Case No.: IT-01-47-PT

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding

Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius

Registrar:
Mr Hans Holthuis

Decision of:
17 September 2003

PROSECUTOR

v

ENVER HADZIHASANOVIC
AMIR KUBURA

____________________________________________________________

DECISION ON FORM OF INDICTMENT

____________________________________________________________

The Office of the Prosecutor:

Mr. Ekkehard Withopf
Mr. David Re

Counsel for the Accused:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrišimovic and Mr Rodney Dixon for Amir Kubura

 

    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 the Prosecution “Motion for Leave to Amend the Amended Indictment”, (“Prosecution’s Motion”) filed on 15 August 2003, of the “Joint Defence Response to Prosecution Motion for Leave to Amend the Amended Indictment”, (“Joint Defence Response”) filed on 1 September 2003 and “Prosecution’s Response to 'Joint Defence Response to Prosecution Motion for Leave to Amend the Amended Indictment'”, filed on 8 September 2003. These filings are without prejudice to a number of earlier submissions in response to the Trial Chamber’s Decision on Form of Indictment” (“Decision”)1, which are mentioned below.

  2. Following the Decision issued by the Trial Chamber on 7 December 2001, the Prosecutor filed its “First Amended Indictment” on 11 January 2002. In reaction thereto, the Defence filed a “Joint Response on the Form of the Amended Indictment” (“Joint Response”), on 21 February 2002, the Prosecution filed the “Prosecution’s Response to the ‘Joint Response on the Form of the Amended Indictment’”, (“Prosecution’s Response”) on 8 March 2002, and the Defence filed the “Joint Reply to the ‘Prosecution’s Response to the ‘Joint Response on the Form of the Amended Indictment’’”, (“Joint Reply”) on 20 March 2002.2 The Prosecution filed a “Further Response to the ‘Joint Response on the Form of the Amended Indictment’ as ordered by the Trial Chamber on 12 December 2002”, (“Prosecution’s Further Response ”) on 27 December 2002.

  3. Meanwhile, on 12 November 2002, the Trial Chamber rendered a decision on a challenge to jurisdiction, jointly filed by the Defence, relating to the applicability, under customary international law, of the doctrine of command responsibility in 1991 in the context of an internal armed conflict. The Defence jointly filed an interlocutory appeal against this decision on 27 November 2002, which was decided upon by the Appeals Chamber on 16 July 2003. A decision on the form of the indictment was postponed pending a final decision on the challenge to the jurisdiction.3

  4. The accused Mehmed Alagic died on 7 March 2003. By order of 21 March 2003, the Trial Chamber terminated the proceedings against him. 4

  5. The Prosecution filed a “Motion for Leave to Amend the Amended Indictment”, on 25 March 2003, which included a proposed Second Amended Indictment.5 The Defence’s “Response of Amir Kubura to Prosecution Motion for Leave to Amend the Amended Indictment”, (“Response of Kubura”) was filed on 25 April 2003. On the same day, the Defence for Hadzisahanovic filed a “Response to Prosecution Motion for Leave to Amend the Amended Indictment and Request for Stay of Proceedings” (“ Response of Hadzisahanovic”). On 1 May 2003 the Prosecution filed a “Motion Seeking Leave to Reply to ‘Defence Response to Amend the Amended Indictment and Requested Stay of Proceedings’ and ‘Response of Amir Kubura to Prosecution Motion for Leave to Amend the Amended Indictment’”, to which followed, on 12 May 2003, the “Prosecution Response and Reply to ‘Defence Response to Amend the Amended Indictment and Requested Stay of Proceedings’ and Reply to ‘Response of Amir Kubura to Prosecution Motion for Leave to Amend the Amended Indictment’” (“Prosecution’s Response and Reply”). In response, on 14 May 2003 the Defence of Hadzihasanovic and the Defence of Kubura respectively filed a “Defence ‘Motion Seeking Leave to Reply’ and ‘Reply’ to ‘Prosecution Response and Reply to Defence Response to Amend the Amended Indictment and Requested Stay of Proceedings’” (“Kubura Defence Motion”), and a “Defence Motion Seeking Leave to Reply and the Defence Reply to ‘Prosecution Response and Reply to ‘Defence Response to Amend the Amended Indictment and Requested Stay of Proceedings’ and ‘Reply to ‘Response of Amir Kubura to Prosecution Motion for Leave to Amend the Amended Indictment’’ ” (“Hadzisahanovic Defence Motion”).

  6. The Trial Chamber, in its “Decision on Motion for Leave to Amend the Amended Indictment” of 18 June 2003, decided “to postpone the final decision on the Motion until the Appeals Chamber has issued its decision on the joint Interlocutory Appeal and will, depending on the outcome of the decision by the Appeals Chamber, decide on all then remaining issues relating to the form of the indictment”.

  7. The Appeals Chamber “Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility” (“Appeals Chamber’s Decision”) of 16 July 2003, inter alia, confirmed that command responsibility was at all times material to this case a part of customary international law in its application to war crimes committed in the course of an internal armed conflict.6

  8. Following the verbal Order issued by Judge Wolfgang Schomburg on 5 August 2003 to the Prosecution to file a further Amended Indictment incorporating the findings of the Appeals Chamber Decision, the Prosecution filed a “Motion for Leave to Amend the Amended Indictment” on 15 August 2003, which includes a new version of the Second Amended Indictment (hereinafter “Second Amended Indictment”) that takes into account, inter alia, the result of the Appeals Chamber’s Decision, and contains the proposed amendments as detailed in the Prosecution’s “Motion for Leave to Amend the Amended Indictment” filed on 25 March 2003 – including the corrigenda in the Prosecution’s filing of 31 March 2003.

  9. In the Second Amended Indictment, as it has been filed on 15 August 2003, the Accused are charged with a number of crimes alleged to have been committed between  January 1993 and 16 March 1994 against Bosnian Croats and Bosnian Serbs in various municipalities in central Bosnia and Herzegovina.7 All the charges are based on command responsibility provided for in Article 7(3) of the Tribunal’s Statute. At the relevant time, Enver Hadzihasanovic is alleged to have been the Commander of the 3rd Corps of the Army of Bosnia and Herzegovina (“ABiH”), the Chief of the Supreme Command Staff of the ABiH and Brigadier General of the ABiH.8 Amir Kubura is alleged to have been the Assistant Chief of Staff for Operations and Instruction Matters of the ABiH 3rd Corps 7th Muslim Mountain Brigade, the Chief of Staff of that Brigade, and to have acted as the substitute for the Commander of that Brigade before being appointed its Commander.9 None of the accused is charged with having personally committed any of the alleged crimes under Article 7(1) of the Statute.

  10. The charges against the accused are based on Article 3 (violations of the laws or customs of war) of the Statute.10 Specifically, the two accused are charged with:

    (a) Count 1, murder, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on Article 3(1)(a) common to the Geneva Conventions of 1949 (“common Article 3”);

    (b) Count 2, cruel treatment, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on common Article 3(1)(a);

    (c) Count 3, murder, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on common Article 3(1)(a);

    (d) Count 4, cruel treatment, a violation of the laws or customs of war, punishable under Article 3 of the Statute, based on common Article 3(1)(a);

    (e) Count 5, wanton destruction of cities, towns or villages, not justified by military necessity, a violation of the laws or customs of war, punishable under Article 3 (b) of the Statute;

    (f) Count 6, plunder of public or private property, a violation of the laws or customs of war, punishable under Article 3(e) of the Statute;

    (g) Count 7, destruction or wilful damage done to institutions dedicated to religion, a violation of the laws or customs of war, punishable under Article 3(d) of the Statute;

    2. Preliminary comments

  11. As noted above, the challenge to the form of the Second Amended Indictment that is addressed herein is set out in multiple filings submitted by both parties in relation to substantive as well as procedural issues. A number of objections in relation to the Indictment originally raised by the Defence were conceded and addressed by the Prosecution in the relevant paragraphs of the new Second Amended Indictment. The Trial Chamber will therefore deal only with the substantive objections maintained by the Defence and listed in its latest submission of 1 September 2003. The Trial Chamber notes that the Prosecution’s Response of 8 September 2003, in which the Prosecution limited itself to merely referring back to its previous filings, did not assist the Trial Chamber at all in the preparation of the present decision.

    3. Assessment of objections

  12. The Trial Chamber has set out the relevant general pleading principles in its earlier Decision.11 These principles need not be repeated here. The remaining substantive objections will be discussed against the background of these pleading principles.

    (a) Objections relating to Counts 5 to 7 of the Indictment – failure to specify units involved (objection no.4)

  13. The first objection raised by the Defence relates to the identity of the units of “ABiH 3rd Corps Forces” that are alleged to have committed wanton destruction of, and plunder in, nine towns and villages. The Defence uses paragraph 60 of the Decision to argue that in case of superior responsibility, the identity of the units which committed an alleged crime is a material fact which must be pleaded. The Defence consequently requests that the Prosecution be ordered to comply and accordingly modify the relevant paragraph in the indictment.12 The Prosecution bases its position on paragraph 69 of the Decision, according to which, in relation to Counts 5 and 6, the Trial Chamber ruled that the fact that these two counts do not mention any specific brigade, including the 7th Muslim Brigade, does not as such make the Indictment defective. The fact that the indictment refers to the ABiH 3rd Corps Forces in general and to ABiH forces under the command and control of the accused as having been responsible for the relevant crimes, make the pleading sufficient to put the Defence on notice as to the nature and cause of the relevant charges against them. The same principles apply to Count 7 and therefore paragraph 46 of the Second Amended Indictment.13 According to the Prosecution, additional specific information relating to Counts 5 to 7 can be deduced from paragraphs 18-22 and, in particular, paragraphs 23-25 of the Second Amended Indictment. These, according to the Prosecution, explain in detail how relevant ABiH 3rd Corps units were subordinated and, by implication, whose crimes the various accused are responsible for.14 In its Motion for Leave to Amend the Amended Indictment, filed on 25 March 2003, the Prosecution has already addressed the Defence’s objection by adding in paragraph 44 that these violations are alleged to have been “committed by the units listed in paragraphs 15 to 25” of the Amended Indictment. The Defence, although it recognises that the new paragraph 44 is an improvement, submits that it is still insufficient and that it is vital to know which brigades, battalions, units or individuals are alleged to have committed these crimes with a view to allowing the Accused to know the case he has to meet.15 The same objection relates to paragraph 46, where a reference to the above-mentioned paragraphs 15 to 25 has been omitted.16

  14. The Trial Chamber first refers to its Decision of 7 December 2001, where it ruled that the fact that the relevant counts did not mention any specific brigade did not make the Indictment defective. According to this Decision the Defence were put on sufficient notice as to the nature and cause of the relevant charges against them. The Trial Chamber notes that paragraph 44 has been further elaborated by a reference to “the units listed in paragraphs 15 to 25”. However, the Trial Chamber observes that paragraph 46 has not been adapted accordingly. The Trial Chamber remains of the view that the Indictment is not defective in relation to Counts 5 to 7, and believes that the Defence is put on sufficient notice. However, as the Prosecution has been able to do in other parts of the Indictment, further details about specific units involved in the alleged commission of crimes could in all likelihood be provided. The Prosecution will therefore be ordered first to amend paragraph 46 of the Second Amended Indictment at least in the same way as paragraph 44 has been amended and, second, to provide, if possible, further details relating to specific units involved in the crimes described in paragraphs 44 and 46, or show good cause.

    (b) Objection relating to the vagueness and inconsistencies regarding “Mujahedin” (objection no.5)

  15. This Defence objection essentially is that the use of the word “Mujahedin” in the Second Amended Indictment is confusing and ambiguous, in that it does not sufficiently “identify units, brigades, battalions or individuals”; that it is unclear whether the term encompasses only foreigners or whether certain Bosnians might also be included; and that with respect to at least the period before the creation of a specific “El Mujahed” unit on 13 August 1993, the term is used colloquially to refer to a loose group of Muslim fighters sharing certain common characteristics.17 It is requested that the Prosecution be ordered to “provide a clear definition of who the “Mujahedin” were and, at a minimum, to specify to which units, battalions, brigades the “Mujahedin ” were subordinated, and whether any individual “Mujahedin” were not subordinated to any unit, battalion or brigade.”18 The Prosecution replies that it has adequately and properly pleaded and provided particulars of all matters of which the Defence complain. Paragraph 18 of the Second Amended Indictment defines the “Mujahedin”, paragraph 19 explains the circumstances of their presence in Bosnia and Herzegovina from 1992 onwards, and paragraph 20 describes their subordination.19

  16. The Second Amended Indictment sufficiently defines the “Mujahedin”. However, a further clarification as to the exact position and role of the “Mujahedin” is still needed. In particular, the Trial Chamber notes that paragraphs 18 and 20 are contradictory, to the extent that paragraph 18 reads: “Subordinated to the ABIH 3rd Corps 7th Muslim Mountain Brigade were foreign Muslim fighters”, while paragraph 20 reads: “With the creation of the ABiH 3rd Corps area of command, the “Mujahedin ” within this area were incorporated into and subordinated to the regular ABiH 3rd Corps units, predominately the ABIH 3rd Corps 7th Muslim Mountain Brigade ” [emphasis added].

  17. The objection related to the position of the “Mujahedin” is therefore partly upheld. The Prosecution is ordered to amend the Second Amended Indictment to further specify this position in order to enable the Defence to prepare its case.

    (c) Objection relating to charges at Orasac Camp (objection no.6)

  18. The Defence maintains its objection in relation to the question whether the “Mujahedin” alleged to have staffed and operated the Orasac camp were members of the newly created “El Mujahed” or not and, more in general, to which units, battalion or brigades they were subordinated.20 Despite the Prosecution’s further elaboration of paragraph 25 of the Second Amended Indictment, the Defence still maintains that the Prosecution’s case as to the organisation of the “Mujahedin” and foreign volunteers, and the composition of the “El Mujahed ” unit after 13 August 1993 remains confusing.21

  19. The Trial Chamber notes that this objection is related to the previous one (objection no.5) and is of the view that the order to the Prosecution to clarify the “Mujahedin”’s position within units, battalion and brigades, will also sufficiently address the present objection.

    (d) Objection relating to failure to specify individuals or units of the 7th Muslim Mountain Brigade transferred and put under direct command of ABiH 3rd Corps (objection no.8)

  20. The Trial Chamber, in its Decision, ordered the Prosecution to amend the indictment and to specify which individuals or units of the 7th Muslim Mountain Brigade were transferred and put under the direct command of the ABiH 3rd Corps.22 Especially the use of the term “elements” to describe persons or categories of persons falling under this transfer was considered too vague.23 Following the Trial Chamber’s Decision, the Prosecution decided to delete rather than specify this pleading.

  21. The first part of the Defence’s objection is that the Prosecution should have complied with the Trial Chamber’s order and therefore should not be allowed to have removed the pleading. 24 The Defence submits that at the confirmation of the Original Indictment, the Prosecution must have had information that elements of the 7th Muslim Mountain Brigade were transferred and put under direct command of the ABiH 3rd Corps, and that it cannot now claim nor be allowed to claim that it has since discovered that allegation to be false.25 It furthermore submits that the assertion that “elements” of the 7th Muslim Mountain Brigade were transferred and put under direct command of the ABiH 3rd Corps is key to the charges in relation to the alleged offences committed in Maline/Bikosi, since it is alleged that the 7th Muslim Mountain Brigade was involved. If those offences were committed by the very elements that were originally alleged to have been transferred out of the command of the OG Bosanska Krajina, “then there may be no basis for attributing responsibility to the Accused for the killings at Maline/Bikosi.”26

  22. The Prosecution response is that following the Decision, it has “comprehensively reviewed” the Original Indictment, and decided to delete those particular words as being superfluous.27 It submits that as these words do no longer form part of the Amended Indictment, the Defence objection is not a proper objection to the form of the Amended Indictment.28 It also submits that whether an accused exercised effective control over his subordinates is a matter for proof at trial, and that each accused has been put on sufficient notice as to when and what crimes were allegedly committed by their subordinates.29

  23. The Trial Chamber observes that the Prosecution was requested to amend the indictment in order to clarify the term “elements”. The phrase in which this word was used led to unclarity as to the exact scope of the command position of each of the Accused. As rightly pointed out by the Defence, this may have far-reaching consequences for the responsibility of the Accused. However, in response to the Trial Chamber’s order the Prosecution did not elaborate on the said term, but preferred to delete the entire pleading. The Trial Chamber considers that the Prosecution is entitled to review its case and to delete or add elements in its pleadings. The aim of the original Defence’s objection was to get clarity and this has been achieved. The Defence has not shown any unfair prejudice to the rights of the accused.30 The Defence’s objection is therefore rejected.

    (e) Objection relating to the inclusion of new allegations in Counts 3-4 not ordered by the Trial Chamber (objection no.9)

  24. The Defence objects to the inclusion in paragraphs 41(a) and (c) of the Second Amended Indictment of the allegation that the two alleged detention facilities, the Zenica Music School and Motel Stretno, “were staffed and operated by the ABiH  3rd Corps 7th Muslim Mountain Brigade”.31 The Defence submits that these allegations were not made in the original Indictment. There it was only alleged that soldiers of the ABiH 3rd Corps 7th Muslim Mountain Brigade committed offences at these locations, but not that the entire detention facilities and operations were staffed and operated by this brigade over a period of time.32 The Defence submits that these amendments substantially change the nature of the charges against the accused Kubura under Article 7(3). The amendments make the accused Kubura now also responsible for the operation, through his subordinates, of these facilities on a day-by-day basis, and not merely for specific acts committed at these locations by these subordinates. The Defence requested that the Prosecution be ordered to remove these allegations.33

  25. The Prosecution replied that the charges remain the same as those in the original Indictment and that it only added an allegation of fact relating to the operation of the facilities. The Prosecution stresses that it does not seek to attribute criminal responsibility for detention facilities being within an accused’s respective zone of responsibility.34

  26. The Trial Chamber notes that the new allegation of fact has been added in order to clarify the responsibilities of certain units for the crimes described. Whether this is a new or additional charge is immaterial. The Prosecution has emphasised that it will not seek to attribute criminal responsibility for the detention facilities as such. The formulation now chosen is clear and puts the Accused on sufficient notice. No unfair prejudice is shown. The objection is rejected.

    (f) Objection relating to the failure to specify which brigades committed the offences (objection no.10)

  27. The Defence objects to paragraphs 39(a) and 39(c) of the Second Amended Indictment, in that it mentions more than one brigade involved in the commission of the crimes in the villages of Dusina and Maline/Bikosi, without making it clear which specific brigade allegedly committed the relevant offences in those villages.35 The Defence submits that the Prosecution should be ordered to clarify whether it is alleged that all of the brigades – three in the case of Dusina, two in the case of Maline/Bikosi – were responsible for the offences in question or only one or two of the brigades, “so that the Accused are clearly on notice as to which brigade’s members are alleged to have perpetrated any of the offences.”36 The Prosecution’s response is that at trial, its case will be that:

    any brigade identified in the Amended Indictment as having participated in an operation in which other brigades were present did so as part of a joint operation. The Amended Indictment sufficiently identifies the subordinate units involved in the crimes charged over which the accused are alleged to have superior responsibility.37

  28. The Defence submits that this response raises “an entirely new issue”, in that either the Prosecution intends to rely on the notion of a joint criminal enterprise, in which case it has to plead this clearly, or the Prosecution’s indication is misleading, since it may lead to the situation that a commander of a brigade that participated in a joint operation is to be held responsible for crimes committed by another participating brigade.38

  29. The Defence submits that this objection relates to objections 4, 7 and 8.39 The Trial Chamber notes that the seventh objection was not maintained by the Defence and that the eighth objection has been rejected. The fourth objection has been discussed above.

  30. The Trial Chamber has already considered and rejected the essentially similar objection in its Decision.40 As it currently reads, the Second Amended Indictment pleads neither a case of joint criminal enterprise, nor that the commander of one brigade is responsible for the crimes committed by the subordinates of the commander of another brigade participating in the same operation. Should the Prosecution want to lead such a case, the Second Amended Indictment will have to be amended. However, at present, the Second Amended Indictment in effect pleads offences and pleads brigades allegedly involved in these offences. The Prosecution is entitled to do so. It is for the Prosecution to prove at trial the involvement of such brigades in the commission of the offences. The Indictment puts the Defence in detailed and sufficient notice in order to prepare for trial. This objection is therefore rejected.

    (g) Objections raised in Defence Responses to the Prosecution Motion for Leave to Amend the Amended Indictment of 25 April 2003

    (i) Objection relating to adding Miletici charges for Amir Kubura

  31. The Prosecution informed the Defence of its intention to add the alleged incidents at Miletici to the charges against the accused Kubura by letter of 6 February 2003, describing the proposed amendments as “minor”. The Defence responded in a letter dated 12 February 2003 stating that the term “minor” was inappropriate for changes that aim at charging the accused Kubura with four additional murders and the wanton destruction and plunder of a village. In addition, according to the Defence, the proposed amendment would, if granted, significantly broaden the scope of the accused Hadzihasanovic’s command responsibility given the new allegation of the involvement of the 7th Brigade. Until then preparations for trial had been focussed purely on the basis of the alleged involvement of the 306th Brigade.41

  32. The Prosecution, in its Motion for Leave to Amend the Amended Indictment filed on 25 March 2003, inserted the allegation that also the accused Kubura bears responsibility for the crimes allegedly committed in Miletici. The Prosecution annexed to the motion, for the Trial Chamber’s use, documents supporting the proposed additional factual allegation. 42

  33. According to the Defence there is no evidentiary basis for the charges.43 Although Rule 50 does not specify the applicable evidentiary standard for amendments of indictments, the Defence argues that such an evidentiary basis must be established for any new charge to be added. Otherwise the Prosecution would be at liberty to add new charges to an existing indictment without any evidence in support of them.44 According to the Defence, the material presented does not show in any way that the persons who allegedly committed the offences at Miletici were under the effective control of the accused Kubura.45

  34. Moreover, the Defence argues that the Prosecution has not indicated when it received the material that is now used to support the amendment.46 The Prosecution merely states that the evidence was obtained at some time “since confirmation of the Indictment”.47 According to the Defence the Prosecution is obliged to seek leave to add new charges at the earliest opportunity available once it has received any new evidence that may lead to such new charges.48 The Defence argues that the bulk of the documents submitted are from the Sarajevo collection which the Prosecution has had in its possession since at least the time of the confirmation of the initial Indictment in July 2001. The Prosecution should not be entitled to sit indefinitely on evidence that may form a basis for new charges, and not bring such charges expeditiously in order to permit the Defence ample opportunity to prepare its case.49 The Defence concludes that in the absence of a legitimate reason for seeking the amendments at this advanced stage in the proceedings on the basis of evidence that has already for a long time been in the Prosecution’s possession, the application must be rejected.50

  35. The Trial Chamber needs first to establish the procedural question whether the Prosecution is entitled to bring new charges against the accused Kubura. If so it will have to consider the supporting material to decide upon the admissibility of the new charges in this case. In relation to the first issue the Trial Chamber observes that the question of whether the proposed amendment is “minor” or not is not a relevant one. Since when the material was in possession of the Prosecution is not relevant either. The Prosecution 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.51 The Prosecution may therefore add new charges, as long as it provides sufficient new supporting material. The fundamental question in relation to granting leave to amend an indictment is whether the amendment will prejudice the accused unfairly.52 The Trial Chamber recalls that

    The word "unfairly" is used in order to emphasise that an amendment will not be refused merely because it assists the prosecution quite fairly to obtain a conviction. To be relevant, the prejudice caused to an accused would ordinarily need to relate to the fairness of the trial. Where an amendment is sought in order to ensure that the real issues in the case will be determined, the Trial Chamber will normally exercise its discretion to permit the amendment, provided that the amendment does not cause any injustice to the accused, or does not otherwise prejudice the accused unfairly in the conduct of his defence.53

    There is no prejudice caused to the accused if he is given an adequate opportunity to prepare a defence to the amended case. In the present case, in the Trial Chamber’s opinion, there is no suggestion that this amendment will cause an unfair prejudice to the Accused. The procedural objection against the additional charge is therefore rejected.

  36. The Trial Chamber has reviewed the supporting material submitted by the Prosecution and concludes that it provides the necessary material to support the new charges against the Accused Kubura. This objection is therefore rejected.

    (ii) Objection to insertion of the offence of “cruel treatment”

  37. The Prosecution has sought to insert in Count 2 in the Amended Indictment a new offence of “cruel treatment” in place of the offence of “violence to life”. The Prosecutor described that as a “minor amendment” and a mere “re-titling” of the offence.54

  38. The Prosecution’s explanation for this proposed amendment is that the original title of this count was based on Article 3 of the Geneva Conventions, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”. In the Vasiljevic Judgement, the Trial Chamber was not satisfied that there existed a stand alone offence of “violence to life and person” apart from “murder”, “mutilation”, “cruel treatment” and “torture”. Taking this judgement into account, the Prosecution now seeks to re-title the conduct charged, as cruel treatment indisputably forms part of this Tribunal’s jurisdiction. The Prosecution emphasises that the allegation and offence itself remain unchanged.55

  39. The Defence submits that the Prosecution is in fact changing the nature of the charge to overcome the Vasiljevic Judgement.56 The Defence goes on to state that on the basis of this Judgement, “cruel treatment ” and “violence to life and person” are two different violations included in Article 3 of the Geneva Conventions, the latter not giving rise to individual criminal responsibility under customary international law.57 The Defence therefore submits that this proposed change is more than a “minor amendment ” and that without it Count 2 may not be sustainable. The Defence opposes this amendment.58

  40. As the Blaskic Trial Chamber noted, violence to life and person is “ a broad offence which, at first glance, encompasses murder, mutilation, cruel treatment, and torture and which is accordingly defined by the cumulation of the elements of these specific offences”.59 The crime of “cruel treatment” is therefore only one of the forms that the broader offence of “violence to life and person” may assume. By replacing “violence to life and person” with “cruel treatment”, the Prosecution in actual fact does nothing but to limit the scope of the crime with which the Accused is charged.

  41. Here again, the Trial Chamber emphasises that the Prosecution is entitled to review the indictment, after its confirmation, on the basis of developing case-law. Preventing the Prosecution from amending the indictment to take into account new relevant case-law would be unnecessarily formalistic and would in no way serve the interest of justice. In light of the Vasiljevic Trial Judgement, the Prosecution is free to change the characterisation of the crime, in order to avoid that a similar situation as in the Vasiljevic case would occur. As in the present case the amendment is purely one of qualifying a crime, and not one of changing or broadening the allegation, the Trial Chamber fails to see how this amendment would cause any unfair prejudice to the Accused. The objection is therefore rejected.

    4. Disposition

  42. Pursuant to Rule 50 and Rule 72, the Trial Chamber hereby:

    (a) ORDERS the Prosecution to file a Third Amended Indictment based on the requirements set out in this decision no later than 26 September 2003, and in particular:

    - to amend paragraph 46 of the Second Amended Indictment at least in the same way as paragraph 44;

    - to provide, if possible, further details relating to specific units involved in the crimes described in paragraphs 44 and 46, or show good cause;

    - to amend the paragraphs 18 and 20 in such a way that the position of the “Mujahedin ” is set out without any ambiguity.

    (b) DENIES all remaining objections included in the Joint Defence Response.

 

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

Done this seventeenth day of September 2003
At The Hague
The Netherlands

_______________
Wolfgang Schomburg
Presiding Judge

[Seal of the Tribunal]


1 - “Decision on Form of Indictment”, 7 December 2001.
2 - In addition the following related filings were submitted by the parties: Defence’s “Joint Application for Clarification and/or Extension of Time-limit for Filing Complaints against Amended Indictment in Briefs not Exceeding Thirty Pages in Total”, 22 January 2002; Trial Chamber’s “Order on Extension of Time and Clarification of Filing Issue”, 24 January 2002 (“Order”); Defence “Joint Motion Seeking Leave to Reply to the Prosecution’s Response to the ‘Joint Response on the Form of the Amended Indictment’”, 11 March 2002 (“Application to Reply”); Trial Chamber’s “Order Granting in Part Leave to Reply”, 14 March 2002 (“Reply Order”); Trial Chamber’s “Order to File Response”, 12 December 2002.
3 - Transcripts of Status Conference, 18 July 2002, p. 149.
4 - Mehmed Alagi} was alleged to have been the Commander of the ABiH 3rd Corps Operational Group (“OG”) “Bosanska Krajina” and the Commander of the ABiH 3rd Corps. Amended Indictment, paras 6, 29, 52.
5 - On 31 March 2003, the Prosecution filed “Corrigenda to Motion for Leave to Amend the Amended Indictment”.
6 - Appeals Chamber’s Decision, para. 31.
7 - Second Amended Indictment, para. 7.
8 - Ibid, paras 3, 33.
9 - Ibid, paras 6, 37.
10 - In the “Prosecution Amended Indictment” filed on 11 January 2002, the Prosecution withdrew all charges based on Article 2 of the Statute, as well as the original counts 11, 12 and 14, “for reasons of judicial economy”. By its “Motion for Leave to Amend the Amended Indictment”, filed on 25 March 2003, the Prosecution sought the re-insertion of Article 2 charges before the Appeals Chamber would issue its decision on the interlocutory appeal. By its “Decision on Motion for Leave to Amend the Amended Indictment”, of 18 June 2003, this request was rejected. The present Motion for Leave to Amend the Amended Indictment does not seek anymore to reintroduce charges under Article 2 of the Statute.
11 - Decision, paras 7-12, and in various other paragraphs where the Trial Chamber addressed the specific objections to the Original Indictment.
12 - Joint Defence Response, para. 9.
13 - Prosecution’s Further Response, paras 5-7.
14 - Ibid., paras 8-9.
15 - Joint Defence Response, para. 10.
16 - Ibid., para. 11.
17 - Joint Response, paras 25-27.
18 - Ibid., para. 28; see also, Joint Defence Response, para. 12.
19 - Prosecution’s Response, para. 18.
20 - Joint Defence Response, para. 13.
21 - Joint Reply, para. 13.
22 - Decision, para. 47.
23 - Decision, paras 46-47.
24 - Joint Response, paras 43-47; see also Joint Reply, para. 31.
25 - Joint Response, para. 44.
26 - Ibid., para. 45 (see Second Amended Indictment, para. 39(c)).
27 - Prosecution’s Response, para. 25.
28 - Ibid., para. 25.
29 - Ibid., para. 26.
30 - For an explanation of “unfair prejudice”, see below, para 35. Prosecutor v. Brdjanin and Talic, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, Case No. IT-99-36-PT, 26 June 2001, (hereinafter “Brdjanin and Talic Decision on Form of Further Amended Indictment”), para. 50.
31 - Joint Response, paras 48-52.
32 - Ibid., paras 49-50.
33 - Ibid., paras 51-52; see also Joint Reply, paras 15-18.
34 - Prosecution’s Response, para. 27.
35 - Joint Response, para. 54.
36 - Ibid, para. 55.
37 - Prosecution’s Response, para. 28.
38 - Joint Reply, para. 32.
39 - Joint Defence Response, para. 17.
40 - Decision, paras 48 and 49.
41 - Joint Defence Response, para. 21.
42 - Prosecution’s Motion for Leave to Amend the Indictment, 25 March 2003, paras 22-23.
43 - Joint Defence Response, para. 24; see also Response of Kubura, paras. 26, 32; Response of Hadzisahanovic, para. 51.
44 - Joint Defence Response, para. 25.
45 - Ibid., para. 26.
46 - Ibid., para. 28.
47 - Prosecution’s Motion, para. 22.
48 - Joint Defence Response, para. 28.
49 - Response of Kubura, para. 31; Response of Hadzisahanovic, para.50.
50 - Joint Defence Response, para. 29.
51 - See, inter alia, Prosecutor v. Mrksic, Decision of Form of the Indictment, Case No. IT-95-13/1-PT, 19 June 2003, paras 22-24.
52 - Brdjanin and Talic Decision on Form of Further Amended Indictment, para. 50; Prosecutor v Naletilic and Martinovic, Decision on Vinko Martinovic’s Objection to the Amended Indictment and Mladen Naletilic’s Preliminary Motion to the Amended Indictment, Case IT-98-34-PT, 14 February 2001, pp 4-7.
53 - Ibid., para. 50.
54 - Prosecution’s Motion, para. 7.
55 - Prosecution’s Response and Reply, paras 23-25.
56 - Response of Hadzisahanovic, para. 55; Response of Kubura, para. 33.
57 - Response of Hadzisahanovic, para. 56.
58 - Joint Defence Response, para.31.
59 - Prosecutorv v. Tihomir Blaskic, Judgement, Case No. IT-95-14-T, 3 March 2000, para. 182.