Case No.: IT-95-13/1-PT

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding

Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius

Registrar:
Mr Hans Holthuis

Decision of:
19 June 2003

PROSECUTOR
v.
MILE MRKSIC

____________________________________________________________

DECISION ON FORM OF THE INDICTMENT

____________________________________________________________

The Office of the Prosecutor:

Mr Jan Wubben

Counsel for the Accused:

Mr Miroslav Vasic

    1. Background

  1. Trial Chamber II (“Trial 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 (“Tribunal”) is seised of a series of Defence filings1 by which the Defence challenges the form of the Second Amended Indictment in the present case, and the Prosecution’s responses2 thereto. The Defence generally alleges that the Prosecution has not set out all of the relevant material facts and has provided insufficient supporting evidence to allow the Defence to properly prepare its case. The Prosecution submits that all relevant material facts have been provided and that the sufficiency of the evidence is a matter for trial.

  2. There has been some confusion in previous filings in this case as to the number of existing indictments against Mile Mrksic (“Accused”). The initial indictment against the Accused and two others was confirmed by Judge Fouad Riad on 7 November  1995.3 This indictment was amended to include one other co-accused on 3 April 1996.4 A further amended indictment against all four was filed on 2 December 1997.5 Finally, on 1 November 2002 the Prosecution was given leave to file a further amended indictment against the Accused alone.6 The Prosecution termed this indictment the “Second Amended Indictment”.7 For the sake of consistency and in order to avoid further confusion, this Decision will adopt this term to refer to the latest indictment against the Accused.

  3. In the Second Amended Indictment, the Accused stands charged with various offences allegedly committed subsequent to the Serb take over of the city of Vukovar and surrounding areas in the Republic of Croatia. The Accused is specifically charged in the Second Amended Indictment under both Articles 7(1) and 7(3) of the Statute of the Tribunal (“Statute”),8 as follows :

    (a) count 1: persecution as a crime against humanity (Article 5);

    (b) count 2: extermination as a crime against humanity (Article 5);

    (c) counts 3 and 4: murder as a crime against humanity (Article 5) and as a violation of the law or customs of war (Article 3);

    (d) count 5: imprisonment as a crime against humanity (Article 5);

    (e) counts 6 and 8: torture as a crime against humanity (Article 5) and as a violation of the laws or customs of war (Article 3);

    (f) count 7: inhumane acts as a crime against humanity (Article 5); and

    (g) count 9: cruel treatment as a violation of the laws or customs of war (Article 3 ).

    2. Preliminary comments

  4. As noted above, the challenge to the form of the Second Amended Indictment that is addressed herein is set out in multiple filings authorised by the Trial Chamber. The Defence was specifically instructed not to repeat arguments set out in previous filings,9 but this instruction was ignored. As a result, the filings overlap to a significant extent and the Trial Chamber has had some difficulty succinctly summarising the Defence arguments. This is not an acceptable practice. In the future, the Defence shall adhere closely to instructions regarding filings that are issued by the Trial Chamber failing which the Chamber shall apply the appropriate sanctions.

  5. The Trial Chamber also wishes to note that the Defence arguments were often difficult to understand due to the poor use of language. While this may to some extent result from translation difficulties, it is surely not solely as a result of this. For the purposes of the current decision, the Trial Chamber has summarised to the best of its ability the arguments as it understands them. In the future, the Defence should take greater care in formulating its arguments to ensure that they are correctly understood and that any eventual decision may be prepared in a timely and efficient manner.

    3. General pleading principles

  6. The general pleading principles that may be applicable to the present case are as follows.

  7. Article 21(4)(a) of the Statute provides as one of the minimum rights of an accused that he shall be entitled to be informed in detail of the nature and cause of the charge against him. This provision also applies to the form of indictments.10 This right translates into an obligation on the Prosecution to plead the material facts underpinning the charges in an indictment.11 The pleadings in an indictment will therefore be sufficiently particular when it concisely sets out the material facts of the Prosecution case with enough detail to inform an accused clearly of the nature and cause of the charges against him enabling him to prepare a defence effectively and efficiently.12

  8. The materiality of a particular fact is dependent on the nature of the Prosecution case.13 A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in an indictment is the nature of the alleged criminal conduct charged to the accused,14 which includes the proximity of the accused to the relevant events.15 The precise details to be pleaded as material facts are of the acts of the accused, rather than the acts of those persons for whose acts he is alleged to be responsible.16

  9. Depending on the circumstances of the case, it may be required that with respect to an Article 7(1) case against an accused, the Prosecution “indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged”, in other words, that it indicates the particular head or heads of liability.17 This may be required to avoid ambiguity with respect to the exact nature and cause of the charges against the accused,18 and to enable the accused to effectively and efficiently prepare his defence. The material facts to be pleaded in an indictment may vary depending on the particular head of Article 7(1) responsibility.19

  10. In a case based upon superior responsibility, pursuant to Article 7(3), the following are the minimum material facts that have to be pleaded in the indictment :

    (a) that the accused is the superior20 (ii) of subordinates, sufficiently identified,21 (iii) over whom he had effective control - in the sense of a material ability to prevent or punish criminal conduct22 - and (iv) for whose acts he is alleged to be responsible;23

    (b) the accused knew or had reason to know that the crimes were about to be or had been committed by those others,24 and (ii) the related conduct of those others for whom he is alleged to be responsible.25 The facts relevant to the acts of those others will usually be stated with less precision,26 the reasons being that the detail of those acts (by whom and against whom they are done) is often unknown, and, more importantly, because the acts themselves often cannot be greatly in issue;27 and

    (c) the accused failed to take the necessary and reasonable measures to prevent such crimes or to punish the persons who committed them.28

  11. All legal prerequisites to the application of the offences charged constitute material facts and must be pleaded in the indictment.29 With respect to the relevant state of mind (mens rea), either the specific state of mind itself should be pleaded (in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded ), or the evidentiary facts from which the state of mind is necessarily to be inferred, should be pleaded.30

  12. Each of the material facts must usually be pleaded expressly, although it may be sufficient in some circumstances if it is expressed by necessary implication.31 This fundamental rule of pleading is, however, not complied with if the pleading merely assumes the existence of the pre-requisite.32

  13. Generally, an indictment, as the primary accusatory instrument, must plead with sufficient particularity the material aspects of the Prosecution case, failing which it suffers from a material defect.33 In the light of the primary importance of an indictment, the Prosecution cannot cure a defective indictment by its supporting material and pre-trial brief.34 In the situation where an indictment does not plead the material facts with the requisite degree of specificity because the necessary information is not in the Prosecution’s possession, doubt must arise as to whether it is fair to the accused for the trial to proceed.35 The Prosecution is therefore expected to inform the accused of the nature and cause of the case, as set out above, before it goes to trial. It is unacceptable for it to omit the material facts in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.36 Where the evidence at trial turns out differently than expected, the indictment may be required to be amended, an adjournment may be granted or certain evidence may be excluded as not being within the scope of the indictment.37

  14. The Prosecution is not required to plead the evidence by which such material facts are to be proven.38

    4. Defence objections relating to the insufficiency of the pleading of material facts and supporting evidence

  15. The first set of Defence objections relate to the general insufficiency of the material facts pleaded and the evidence supporting those material facts.

  16. The Defence submits that the Prosecution fails to comply with Article 18(4) of the Statute and Rule 47(C) of the Rules by not submitting a summarised presentation of the facts and charges against the Accused.39 This failure to make clear the nature of the responsibility alleged against the Accused and the material facts by which that responsibility will be established,40 and in particular the precise link between those material facts and the Accused,41 means that the Defence is left without the elements necessary for the adequate preparation of its case.42 Further, the Defence submits that some of the allegations in the Second Amended Indictment are not based on supporting material annexed to it.43

  17. In response, the Prosecution argues that it has met its obligations under the Statute and Rules to plead the material facts upon which the charges are based with a level of specificity that allows the Defence to prepare its case.44 The Prosecution distinguishes between the necessity of pleading material facts and the evidence that tends to prove those facts, which is not required to be pleaded.45 Further to this point, the Prosecution submits that, the Initial Indictment against the Accused having already been confirmed, the Trial Chamber is now restricted to the issue whether the Second Amended Indictment pleads the required material facts to support the charges it raises.46 There cannot be any evaluation of the sufficiency of the evidence upon which the reviewing Judge based his confirmation of the indictment.47

  18. The jurisprudence is clear that it is not necessary to plead in an indictment the evidence which would tend to support the alleged material facts, and that it is inappropriate at this stage of proceedings for the Defence to challenge the sufficiency of the evidence.48 The Trial Chamber finds it necessary, however, to distinguish between those material facts which were part of the indictment as originally confirmed, and those added subsequently. Concerning the original charges and material facts, it is not at this stage possible for the Defence to challenge the sufficiency of the evidence. However, it is acceptable for the Defence to challenge the sufficiency of the evidence for charges that are newly added (5 counts in the Second Amended Indictment) and for material facts newly added in support of existing charges.49 Accordingly, in examining below the specific challenges made by the Defence, this distinction will be applied in determining the validity of their requests.

    5. Defence preliminary objections to additional charges and heads of responsibility

  19. With respect to the new charges added in the Second Amended Indictment,50 the Defence makes two preliminary arguments that the addition of these counts is invalid. Both of these arguments are made with reference to other indictments.

  20. First, it is argued that these counts were not levelled at Slavko Dokmanovic (“Dokmanovic”), who was charged alongside the Accused in the 1996 and 1997 Amended Indictments, and therefore cannot legitimately be included in the Second Amended Indictment against the Accused.51 This argument is also made with respect to the joint criminal enterprise alleged in the Second Amended Indictment.52 The Prosecution, correctly in the view of this Trial Chamber, submits that there is no requirement in the Statute or the Rules that every accused be charged with every conceivable offence that is supported by the evidence.53 It is for the Prosecution to choose how it wishes to plead its case, and which charges it wishes to bring. This Defence argument is therefore rejected.

  21. In a related argument, the Defence submits that it is in some way a paradox that these new and serious charges are made against the Accused when they were not earlier levelled at Dokmanovic.54 In response the Prosecution argues that there is nothing paradoxical about the fact that the Accused, as senior military commander charged in the case, should face more serious charges than Dokmanovic, who was a minor political leader.55 Paradox or not, the Trial Chamber again stresses that it is for the Prosecution to choose how it wishes to plead its case. The argument is rejected.

  22. The Defence presents further arguments that are based on the same fallacious thinking as that advanced in paragraph 24 below.56 The Defence argues that since the facts remain unaltered from the Initial Indictment, and hence the Prosecution bears no new evidence, the question arises why such charges were not included in that initial indictment “bearing in mind that the International Law provisions and customs existed at the pertinent time as well. According to the Defence, the answer to this question can only be that the Prosecution has also felt at the time that there was no basis for such charges”. The Prosecution is free to plead its case as it sees fit, as long as it sets out the material facts. No adverse inferences may be drawn from a change in pleading strategy in this instance. In this connection the Defence also submits that the Prosecution is merely attempting to use this case so as to enforce its position in other cases that it finds of greater importance.57 Thus, it is alleged, the Accused is being forced to defend himself from charges for which individuals of a much higher rank are charged, in respect of the events that took place in 1991. The Trial Chamber emphasises that this argument is entirely unsubstantiated. The Defence arguments are again rejected.

  23. In its second preliminary argument, the Defence focuses on the Initial Indictment in this case. It submits that the introduction of new counts into the Second Amended Indictment without the corresponding introduction of more evidence is illogical and places the Accused in a far worse situation without due reason.58 The Prosecution responds that the only reason the Accused faces a more difficult position with respect to the Initial Indictment is because if the new charges are included, he will have to address the evidence at trial that will show he is guilty of these additional charges.59 In effect, the Defence does not claim any prejudice other than the difficulty of responding to additional charges.60

  24. The Defence argument on this point is ill founded. The Prosecution does not have to “present (…) arguments as to why it desires to amend its allegations in respect to the responsibility of the accused”61. It may choose to plead the case as it wishes, as long as it sets out the material facts that will allow the Defence to meet the case. The issue is not whether amendments to the indictment prejudice the accused, but whether they do so unfairly.62 There is no indication that the new counts would in fact unfairly prejudice the Accused. This Defence argument is accordingly rejected.

  25. Similarly, the Defence submits that broadening the indictment to include the concept of joint criminal enterprise is unacceptable.63 No reasoning is advanced in support of this argument. Given that the joint criminal enterprise mode of responsibility is clearly within the jurisdiction of the Tribunal,64 the Prosecution is free to plead it. This complaint is rejected.

  26. Taking a different approach to the additional counts pleaded, the Defence submits that the “Prosecution has failed to provide evidence that would justify the additional charges”.65 The Prosecution responds that the additional charges are fully supported by the evidence which was introduced at the time of the initial indictment.66 These new charges are the subject of individual challenges which the Trial Chamber addresses below.

    6. Defence objections relating to facts supporting charges

  27. The Defence makes a number of specific challenges to the form of the Second Amended Indictment as it concerns the facts alleged in support of the ten counts, which the Trial Chamber will deal with below in the order in which they arise in the Second Amended Indictment. Overwhelmingly, the Prosecution has responded that these challenges concern factual or evidentiary issues that should be determined at the trial stage.67

  28. With respect to paragraph 8(c) of the Second Amended Indictment, concerning JNA soldiers allegedly ordered or permitted by the Accused to transfer detainees from the Vukovar hospital to Ovcara farm, the Defence requests that the Prosecution specify which units of the JNA carried out these orders.68 The Trial Chamber notes that the Second Amended Indictment is to be read as a whole, not as a series of paragraphs existing in isolation. The JNA soldiers referred to in this paragraph may be identified by cross-referencing other paragraphs in the Second Amended Indictment. The Belgrade-based 1rst Guards Motorised Brigade, commanded by the Accused, is identified by the Prosecution as the JNA Unit with primary responsibility for the attack on Vukovar and the subsequent evacuation and detention of persons from Vukovar hospital.69 That this was the relevant unit for the purposes of paragraph 8(c) is confirmed in paragraph 7(a), where there is also a reference to the involvement of a military police battalion in the evacuation and detention of persons from Vukovar hospital. The Defence request for greater precision is therefore refused.

  29. The Defence submits that the decision of the Great People’s Assembly SAO SBWS (10 October 1991) referred to in paragraph 12 of the Second Amended Indictment needs to be provided or the reference dropped.70 The Prosecution relies on this decision to allege a material fact, the attachment of the Territorial Defence (“TO”) of the SAO SBWS to the JNA on a permanent basis. This material fact was not pleaded in the Initial Indictment and therefore was not confirmed on the basis of supporting evidence. The Defence objection is upheld, and the Prosecution is ordered to provide a copy of the decision in question.

  30. The Defence submits that claims in paragraph 17 of the Second Amended Indictment that alleged crimes against humanity were part of a widespread and systematic attack directed against the Croat and other non-Serb civilian population of parts of Croatia, including Vukovar, are not supported by annexed material. Specifically the Defence submits that some of the names of persons “on the list” in the Second Amended Indictment could be Serb names.71 This objection goes directly to evidence proving a material fact, which need not be pleaded at this stage. The objection is therefore refused.

  31. The alleged events set out in paragraph 19 of the Second Amended Indictment begin in August 1991. The Defence submits that, because the Accused and his unit arrived in Vukovar only on 30 September 1991, the Second Amended Indictment must be limited by this time frame.72 The objection is misconceived. The Prosecution has clearly pleaded that the charges against the Accused relate to the period after the fall of Vukovar.73 This does not prevent the Prosecution from providing context for those charges by way of background information. Such background facts will necessarily concern a period prior to the alleged commission of crimes. The Defence objection is refused.

  32. The Defence submits that in paragraph 19 of the Second Amended Indictment, it is unclear whether the Prosecution claims that Serb forces under the Accused’s command took over places in Eastern Slavonia other than Vukovar before mid-October 1991. The Defence seeks this clarification and, if the Prosecution is making such an assertion, an indication of which units were involved, who controlled those units and clarification as to the Accused’s participation.74 Regarding the allegations of occupation, killings and forcing non-Serbs from the area, the Defence request names of places of alleged events; names of persons involved in the takeover of places; names of persons exercising power after takeover; and the connection between the allegations and the Accused.75 The Prosecution responds that these are factual or evidentiary issues to be determined at the trial stage.76

  33. These Defence objections need to be viewed in context. Paragraph 19 sets out background information rather than material facts relevant to the counts in the Second Amended Indictment. It is in relation to material facts dealing with each count, rather than the background facts of a general nature only, that the Accused is entitled to proper particularity in the indictment.77 The Defence request for clarification of these background facts is therefore refused.

  34. The Defence also requests particulars with respect to the events described in paragraph 20 of the Second Amended Indictment, regarding the siege, shelling, occupation and clearance of Vukovar,78 as well as the alleged expulsion of citizens therefrom.79 Again, this paragraph provides background information rather than material facts in support of the counts of the Second Amended Indictment. The Defence is therefore not entitled to further particulars. Furthermore, the Defence argument regarding the timing of the Accused’s liability for the acts in this paragraph is moot, as there are no charges in the Second Amended Indictment based on these acts.80

  35. Paragraphs 22-24 of the Second Amended Indictment detail the alleged removal of approximately 400 non-Serbs from Vukovar hospital, the transfer of about 300 of these by bus to JNA barracks and their treatment on arrival there. The Defence requests that the Prosecution identify which units of the JNA allegedly carried out these acts, specifying the persons in command and identifying the soldiers who allegedly “molested and threatened”81 the prisoners within the barrack complex.82 As stated above, the Second Amended Indictment should be read as a whole rather than as isolated parts. The Trial Chamber finds that the Prosecution has already clearly indicated that forces under the command of Veselin Sljivancanin, himself subordinated to the Accused, carried out these acts.83 The Defence request is accordingly rejected. While it does not affect the form of the indictment, however, the Trial Chamber recognises that greater precision could be provided with respect to the identification of individuals alleged to have committed the acts.84 The Prosecution must disclose these particulars to the Defence.

  36. With respect to paragraph 25 of the Second Amended Indictment, and the claim that it was agreed at the meeting of the government of SAO SBWS that the JNA should merely transport persons to Ovcara where they would be left under the control of the local Serb forces, the Defence argues that this implies that the government of SAO SBWS had authority over the local Serb forces.85 The Defence further submits that this is inconsistent with claims in other paragraphs of the Second Amended Indictment that the JNA also participated in the confinement and killings, under the Accused’s command.86 The Trial Chamber, in agreement with the Prosecution,87 finds that these arguments do not concern the sufficiency of material facts, but are rather issues to be resolved at trial. The Defence objections are rejected.

  37. Similarly, the Defence objects that paragraph 26 of the Second Amended Indictment is somehow deficient because it claims that local forces were in control at Ovcara and yet the Accused is charged with the unlawful detention of civilians there.88 The Prosecution has pleaded a case based on superior responsibility in which the Accused is alleged to be the superior of these local forces. Whether or not this case can be proved is a matter for trial. The Defence objection is rejected.

  38. The Defence seeks the precise identification of the Serb forces mentioned in paragraphs 26-29 of the Second Amended Indictment, dealing with the transfer of the detainees from the JNA barracks to the Ovcara farm and their eventual transfer to a ravine approximately one kilometer south-east of Ovcara. In these paragraphs the Prosecution refers variously to “Serb forces” or “Serb soldiers”. The Defence submits that identification can be done by simply “affirming that the forces that are mentioned in the paragraph were in fact members of the Territorial Defence of Vukovar under the command of Miroljub Vujovic and Stanko Vujanovic.”89

  39. Once again it is possible to answer much of the Defence objection by looking elsewhere in the Second Amended Indictment. Paragraph 5 identifies those bodies which collectively are identified as “Serb forces”.90 Paragraph 7(a) specifies that it was forces under the command of Veselin Sljivancanin (i.e. soldiers in the 1rst Guards Motorised Brigade of the JNA, as well as a military police battalion) that transferred the non-Serbs from the JNA barracks to the Ovcara farm. Paragraph 7(e) specifies that Miroljub Vujovic and Stanko Vujanovic had direct operational command of Serb Territorial Defence forces responsible for the mistreatment and killing of non-Serbs taken from the Vukovar Hospital to the Ovcara farm. In the view of the Trial Chamber, further specification of the identity of the Serb forces referred to in these paragraphs is not necessary. The request is rejected.

  40. The information set out in paragraph 7(e) of the Second Amended Indictment also serves to respond to two other Defence requests for further clarifications. The first concerns whether the soldiers leading prisoners out of trucks (in paragraph 28 of the Second Amended Indictment) belonged to the JNA, the Territorial Defence or paramilitary formations.91 The second concerns the identification of the Serb authorities (whether civilian or military) that collected information regarding the persons brought to Ovcara and their role in the events specified.92 It is clear that in both instances it was Serb TO forces under the command of Miroljub Vujovic and Stanko Vujanovic that were responsible. These Defence requests are therefore rejected.

  41. Further specifications are sought by the Defence with respect to paragraph 27 of the Second Amended Indictment. In that paragraph there is a reference to two women being present in Ovcara. The Defence seeks the identification of these women.93 While evidence that supports the claim that these women were at Ovcara is properly left for trial, their identities must, if available to the Prosecution, be disclosed to the Defence.

  42. The Defence further objects to paragraph 31 of the Second Amended Indictment in which the Prosecution asserts that women were allegedly killed at Ovcara without providing any names in support of its claims.94 While the Prosecution is under an obligation to provide the best particulars that it can in presenting its case, this does not affect the form of the Second Amended Indictment.95 However, the Prosecution will be ordered in the disposition of this decision to disclose to the Defence the names of the women alleged in paragraph 31(a) to have been murdered.

  43. The Defence submits that in certain instances the new material facts pleaded are not supported by the provided material, although it fails to provide the necessary specification. This is alleged to be the case with respect to allegations that the Accused is responsible for sexual violence, where no victims or perpetrators are identified.96 It is also submitted that there is no foundation in the provided material for the fact pleaded in paragraph  31(d) of the Second Amended Indictment that the Accused was responsible for withholding necessary medical aid. Further, the Defence submits that the Prosecution must specify the locations where medical aid was withheld.97 The Trial Chamber considers that these matters may be resolved during the disclosure stage.

  44. The next Defence objection concerns the lack of precision in the pleading of the relevant dates in paragraphs 33 and 34 of the Second Amended Indictment concerning the extermination and murder charges. In paragraph 33, the Second Amended Indictment states that the relevant events took place “?fgrom or about 20 November 1991 until 21 November 1991”. In paragraph 34, the timing of events is given as “?dguring the evening hours of 20/21 November 1991”. The Defence submits that the discrepancy between the dates given has an important effect on the preparation of its case,98 and that the Prosecution must “either claim that it is certain that the incident occurred on the 20th November 1991 or not claim at all”.99 In response, the Prosecution submits that the language “from or about 20 November 1991 until 21 November 1991” is commonplace legal pleading language that in no way prevents the Defence from preparing its case. It submits further that the events which form the basis of the Second Amended Indictment against the Accused cover a relatively limited period of time (between 17-21 November 1991) and a limited geographic area (Vukovar and areas within a few kilometres of the city of Vukovar ).100 The Trial Chamber agrees that the Second Amended Indictment is sufficiently specific in respect of the timing of the acts pleaded in paragraphs 33 and 34 to allow the Defence to prepare its case. The Defence objection is rejected.

  45. The next Defence objection concerns allegedly inconsistent Prosecution claims concerning the forces responsible for the execution of detainees taken to Ovcara farm. In paragraph 34 of the Second Amended Indictment it is alleged that “Serb forces comprised of JNA units and the TO, volunteer and paramilitary units acting in coordination and under the supervision of the JNA shot and otherwise executed them”. The Defence submits that this is factually inconsistent with paragraphs 26 -29 of the Second Amended Indictment where it is alleged that the people at Ovcara were beaten and killed by members of the Territorial Defence under the command of Miroljub Vujovic and Stanko Vujanovic. The Defence accordingly requests that these claims be harmonised.101 In response, the Prosecution submits that this is an evidentiary issue, to be determined at the trial stage.102

  46. The Trial Chamber finds that the objection raised regarding the inconsistency in the pleading of the Prosecution case affects the ability of the Defence to know the case against it. The Second Amended Indictment clearly states that the TO formed part of the Serb forces under the authority of the Accused. The Defence is entitled to know whether it was only the TO that was responsible for the executions (as pleaded by the Prosecution in paragraphs 26-29 of the Second Amended Indictment), or whether other parts of the “Serb forces” were also involved (as pleaded in paragraph 34). The Prosecution is incorrect in arguing that the Defence is challenging the accuracy of the facts alleged – in fact, it is asking for precision as to what those facts are. The Prosecution will be ordered to provide such clarification. This Defence objection is upheld to the extent that the Prosecution is required to clarify the use of its terminology (“Serb forces”, “Serb soldiers”) and to ensure that the identification of those responsible for the alleged crimes in paragraphs 26-29 is factually consistent with those identified as being responsible for the alleged crimes in paragraph 34.

  47. In paragraph 38 of the Second Amended Indictment, the Prosecution alleges that among the detainees were women, elderly men and patients from Vukovar Hospital who were wounded or sick but did not receive any medical care. The Defence requests a clarification whether these allegations pertain to prisoners of Ovcara exclusively or to other locations as well.103 The Prosecution responds that this is an evidentiary issue, to be determined at the trial stage.104 Once again, the Defence is reading the paragraph concerned in isolation. It is quite clear that the Second Amended Indictment is concerned with events which took place in and around Vukovar, and that the only relevant place of detention is the Ovcara farm. In paragraph 36 this is specified. The reference in paragraph 38 is clearly to be read in light of what precedes and therefore makes sufficiently clear that the allegations concern detainees at the Ovcara farm only. The Defence request for clarification is rejected.

  48. The Defence makes a further request concerning the sick and wounded detainees noted in paragraph 38 of the Second Amended Indictment, namely that as many of them as possible should be identified.105 The Prosecution responds that this is an evidentiary issue, to be determined at the trial stage.106 The Defence request effectively seeks particulars regarding material facts and, as already stated, while the Prosecution is under an obligation to provide the best particulars that it can in presenting its case, this does not affect the form of the Second Amended Indictment.107 However, the Prosecution will be ordered to disclose to the Defence the names of as many of the sick and wounded detainees referred to in paragraph 38 as are available to it.

  49. The Defence makes a different type of challenge with respect to, it would appear, paragraph 38 of the Second Amended Indictment. It is submitted that the Prosecution lacks consistency in naming categories of persons, with the suggestion that city defence units and political activists have been omitted. In addition, the Defence suggests that separating the patients and the sick and wounded into two separate categories is illogical.108 The Trial Chamber rejects these Defence complaints. It is for the Prosecution to choose how to plead its case. If the Defence wishes to make a specific challenge to the way in which the Prosecution has done so, it can do this at trial.

    7. Defence objections relating to the pleading of Article 7(1)

    Joint Criminal Enterprise

  50. The Defence makes a number of general and specific objections regarding the pleading in the Second Amended Indictment of a joint criminal enterprise (JCE).

  51. First, the Defence submits that no evidence has been submitted by the Prosecution that would suggest the existence of a JCE, especially in the form set out in paragraph 6 of the Second Amended Indictment.109 In response, the Prosecution submits that it pleads the relevant material facts in paragraphs 2, 7 and 8, and that the Second Amended Indictment must be read as a whole and individual paragraphs must not be analysed in isolation and out of context.110 The Prosecution submits that all of the requisite elements of the JCE are pleaded: the Accused’s participation (paragraphs 2, 5); the criminal purpose of the enterprise (paragraph 3); the mens rea of the Accused with regard to the commission of the crimes in furtherance of the enterprise (paragraph 4); the time and location of the underlying criminal acts committed in connection with the enterprise (paragraphs 3, 6-9, 18-29); and the specific acts of the Accused which furthered the goal of the enterprise (paragraphs  8 and 9).111

  52. Second, the Defence submits that there is a failure to precisely identify the participants in the JCE. In paragraph 5 of the Second Amended Indictment the Prosecution uses the imprecise term “known and unknown participants”.112 With reference to paragraphs 5 and 7 of the Second Amended Indictment, the Defence submits that it is not clear “with whom did the accused act in conjunction, nor did he act in fact indirectly” and that it “remains unclear if he is liable for the acts and omissions, as well as what were the roles of the participants according to the Prosecution’s claims, if they are not to be confined to the allegations of the Indictment”.113 The Defence submits that, in line with previous Tribunal decisions, all other participants must be identified together with their relation to the Accused.114

  53. The Defence submissions with respect to the insufficiency of the material facts regarding the participants in the JCE demonstrate an incomprehensible reluctance or refusal to consider the Second Amended Indictment as a whole. The Prosecution has clearly identified in paragraphs 5 through 7 the five major co-participants in the alleged JCE.115 It is precisely stated that “for the purpose of the indictment participation in the joint criminal enterprise charged in this indictment is limited to Mile MRKSIC, Miroslav RADIC, Veselin SLJIVANCANIN, Slavko DOKMANOVIC, Miroljub VUJOVIC and Stanko VUJANOVIC, and their subordinates”.116 Further, paragraphs 19, 20, 22-29 identify in a general way the criminal perpetrators of the acts for which the Accused is alleged to be responsible.117 The Prosecution case regarding the participants in the JCE and their roles for the purposes of the preparation of the Defence case is made abundantly clear. In addition, there is no ambiguity as to whether the Accused is charged with indirect or direct acts. He is charged under both Articles 7(1) and 7(3) for all the alleged crimes committed by the other participants in the JCE, as identified above. With respect to the Defence claim that there may be a need for clarification regarding the roles, acts and omissions of the JCE participants “if they are not to be confined to the allegations of the Indictment”, the Trial Chamber is of the view that this requests is merely spurious. It goes without saying that the Defence will never be required to meet a case which is not set out in the Second Amended Indictment. The Defence objections with respect to the identity of the JCE participants are rejected.

  54. The Defence further alleges a failure to identify the common goals and agreements of the JCE.118 The Prosecution responds that it has set out the criminal purpose of the enterprise in paragraph 3 of the Second Amended Indictment.119 The Trial Chamber finds that the purpose of the JCE as set out in paragraph 3 sufficiently identifies the common goals and agreements of the enterprise. The Defence argument is rejected.

  55. The Defence submits that the allegation in paragraph 5 of the Second Amended Indictment that the Accused participated in the basic form of JCE is inconsistent with the alternatively alleged extended form of JCE alleged in paragraph 4.120 Further the Defence submits that the Prosecution must specifically identify the Accused’s acts or conduct based on which it infers the Accused’s responsibility and “thus it is not permissible to make the accused responsible for acting in the alleged joint criminal enterprise, by both claiming him responsible under the primary form of responsibility and the broad form of the responsibility altogether (…) the Prosecution has to know whether its allegations would go to charging the accused for acting as a main perpetrator in the JCE or to charging the accused for aiding and abetting others to commit crimes (…) (t)he Prosecution has to decide whether the accused shared the same intent with other members of the joint criminal enterprise, or this is a case that the crimes were committed by a person outside the intended joint criminal enterprise, but which was nevertheless a natural and foreseeable consequence of affecting the agreed joint criminal enterprise”.121

  56. Despite its protestations, the Defence objection appears to go to the permissibility of charging under alternative heads of liability (or, in this case, alternative forms of JCE liability).122 It is clear from the Tribunal jurisprudence that it is permissible to plead the basic and extended forms of JCE liability in the alternative on the basis that it is not always possible for the Prosecution to know ahead of trial which of the two forms of responsibility will be proved by the evidence.123 It is not, therefore, a question of proving responsibility under both forms, but of maintaining the option of both forms pending the presentation of evidence, at which time the Trial Chamber will establish which form, if any, is the applicable one.

  57. Other Defence objections to the pleading of JCE in the Second Amended Indictment are equally misguided. The Defence submits that allowing the Prosecution to plead both forms of JCE would result in the Accused having “to defend himself from one fact in two opposite ways, (…) therefore rendering any possibility of a defence preparation impossible.”124 The Defence further alleges that this “broadened form of responsibility” disables the Accused from adequately preparing its defence and that the Prosecution should thus be ordered to decide on what it actually desires to charge the accused with.125 The Trial Chamber notes again that the Prosecution is entitled to plead the basic and extended forms of JCE liability in the alternative. The Defence submission that this may make the preparation of its case more difficult or “impossible” has not been substantiated, and does not justify a change in the Prosecution’s pleading approach. The Second Amended Indictment clearly identifies those acts for which the Accused is alleged to be responsible, as well as the modes of such responsibility. The Defence objections are rejected.

  58. The Defence argues that, by charging the Accused as an accomplice within a JCE, the Prosecution puts it in a more onerous position based on an identical state of facts.126 Similarly, the Defence submits that by presenting Accused’s responsibility “alternatively both as subjective and objective”127 in paragraphs 4 and 9 of the Second Amended Indictment, the Accused is placed in an onerous position.128 It is not the task of the Trial Chamber to ensure that the position of the Defence is not onerous, but rather that it is not unfairly so. The Prosecution correctly responds that the suggestion that pleading in the alternative places an accused in a more onerous position and that it should therefore be disallowed is without support in the Tribunal jurisprudence.129 This Defence objection is rejected.

    Pleading different heads of responsibility under Article 7(1)

  59. The next set of Defence objections challenge the approach that the Prosecution has adopted with respect to pleading various headings of responsibility under Article 7(1).

  60. The Defence submits that the Second Amended Indictment does not specify the elements of the Accused’s individual responsibility, but rather copies the formulation of Article 7(1).130 As a result, the Accused must defend himself from charges both as a perpetrator and as an aider and abettor, which is “not common in the jurisprudence of the Tribunal”.131 The “Accused could not have at the same time ordered and abetted the crime, nor could he have planned, committed and aided id est supported its preparation.”132 The Accused must be informed if the Prosecution claims that the Accused committed or ordered commission of criminal acts or if he only aided and abetted.133 Further Defence arguments also focus on the alternative nature of the pleadings.134

  61. The Prosecution responds that, in paragraph 9 of the Second Amended Indictment, all the bases for Article 7(1) are alleged.135 The Accused is charged in the alternative with all of the modes of liability set out in Article 7(1), including liability as an aider and abettor. The Second Amended Indictment need not limit or elect specific modes of liability under Article 7(1). The Accused is on notice that all modes of liability under 7(1) are available to the finder of fact.136 The Prosecution submits that it is well settled in Tribunal jurisprudence that pleading may be both in the alternative and cumulative, and that the Defence arguments are based on a mistaken belief that pleading in the alternative is not allowed.137

  62. As set out above in paragraph 9 of this decision, the Prosecution is obliged to indicate the particular head or heads of Article 7(1) responsibility alleged in order to enable the Accused to effectively and efficiently prepare his defence. Contrary to the Defence submissions, however, the Prosecution is not required to choose between different heads of responsibility. In this case it has chosen to plead all the different heads of responsibility, as is its right. It will be required to prove the existence of each of these at trial. Further, despite Defence protestations to the contrary,138 the arguments advanced clearly challenge the approach of pleading heads of responsibility in the alternative. Such an approach has clearly been accepted within the Tribunal’s jurisprudence.139 The Defence objections are therefore rejected.

  63. In addition to its general objections, the Defence makes a specific request for clarification with respect to the Article 7(1) modes of liability pleaded in paragraph 36 of the Second Amended Indictment, regarding the charges for imprisonment, torture, inhumane acts and cruel treatment. The Defence submits that the Prosecution must specify “whether the Accused is being charged with ordering the detention of the relevant people or aiding it”.140 As noted above, the Prosecution is free to plead more than one mode of liability. In paragraph 36 of the Second Amended Indictment, it has clearly done so. The Trial Chamber finds that the case to be met by the Defence is clear and that no clarification is necessary. The request is rejected.

    8. Defence objections relating to the pleading of Article 7(3)

  64. The Defence also challenges the sufficiency of the material facts set out by the Prosecution with respect to the superior command head of responsibility.141 Specifically, the Defence alleges that, in paragraph 10 of the Second Amended Indictment, the Prosecution fails to clarify the material facts regarding the relationship of the Accused to his subordinates, of which acts committed by his subordinates the Accused knew or had reason to know, the identity of the subordinates who committed such acts, and the type of acts committed and measures that the Accused could have but failed to take.142 The Defence further submits that the Prosecution must specify, where possible, the overall structure including those units under the command of the Accused, their zones of responsibility and which units carried out the acts alleged in the Second Amended Indictment.143 In response to the Defence allegations, the Prosecution submits that the requisite material facts are to be found in paragraphs 10-14 of the Second Amended Indictment. Whether or not the Accused exercised actual control over the forces in question is an evidentiary matter that must be determined at trial. The material facts regarding his de jure and de facto control of the military forces in Vukovar have been pleaded with the requisite specificity.144

  65. The jurisprudence of this Tribunal is clear with respect to the nature of the material facts which need to be pleaded in a case based on superior responsibility.145 Certain facts will necessarily be stated with less precision than in a case based on Article 7(1) responsibility, and in some cases it may be sufficient to identify the persons who committed the alleged crimes and the victims by means of the category or group to which they belong.146 The Trial Chamber finds that the Prosecution has clearly identified in paragraphs 7 and 10-14 of the Second Amended Indictment the command position occupied by the Accused and the individuals and units subordinated to him. The material facts regarding the acts committed and the individuals who committed them are set out throughout the Second Amended Indictment and are generally the subject here of individual Defence objections where it is submitted that such facts are insufficiently pleaded. The Trial Chamber finds that the general Defence objections with respect to superior responsibility are without merit, and they are accordingly refused, with one exception. While the Prosecution notes the legal requirements that the Accused must have known or had reason to know that his subordinates were about to commit the crimes alleged or had done so and that he failed to take the necessary and reasonable measures to prevent these crimes or to punish the persons who committed them, it does not plead these as material facts in this case. On this point only the Defence objection is upheld and the Prosecution is ordered to amend the Second Amended Indictment accordingly.

  66. In a more general complaint, the Defence submits that because the perpetrators of the crimes alleged were units which held persons under guard at Ovcara, the Accused as a member of the Yugoslav People’s Army had neither command nor responsibility over the said units.147 The Prosecution has properly pleaded the material facts regarding the Accused’s superior responsibility, including his superior position vis-à-vis these units. Whether or not these facts are true is a matter to be resolved at trial. The Defence objection is rejected.

  67. With respect to the paragraph 8(a) of the Second Amended Indictment, in which the Prosecution alleges that the Accused “directed, commanded, controlled, or otherwise exercised effective control over Serb forces engaged in the execution of the purpose of the joint criminal enterprise as described in this indictment”, the Defence requests clarification whether the Prosecution claims that the Accused “commanded these forces whereby he indirectly led to the execution of the joint criminal enterprise goal, or did he in fact have but a de iure control over the said forces or yet a control of a de facto nature”148 The Trial Chamber draws the attention of the Defence to paragraph 13 of the Second Amended Indictment, where both de iure and de facto control are pleaded.

    9. Disposition

  68. Pursuant to Rule 72,

    (a) The Motion is hereby granted in part, as follows:

    (i) The Prosecution is ordered to amend the Second Amended Indictment in the terms set out in paragraphs 46 and 65 of this Decision; and

    (ii) The Prosecution is ordered to disclose to the Defence the particulars highlighted by the Trial Chamber in paragraphs 29, 35, 41, 42, 43 and 48 of this Decision, or show good cause why it cannot do so at this stage.

    (iii) The amended indictment is to be filed no later than 12:00 on 21 July 2003. A table indicating all the amendments and changes made to the indictment shall be filed by the same time (reorganisation table).

    (iv) The Defence is to file complaints, if any, resulting from the amendments made in accordance with the above directions within thirty (30) days of the filing of the amended indictment (i.e., no later than 12:00 on 20 August 2003).

    (b) The remainder of the Motion is denied.

 

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

Dated this nineteenth day of June 2003
At The Hague,
The Netherlands.

_________________
Wolfgang Schomburg
Presiding Judge

[Seal of the Tribunal]


Footnote 1 - “Defense Response to Prosecution’s Motion for Leave to File an Amended Indictment”, 2 October 2002 (“Defence Response”); “Defense Preliminary Motion”, 29 November 2002 (“Defence Motion”); “Defence Reply to the Prosecution’s Response to Accused’s Preliminary Motion Based on Defects in the Form of the Indictment”, 6 January 2003 (“Defence Reply”).
Footnote 2 - “Prosecution’s Response to the Accused’s Preliminary Motion Based on Defects in the Form of the Second Amended Indictment”, 13 December 2002 (“Prosecution Response”); “Prosecution’s Reply in Support of Motion for Leave to File and Amended Indictment”, 30 October 2002 (“Prosecution Reply”).
Footnote 3 - Prosecutor v Mrksic, Radic and Sljivancanin, Case IT-95-13-I, Indictment, 7 November 1995 (“Initial Indictment”).
Footnote 4 - Prosecutor v Mrksic, Radic, Sljivancanin and Dokmanovic (†), Case IT-95-13a-I, Indictment, 1 April 1996 (“1996 Amended Indictment”); see also Prosecutor v Mrksic, Radic, Sljivancanin and Dokmanovic (†), Case IT-95-13a-I, Amendement de l’acte d’accusation, 3 April 1996.
Footnote 5 - Prosecutor v Mrksic, Radic, Sljivancanin and Dokmanovic (†), Case IT-95-13a-PT, Amended Indictment, 2 December 1997 (“1997 Amended Indictment”).
Footnote 6 - “Decision on Leave to File Amended Indictment”, 1 November 2002.
Footnote 7 - Prosecutor v Mrksic, Case IT-95-13/1, Second Amended Indictment, 29 August 2002 (“Second Amended Indictment”).
Footnote 8 - Hereinafter, references to “Article” or “Articles” would mean references to an Article or Articles of the Statute.
Footnote 9 - See “Decision on Leave to File Amended Indictment”, 1 November 2002, in which the “Defence is granted leave to file a motion on the form of the indictment but should restrict itself to arguments additional to those already raised in the Defence Response”; and the “Decision on Request for Leave to Reply”, 20 December 2002, in which the Defence is ordered to “restrict its reply to new issues raised in the Prosecution’s Response and shall not repeat arguments already advanced”.
Footnote 10 - Prosecutor v Kupreskic and Others, Case IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic Appeal Judgment”), par 88.
Footnote 11 - Kupreskic Appeal Judgment (with reference to Arts 18(4), 21(2) and 21(4)(a) and (b) of the Statute and Rule 47(C)); and Prosecutor v Hadzihasanovic, Alagic (†) and Kubura, Case IT-01-47-PT, Decision on Form of Indictment, 7 December 2002 (“Hadzihasanovic Indictment Decision”), par 8.
Footnote 12 - See Kupreskic Appeal Judgment, par 88; Arts 18(4), 21(2) and 21(4)(a) and (b) of the Statute; and Rule 47(C) of the Rules of Procedure and Evidence (“Rules”), which essentially restates Art 18(4).
Footnote 13 - Kupreskic Appeal Judgment, par 89.
Footnote 14 - Ibid, par 89.
Footnote 15 - Hadzihasanovic Indictment Decision, par 10; Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 February 2001 (“First Brdjanin & Talic Decision”), par 18. It is essential for the accused to know from the indictment just what that alleged proximity is: Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on Objections by Radoslav Brdjanin to the Form of the Amended Indictment, 23 February 2001 (“Second Brdjanin & Talic Decision”), par 13.
Footnote 16 - Second Brdjanin & Talic Decision, par 10.
Footnote 17 - See Prosecutor v Delalic and Others, Case IT-96-21-A, Judgement, 20 Feb 2001 (“Celebici Appeal Judgment”), par 350. See also Prosecutor v Deronjic, Case IT-02-61-PT, Decision on Form of the Indictment, 25 October 2002 (“Deronjic Decision”), par 31.
Footnote 18 - See ibid, par 351; Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 March 2000, par 171, fn 319 (with reference to Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000 (“First Krnojelac Decision”), pars 59-60).
Footnote 19 - Eg, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail (Kupreskic Appeal Judgment, par 89), whereas, in a joint criminal enterprise case, different material facts would have to be pleaded (see also Prosecutor Brdjanin and Talic, Case IT-99-36-PT, “Decision on Form of Further Amended Indictment and Prosecution Application to Amend”, 26 June 2001 (“Third Brdjanin & Talic Decision”), pars 21, 22).
Footnote 20 - The Prosecution may also be ordered to plead what is the position forming the basis of the superior responsibility charges (Deronjic Decision, par 15).
Footnote 21 - Deronjic Decision, par 19.
Footnote 22 - Celebici Appeal Judgment, par 256 (see also pars 196-198, 266).
Footnote 23 - Statute, Art 7(3); see Hadzihasanovic Indictment Decision, pars 11 and 17; see also First Brdjanin & Talic Decision, par 19; Prosecutor v Krajisnik, Case IT-00-39-PT, Decision Concerning Preliminary Motion on the Form of the Indictment, 1 August 2000 (“Krajisnik Decision”), par 9; First Krnojelac Decision, par 9.
Footnote 24 - Statute, Art 7(3); see Hadzihasanovic Indictment Decision, par 11; First Brdjanin & Talic Decision, par 19; Krajisnik Decision, par 9.
Footnote 25 - Statute, Art 21(4)(a); Hadzihasanovic Indictment Decision, par 11; Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, par 38.
Footnote 26 - Hadzihasanovic Indictment Decision, par 11; First Brdjanin & Talic Decision, par 19.
Footnote 27 - See Hadzihasanovic Indictment Decision, par 11; First Brdjanin & Talic Decision, par 19; Prosecutor v Kvocka, Case IT-99-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999 (“Kvocka Decision”), par 17; First Krnojelac Decision, par 18(A); Krajisnik Decision, par 9. The exact relationship between this material fact and that of effective control, i.e. the material ability of a superior to prevent or punish criminal conduct of subordinates, need not be considered here.
Footnote 28 - Statute, Art 7(3); see Hadzihasanovic Indictment Decision, par 11; First Brdjanin & Talic Decision, par 19 (rolling facts (b) and (c) together); Krajisnik Decision, par 9.
Footnote 29 - Hadzihasanovic Indictment Decision, par 10.
Footnote 30 - Third Brdjanin & Talic Decision, par 33.
Footnote 31 - Hadzihasanovic Indictment Decision, par 10; Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on Form of Fourth Amended Indictment, 23 November 2001, par 12; First Brdjanin & Talic Decision, par 48.
Footnote 32 - Hadzihasanovic Indictment Decision, par 10; First Brdjanin & Talic Decision, par 48.
Footnote 33 - Kupreskic Appeal Judgment, par 114.
Footnote 34 - If the Defence is denied the material facts as to the nature of the accused’s responsibility for the events pleaded until the pre-trial brief is filed, it is almost entirely incapacitated from conducting any meaningful investigation for trial until then (see Second Brdjanin & Talic Decision, pars 11-13).
Footnote 35 - Kupreskic Appeal Judgment, par 92.
Footnote 36 - Ibid.
Footnote 37 - Ibid.
Footnote 38 - Ibid, par 88. It can be left open whether the view expressed by the Appeals Chamber is an obiter dictum only, and whether there may not be exceptional cases in which the Prosecution may be required to plead the evidence in an indictment.
Footnote 39 - Defence Motion, pars 2, 4.
Footnote 40 - Defence Motion, par 16, Defence Reply, pars 12, 15, 16.
Footnote 41 - Defence Motion, par 5.
Footnote 42 - Defence Motion, pars 4, 5, Defence Reply 4.
Footnote 43 - Defence Reply, pars 16, 17.
Footnote 44 - Prosecution Response, pars 8, 20. Including with regard to: the command position held by the Accused; the identity of the participants in the joint criminal enterprise; the location and approximate time of each criminal event; the person or persons involved in the crimes committed; the manner in which the crimes were committed; the nature of the Accused’s participation in the crimes; and the identities of the victims (Prosecution Response, par 8).
Footnote 45 - Prosecution Response, par 15.
Footnote 46 - Prosecution Response, pars 12, 30.
Footnote 47 - Prosecution Response, par 30.
Footnote 48 - See par 14 above.
Footnote 49 - “Although it is no longer necessary for an amended indictment to be "confirmed" after the case has been assigned to a Trial Chamber, leave will not be granted to add new allegations to an indictment unless the prosecution is able to demonstrate that it has material to support these new allegations - unless, of course, the evidence has already been given and the indictment is being amended merely to accord with the case which has been presented”, Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on Form of Fourth Amended Indictment, 23 November 2001, par 21.
Footnote 50 - Namely persecution (count 1), extermination (count 2), imprisonment (count 5) and torture, both as a crime against humanity (count 6) and as a violation of the laws or customs of war (count 8).
Footnote 51 - Defence Response, par 10; Defence Motion, par 30 regarding persecution in particular.
Footnote 52 - Defence Response, par 6.
Footnote 53 - Prosecution Reply, par 9.
Footnote 54 - “It is somewhat of a paradox that the Prosecution now wishes to charge the Accused with these additional charges if one bears in mind that the Prosecution claims that even though the perpetrators of the crimes against the victims in Ovcara were in fact members of the local territorial defence units, these charges did not exist when a member of the government of Eastern Slavonia, Baranje and Western Srem was tried, under whose command the said units were.” (Defence Response, par 10)
Footnote 55 - Prosecution Reply, par 9.
Footnote 56 - Defence Response, par 11.
Footnote 57 - Defence Response, par 11.
Footnote 58 - Defence Response, pars 11, 12. See also par 6, in which the Defence submits that the Accused “is placed in a more difficult position id est he is expected to prove a fact which is incompatible with both his own role and the role of the army to which he belonged”.
Footnote 59 - Prosecution Reply, par 10.
Footnote 60 - Prosecution Reply, par 12.
Footnote 61 - Defence Response, par 6.
Footnote 62 - See par 13 above. See also Prosecution Reply, par 11.
Footnote 63 - Defence Motion, par 8.
Footnote 64 - See eg. Prosecutor v Milutinovic and Others, Case IT-99-37-AR72, Decision on Drgoljub Ojdanic’s Motion Challenging Jurisdiction –Joint Criminal Enterprise, 21 May 2003.
Footnote 65 - Defence Response, pars 7, 11; Defence Motion, pars 8, 22, 25, 29.
Footnote 66 - Prosecution Response, par 30.
Footnote 67 - Prosecution Response, par 32.
Footnote 68 - Defence Motion, par 14.
Footnote 69 - Amended Indictment, par 11.
Footnote 70 - Defence Motion, par 19; Defence Reply, par 23.
Footnote 71 - Defence Motion, pars 22, 41.
Footnote 72 - Defence Motion, par 23.
Footnote 73 - See Second Amended Indictment par 3: “The purpose of this joint criminal enterprise was the persecution of Croats and other non-Serbs who were present in the Vukovar Hospital after the fall of Vukovar, through the commission of crimes in violation of Articles 3 and 5 of the Statute of the Tribunal” (emphasis added).
Footnote 74 - Defence Motion, par 23.
Footnote 75 - Defence Motion, par 24.
Footnote 76 - Prosecution Response, par 32.
Footnote 77 - First Krnojelac Decision, par 18.
Footnote 78 - Specifically, the Defence requests data on the number of dead people, the circumstances and locations of deaths, and the units responsible for deaths. See Defence Motion, par 25.
Footnote 79 - The Defence submits that it is not possible to adduce from the material that the non-Serb population was forced out and that there is evidence that they left voluntarily. See Defence Motion, par 25.
Footnote 80 - Defence Motion, par 25.
Footnote 81 - In par 24 of the Second Amended Indictment, it actually reads that soldiers “humiliated and threatened” the detainees.
Footnote 82 - Defence Motion, par 27.
Footnote 83 - Second Amended Indictment, par 7(a).
Footnote 84 - See Third Brdjanin & Talic Decision, par 59, for the principle that the identity of the victims and perpetrators are not material facts in a case in which the accused is remote in proximity from the crimes alleged to have been committed – rather, they are matters of evidence.
Footnote 85 - Defence Motion, par 35; Defence Reply, par 20.
Footnote 86 - Defence Reply, par 20.
Footnote 87 - Prosecution Response, par 32.
Footnote 88 - Defence Motion, par 31.
Footnote 89 - Defence Motion, par 28.
Footnote 90 - The Trial Chamber notes that the definition of Serb forces given clearly includes “members of the JNA” and therefore rejects the Defence argument that the reference to “Serb forces” excludes that they are members of the JNA (Defence Reply, par 21).
Footnote 91 - Defence Motion, par 39.
Footnote 92 - Defence Motion, par 38.
Footnote 93 - Defence Motion, par 29; Defence Reply, par 21.
Footnote 94 - Defence Motion, par 31. In the Defence Motion it is mistakenly stated that the relevant Indictment paragraph is 32.
Footnote 95 - First Krnojelac Decision, par 57.
Footnote 96 - Defence Motion, pars 31, 36; Defence Reply, par 21. The sexual violence allegations referred to would appear to be those pleaded in pars 31(c) and 37 of the Second Amended Indictment, although the relevant paragraphs have not been specified by the Defence.
Footnote 97 - Defence Motion, pars 31, 37.
Footnote 98 - Defence Motion, par 40.
Footnote 99 - Defence Reply, par 14.
Footnote 100 - Prosecution Response, par 23.
Footnote 101 - Defence Motion, par 33; Defence Reply, par 19.
Footnote 102 - Prosecution Response, par 32.
Footnote 103 - Defence Motion, par 37.
Footnote 104 - Prosecution Response, par 32.
Footnote 105 - Defence Motion, par 37.
Footnote 106 - Prosecution Response, par 32.
Footnote 107 - First Krnojelac Decision, par 57.
Footnote 108 - Defence Motion, par 37.
Footnote 109 - Defence Motion, par 8.
Footnote 110 - Prosecution Response, par 19, fn 20.
Footnote 111 - Prosecution Response, par 21.
Footnote 112 - Defence Motion, pars 9, 30; Defence Reply, par 12.
Footnote 113 - Defence Motion, pars 12, 13.
Footnote 114 - Defence Motion, par 26.
Footnote 115 - Prosecution Response, pars 21, 22.
Footnote 116 - Second Amended Indictment par 6.
Footnote 117 - Prosecution Response, par 22. The Trial Chamber does not agree with the Prosecution submission in this paragraph that the perpetrators have been identified “specifically”.
Footnote 118 - Defence Motion, par 9.
Footnote 119 - Prosecution Response, par 21. Par 3 of the Second Amended Indictment states “The purpose of this joint criminal enterprise was the persecution of Croats or other non-Serbs who were present in the Vukovar Hospital after the fall of Vukovar, through the commission of crimes in violation of Articles 3 and 5 of the Statute of the Tribunal”.
Footnote 120 - Defence Motion, par 11.
Footnote 121 - Defence Reply, par 12.
Footnote 122 - The Defence states in its Reply that “(…) the aforementioned Prosecution’s obligation cannot be questioned as a matter of permissibility of an alternative an cumulative charging, because neither a theoretical possibility if being responsible under both forms of responsibility can be discussed, nor is there justification in the elements required for the validation of the categories.” (Defence Reply, par 13).
Footnote 123 - Third Brdjanin & Talic Decision, par 40.
Footnote 124 - Defence Reply, par 13.
Footnote 125 - Defence Response, par 8.
Footnote 126 - Defence Response, pars 5, 6.
Footnote 127 - The Trial Chamber understands this to mean responsibility under both the basic and extended forms of JCE.
Footnote 128 - Defence Motion, par 10.
Footnote 129 - Prosecution Response, par 27.
Footnote 130 - Defence Motion, par 7; Defence Reply, par 4.
Footnote 131 - Defence Reply, par 4.
Footnote 132 - Defence Motion, par 7; see also par 17; Defence Reply, par 7.
Footnote 133 - Defence Reply, par 4.
Footnote 134 - The Defence asserts that, in par 7 of the Amended Indictment, the Prosecution presents its allegations in relation to the Accused in an imprecise and alternative fashion (Defence Motion, par 13). It states that the result of such an alternative presentation of responsibility is that the Prosecution is claiming that the Accused is both “the co-perpetrator as well as the co-participant” (Defence Motion, par 10). The Defence further objects to “the fact that the Prosecution has presented its request for the individual responsibility of the Accused as an accomplice in a joint criminal enterprise in an alternative fashion.” (Defence Response, par 8). Whether participation in a joint criminal enterprise in fact constitutes accomplice liability, disputed by the Prosecution (Prosecution Reply, par 6), is a matter to be resolved at trial.
Footnote 135 - Prosecution Reply, par 4.
Footnote 136 - Prosecution Reply, par 7.
Footnote 137 - Prosecution Response, par 26.
Footnote 138 - The Defence submits that its objection is not to alternative pleading, but to the imprecise allegations of the Prosecution regarding the Accused’s conduct: Defence Reply, par 5.
Footnote 139 - See eg Celebici Appeal Judgment, par 400, for cumulative charging.
Footnote 140 - Defence Motion, par 34.
Footnote 141 - Defence Motion, par 17.
Footnote 142 - Defence Motion, par 20.
Footnote 143 - Defence Motion, par 26.
Footnote 144 - Prosecution Response, par 22.
Footnote 145 - See par 10, supra.
Footnote 146 - See pars 8, 10, supra; see also Prosecution Response, par 17.
Footnote 147 - Defence Response, par 10.
Footnote 148 - Defence Motion, par 15.