IN THE TRIAL CHAMBER
Judge Claude Jorda, Presiding
Judge Haopei Li
Judge Fouad Riad
Mr. Jean-Jacques Heintz, Deputy Registrar
4 April 1997
DECISION REJECTING A MOTION OF THE DEFENCE TO DISMISS
COUNTS 4, 7, 10, 14, 16 AND 18 BASED ON THE FAILURE
TO ADEQUATELY PLEAD THE EXISTENCE OF AN
INTERNATIONAL ARMED CONFLICT
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe
Mr. William Fenrick
Counsel for the Accused
Mr. Anto Nobilo
Mr. Russell Hayman
1. On 16 December 1996, Defence Counsel for General Blaskic (hereinafter "the Defence") submitted to Trial Chamber I a motion "to dismiss counts 4, 7, 10, 14, 16 and 18 based on the failure to adequately plead the existence of an international armed conflict (hereinafter "the motion"). The Prosecutor, in her response of 20 January 1997 (hereinafter "the response") responded to the motion. The Defence replied to the Response in a brief filed on 3 February 1997 (hereinafter "the reply"). The Trial Chamber heard both parties during a hearing on 12 and 13 March 1997.
The Trial Chamber will first analyse the claims of the parties and then consider all the contested points of fact and law.
I. ANALYSIS OF THE CLAIMS AND ARGUMENTS OF THE PARTIES
2. In its motion, the Defence claims that the Prosecutor has not provided sufficient proof of the existence of a condition which is essential to argue the charges based on Article 2 of the Statute of the Tribunal (hereinafter "the Statute"), that is, the existence of an armed international conflict in Bosnia and Herzegovina at the time the events occurred. It therefore considers that, pursuant to Sub-rule 73(A)(i) of the Rules of Procedure and Evidence (hereinafter "the Rules"), the Trial Chamber does not have jurisdiction to hear the following six of the 19 counts in the indictment:
Count no. 4: wilful killing (Article 2 (a) of the Statute);
Count no. 7: wilfully causing great suffering or serious injury to body or health (Article 2 (c) of the Statute);
Count no. 10: extensive destruction of property (Article 2 (d) of the Statute);
Count no. 14: inhuman treatment (Article 2 (b) of the Statute);
Count no. 16: taking civilians as hostages (Article 2 (h) of the Statute);
Count no. 18: inhuman treatment (Article 2 (b) of the Statute).
3. The Prosecutor objects to this motion on the grounds that the existence of an international conflict at the time the acts were allegedly committed was adequately pleaded in the indictment. Basing herself on the Tadic, Djukic and Delalic et al1 case-law, she asserts that she has fully satisfied her obligation pursuant to Article 21(4)(a) of the Statute to inform the accused "promptly and in detail in a language which he understands of the nature and cause of the charge against him". To this effect, she recalls paragraph 5.1 of the indictment: "at all times relevant to this indictment, a state of international armed conflict and partial occupation existed on the territory of the Republic of Bosnia and Herzegovina". Furthermore, she asserts that neither the Statute nor the Rules require that "legal arguments and evidence"2 appear in the indictment. In addition, the Prosecutor maintains that both a brief on the jurisdiction of the Tribunal produced by her office and material attached to the indictment at the time confirmation was sought provided sufficient evidence to support the allegation of an international armed conflict at the time of the events.
The Prosecutor also affirms that the difficulties related to the legal definition of an international armed conflict, as well as the determination of what evidence is required to establish its existence, raise factual and legal issues which can be settled only during the hearing on the merits.
4. In its reply, the Defence, basing itself on Article 21(4) of the Statute, Article 14 of the International Covenant on Civil and Political Rights, Article 262 of the Criminal Code of the Socialist Federative Republic of Yugoslavia (1976) and United Sates case-law in the case the United States v. Lopez3, considers that the Prosecutor must plead legally and factually sufficient allegations supporting the existence of an international armed conflict4. It also claims that the choice of criterion permitting a differentiation between an internal and an international conflict is a question of law which must be settled before the commencement of the trial on the merits. The Defence asserts further that the case-law of the Tribunal and of the International Court of Justice permits the conclusion that the conflict in the case at hand was internal and that the provisions of Article 2 of the Statute, "Grave breaches of the Geneva Conventions of 1949"5 therefore cannot be applied.
5. The Trial Chamber would recall that the Defence motion initially requested that the Judges declare that they have no jurisdiction over counts based merely on Article 2 of the Statute, "Grave Breaches of the Geneva Conventions". In this respect, the accused invoked Sub-rule 73(A)(i) of the Rules "objections based on lack of jurisdiction"6. It thus developed a substantive argument, in respect of both fact and law, seeking to demonstrate that the conflict in question could not be characterised as international. In its detailed analysis, the Defence referred moreover to the case-law of the International Court of Justice, more specifically to the case Nicaragua v. The United States of America7 and to that of the Tribunal in the cases The Prosecutor v. Tadic8 and The Prosecutor v. Rajic9.
The Trial Chamber notes that the Defence supplemented its argument in its reply by pleading Article 21(4)(a) of the Statute which gives the accused the right to be informed promptly and in detail the nature and the cause of the charge against him10. In this respect, it considered that the Prosecution had failed to satisfy this obligation because, in the indictment, it did not specify precisely what would justify characterising the conflict as international11.
6. The Judges, accordingly, note that the dispute referred to them for consideration involves two points:
a) - jurisdiction: did an international conflict exist at the time the accused committed the crimes ascribed to him in the indictment or was the conflict merely internal?
b) - defects in the form of the indictment: at this stage of the proceedings, must the Prosecutor prove in fact and in law that an armed conflict existed in order to indict an individual pursuant to Article 2 of the Statute or is it sufficient for her to allege the existence of such a conflict at the time of the events?
The Trial Chamber will now deal with each of the questions separately
7. As regards the discussion on the characterisation of the conflict as internal or international, the Judges note that the Appeals Chamber, in the case The Prosecutor v. Tadic, was asked to consider a request analogous to that of General Blaskic seeking that the Tribunal find that it lacked subject matter jurisdiction, inter alia because the alleged crimes had not been committed within the scope of an international armed conflict. Although that Chamber ruled - in a split decision however which produced several separate opinions - that "in the present state of development of the law, Article 2 of the Statute only applies to offences committed within the context of international armed conflicts"12, it did not settle the issue of whether in that case, given the circumstances of time and place covered by the indictment, the said conflict was international. It thus considered that the Trial Chamber should settle this issue involving factual and legal questions only on the merits.
For the same reason, the Trial Chamber is of the opinion that it is premature to rule on this point since it can be considered properly only on its merits.
8. As regards the second point, identified above as a question of defects in form, the Trial Chamber would stress, as it asserted in its decision rejecting the motion alleging defects in the form of the indictment, that the indictment is, by its very nature, necessarily concise and succinct but must, however, permit the accused to prepare his defence.
In the case in point, the Prosecutor has satisfied her obligation pursuant to Article 18(4) of the Statute and Sub-rule 47(B) of the Rules and thus permitted the accused to prepare his defence by affirming that the Republic of Bosnia and Herzegovina was the theatre of an international armed conflict throughout the period covered by the indictment, a condition which was held by the Appeals Chamber in the case The Prosecutor. v. Tadic as necessary for recourse to Article 2 of the Statute on grave breaches of the Geneva Conventions.
The Trial Chamber therefore considers that it is not incumbent on the Prosecutor at this stage of the proceedings to provide the proof of the existence of an international armed conflict since such proof does not constitute a condition for the formal validity of the indictment.
9. FOR THE FOREGOING REASONS,
Trial Chamber I,
Ruling inter partes and unanimously,
REJECTS the motion of the accused dated 16 December 1996 that counts 4, 7, 10, 14,16 and 18 of the indictment be stricken because of a failure to adequately plead the existence of an international armed conflict.
Done in French and English, the French version being authoritative.
Done this fourth day of April 1997
At The Hague
Presiding Judge, Trial Chamber I