IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
25 March 1999

PROSECUTOR

v.

BLAGOJE SIMIC
MILAN SIMIC
MIROSLAV TADIC
STEVAN TODOROVIC
SIMO ZARIC

______________________________________________________

DECISION ON THE PRE-TRIAL MOTION BY THE PROSECUTION REQUESTING THE TRIAL CHAMBER TO TAKE JUDICIAL NOTICE OF THE INTERNATIONAL CHARACTER OF THE CONFLICT IN BOSNIA-HERZEGOVINA

______________________________________________________

The Office of the Prosecutor

Ms. Anne-Birgitte Haslund
Ms. Mary MacFadyen
Ms. Nancy Paterson

Counsel for the accused

Mr. Branimir Avramovic for Milan Simic
Mr. IgorPantelic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic, for Simo Zaric

 

THIS 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 ("the International Tribunal"),

BEING SEISED of the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to Take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina ("the Motion"), filed by the Office of the Prosecutor ("the Prosecution") on 16 December 1998, and the Defence Response to the Motion filed by counsel for the accused Simi}, Tadi} and Zari} on 3 February 1999,

NOTING the written submissions of the parties and their oral arguments heard on 23 February 1999,

NOTING that, pursuant to Rules 73 and 94 of the Rules of Procedure and Evidence ("the Rules"), the Prosecution requests the Trial Chamber to take judicial notice of the international character of the armed conflict in Bosnia and Herzegovina ("BiH") at least for the period starting on 6 March 1992 or at the latest by 6 April 1992, and ending at the earliest on 19 May 1992 ("international character of the conflict").

NOTING that the Prosecution submits that the international nature of the conflict is based on the facts that BiH declared its independence on 6 March 1992, which was internationally recognised in April 1992, and that at that time there was an armed conflict taking place on the BiH territory, in which the National Yugoslav Army (JNA), and the armed forces of another state, the Socialist Federal Republic of Yugoslavia, was involved,

NOTING that the Prosecution bases its request alternatively on Rule 94(A) (facts of common knowledge) or Rule 94(B) (adjudicated facts or documentary evidence from other proceedings of the Tribunal),

NOTING FURTHER that as to Rule 94(A), the Prosecution submits that "because of the unanimous jurisprudence" of the Tribunal, the international character of the conflict is a fact of common knowledge or "at the very least" a fact of common knowledge "within this Tribunal", and that the international character of the conflict also is a historical fact of common knowledge,

NOTING that as to Rule 94(B), the Prosecution argues that the international character of the conflict is an adjudicated fact that was already determined in other proceedings before the Tribunal, that the judgements in the Tadic1 and Celebici2 cases addressing this issue fall within the scope of Rule 94(B), that if the issue at hand in both cases is not under appeal, it can be considered as final and thus be considered as an adjudicated fact,

NOTING that the Defence opposes the Motion and submits, based on a review of international and national practice, that a Trial Chamber may only take judicial notice of notorious facts which cannot be reasonably disputed, "or capable of immediate and accurate demonstration by resorting to readily accessible sources of indispensable accuracy", and that the issue of judicial notice should be approached in criminal proceedings "with great caution and care",

NOTING that the Defence contends that the character of the conflict in BiH is a controversial issue,

NOTING FURTHER that the Defence contends that the Tadi} and Celebici judgements cannot be considered as adjudicated facts under Rule 94(B) as the issue of the international character of the conflict is, or likely to be, under appeal in both judgements,

NOTING that the Defence further submits that judicial notice of the international character of the conflict would jeopardise the rights of the accused under Article 21 of the Tribunal’s Statute, in particular their right to a fair trial and right to examine or have examined the evidence presented by the Prosecutor, and that the accused have a right to an independent determination of the facts at issue,

NOTING that the Defence argues that the characterisation of the conflict is an issue of interpretation of historical facts which requires inter partes discussion, and that a Trial Chamber may not take judicial notice of legal conclusions by other Trial Chambers based on their interpretation of facts,

NOTING that during the hearing the Defence also made an oral offer of proof which was rejected by the Trial Chamber,

CONSIDERING that Sub-Rule 94(A) of the Rules provides that a Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof, and that pursuant to Sub-Rule 94(B), a Trial Chamber, after hearing the parties, at the request of a party or proprio motu, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings,

CONSIDERING that the issue is whether the Trial Chamber may take judicial notice of the international character of the conflict, i.e. whether the character of the conflict may be considered as either a fact of common knowledge, or an adjudicated fact for the purpose of judicial notice under Rule 94, and that this issue does not warrant, at this stage, examining the evidence on the character of the conflict,

CONSIDERING that the purpose of judicial notice under Rule 94 is judicial economy, that Rule 94 should be interpreted as covering facts not subject to reasonable dispute, and that a balance should be struck between judicial economy and the right of the accused to a fair trial,

CONSIDERING that the request is aimed at permitting the application of the counts of the indictment based on the grave breaches regime of the Geneva Convention (Article 2 of the Statute), as, according to the Tribunal’s jurisprudence, the Prosecution must inter alia prove the existence of an international armed conflict for this purpose,

CONSIDERING as to the issue of the characterisation of the conflict, that the Appeals Chamber in its Jurisdiction Decision in the Tadi} case held that different conflicts of different nature took place in the former Yugoslavia and that it would be for each Trial Chamber, depending on the circumstances of each case, to make its own determination on the nature of the armed conflict upon the specific evidence presented to it,

CONSIDERING that along the lines of the Tribunal’s jurisprudence on the binding character of other Trial Chambers’ finding as to the international character of the conflict, these findings have no binding force except between the parties in respect of a particular case ("effet relatif de la chose jugée" in French), that the circumstances of each case are different, and that as regards the controversial issue of the nature of the conflict, which involve an interpretation of facts, both parties should be able to present arguments and evidence on them,

CONSIDERING FURTHER that Rule 94 is intended to cover facts and not legal consequences inferred from them, that the Trial Chamber can only take judicial notice of factual findings but not of a legal characterisation as such,

CONSIDERING however that (1) BiH’s proclamation of independence on 6 March 1992, and (2) its recognition by the European Community on 6 April 1992 and by the United States on 7 April 1992, are facts of common knowledge under Sub-Rule 94(A) of which the Trial Chamber will proprio motu take judicial notice3,

PURSUANT TO Rules 73 and 94 of the Rules of the International Tribunal,

HEREBY DISMISSES THE MOTION as to judicial notice of the international character of the conflict in Bosnia and Herzegovina, and proprio motu takes judicial notice of the following facts

  1. Bosnia and Herzegovina proclaimed its independence from the Socialist Federal Republic of Yugoslavia on 6 March 1992;
  2. The independence of Bosnia and Herzegovina as a State was recognised by the European Community on 6 April 1992 and by the United States on 7 April 1992.

 

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

_____________________________

Richard May
Presiding Judge

Dated this twenty-fifth day of March 1999
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Prosecutor v. Dusko Tadic, Opinion and Judgment, Case No. IT-94-1-T, 7 May 1997 ("Tadic judgment").
2. Prosecutor v. Zejnil Delalic et. al., Case No. IT-96-21-T, 16 November 1998 ("Celebici judgment")
3. See for instance Order on Prosecution Request for Judicial Notice, The Prosecutor v. Milan Kovacevic, Case no.  IT-97-24-PT, 12 May 1998.