Case No.: IT-01-47-PT
IN TRIAL CHAMBER II
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Mr Hans Holthuis
17 September 2003
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
- 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.
- 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.
- 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
- The accused Mehmed Alagic died on 7 March 2003. By order of 21 March 2003,
the Trial Chamber terminated the proceedings against him. 4
- 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
- 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”.
- 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
- 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.
- 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.
- 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
- 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
- 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)
- 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
- 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)
- 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
- 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].
- 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
(c) Objection relating to charges at Orasac Camp (objection no.6)
- 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
- 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)
- 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.
- 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
- 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
- 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)
- 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
- 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
- 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)
- 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
- 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
- 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.
- 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
(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
- 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
- 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
- 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
- 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
- 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.
- 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”
- 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
- 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
- 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
- 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
- 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.
- 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
[Seal of the Tribunal]
1 - “Decision on Form of Indictment”, 7 December
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,
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.
25 - Joint Response, para. 44.
26 - Ibid., para. 45 (see Second Amended Indictment,
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
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,
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,
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,
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.