Case No. IT-95-12-PT


Judge Liu Daqun, Presiding
Judge Carmen Maria Argibay
Judge Volodymyr Vassylenko

Mr. Hans Holthuis

27 April 2004







The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the accused:

Mr. Zelkjo Olujic
Mrs. Doris Kosta



  1. Ivica Rajic (“the accused”) is charged with ten (10) counts under both Article 7(1) and Article 7(3) of the Statute for the International Criminal Tribunal for the Former Yugoslavia (“the Statute”) on the basis of his alleged involvement in events that occurred in Stupni Do and Vares, located in the Vares Municipality, in October and November 1993.

  2. The accused was first indicted on 23 August 1995. The initial indictment was confirmed on 29 August 1995. On 13 September 1996, pursuant to Rule 61 of the Rules of Procedure and Evidence (“the Rules”), the Indictment was reconfirmed and an international arrest warrant was issued against the accused. Ivica Rajic was arrested in Croatia on 5 April 2003 and surrendered to the United Nations Detention Unit (UNDU) in The Hague on 24 June 2003.

  3. At the initial appearance held on 27 June 2003, the accused pleaded not guilty to all counts of the initial indictment. On 28 August 2003, the Defence filed a Motion challenging the form of the Indictment (the “First Motion on the Form of the Indictment”). In its response, dated 4 September 2003,1 the Prosecution announced that it would file a motion for leave to amend the Indictment in the near future and the Trial Chamber, at the Prosecution’s request, suspended its decision on the merits of the First Motion on Form of the Indictment until the Amended Indictment was filed.

  4. On 23 October 2003, the Prosecution filed its Motion for leave to amend the Indictment (the “Motion for Leave to Amend the Indictment”). By an order of 12 January 2004, the Trial Chamber granted leave to the Prosecution to amend the Indictment and declared the First Motion on the Form of the Indictment moot.2 The Defence was granted 45 days, from disclosure of the supporting material concerning the Amended Indictment, to file a preliminary motion on the form of the Amended Indictment pursuant to Rule 72(A)(2) of the Rules.3

  5. The Amended Indictment was filed by the Prosecution on 14 January 2004. The allegations in the Amended Indictment refer to events that occurred in Stupni Do and Vares from 23 October 1993 until 3 November 1993. The accused is charged with :

    (i) grave breaches of the Geneva Conventions of 1949, punishable under Article 2 of the Statute, consisting of wilful killing (Count 1), inhuman treatment, including sexual assault (Count 3), unlawful confinement of a civilian (Count 5), appropriation of property (Count 7) and extensive destruction not justified by military necessity and carried out unlawfully and wantonly (Count 9);

    (ii) violation of the laws or customs of war, punishable under Article 3 of the Statute, consisting of murder (Count 2), outrages upon personal dignity, in particular humiliating and degrading treatment, including sexual assault (Count 4), cruel treatment (Count 6), plunder of public and private property (Count 8) and wanton destruction of a city or devastation not justified by military necessity (Count 10).

  6. On 29 January 2004, the accused pleaded not guilty to all counts of the Amended Indictment. The Defence filed its Motion on the Form of the Indictment on 23 February 2004 (the “Motion”). The “Prosecution Response to the Defence Motion on Form of the Indictment” (the “Prosecution’s Response”) was filed on 5 March 2004.

    THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the parties,



    1. Arguments of the parties

  7. The Defence objects to the form of the Amended Indictment on three main grounds and requests that the Amended Indictment be dismissed or, alternatively, that the Prosecution be ordered to correct it. The Defence first argues that it is too vague in a series of aspects and does not establish a causal nexus between the conduct of the accused and the alleged subsequent harmful effects. The Defence deems that the Amended Indictment is unclear when referring to provisions of international humanitarian law on the basis of which the accused is charged with crimes.4 It also claims that the nature of the accused’s alleged involvement in the crimes charged against him is not presented with the required degree of specificity, and the time, place and victims of, and soldiers or units involved in, each alleged crime should be further specified.5

  8. The Defence also maintains that the Amended Indictment improperly charges the accused concurrently under all modes of liability listed in Article 7(1) as well as under Article 7(3) of the Statute, a practice that it deems unacceptable.6 Finally, the Defence argues that the allegations presented in the Amended Indictment are not supported by the supporting material or other documents disclosed so far.

  9. The Prosecution responds that the Amended Indictment is sufficiently precise in view of the requirements laid down in the jurisprudence of this Tribunal and notes that most arguments presented in the Motion deal with issues related to disclosure, presentation of evidence or the ultimate conclusions at trial and sentencing.7 It further argues that cumulative charging is authorised in the Tribunal’s jurisprudence.8 Finally, it avers that a motion on the form of the indictment is not the proper venue to contest the decision reached by the confirming judge on the basis of the supporting material presented, that a prima facie case had been established by the Prosecution.9

    2. Analysis

  10. Article 18 (4) of the Statute of the Tribunal (the “Statute”) provides that “the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute ” and Rule 47(C) of the Rules of Procedure and Evidence (the “Rules”) provides that “(t(he indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged.” This obligation on the Prosecution stems from the fundamental rights of the accused set out in Articles 21(4) (a) and (b) of the Statute “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him” and “to have adequate time and facilities for the preparation of his defence.”

  11. A clear distinction must be made between the material facts upon which the Prosecution relies and the evidence by which those material facts will eventually be proven. While the material facts supporting each charge must be pleaded in the indictment, the evidence by which those facts are proven is adduced at trial and not examined at this stage of the proceedings. Likewise, the Trial Chamber finds, in accordance with the jurisprudence,10 that submissions that the supporting material does not support the charges are not matters to be dealt with at this stage of the proceedings. As a result, all the Defence’s arguments claiming that the allegations contained in the Amended Indictment are not substantiated are rejected.

  12. It is also settled jurisprudence within the Tribunal that cumulative charging on the basis of the same set of facts is permissible.11 It is to be allowed in light of the fact that, prior to the presentation of evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven.12 Cumulative charging under both Articles 7(1) and 7(3) is therefore permissible. However, the Appeals Chamber has recently held that, “[s]ince Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity.” As a result, the Appeals Chamber deemed that “the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial.”13 The Appeals Chamber further clarified, that ”this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment – for instance in a pre-trial brief – the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial.”14 The Trial Chamber finds that for the accused to be informed of the nature and cause of the charges against him, as required by Article 21 (4) (a) of the Statute, the Prosecution needs to further specify - at the latest in its pre-trial brief - the form(s) of liability that the Prosecution intends to plead against the accused.

  13. The degree of specificity with which the Prosecution is required to particularise the facts in the indictment depends on the nature of the alleged criminal conduct charged against the accused.15 As far as the individual responsibility of the accused is concerned, the particular acts of the accused himself or the particular course of conduct on his part which are alleged to constitute that responsibility must be clearly identified. On the other hand, the materiality of such details as the identity of the victim(s), the place and date of the events for which an accused is alleged to be responsible, and the description of the event(s), depend on the alleged proximity of the accused to the event(s).16 In particular, the Tribunal’s case-law has considered that, in a case based on superior responsibility, it is sufficient to identify the persons who committed alleged crimes and the victims, by means of the category or group to which they belong.17

  14. Regarding the claimed lack of material facts on the accused’s alleged involvement in the commission of the crimes charged against him, the Trial Chamber notes that the Amended Indictment clearly indicates that, at all times relevant to the Amended Indictment, the accused was commander of the Croatian Defence Council’s Second Operational Group in the Central Bosnia Operative Zone and had de jure and de facto command and control of various Croatian Defence Council Units in his area of responsibility.18 The Amended Indictment further alleges that the crimes were committed by HVO troops placed under his command and specifies that these forces comprised “around 200 soldiers, including soldiers from the HVO “Maturice” and “Apostoli” units as well as HVO soldiers from Kiseljak and Kakanj.”19 The Trial Chamber deems that this information is specific enough for the accused to be properly informed of the charges expressed against him.

  15. In respect of the material facts provided on the time and place of each alleged crime, the Trial Chamber notes that the alleged criminal acts or omissions were committed within a period of two weeks in two very specific areas. Furthermore, the Amended Indictment indicates the exact date, and sometimes time of the day, of the events, as well as the number of victims. It also specifies the exact time and locations where Muslim men were allegedly detained. The identity of some victims is provided in two confidential Annexes. The Trial Chamber however notes a difference in the number of victims referred to in various paragraphs of the Amended Indictment. Paragraph 16 alleges that ‘… at least thirty-one Muslim men, women and children’ were killed in Stupni Do on 23 October 1993, while paragraph 17 indicates that ‘( a(ll together, the HVO attack on Stupni Do resulted in the deaths of at least thirty -seven Muslim men, women and children.’ Annex 1 of the Amended Indictment also lists 31 victims. The Trial Chamber urges the Prosecution to clarify this apparent inconsistency.

  16. Regarding the lack of clarity with respect to the provisions of international humanitarian law referred to in support of the charges, the Trial Chamber notes that the Amended Indictment refers to specific provisions of the Statute for each count and that the Tribunal’s jurisprudence does not require that the elements of each crime charged be set out in the indictment. The Trial Chamber hence finds that the Amended Indictment is sufficiently precise in this respect.




    PURSUANT TO Rule 72 of the Rules

    REQUESTS the Prosecution, within thirty days of the date of this decision, to clarify the apparent inconsistency on the number of victims as presented under paragraphs 16 and 17.

    DENIES the Motion on the remaining grounds.

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

Dated this twenty-seventh day of April 2004,
The Hague,
The Netherlands

Judge Lui Daqun,
Presiding Judge

[Seal of the Tribunal]

1 - “Prosecution Response to Defence Motion on the Form of the Indictment Pursuant to Rule 72”.
2 - Order concerning the Prosecutor’s Motion seeking Leave to amend the Indictment, 12 January 2004.
3 - Status Conference of 3 November 2003.
4 - Motion, pp. 1-2.
5 - Motion, p. 3.
6 - Motion, p. 2.
7 - Prosecution’s Response, para. 6.
8 - Prosecution’s Response, para. 14.
9 - Prosecution’s Response, para. 7.
10 - See for instance, The Prosecutor v. Pasko Ljubicic, Case No. IT-00-41-PT, Decision on the Defence Motion on the Form of the Indictment, 15 March 2002; The Prosecutor v. Radislav Krstic, Case No. IT-98-33-PT, Decision on Defence Preliminary Motion on the Form of the Amended Indictment, Counts 7-8, 28 January 2000.
11 - See The Prosecutor v Kupreskic et al, Case no. IT-95-16-PT, Decision on Defence challenges to the Form of the Indictment, 15 May 1998, Prosecutor v. Delalic et al. Case no. IT-69-21-T, Decision on Motion by the accused Zejnil Delalic based on defects in the Form of the Indictment, 2 October 1996, para. 24, referring to Tadic Decision on Defence Motion on Form of Indictment, 14 November 1995 and The Prosecutor v. Kvocka et al. Case no IT-98-30-PT, Decision on Defence Preliminary motions on the Form of the Indictment, 12 April 1999, para 50.
12 - The Prosecutor v. Stanislav Galic, Judgement, Case No. IT-89-29-T, 5 December 2003, quoting the Celebici Appeal Judgement, para. 400 and Kupreskic Appeal Judgement, para. 385.
13 - The Prosecutor v. Krnojelac, Judgement, Case No. IT-97-25-A, 17 September 2003 (the “Krnojelac Appeals Judgement”), para. 138.
14 - Ibid.
15 - The Prosecutor v. Zoran Kupreskic et al., Judgement, Case No. IT-95-16-A, 23 October 2001 (the “Kupreskic Appeals Judgement”), para. 89.
16 - The Prosecutor v. Radoslav Brdanin and Momir Talic, Decision on Objections by Momir Talic to the Form of the Amended Indictment, Case No. IT-97-25-PT, 11 February 2000, para. 18. See also The Prosecutor v. Momcilo Krajisnik, Decision Concerning Preliminary Motion on the Form of the Indictment, Case No. IT-00-39-PT, 1 August 2000, para. 9.
17 - Prosecutor v. Krnojelac, Case no IT-97-25-PT, Decision on the Defence preliminary Motion on the form of the Indictment, 24 February 1999, para. 46.
18 - Amended Indictment, para. 2.
19 - Amended Indictment, para. 12.