Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
20 April 2004

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr Daryl Mundis
Mr Chester Stamp
Ms Tecla Henry-Benjamin

Defence Counsel:

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

TRIAL CHAMBER II (“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”),

BEING SEISED of the Joint Defence Motion for Judicial Notice of Adjudicated Facts filed (“Motion”) and the Joint Defence Reply to Prosecution Response to Joint Defence Motion for Judicial Notice of Adjudicated Facts (“Reply”) filed on 12 January 2004 and 5 February 2004 respectively by counsel for the two Accused (“Defence”), in which the Defence, pursuant to Rule 94(B) of the Rules of Procedure and Evidence, requests the Chamber to take judicial notice of 206 facts admitted in other cases before the Tribunal which appear in Annex A of the Reply (“Definitively Proposed Facts”) in order to enlighten the Chamber as to the context in which the Accused carried out their duties as senior level commanders;

NOTING the procedure appertaining to the Motion and the Reply, set out in the Decision on Judicial Notice of Adjudicated Facts dated 27 February 2004 (“Initial Decision”);

NOTING that, in that Initial Decision, for the purposes of obtaining complete information whilst remaining mindful of the need to respect the strategy of the Defence, the Chamber invited the Defence, should it so wish, to explain in writing before 12 March 2004 the direct or indirect relevance of each of the Definitively Proposed Facts, within the context cited, in relation to the following points: ( i) offences specified in the Indictment, (ii) subordination relationship, (iii) reason for knowing that a subordinate had committed or was about to commit an offence, (iv) measures that might have been taken to prevent the offences from being committed, (v) measures that might have been taken to punish the perpetrators of the offences, and (vi) any other ground warranting the taking of judicial notice of the fact in question;

NOTING, moreover, that, should the Defence provide the requested clarification, the Initial Decision granted the Prosecution leave to present its observations in writing before 19 March 2004;

NOTING that, pursuant to the Initial Decision, the Defence filed a first provisional clarification on 12 March 2004 which was replaced on 15 March 2004 by a second definitive version entitled Additional Clarification on Joint Defence Motion for Judicial Notice of Adjudicated Facts at the Request of the Trial Chamber (“Additional Clarification”);

NOTING that in the Additional Clarification the Defence explains that “the main issue in this case – concerning two commanders charged solely under Article 7(3) of the Statute – is to assess how they exercised their command in the period covered by the Indictment [, that is whether with] regard to the overall situation … the acts of the accused [at the material time were] those of responsible commanders ”;¹

NOTING that in relation to the categories set out in the Initial Decision, the Defence maintains generally that (i) with regard to the offences cited in the Indictment, “when assessing the Accused’s criminal responsibility, consideration must be given, inter alia, to the nature of the violations allegedly committed, the number of violations allegedly committed, the circumstances in which the violations were allegedly committed, the identity of the alleged perpetrators of the violations, the factors which might have led the perpetrators to commit the violations and the presence of other persons, armed groups or military units not subordinate to the commander that might have committed those violations”,² (ii) with regard to the subordination relationship “when assessing [the Accused’s] criminal responsibility it is necessary to consider the type of conflict at issue in terms of the geographical location (national territory, foreign territory…) and the consequent judicial framework, the experience and training of the subordinates, the possibilities for communication, and other circumstances such as the presence of factors which might prevent the commander from exercising effective control, or even nullify or replace the control the Accused believes he exercises”,³ (iii) with regard to the reason for knowing that a subordinate had committed or was about to commit an offence “consideration must be given to the army’s structure, any reporting system set in place, the source of any information received, the quality of communications, the pace of military operations, disinformation campaigns, the amount of information available, the priorities at the time in view of the situation, the geographical disposition of the units, the frequency of contact and nature of relations between the army and civilian bodies, and the responsibilities of the civilian bodies in office”,⁴ (iv) with regard to measures that might have been taken to prevent the offences from being committed, “when assessing the commander’s criminal responsibility it is necessary to take into account that the measures in question are in fact decisions taken by the commander based on the situation”,⁵ (v) “when assessing a commander’s criminal responsibility based on the measures taken to punish a crime, it is necessary to consider the overall actual and practical situation and all the information available to the commander when he was deciding on the appropriate measures to be taken”;⁶

NOTING that in support of its submission the Defence stated that the case United States v. Willhelm List⁷ (“hostages case”), arising from the military jurisprudence of the Second World War, establishes the principle, taken up again subsequently in the adoption of Additional Protocol I to the Geneva Conventions, of “[requiring] when assessing a commander’s criminal responsibility [that] consideration be taken of all the factors and eventualities as they were perceived by the accused at the time of the facts”;⁸

NOTING that consequently the Defence submits that all the Definitively Proposed Facts are relevant since (i) those bearing the numbers 1, 22, 25, 45, 86, 106, 125 -126 and 232-233 relate to information available to the local population which might have caused it to panic;⁹ (ii) those bearing the numbers 2, 8-9, 11, 66, 75, 79, 91, 102, 109, 111, 119, 122, 127, 129 -130, 133-135, 138-139, 142-144, 149, 153, 165, 175, 185, 193-194, 199, 208, 216, 224 and 231 are “facts relating to the state of readiness, resources and weapons of [the Accused’s] own troops and of the enemy troops [and] might influence the decisions of a commander”;¹⁰ (iii) those bearing the numbers 3, 15, 24, 40-41, 108, 131-132 and 140 relate to “the use of roads [which might] influence a commander’s decisions;¹¹ (iv) those bearing the numbers 6, 48, 40-41, 52-53, 56-57, 60, 64-65, 67-76, 78- 80, 82, 89, 91, 93-94, 100-101, 103-104, 109-111, 119, 121, 124, 127-130, 133-135, 138-140, 145, 149-151, 153-154, 156-157, 160, 162-165, 167, 170-171, 174, 177- 180, 182-183, 185-186, 188, 190, 195, 197, 199-201, 203, 208-212, 216-217, 222, 224-231 and 234-237 are “facts relating to enemy attacks [which might] influence a commander’s decisions”;¹² (v) those bearing the numbers 5, 7, 12 to 14, 16 to 23, 25 to 27, 37, 44, 50, 56, 57, 59, 84 to 86, 104, 106, 107, 121, 122 and 124 are “facts of a political nature pertaining to the commander’s area of responsibility [and] might influence his decisions since they directly affect relations between the units under his command and the local civilian authorities”;¹³ (vi) those bearing the numbers 10, 58 to 60, 64, 81, 82, 87, 105, 106, 196 and 207 are “facts relating to calls and ultimatums by the enemy forces for units to surrender …[,] a factor which might influence the commander’s decisions and priorities”;¹⁴ (vii) those bearing the numbers 29, 49, 51, 92, 117, 172, 176, 178, 179, 182, 214 and 221 are “facts relating to population movements … [and] might influence the commander’s decisions and priorities”;¹⁵ (viii) those bearing the numbers 49, 51, 61, 62, 83, 151, 158 and 181 are “facts relating to the enemy force’s treatment of the civilian population [,] a factor which might influence the commander’s decisions and priorities”;¹⁶ (ix) those bearing the numbers 62, 63, 78, 89, 94 to 96, 110, 112 to 119, 121, 128, 139, 140, 150, 151, 163, 167 to 171, 177 to 179, 182, 183, 186, 189 to 191, 196, 200 to 202, 210 to 214, 219 to 222, 225 to 230, 235 and 237 are “facts relating to crimes committed by the enemy forces [and] might influence the commander’s decisions and priorities”;¹⁷ (x) those bearing the numbers 90, 207 and 209 are “facts relating to the presence of more than one enemy force [and] might influence the commander’s decisions and priorities”;¹⁸ (xi) those bearing the numbers 97, 123, 141 to 143, 159, 161, 173, 184, 187, 192, 198, 203 to 206 and 215 are “facts of a geographical nature [and] are important in determining the possible subordination relationship between the commander and units in those towns or villages”;¹⁹ and (xii) those bearing the numbers 189, 2 and 218-219 are “facts relating to the detention by enemy forces of men of fighting age [and] might influence the commander’s decisions and priorities”;²⁰

NOTING that after receiving an additional deadline,²¹ in reply to the Additional Clarification, the Prosecution filed its Observation Regarding the Defence’s Additional Clarification to the Joint Defence Motion for Judicial Notice of Adjudicated Facts (“Observation”);

NOTING that in its Observation the Prosecution submits that the Defence Motion for judicial notice of the Definitively Proposed Facts should be rejected since (i) the large majority of those facts do not relate to the matters at issue in the current proceedings,²² (ii) the Defence has not, as requested, provided specific explanations of the direct or indirect relevance of each of the Definitively Proposed Facts in relation to the categories set out in the Initial Decision and merely submitted theoretical and general assertions,²³ and (iii) in proposing judicial notice of the Definitively Proposed Facts the Defence goes beyond the relevant boundaries of the case, that is the position of the Accused in the ABiH and their knowledge of crimes committed by their subordinates, and includes facts that relate to the crimes of the HVO, the other party to the conflict;²⁴

NOTING that the Prosecution explains also that, according to the criteria established by the Trial Chamber in the case The Prosecutor v. Momcilo Krajisnik (“Krajisnik”), (i) the onus is on the Defence to show that those criteria had been satisfied for the Definitively Proposed Facts, in particular with regard to the judicial notice of facts forming part of a judgement which is currently under appeal,²⁵ (ii) that the said obligation assumes particular importance in this instance since the majority of the Definitively Proposed Facts originate from two Trial Chamber Judgements in the cases The Prosecutor v. Dario Kordic and Mario Cerkez (“Kordic”) and The Prosecutor v. Tihomir Blaskic (“Blaskic”), which are currently under appeal,²⁶ (iii) that, although the Defence asserts the contrary without, however, supporting its finding, the Definitively Proposed Facts originating from those two Judgements are among the issues in dispute on appeal,²⁷ and (iv) consequently, the Defence has failed to meet its burden to demonstrate that the Definitively Proposed Facts originating from the Kordic and Blaskic cases do not appear among the issues not in dispute on appeal, as required by the jurisprudence in the Krajisnik;²⁸

CONSIDERING that Rule 94(B) of the Rules provides that, at the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings ;

CONSIDERING that, as set out in the Initial Decision, by taking judicial notice of an adjudicated fact from another case, the Trial Chamber proceeds from the assumption that the fact is accurate, that is does not need to be re-established at trial but that, insofar as it is an assumption, it may be challenged at trial ;

CONSIDERING that the Definitively Proposed Facts originate from Trial Chamber Judgements in the cases The Prosecutor v. Zlatko Aleksovski²⁹ (“Aleksovski”), The Prosecutor v. Zoran Kupreskic et al³⁰ (“Kupreskic”), The Prosecutor v. Tihomir Blaskic³¹ (“Blaskic”) and The Prosecutor v. Dario Kordic and Mario Cerkez³² (“Kordic”); and that definitive judgements on appeal have not been rendered in the said Blaskic and Kordic cases;

CONSIDERING that, generally, the Definitively Proposed Facts appear to strictly reflect the Trial Chambers’ findings in the above four cases;³³

CONSIDERING that the Prosecution and the Defence maintain that the request submitted by the Defence should be considered in view of the criteria set out by the Trial Chamber in the Krajisnik case in a decision dated 28 February 2003 ;³⁴

CONSIDERING that the said Trial Chamber had concluded in the Krajisnik case that, in order for a fact to be capable of admission under Rule 94(B) of the Rules, it should be truly adjudicated in previous judgements in the sense that :³⁵

(i) it is distinct, concrete and identifiable;

(ii) it is restricted to factual findings and does not include legal characterisations ;

(iii) it was contested at trial and forms part of a judgement which has either not been appealed or has been finally settled on appeal; or

(iv) it was contested at trial and now forms part of a judgement which is under appeal, but falls within issues which are not in dispute on appeal;

(v) it does not have a bearing on the criminal responsibility of the Accused;

(vi) it is not the subject of (reasonable) dispute between the Parties in the present case;

(vii) it is not based on plea agreements in previous cases; and

(vii) it does not negatively affect on the right of the Accused to a fair trial;

CONSIDERING that the Chamber considers that it should examine this request of the Defence with regard for the criteria set out in the jurisprudence in the Krajisnik case;

CONSIDERING that in the light of those criteria, the Chamber decided not to take judicial notice of the Definitively Proposed Facts bearing the numbers:

(i) 1-2, 6-7, 18-19, 21, 26, 28, 45, 50-51, 56, 60-61, 63, 67, 75-76, 78, 83, 89-90, 92-95, 102, 110, 114, 116-118, 121, 125-126, 139-140, 170-172, 197, 222, 225, 229 -230 and 233, on the ground that these facts were not distinct, concrete or identifiable, and that they include legal characterisations;

(ii) 5, 8-17, 20, 22-25, 27, 29, 37, 40-41, 44, 48-49, 52-53, 57-59, 62, 64-66, 68, 70 -71, 73-74, 79-82, 84-85, 87, 91, 96-97, 100, 103-109, 111-113, 119, 122-124, 127 -135, 138, 141-145, 149-151, 153-154, 156-157, 159-169, 173-196, 198-221, 224, 226 -228, 231 and 234-237,³⁶ since the Chamber is not satisfied that those facts are not themselves the object of appeal in the Blaskic and Kordic cases; and

(iii) 86 and 232, on the ground that they were reasonably challenged by the Prosecution in this case;

CONSIDERING, then, that the Definitively Proposed Facts bearing the numbers 3, 69, 101 and 158 satisfy the criteria originating in the jurisprudence of the Krajisnik case;

CONSIDERING, nevertheless, that before taking judicial notice of these four Definitively Proposed Facts the Chamber is obliged to verify their relevance, pursuant to Rule 89(C) of the Rules;

CONSIDERING that in view of the explanations provided in the Additional Clarification, a degree of uncertainty remains as to the specific relevance of these four Definitively Proposed Facts in relation to this case;

CONSIDERING, however, that in its decision dated 28 January 2004, the Chamber specified that elements relating to the historical, political and military context at the time of the facts may be relevant with regard to the Accused’s alleged criminal responsibility since such elements may make it possible to establish the circumstances prevailing in the zones of operation of the Accused at the material time;³⁷

CONSIDERING that the said decision sets out the principle of broad interpretation of the relevance of evidence if it relates to the historical, political or military context at the time of the facts;

CONSIDERING that in this instance, this principle should not be set aside ;

CONSIDERING, nevertheless, that the application of this principle could not prejudge the probative value the Chamber might, in the course of the trial and if necessary, decide to attribute to a fact of which judicial notice has been taken ;

CONSIDERING that consequently, the Chamber considers that the Definitively Proposed Facts bearing the numbers 3, 69, 101 and 158 are relevant to the historical, political and military context at the material time in this case and that judicial notice should be taken of them;

FOR THE FOREGOING REASONS,

PURSUANT to Rule 94(B) of the Rules,

GRANTS the Defence request and takes judicial notice of the Definitively Proposed Facts bearing the numbers 3, 69, 101 and 158;

AND DISMISSES the Motion and Reply with regard to the other Definitively Proposed Facts;

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

Done this twentieth day of April 2004
At The Hague
The Netherlands

___________________
Presiding Judge
Jean-Claude Antonetti

[Seal of the Tribunal]