Case No: IT-01-47-PT
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Mr Hans Holthuis
7 December 2001
The Office of the Prosecutor:
Ms Jocelyne Bodson
Mr Ekkehard Withopf
Counsel for the Accused:
Ms Edina Residovic for Enver Hadzihasanovic
Mr Vasvija Vidovic and Mr John Jones for Mehmed Alagic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura
1. The Trial Chamber is seized of a joint Defence Motion on the form of the indictment in the present case,1 and the subsequent related filings.2 A part of the Motion may be considered as a challenge to the Tribunal’s jurisdiction. Since issues on the form of the indictment are substantially different from jurisdictional issues , the Trial Chamber considers them in separate decisions.3 The objections on the form of the indictment are the subject of this decision.
2. The three accused, Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, are charged with a number of crimes alleged to have been committed between 1 January 1993 and 31 January 1994 against Bosnian Croats and Bosnian Serbs in various municipalities in central Bosnia and Herzegovina.4 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.5 Mehmed Alagic is alleged to have been the commander of the ABiH 3rd Corps Operational Group (“OG”) “Bosanska Krajina” and the commander of the ABiH 3rd Corps.6 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 and 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.7 None of the accused is charged with having personally committed any of the alleged crimes under Article 7(1) of the Statute.
3. The charges against the accused are based on Article 2 (grave breaches of the Geneva Conventions of 1949) and Article 3 (violations of the laws or customs of war) of the Statute. Specifically, all three the accused are charged with:
(a) Count 1, murder, a violation of Article 3 of the Statute, based on Article 3 (1)(a) common to the Geneva Conventions of 1949 (“common Article 3”).
(b) Count 2, wilful killing, a violation of Article 2(a) of the Statute.
(c) Count 3, violence to life and person, a violation of Article 3 of the Statute , based on common Article 3(1)(a).
(d) Count 4, wilfully causing great suffering or serious injury to body or health , a violation of Article 2(c) of the Statute.
(e) Count 5, inhuman treatment, a violation of Article 2(b) of the Statute.
(f) Count 6, unlawful confinement of civilians, a violation of Article 2(g) of the Statute.
(g) Count 7, murder, a violation of Article 3 of the Statute, based on common Article 3(1)(a).
(h) Count 8, wilful killing, a violation of Article 2(a) of the Statute.
(i) Count 9, cruel treatment, a violation of Article 3 of the Statute, based on common Article 3(1)(a).
(j) Count 10, inhuman treatment, a violation of Article 2(b) of the Statute.
(k) Count 16, wanton destruction of cities, towns or villages, not justified by military necessity, a violation of Article 3(b) of the Statute.
(l) Count 17, plunder of public or private property, a violation of Article 3(e) of the Statute.
(m) Count 18, extensive destruction of property, not justified by military necessity , a violation of Article 2(d) of the Statute.
Enver Hadzihasanovic is additionally charged with:
(a) Count 11, unlawful labour, a violation of Article 3 of the Statute, based on customary international law, Articles 40 and 51 of Geneva Convention IV and Articles 49, 50 and 52 of Geneva Convention III.
(b) Count 12, taking of hostages, a violation of Article 3 of the Statute, based on common Article 3(1)(b).
(c) Count 13, taking of civilians as hostages, a violation of Article 2(h) of the Statute.
Enver Hadzihasanovic and Amir Kubura are further together charged with:
(a) Count 14, cruel treatment, a violation of Article 3 of the Statute, based on common Article 3(1)(a).
(b) Count 15, inhuman treatment, a violation of Article 2(b) of the Statute.
Finally, Enver Hadzihasanovic and Mehmed Alagic are together charged under count 19 with destruction or wilful damage done to institutions dedicated to religion, a violation of Article 3(d) of the Statute.
4. Two preliminary matters are to be addressed before turning to the specific objections on the form of the indictment.
5. The Trial Chamber’s “Order on Filing of Motions” makes no mention of the right of a party to file a reply or to supplement a previous filing.8 Counsel for the accused Alagic faxed an application for leave to reply to the Chamber , and leave was granted orally.9 The Prosecution has applied for leave to file a supplement to its Response in the light of the recent Kupreskic Appeal Judgment,10 where issues relating to the form of indictment were addressed.11 Leave is granted to the Prosecution to file the Supplementary Response. However , the Chamber has in the meantime issued a “Further Order on Filings of Motions”, inter alia providing that a party must seek and be granted leave to file a reply or a supplement to a previous filing prior to the filing of such reply or supplement.12 To ensure that both the other party and the Chamber are sufficiently put on notice as to what is sought, such filings must in future be made by way of formal motion.
6. The parties have previously been instructed to familiarise themselves with the “ Practice Direction on the Length of Briefs and Motions” (“Practice Direction”).13 In the interests of expediting the proceedings the Trial Chamber, in the exceptional circumstances of the present case, grants leave to file the Motion and Reply in their present form.
7. The general pleading principles identified in previous cases and which may be applicable to the present are as follows.
8. Article 21(4)(a) of the Statute provides, as one of the minimum rights of an accused , that he/she shall be entitled to be informed in detail of the nature and cause of the charge against him/her, and this provision also applies to the form of indictments .14 This entitlement translates into an obligation on the Prosecution to plead the material facts underpinning the charges in the indictment.15 The pleadings in an indictment will therefore be sufficiently particular when it concisely sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the nature and cause of the charges against him/her to enable him/her to prepare a defence.16 The Prosecution is, however, not required to plead the evidence by which such material facts are to be proven.17
9. The basis of these pleading principles are to be found in Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).18 The former, in relevant part, reads that “SiCn the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees , in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him S…C.”19 The latter essentially provides the same as the ICCPR.20
10. All legal prerequisites to the application of the offences charged constitute material facts, and must be pleaded in the indictment. The materiality of other facts (facts not directly going to legal prerequisites), which also have to be pleaded in the indictment, cannot be determined in the abstract. A decisive factor in determining their materiality is the nature of the alleged criminal conduct charged to the accused ,21 which includes the proximity of the accused to the relevant events.22 Each of the material facts must usually be pleaded expressly, although it may be sufficient in some circumstances if it is expressed by necessary implication.23 This fundamental rule of pleading, however, is not complied with if the pleading merely assumes the existence of the pre-requisite.24
11. In a case based upon superior responsibility, the following are material facts that have to be pleaded in the indictment:
(a) The relationship between the accused and the others whose acts he is alleged to be responsible for.25 In particular , the superior-subordinate relationship between the accused and those others, is a material fact that must be pleaded.
(b) The accused knew or had reason to know that the crimes were about to be or had been committed by those others,26 and the related conduct of those others for whom he is alleged to be responsible .27 The facts relevant to the acts of those will usually be stated with less precision,28 the reasons being that the detail of those acts (by whom and against whom they are done) is often unknown, and, more importantly, because the acts themselves often cannot be greatly in issue.29
(c) The accused failed to take the necessary and reasonable measures to prevent such crimes or to punish the persons who committed them.30
12. Generally, an indictment, as the primary accusatory instrument, must plead with sufficient particularity the material aspects of the Prosecution case, failing which it suffers from a material defect.31 In the light of the primary importance of an indictment, the Prosecution cannot cure a defective indictment by its supporting material and pre-trial brief.32 In the situation where an indictment does not plead the material facts with the requisite degree of specificity because the necessary information is not in the Prosecution’s possession, doubt must arise as to whether it is fair to the accused for the trial to proceed.33 The Prosecution is therefore expected to inform the accused of the nature and cause of the case, as set out above, before it goes to trial. It is unacceptable for it to omit the material facts in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.34 Where the evidence at trial turns out differently than expected, the indictment may be required to be amended, an adjournment may be granted or certain evidence may be excluded as not being within the scope of the indictment.35
13. The Defence has raised six objections relating to the pleading of command responsibility of the three accused.36
14. The first objection is that the alleged superior-subordinate relationship between the accused and foreign Muslim fighters or Mujahedin is insufficiently pleaded in the indictment.37 Paragraphs 11, 20, 62 and 67 of the indictment are, it is submitted, relevant to this objection . The Defence submits that the indictment fails to properly allege that the specific foreign Muslim individuals who committed the crimes were attached to or subordinated to the accused.38 It is further submitted that paragraph 11 also fails to specify whether all or some foreign Muslim fighters referred to themselves as “Mujahedin” or only those who were attached to the ABiH 3rd Corps 7th Muslim Mountain Brigade.39 The relief requested is that the Prosecution be ordered to plead that the specific foreign Muslim fighters or individual Mujahedin who committed the criminal acts referred to in the indictment were in a superior-subordinate relationship to each of the accused.40 The Prosecution response is that this objection does not concern material facts, which must be pleaded , but rather evidence by which the relevant material facts could be proved, and that the relevant specificity requirements have been satisfied.41
15. Paragraphs 11, 20, 38, 62 and 67 are unclear as to whether all the foreign Muslim individuals who committed acts for which the accused are alleged to be responsible were subordinate to the accused, either individually or as members of units subordinate to their command. The rest of the indictment also does not assist in clarifying this matter. For example, paragraphs 17 and 20(a) refer to, inter alia, the 7th Muslim Mountain Brigade “and” Mujahedin who allegedly committed crimes. In a case such as the present, resting on command responsibility charges, the Defence is entitled to know whether it is alleged that the foreign Muslim fighters or Mujahedin who are alleged to have committed crimes for which the accused are charged with being responsible, were their subordinates. The objection is therefore upheld. The Prosecution is ordered to amend the indictment accordingly.42
16. The second objection is that the “attached to and subordinated to” formula used in the indictment is insufficient to plead command responsibility.43 It is submitted that based on the Tribunal’s jurisprudence the Prosecution has to plead as an essential element of command responsibility the exercise of “effective control” in all superior-subordinate relationships alleged in the indictment, including the relationship between the accused and the foreign Muslim fighters or Mujahedin .44 It is submitted that the indictment must plead that the accused exercise effective control over those individuals carrying out crimes who are alleged to be their subordinates and specifically plead that the accused had the material ability to prevent or punish their criminal acts.45 The Prosecution response is the same as with the first objection.46
17. The indictment alleges in various paragraphs that the three accused are criminally responsible for crimes committed by their “subordinates”47 or forces “under [their] command and control”.48 It also alleges that the three accused “demonstrated or exercised both, formal de iure and de facto power” by their command and control over units and troops under their command.49 The only instances in the indictment where what the Defence refers to as the “’attached to and subordinated to’ formula” is used, are paragraphs 10 and 62, concerning the relationship between the Mujahedin and the 7th Muslim Mountain Brigade. The indictment does not expressly plead effective control of the accused over their subordinates - the requisite standard for establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute50 - in those terms . Neither, in the view of the Trial Chamber, is the exercise of such control necessarily pleaded implicitly in the indictment, mainly because the pleading of the exercise of de iure and de facto power obscures what may, perhaps, otherwise have been a sufficiently precise pleading. For the purposes of criminal responsibility as a superior, de iure power is not synonymous with effective control, as the former may not in itself amount to the latter.51 The same applies with respect to de facto power, since a de facto superior must be found to wield substantially similar powers of control as de iure superiors who exercise effective control over subordinates to be held criminally responsible for their acts.52 It therefore cannot be said that pleading the exercise of both de iure and de facto amounts to pleading effective control. Thus, as a legal prerequisite , or element, of command responsibility, the exercise of the accused over their subordinates of effective control is, in the circumstances, a material fact which has to be pleaded in the indictment. This objection is therefore upheld. The Prosecution is ordered to amend the indictment to plead that the accused exercised effective control over all subordinates alleged to have committed crimes for which they are said to be responsible.
18. The third Defence objection concerns the appearance in the indictment, in one and the same count, of both the allegations that the accused “knew” and “had reason to know” that a subordinate was about to commit crimes or had done so.53 It is objected that these are distinct, mutually exclusive versions of events, that the Prosecution knows its case and should therefore be able to state either the one or the other version.54 It is also submitted that at the very least, separate, alternative, counts should be drawn for each version, permitting alternative verdicts; the trial, it is asserted, will be more expeditious and fairer, enabling the accused to respond to separate counts , without being faced with a global and ambiguous charge.55 The Defence also submits that the degree of culpability, and thus the basis for sentencing, will differ depending on which version of events, if either, is proven .56 The specific relief requested is that the Prosecution must be ordered to amend the indictment by separating the counts alleging that the accused “knew” that crimes were committed or were about to be committed from counts alleging that the accused “should have known” of those crimes.57 The Prosecution response is the same as with the first objection.58
19. The Prosecution is entitled to plead that the accused “knew” or “had reason to know ” that their subordinates were about to commit a specific crime or crimes or had done so. It need not as a matter of law – and in any event probably cannot as a matter of logic - establish both versions with respect to any one charge or any one crime underlying a charge in order to secure a conviction. The Prosecution cannot at this point know which version, if any, will be established on the evidence at trial. The pleading in the indictment with respect to this objection is, however , clear - the Defence is sufficiently apprised that it has to prepare its defence in relation to both versions. Furthermore, it is the Chamber’s duty to finding, at trial, whether the accused either knew, or, had reason to know that their subordinates were about to or did commit the alleged crimes. This objection is therefore rejected .
20. The fourth Defence objection is that the Prosecution, in relation to the “reason to know” charges, has to specifically plead that information was available to the accused that put them on notice of offences committed or about to be committed by subordinates.59 It is submitted that this is essential in order to place the burden on the Prosecution of adducing evidence of this element at trial and proving its existence beyond a reasonable doubt.60 The relief requested is that in relation to those counts alleging that the accused “should have known”, the Prosecution must be ordered to specifically plead that there was information available to the accused which would have put them on notice of offences committed by their subordinates.61 The Prosecution response is the same as with the first objection.62
21. The Defence objection is not that the availability of the relevant information is a material fact, which for that reason, has to be pleaded in the indictment. Pleading the availability to the accused of the relevant information, or not, would not affect the burden upon the Prosecution to prove its case. In any event, what the Defence is requesting to be pleaded is evidence in relation to an element of an offence. This objection is therefore rejected.
22. The fifth Defence objection is that the Prosecution has failed to specify in the indictment, with respect to each incident and with respect to each accused, whether its case is that the accused failed to prevent the crimes or that the accused failed to punish the perpetrators, or both.63 It is submitted that the disjunctive formulation in the indictment is ambiguous, and that since the Prosecution knows what its case is, it should accordingly indicate precisely what it intends to prove at trial.64 The relief requested is that the Prosecution specifically plead, for each count, whether the accused failed to prevent the criminal acts of their subordinates or whether they failed to punish them, or both, but not to maintain the alternative formula in relation to any one count.65 The Prosecution response is the same as with the first objection.66
23. There is no ambiguity in the use of the disjunctive formulation - the Prosecution is entitled to plead both versions and the Defence is sufficiently and clearly put on notice that it has to prepare its case to answer both versions. This objection is rejected.
24. The sixth Defence objection concerns the manner in which the Prosecution pleaded “necessary and reasonable measures”.67 It is submitted, that in order to avoid the imposition of strict liability, the phrase “necessary and reasonable measures” must have some meaningful content.68 It is specifically submitted that the Prosecution must aver that there were necessary and reasonable measures that the accused could have taken, what these measures were and that they were necessary and reasonable.69 It is asserted that the burden of proof remains throughout on the Prosecution to prove each of these elements; the burden is not on the Defence, for example, to prove that the accused did take the necessary and reasonable measures.70 It is further submitted that the necessity of such a pleading is particularly acute when the matter concerns the acts of foreign Muslim fighters or Mujahedin,71 apparently since they may have been irregular forces, with the accused lacking the ability to exercise control over them. It is asserted that the accused have a right to know at least the nature of the necessary and reasonable measures they are alleged to have taken and failed to take.72 The Defence has made the general observation that merely reproducing the words of Article 7(3) of the Statute, as the Prosecution has done in the indictment, is insufficient ,73 apparently to bolster the objection in issue, and to reinforce their point that Article 7(3) of the Statute does not create strict liability.74 The relief requested is that in relation to counts alleging that the accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof, it be pleaded what specific measures the accused should have taken and failed to take.75 The Prosecution response is the same as with the first objection.76
25. It is unclear what exactly the Defence objection is. It seems to be a concern that , as it is, the indictment may leave the door open to the Prosecution to lead a case of strict liability against the accused. The indictment and the jurisprudence of the Tribunal leave no room for the Prosecution to lead and establish such a case . The Celebici Appeals Chamber has rejected any notion of command responsibility being a form of strict liability,77 as pointed out by the Defence.78 The Defence submission mainly aims at pleading the evidence by which the material facts are to be proven by the Prosecution. This objection is therefore rejected .
26. The indictment alleges that at all relevant times, “a state of international armed conflict and partial occupation existed in Bosnia and Herzegovina.”79 The Defence has raised a number of objections regarding this allegation.
27. The first objection is that the allegation fails properly and specifically to aver between which states the alleged international armed conflict existed.80 The Prosecution has failed to respond to this specific objection, apparently misinterpreting the Defence submission as stating that it is necessary to plead or prove at trial that an international armed conflict occurred in the same location where the accused committed the alleged offences.81
28. The indictment alleges that the ABiH participated in an armed conflict with the Croatian Defence Council (“HVO”)82 and the Army of the Republic of Croatia (“HV”) until at least the end of January 1994.83 It also alleges that the participation in that conflict took place subsequent to the Vance-Owen peace talks , which ended on 30 January 1993.84 However, the indictment also contains allegations as to the transformation in 1992 of the Yugoslav People’s Army (“JNA”) units in Bosnia and Herzegovina into the Army of the Serbian Republic of Bosnia and Herzegovina (“VRS”), and on the strong links that continued to exist between the Yugoslav Army (the renamed JNA) and the VRS.85
29. The Prosecution is correct in submitting that it does not have to plead or prove at trial that an international armed conflict existed in the same location where an accused is alleged to have committed the charged offences. The Prosecution has pleaded the existence of an international armed conflict, as it was obliged to do for charges under Article 2 of the Statute. It has, however, failed to plead clearly between whom the alleged international armed conflict existed. This objection is therefore upheld. The Prosecution is accordingly ordered to amend the indictment to clearly state between which states it is alleging an international armed conflict existed.
30. The second Defence objection relates to the identity of the forces that allegedly partially occupied Bosnia and Herzegovina. The first issue taken is that the Prosecution has failed to specify which forces allegedly partially occupied Bosnia and Herzegovina .86 It is submitted that it should be clearly stated which states were the occupying forces, and which zones, towns or villages were occupied by the neighbouring states on which dates.87 The Prosecution has in the Trial Chamber’s opinion responded that it is not required to plead or prove that the geographic areas in the indictment were partially occupied .88 The second issue taken is that , if the allegation is that the ABiH occupied parts of Bosnia and Herzegovina, it is an error on the face of the indictment, as it is clearly established under international law that a state cannot occupy itself.89 It is therefore requested that, in the event that by “partial occupation” was intended reference to Bosnia and Herzegovina or to forces of the ABiH, the words “partial occupation” be struck out.90 The Prosecution Response appears to be that it views occupation as an act by a foreign state where it is asserted, in relation to another objection, that the Motion confuses the difference between “a partial occupation by an international force” and an area (or zone) of responsibility with respect to a military formation.91
31. It has already been stated that the pleadings in an indictment will be sufficiently particular when it concisely sets out the material facts of the Prosecution case with enough detail to inform the Defence clearly of the nature and cause of the charges against him/her to enable him/her to prepare a defence.92 The pleading of “partial occupation” in this indictment manifestly fails to meet the said standard. Pleading “partial occupation” does not clearly, either expressly or by necessary implication, inform the Defence of the nature and cause of the charges against specifically these three accused in relation to that particular pleading. The point is not what the Trial Chamber or the Defence should understand the nature and cause of the case against the accused in relation to the pleading of partial occupation is.
32. The indictment fails to identify the forces that partially occupied Bosnia and Herzegovina , which means that the forces of Bosnia and Herzegovina itself may have been the occupiers that the Prosecution has in mind. This possibility is borne out by count 11. It charges Enver Hadzihasanovic with unlawful labour under Article 3 of the Statute, recognised by customary law and “Articles 40 and 51 of the Geneva Conventions IV and Articles 49, 50 and 52 of the Geneva Conventions III.” Geneva Convention IV93 applies, inter alia, to all cases of partial or total occupation of the territory of a party to that Convention , even if the said occupation meets with no armed resistance.94 Article 51 of that Convention falls under the section specifically relating to occupied territories, and deals with work done by protected persons in such territories.95 Geneva Convention III96 applies, inter alia, to all cases of partial or total occupation of the territory of a party to that Convention, even if the said occupation meets with no armed resistance .97 Articles 49, 50 and 52 of that Convention fall under the section dealing with labour of prisoners of war. The indictment also pleads that the victims of grave breaches of the Geneva Conventions were persons protected under the relevant provisions and that all acts and omissions charged as grave breaches of the Geneva Conventions occurred during the partial occupation of Bosnia and Herzegovina.98 This particular basis of the charge in count 11 would appear to imply that these provisions applied to the three accused, who are alleged to have been commanders at the time of forces of Bosnia and Herzegovina. If it is not the Prosecution’s case that the forces of Bosnia and Herzegovina occupied its own territory, the question arises as to the relevance of the said provisions of the Geneva Conventions for the criminal responsibility of these three accused, since those provisions on their face address the occupying forces, not the forces resisting such occupation.
33. The Defence did not complain about the indictment for all the reasons raised by the Trial Chamber in the two preceding paragraphs. However, since these issues are inseparably linked, the Trial Chamber considers it appropriate to raise these deficiencies in the indictment ex officio. The Prosecution is accordingly ordered to either strike out the pleading of partial occupation and the allegations and the charges or parts of charges based thereon, or to amend the indictment to clearly plead what its case against the accused is in relation to the pleading of partial occupation.
34. Should the Prosecution in amending the indictment as ordered elect to plead the partial occupation of Bosnia and Herzegovina, the identity of the occupying forces , the area or areas occupied, and the date or dates when that occupied is alleged to have existed, would, depending on the nature of the case against the accused in relation to the pleading of partial occupation, be material facts that have to be pleaded in the amended indictment.
35. Whether or not as a matter of law a state, by its forces, can occupy its own territory , is a matter of substantive law which is inappropriate to be resolved in a decision on the form of the indictment. Should the Prosecution in amending the indictment as ordered elect to plead that the forces of Bosnia and Herzegovina occupied its own territory, this question would be determined at trial. This would put the Defence on sufficient notice of the nature and cause of the case against the accused in relation to that pleading to prepare its case, both with respect to the substantive legal issue raised and the evidentiary case to be answered.
36. Related to the second issue just dealt with, the third Defence objection is that the Prosecution appears to equivocate in the indictment between the notion of occupation and that of zones “listed under the ABiH 3rd Corps area of responsibility”.99 It is asserted that the purpose of this equivocation is to argue that the ABiH 3rd Corps and its commanders were responsible for the “areas of responsibility” in the same way that an occupying force would be responsible for occupied territory.100 It is submitted that the relevant consideration is whether a foreign army occupied a territory, or whether an army was engaged in combat activities in a territory.101 It is not pertinent, and it can only engender dangerous ambiguity, by suggesting that being “responsible”, that is, tasked with an area, equates to criminal responsibility for all crimes committed within that area, to refer to the internal allocation of tasks or “responsibilities” within the ABiH.102 It is requested that paragraph 58 be struck out from the indictment as being excessively vague and dangerously ambiguous.103 The Defence also takes issue with the Prosecution being permitted to put forward in the Kordic case104 that the HVO occupied some of the municipalities it pleads in this case as having been occupied by the ABiH.105 The Prosecution has submitted in response that there is no such equivocation, that paragraphs 57 and 58, when read together, specify the division of Bosnia and Herzegovina into five geographical areas of responsibility by corps, including the geographical area of responsibility of the ABiH 3rd Corps.106 It is submitted that the Motion confuses the difference between a partial occupation by an international force and an area (or zone) of responsibility with respect to a military formation.107
37. International humanitarian law distinguishes between the duties of a commander for occupied territory and commanders in general.108 The authority of the former is to a large extent territorial, and the duties applying in occupied territory are more onerous and far-reaching than those applying to commanders generally.109 It is unsettled whether this distinction has any bearing, as a matter of international criminal law , on the nature of the criminal responsibility of superiors for the acts of subordinates.110
38. The Trial Chamber considers that when, read as a whole, the indictment is not equivocal in the way submitted by the Defence. It is only when read in isolation that paragraph 58 may perhaps be interpreted as being equivocal. Paragraphs 57 and 58 refer to the geographical areas into which Bosnia and Herzegovina was divided for military purposes. Even assuming that the distinction between the responsibility of commanders of occupied territories and commanders in general has a bearing on the criminal responsibility of such commanders, the indictment does not charge or purport to charge the three accused in that broader sense. The objection in relation to this issue is therefore rejected. On the issue taken with the Prosecutor being permitted to put forward opposing versions of events in different case, the Trial Chamber considers that the Kordic Judgment cannot be read to have found that the HVO occupied the said municipalities, or even that the Prosecution put forward such a case. In any event, it is for the Prosecution to put forward whatever version of events it wants to, within the confines of the Statute and the Rules, even if that version is diametrically opposed to versions it put forward in other cases. The objection in relation to this issue is therefore rejected.
39. The Defence submits that the case law of the Tribunal clearly establishes that charges under Articles 2 and 3 of the Statute in relation to the same conduct are alternatives .111 The indictment, it is submitted , should be amended to plead such charges in the alternative.112 The Prosecution submits, inter alia, that the overwhelming practice of both ad hoc Tribunals, and in particular the practice of the Appeals Chamber, recognises the Prosecution’s discretion to charge cumulatively or in the alternative based upon the same facts.113 It is submitted that any perceived judicial duplicity incurred by cumulative charging or conviction may be addressed at the sentencing stage of the proceedings.114
40. Both the majority and minority in the Celebici Appeals Chamber expressly held that cumulative charging is to be allowed in light of the fact that, prior to the presentation of all the evidence, it is impossible for the Prosecution to determine to a certainty which of the charges brought against an accused will be proven.115 There is, however, nothing in the Celebici Appeals Judgment, including the minority opinion, which suggests that Articles 2 and 3 charges based on the same conduct must be pleaded in the alternative . Following that Judgment, the Trial Chamber considers that this matter has been settled, at least insofar as Articles 2 and 3 of the Statute, the bases for the charges in the present case, are concerned.116 This objection is therefore rejected.
41. The Defence has raised a number of objections relating to alleged imprecisions in the indictment.
42. The Defence objects to the use of the phrases “but are not limited to” and “on or about” in paragraphs 21 and 26.117 It is submitted that the Prosecution should not be permitted to reserve for itself the possibility of introducing, at trial, evidence of other towns and villages that were attacked or the killing of other victims, since counsel would not have prepared the Defence case on that expanded basis.118 It is also submitted that the Prosecution should be ordered to add specific dates , rather than merely months, to paragraph 26 of the indictment.119 The Prosecution response is that when read as a whole, the indictment is sufficiently precise in relation to the locations, time periods and the identity of victims of the alleged crimes to put the accused on notice of the charges against which they must defend.120
43. The Prosecution is not required to provide exhaustive lists in the relevant paragraphs of the indictment of all the towns and villages attacked or victims killed. Where the Prosecution seeks to lead evidence of an incident which supports the general offences charged (the attacks and killings), but that particular incident has not been pleaded in the indictment in relation to those offences, the admissibility of the evidence depends upon the sufficiency of the notice which the accused has been given that such evidence is to be led in relation to that offence.121 Until such notice is given, the accused are entitled to proceed upon the basis that the details pleaded are the only case which they have to meet in relation to the offences charged.122 Accordingly , at this stage and until given sufficient notice that evidence will be led of additional villages or towns or victims in relation to a particular offence charged, the accused are entitled to proceed upon the basis that the lists provided are exhaustive in nature. This fully addresses the submitted concern of the Defence. The particular objection is therefore rejected. With respect to the request that the Prosecution plead more specific dates in paragraph 26, the Trial Chamber considers that the indictment informs the accused in sufficient detail of the case they have to meet . The particulars sought are not required to be pleaded in the indictment; the particulars should be provided for in materials disclosed to the Defence. This objection is therefore rejected.
44. The second Defence objection relates to paragraph 65 of the indictment.123 It is submitted that the term “initially” in the said paragraph is too vague, since the dates, including those on which the accused assumed various commands, are crucial .124 The Prosecution’s response to this objection is the same as the its response to the first objection.125
45. It is alleged that one of the operational groups created on 8 March 1993 within the ABiH 3rd Corps by Enver Hadzihasanovic, the commander of that Corps,126 was OG “Bosanska Krajina”,127 with Mehmed Alagic appointed as that group’s commander.128 It is also alleged that on or around 15 April 1993, elements of the 7th Muslim Mountain Brigade were transferred and put under the direct command of the ABiH 3rd Corps.129 It is further alleged that at the relevant dates Amir Kubura was the 7th Muslim Mountain Brigade Chief of Staff130 and that he acted from 1 April 1993 to 20 July 1993 as the substitute for the absent assigned 7th Muslim Mountain Brigade commander.131 Since the accused are charged with superior responsibility, the date or dates on which they are alleged to have become commanders of specific units is of considerable importance. Paragraph 65 is too imprecise as to the date or dates on which the 7th Muslim Mountain Brigade, the 17th Krajina Mountain Brigade, the 305th Mountain Brigade Jajce, the 27th Motorised Brigade and the Municipal Defence Headquarter Jajce with its units were placed under the command of OG “Bosanska Krajina”. This objection is therefore upheld. The Prosecution is ordered to replace the word “ initially” with a specific date or dates, or if that be impossible, an indication of the relevant time which is much less vague than the word “initially”.
46. The third Defence objection relates to paragraph 66.132 It is submitted that the term “elements” in the said paragraph to describe persons who may be alleged to be the accused’s subordinates is too imprecise as a matter of pleading, in particular in the case of the accused Mehmed Alagic.133 It is requested that the Prosecution be ordered to specify which individuals or units were transferred and put under the direct command of the ABiH 3rd Corps and whether any of these individuals or units was involved in the crimes referred to in the indictment.134 The Prosecution’s response to this objection is the same as the its response to the first objection .135
47. In the light of the alleged responsibility of the three accused in relation to the 7th Muslim Mountain Brigade and the ABiH 3rd Corps, the identity of the units, and if possible, individuals, at least by reference as an identifiable category, from the 7th Muslim Mountain Brigade that were transferred and put under the direct command of the ABiH 3rd Corps is a material fact. It is, however, unnecessary for the Prosecution to also plead that these transferred individuals or units were involved in the crimes alleged in the indictment, because the other allegations made or ordered to be made sufficiently plead that fact. This objection is therefore upheld in part. The Prosecution is ordered to specify which individuals or units were transferred and put under the direct command of the ABiH 3rd Corps. Where individuals, rather than units, were transferred, the Prosecution need not identify each by name. It can refer to them by a clearly identifiable category in order to sufficiently put the Defence on notice as to their identity to properly prepare its case.
48. The fourth Defence objection concerns counts 1 to 5 of the indictment, which charges the accused with various alleged killings of and injuries inflicted on surrendered HVO soldiers and/or Bosnian Croat and Bosnian Serb civilians.136 It is submitted that with the exception of paragraph 17(ab), paragraph 17 only states which units attacked the relevant villages, and does not state which individuals or units committed the killings and injuries, rendering the indictment defective .137 It is requested that the Prosecution be ordered to specify in paragraphs 17(aa), (b) and (c), which troops, units or individuals committed the killings or inflicted the injuries for which the accused are charged by virtue of command responsibility.138 The Prosecution’s response to this objection is the same as the its response to the first objection.139
49. Paragraph 17 should not be read in isolation. When read together, the only reasonable interpretation of paragraphs 17 and 18, relevant to counts 1 to 5, is that the forces that attacked the relevant villages committed the alleged crimes. This objection is therefore rejected.
50. The fifth Defence objection concerns counts 1 to 5, 6 to 10, and 16 to 18.140 It is submitted that the current form of these counts creates a real risk, if not an impossibility, of returning coherent verdicts, in that the various incidents referred to are lumped together without distinction as to the accused or as to place .141 It is requested that that the counts be struck, or amended so as to permit a verdict to be returned with respect to each accused and in respect of each place.142 The Prosecution’s response to this objection is the same as its response to the first objection.143
51. Although it may have been clearer to both the Defence and the Trial Chamber had the Prosecution formulated the relevant charges differently, the current form is not defective for that. This objection is therefore rejected.
52. The sixth Defence objection concerns various asserted deficiencies in the pleading of counts 6 to 10.144
53. In relation to paragraph 19, it is submitted that it is unspecific as to which ABiH forces carried out the unlawful imprisonment and unlawful confinement of civilians in the relevant municipalities.145 The Prosecution’s response to this objection is the same as the its response to the first objection.146
54. Paragraph 19, even when read with paragraph 20, does not clearly identify which ABiH forces carried out the alleged unlawful imprisonment and unlawful confinement 147 of civilians in the relevant municipalities. It cannot safely be reasonably assumed that the forces that allegedly committed the other crimes to these counts, which are sufficiently identified, were also responsible for the unlawful confinement. This objection is therefore upheld. The Prosecution is ordered to amend the indictment to plead which particular ABiH forces allegedly carried out the said unlawful confinement.
55. In relation to paragraph 20, it is submitted that no dates are provided, as should be done, since these are material averments.148 The Prosecution’s response to this objection is the same as the its response to the first objection.149
56. Paragraph 20 has to be read together with paragraph 19. The latter paragraph provides the dates accompanying the allegations made in the former.150 This objection is therefore rejected.
57. In relation to counts 6 to 10 in general, it is submitted that the specific charges set out against Enver Hadzihasanovic in paragraph 19 go beyond 31 October 1993,151 whilst the opening sentence of that paragraph alleges that he is responsible for crimes committed from about January 1993 to only 31 October 1993.152 The Prosecution’s response to this objection is the same as the its response to the first objection.153
58. The current pleading is obviously ambiguous in relation to this important matter . The objection is therefore upheld. The Prosecution is accordingly ordered to amend the indictment to clearly plead the period during which Enver Hadzihasanovic is alleged to have been responsible for crimes committed by his subordinates.
59. It is submitted that paragraph 21 does not state who carried out the killings of imprisoned and otherwise detained Bosnian Croats and Bosnian Serbs, a material averment which should have been pleaded.154 The Prosecution’s response to this objection is the same as the its response to the first objection.155
60. Reading paragraphs 19 and 20 together with paragraph 21 does not assist in providing the identity of the alleged killers of the relevant victims, which is a material fact. This objection is therefore upheld. The Prosecution is ordered to amend the indictment to identify the alleged killers, at least by category, to enable the Defence to prepare its case.
61. The seventh Defence objection concerns count 13, which charges Enver Hadzihasanovic with taking civilians as hostages.156 It is submitted that the related paragraph 24, in referring to alleged Bosnian Croat hostages, does not aver, as it should, that these Croats were civilians.157 The Prosecution’s response to this objection is the same as the its response to the first objection.158
62. When charging an accused with the crime of taking civilians as hostages, it clearly is a material fact whether the alleged hostages were civilians or not. The related paragraph 24 does not plead this fact. The objection is therefore upheld, and the Prosecution is ordered to amend the indictment accordingly.
63. The eighth Defence objection concerns a number of asserted deficiencies in relation to allegations against the accused Amir Kubura.159 The Prosecution’s response to this objection is the same as the its response to the first objection.160
64. It is submitted that since the indictment charges that Amir Kubura fulfilled a command role only after 1 April 1993161 and that none of the counts allege that he failed to prevent or punish crimes until after the beginning of April 1993,162 those counts alleging that he is responsible as a commander for crimes committed before 1 April 1993 should be struck.163
65. The submission that the indictment charges that Amir Kubura fulfilled a command role only after 1 April 1993 rests on its assertion that under international law “a Chief of Staff does not necessarily occupy a position of command and cannot be held criminally responsible as a commander.”164 The indictment alleges that Amir Kubura was the Chief of Staff of the 7th Muslim Mountain Brigade from 1 January 1993 till 1 April 1993.165 The indictment very confusingly, where it sets out the specific counts against Amir Kubura, charges him with criminal responsibility for crimes committed both from “about April 1993”,166 and prior to that period (but after 1 January 1993).167 The current pleading is obviously ambiguous in relation to this important matter . The objection is therefore upheld. The Prosecution is accordingly ordered to amend the indictment to clearly plead the period during which Amir Kubura is alleged to have been responsible for crimes committed by his subordinates.
66. It is also submitted that counts concerning Amir Kubura allege that troops from brigades other than the 7th Muslim Mountain Brigade - the only Brigade he is alleged to have commanded from 21 July 1993 to 15 March 1994 - were involved in the incidents that led to the commission of the offences.168 The examples provided relate to counts 1 to 5 of the indictment, in particular the attack launched on Dusina, and the massacre in Bikosi.169 It is asserted that it is not alleged that the accused had any command over the other brigades, nor is it alleged from which brigade the troops originated who perpetrated the alleged killings and injuries.170 It is also complained that counts 6 to 10 suffer form the same defect, the example given relating to the activities at the Mehurici Elementary School, which does not mention the 7th Muslim Mountain Brigade.171 It is further submitted that some of the counts do not specify which brigades were involved in the commission of crimes, the example given being counts 16 to 18 wherein it is simply alleged that the ABiH 3rd Corps forces committed certain offences, with no mention made of the 7th Muslim Mountain Brigade or any other brigade.172 It is submitted that as a matter of law, a commander of one brigade cannot per se be held responsible for violations committed by troops of another brigade if the brigades were involved in joint operations; the indictment does not allege that Amir Kubura was in command of all of the brigades in joint operations.173
67. With respect to the issue taken with referring in the paragraphs relevant to the specific charges against Amir Kubura to brigades or units which are not alleged to have been commanded by him, the Trial Chamber considers that such pleading is not defective when read against the indictment as a whole. The indictment clearly charges Amir Kubura as having been the ABiH 3rd Corps 7th Muslim Mountain Brigade Chief of Staff from 1 January 1993 to 20 July 1993; as having acted from 1 April 1993 to 20 July 1993 as the substitute for Asim Koricic, the then assigned ABiH 3rd Corps 7th Muslim Mountain Brigade Commander who was absent during this period ; and as the ABiH 3rd Corps 7th Muslim Mountain Brigade Commander from 21 July 1993 to 15 March 1994.174 This particular objection is therefore rejected.
68. With respect to the issue taken with the 7th Muslim Mountain Brigade not being mentioned at all in counts 6 to 10 insofar as they relate to Amir Kubura, the following finding is made. Paragraph 20(c) relates to crimes allegedly committed in the Mehurici Elementary School, for which Amir Kubura is charged in paragraph 19(ba). The former paragraph makes no explicit reference to that brigade, but mentions the Mujahedin that were allegedly involved. Paragraph 62, to be amended, alleges that the “Mujahedin ” were attached to and subordinated to the 7th Muslim Mountain Brigade and were heavily involved in combat activities with that brigade. It would therefore appear that Amir Kubura is charged for the said alleged crimes on the basis of the involvement of the Mujahedin. However, this is not sufficiently clear, and the objection in relation to this issue is upheld. The Prosecution is ordered to amend the indictment accordingly. Paragraph 20(d) relates to crimes allegedly committed in the Blacksmith Shop Mehurici, for which Amir Kubura is charged in paragraph 19(bb). The former paragraph, however, makes no mention of either the 7th Muslim Mountain Brigade or the Mujahedin. The indictment is defective in this regard, as the Defence is entitled to know on what basis the accused is said to be responsible for these acts. This specific objection is therefore upheld, and the Prosecution is ordered to either strike paragraph 19(bb), or to amend the indictment to make clear on what basis it is alleging that Amir Kubura is responsible for the acts committed in the Blacksmith Shop Mehurici.
69. With respect to the issue taken that counts 16 to 18 do not mention any specific brigade, including the 7th Muslim Mountain Brigade, the Trial Chamber finds that the indictment is not defective for that. Although paragraph 26 refers to the ABiH 3rd Corps forces in general, paragraph 27 refers to ABiH forces under the command and control of the three accused as having been responsible for the relevant crimes . This pleading is sufficient to put the Defence on notice as to the nature and cause of the relevant charges against them. This specific objection is therefore rejected.
70. The Prosecution has submitted that the supporting material accompanying the indictment and other materials disclosed to the Defence pursuant to the Rules, as well as the pre-trial brief, will provide the Defence with facts, details of the offences allegedly committed, and the nature of the alleged criminal responsibility of the accused.175 The Defence objected to this submission.176 The Trial Chamber rejects the Prosecution submission, for the reasons set out above .177
71. The Defence has requested an oral hearing on the Motion at the earliest opportunity in view of the complexity and importance of the issues raised.178
72. The general practice of the Tribunal is not to hear oral argument on motions prior to the trial unless good reason is shown for its need in the particular case.179 A general assertion that the issues are complex and important is not, in the circumstances , such a reason. The Defence has not suggested that it could for some reason not fully address the issues in the written filings. The Trial Chamber also sees no need for oral argument upon this Motion. This request is therefore refused.
73. The placing of the sections on the “Individual criminal responsibility” of the three accused, “General allegations”, and “Additional facts” at the back of the indictment , following the specific counts, does not make for an easy understanding and use of the indictment. The indictment is also unnecessarily repetitive in certain instances . Although not defective for that, the Trial Chamber considers that the Prosecution be directed to reorganise the indictment and to redraft it to minimise the repetition of information and material facts. With respect to reorganising the indictment, the “General allegations” and “Additional facts” sections are to be moved to the front of the indictment to follow directly on the section on “The accused”. The section on “Individual criminal responsibility” is also to be moved to the front of the indictment to directly follow the “Charges” section, but preceding the specific counts. Where necessary, the cross-references to other sections and paragraphs of the indictment must accordingly be changed.
74. Pursuant to Rule 72, the Motion is hereby:
(a) Denied in part.
(b) Granted in part.
(c) The Prosecution is ordered to amend the indictment in the terms set out in this decision, and to reorganise and redraft the indictment in accordance with paragraph 73 of this decision.
(d) The amended and reorganised indictment is to be filed no later than 12:00 on 11 January 2002. A table indicating all the amendments and changes made to the indictment shall be filed by the same time (reorganisation table).
(e) The Defence is to file any complaints resulting from the amendments ordered to be made within fourteen days of the filing of the amended and reorganised indictment .
Done in both English and French, the English version being authoritative.
Done the seventh day of December 2001
At The Hague
[Seal of the Tribunal]