TRIAL CHAMBER I
Judge Claude Jorda, Presiding
Judge Haopei Li
Judge Fouad Riad
Mr Jean-Jacques Heintz, Deputy Registrar
4 April 1997
DECISION REJECTING THE DEFENCE MOTION IN LIMINE REGARDING MENS REA REQUIRED FOR CHARGES ALLEGING COMMAND RESPONSIBILITY AND FOR BILL OF PARTICULARS RE COMMAND RESPONSIBILITY PORTIONS OF THE INDICTMENT
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Russell Hayman
Mr. Gregory Kehoe
Mr. William Fenrick
Mr. Anto Nobilo
Mr. Russell Hayman
1. In his motion dated 4 December 1996 (hereinafter "the Motion"), General Blaskic (hereinafter "the accused") requested that Trial Chamber I review a motion in limine regarding mens rea required for charges alleging command responsibility. The Prosecutor, in opposition to the Defence, responded to the Motion on 20 January 1997 (hereinafter "the Response"). The Defence replied to the Response in a brief dated 3 February 1997 (hereinafter "the Reply").
The Trial Chamber heard the parties at a hearing held on 12 and 13 March 1997.
The Trial Chamber would first analyse the claims and arguments of the parties and then consider all the disputed points of fact and law.
I. Analysis of the Claims and Arguments of the Parties
2. The accused referred a motion to Trial Chamber I for the latter to agree in pre-trial proceedings:
a) to rule on the standards which must govern military command responsibility for crimes committed by the commander's subordinates;
b) in respect of this, to take two criteria into account:
i) the commander's actual knowledge of his subordinates' acts;
ii) the commander's wanton disregard of information available to him;
c) to order the Prosecutor to supplement the amended indictment with a bill of particulars specifying:
i) the time at which the accused knew of the acts or wantonly disregarded relevant facts; and
ii) the information which should have led to the conclusion that such acts had been or were about to be committed.
3. In her Response to the Defence Motion, the Prosecutor submitted that:
a) the Defence Motion relates to a matter which is not appropriate for a preliminary motion falling within the ambit of Rules 72 and 73 of the Rules of Procedure and Evidence (hereinafter the "Rules"), and that "the very purpose of pre-trial proceedings is (...) to resolve matters of a preliminary or procedural nature prior to a consideration of the substantive merits of the case at which time issues essential to determining the culpability of the accused may be considered"; that the Motion amounts to requesting the Tribunal to render an "advisory opinion" on abstract questions of substantive law before it has had the opportunity to consider the evidence against the accused;
b) accessorily, with respect to the standards to be adopted, in order to determine command responsibility, that:
i) the term "knew" which appears in Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia (hereinafter "the Statute") should be interpreted as "must have known";
ii) the expression "had reason to know" should be understood as the military commander's active duty to be apprised of occurrences within his area of operations;
c) and that, pursuant to the Rules, the Prosecutor's only obligation is to produce the particulars necessary for the accused to prepare his defence and "to avoid a prejudicial surprise".
4. In its Reply, the Defence reiterates its request and stresses that nothing in Rules 72 or 73 limits the power of the Tribunal to rule on substantive legal issues at the pre-trial stage. It further underscores the need for a precise definition of the mens rea standard in relation to the principle of nullum crimen sine lege and the rights of the accused.
Lastly the Defence insists on its request for the indictment to be made more specific with respect to the time frame and to the circumstances under which the accused allegedly committed the offences as a military commander.
5. Under Article 7 of the Statute, the jurisdiction of the Tribunal encompasses command responsibility for crimes committed by the commander's subordinates.
Article 7 (3) reads as follows:
"The fact that any of the acts referred to in Articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof". (underlining added)
It is the meaning and scope of the phrase "if he knew or had reason to know" which the accused wishes to define before trial.
6. That the issues raised are of utmost interest to the accused cannot be called into question because his criminal liability is sought essentially in his capacity as a commander (see paragraph 5.7 of the amended indictment). Such interest does not however entitle the accused to file his request in the form of a preliminary motion.
7. Technically, the motion of the accused does not fall within any of the five categories listed in Sub-rule 73(A) of the Rules entitled "Preliminary Motions by the Accused". However, even if it is asserted that the list is not exhaustive, in order to make use of this procedure, the argument raised must, by its very nature, be preliminary. In the present case, the Defence has requested that Trial Chamber I rule on points of substantive law which are essential for determining the criminal liability of the accused.
It is obvious however that any question related to the guilt of the accused must be considered in hearings on the merits of the case and cannot be regarded as a pre-trial matter. At this stage, the Trial Chamber, which has heard no evidence, is therefore not in a position to make a ruling.
All such questions are a part of the proceedings on the merits, to which they are closely linked. They even form an integral part of the prosecution and must resolved together with it. Yet the points of fact and law examination here are too closely interconnected for the latter to be settled appropriately without the Trial Chambers first having been apprised of the former. Moreover, when reviewing the case-law, it is to be noted that this is the solution generally adopted by Tribunals, including and especially those at Nuremberg and Tokyo, which, when dealing with similar questions, did not resolve them at pre-trial stage.
The Motion of the accused is therefore premature. However, the accused should be granted the right to raise such issues again at trial if he deems this to be appropriate.
8. With respect to the Defence request for a bill of particulars in respect of the command responsibility portions of the indictment (see above Part I, para. 2.c), the Trial Chamber is of the opinion that the indictment adequately meets the requirements of Article 18 of the Statute and Rule 47 of the Rules, as interpreted in its decision on the Defence Motion based on defects in the form of the indictment.
The motion should therefore be rejected.
Lastly, the Prosecutor should be reminded of her disclosure obligations pursuant to Rules 66 and following of the Rules, and be encouraged to discharge such obligations promptly.
9. FOR THE FOREGOING REASONS
Trial Chamber I,
Ruling inter partes and unanimously,
REJECTS all the points of the motion in limine of the accused of 4 December 1996 regarding mens rea required for charges alleging command responsibility;
Grants the accused the right to raise these issues again at trial.
Done in French and English, the French text being authoritative.
Done this fourth day of April 1997,
The Hague, The Netherlands
Judge Claude Jorda
Presiding Judge of Trial Chamber
(Seal of the Tribunal)