje camps and the mistreatment of the prisoners therein.

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

Done this eight day of June 2000,
At The Hague
The Netherlands.

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Almiro Rodrigues
Presiding Judge

1. In particular, paragraphs 559 to 574 concern the existence of an armed conflict and paragraphs 575 to 583 are related to the existence of a nexus between the armed conflict and the mistreatment of persons detained in the camps.
2. The 19 March 1999 decision of Trial Chamber III regarding the accused Kvocka, Kos, Radic and Zigic took judicial notice of the facts in paragraphs 1 to 6, 8, 10 to 17, 21 to 70, 74, 78 to 87, 89, 96 to 113, 115 to 125 of the aforementioned Annex I.