Case No. IT-95-5-D 16th May 1995

APPLICATION BY THE PROSECUTION FOR A FORMAL REQUEST FOR DEFERRAL BY THE GOVERNMENT OF THE REPUBLIC OF BOSNIA AND HERZEGOVINA OF ITS INVESTIGATIONS AND CRIMINAL PROCEEDINGS IN RESPECT OF RADOVAN KARADZIC, RATKO MLADIC AND MICO STANISIC DECISION

16th May 1995 10.30

JUDGE KARIBI-WHYTE: Can we have the appearances?

MR BLEWITT: Will it please the Court, I appear on

behalf of the Prosecutor with Mr Niemann, Senior Crown

Attorney.

JUDGE KARIBI-WHYTE: Can we have the Amicus Curiae?

MADAM VIDOVIC: (original in Bosnian): Vasvija Vidovic on

behalf of the Government of Bosnia and Herzegovina.

JUDGE KARIBI-WHYTE: The Trial Chamber will now read its

decision on the Application.

This is an application by Richard J. Goldstone, Prosecutor of

the International Tribunal, made pursuant to Article 9(2) of

the Statute of the International Tribunal in accordance with

Rule 9(iii) of the Rules. The Application is for the issue of

a formal request from this Trial Chamber to the Government of

the Republic of Bosnia and Herzegovina for the deferral to the

competence of the International Tribunal of all investigations

and criminal proceedings involving Radovan Karadzic, /Ratko

Mladic and Mico Stanisic being conducted by the Government of

the Republic of Bosnia and Herzegovina in the territory of the

former Yugoslavia since 1991, pursuant to Rule 10 of the

Rules.

The Prosecutor states, and the Government of the Republic

of Bosnia and Herzegovina has confirmed in both its written

and oral submissions, that it is currently conducting

investigations into war crimes and violations of the criminal

laws of the Republic of Bosnia and Herzegovina. Criminal

proceedings have been instituted by the Government of the

Republic of Bosnia and Herzegovina against Radovan Karadzic,

the Bosnian Serb leader; Ratko Mladic, the military commander

of the Bosnian Serb armed forces; and Mico Stanisic, in charge

of Bosnian Serb internal affairs; in respect of alleged war

crimes and violations of Articles 141, 142 and 151 of the

criminal law of the Socialist Federal Republic of Yugoslavia,

as recognised by the Republic of Bosnia and Herzegovina, which

include genocide, war crimes against the civilian population,

and destruction of cultural and historical monuments.

Various documents cited in the Prosecutor's application

and mentioned at the hearing (documents dated 12 June 1992, 17

August 1992, 26 December 1992 and 20 September 1993) indicate

that, one, the Higher Court Public Prosecutor's Office in

Sarajevo submitted a request to the Higher Court in Sarajevo

for the opening of an investigation in respect of these

suspects, and secondly, the Military Prosecutor's Office also

lodged a request for an investigation involving the same

individuals to a District Military Court relating to offences

which are within the jurisdiction of the Tribunal. The

Prosecutor furthermore stated that contacts between the

Ministry of Justice of the Republic of Bosnia and Herzegovina

and the Prosecutor of the International Tribunal have enabled

the investigative steps regarding the suspects to be outlined.

It was confirmed at the hearing that national arrest warrants

have been issued by the Government of the Republic of Bosnia

and Herzegovina.

The Prosecutor states in the Schedule, and it was

confirmed at the hearing, that he is conducting investigations

into a wide range of violations which are within the

jurisdiction of the Tribunal, in particular genocide, crimes

against civilians, and the destruction of cultural and

historical monuments. It was also confirmed at the hearing

that those violations are identical to those in respect of

which investigations are being carried out on Bosnian

territory. A significant focus of these investigations

relates to persons in positions of authority who are or were

responsible for serious violations of international

humanitarian law in the former Yugoslavia. The Prosecutor's

view is that the matter of the individual criminal

responsibility of the three persons in political, military or

police leadership positions must be examined.

The Prosecutor has also initiated an investigation into

the criminal responsibility of Radovan Karadzic, Ratko Mladic

and Mico Stanisic arising out of indictments already issued by

the International Tribunal against various named individuals

for genocide, murder, rape, mistreatment of civilians,

torture, and other offences allegedly committed in the running

of detention camps.

Finally, the Prosecutor mentioned a significant

investigation concerning the prolonged siege of Sarajevo

(including attacks, considered unlawful against civilian

members of humanitarian organisations, United Nations

peacekeeping forces and humanitarian-aid convoys).

The Prosecutor's investigations place the main focus on

the positions of authority held by the three suspects who are

allegedly guilty of serious violations of international

humanitarian law in the territory of the former Yugoslavia.

In the Schedule the involvement of Radovan Karadzic, Ratko

Mladic and Mico Stanisic is described, as was confirmed by the

representative of the Government of the Republic of Bosnia and

Herzegovina at the hearing, as follows:

"Radovan Karadzic is one of the main architects of the

(Serbian Democratic Party) political programme, involving

extreme nationalist and ethnic policies and objectives.

Radovan Karadzic became the first president of the Bosnian

Serb administration in Pale. The constitution of this

administration provides that the president commands its armed

forces. Radovan Karadzic exercises his power and control in

Pale, a town near Sarajevo. Radovan Karadzic has acted as and

been dealt with internationally as the president of the

Bosnian Serb administration in Pale. In that capacity,

Radovan Karadzic has, inter alia, participated in

international negotiations and has personally made agreements

on such matters as ceasefires and humanitarian relief that

have been implemented.

Ratko Mladic is a career military officer. In the summer

of 1991, he was appointed to command the 9th Corps of the

Yugoslav People's Army (JNA) in Knin in the Republic of

Croatia. Subsequently, he assumed commands of the forces of

the Second Military District of the JNA, which effectively

became the Bosnian Serb army. In that capacity he has

negotiated, inter alia, ceasefire and prisoner exchange

agreements that have been implemented.

Mico Stanisic was the first minister of internal affairs

of the Bosnian Serb administration in Pale. In that capacity,

he was, inter alia, responsible for the regular and specia

police forces at the regional and local level in the territory

under Bosnian Serb control. It is alleged that those forces

were actively involved in organising a campaign of terror

against the non-Serbian population of Bosnia and Herzegovina."

The legal basis for these investigations by the

Prosecutor is Article 7 of the Statute of the International

Tribunal concerning individual criminal responsibility, a

concept discussed in paragraphs 55 and 56 of the report of the

Secretary-General of the United Nations dated 3rd May 1993.

Notwithstanding that national courts are vested with

concurrent jurisdiction by Article 9 of the Statute of the

International Tribunal, the Prosecutor, relying on Rule 9, is

proposing that a formal request be issued to the Republic of

Bosnia and Herzegovina pursuant to Rule 10 of the Rules to

defer its investigations and criminal proceedings in respect

of Radovan Karadzic, Ratko Mladic and Mico Stanisic, to the

competence of the International Tribunal, and to provide the

Prosecutor with all information concerning its investigations.

The Prosecutor states that the continuation by the

Government of the Republic of Bosnia and Herzegovina of

investigations similar to those being conducted by the

Prosecutor could have significant implications for those

investigations, as set out in the Schedule.

In particular, the Prosecutor refers to a number of

matters which may have implications for his investigations or

any subsequent prosecutions. Matters involving significant

factual questions include:

(i) witnesses may be exposed to greater risks as their

identities and evidence will already have been made public;

(ii) witnesses may be unwilling, or unable to testify for a

second time;

(iii) critical evidence stored in war zones in the Republic of

Bosnia and Herzegovina could be damaged or lost before use by

the International Tribunal;

(iv) witnesses may become confused as to the scope and

authority of the two investigations;

(v) the International Tribunal is not a party to the conflict

in the Republic of Bosnia and Herzegovina and has a better

ability to obtain evidence worldwide;

(vi) deferral of these investigations may encourage

governments and other sources to furnish additional

information to the International Tribunal that has thus far

not been provided.

Those involving significant legal issues include:

(vii) issues relating to the principle of non-bis-in-idem;

(viii) there is the potential inadvertently to create

inconsistent sworn evidence;

(ix) issues relating to possible trials in absentia which may

be held in the Republic of Bosnia and Herzegovina;

(x) it would be undesirable and not in the interest of justice

if the decisions of a national court and of the International

Tribunal were to conflict.

The Government of the Republic of Bosnia and Herzegovina,

appearing as Amicus Curiae, has indicated in both its written

and oral submissions that it does not oppose the issue of a

formal request by the Trial Chamber for the deferral of all

investigations and criminal proceedings in respect of Radovan

Karadzic, Ratko Mladic and Mico Stanisic.

In discussing the submissions of both the Prosecutor and

the Amicus Curiae, the Trial Chamber proceeded as follows:

Article 8 of the Statutes of the International Tribunal

extends its territorial jurisdiction to the territory of the

former Socialist Republic of Yugoslavia, including its land

surface, airspace and territorial waters, beginning on 1st

January 1991.

Article 9 of the Statute provides as follows:

"1. The International Tribunal and national courts shall

have concurrent jurisdiction to prosecute persons for serious

violations of international humanitarian law committed in the

territory of the former Yugoslavia since 1st January 1991.

2. The International Tribunal shall have primacy over

national courts. At any stage of the procedure, the

International Tribunal may formally request national courts to

defer to the competence of the International Tribunal in

accordance with the present Statute and the Rules of Procedure

and Evidence of the International Tribunal."

However, the right to primacy can only be exercised on a

formal request to the national court to defer to the

competence of the International Tribunal. The Rules provide

the modus for the exercise of the right.

Rule 9 of the Rules provides as follows:

Where it appears to the Prosecutor that in any such

investigations or criminal proceedings instituted in the

national courts of any state:

(iii) what is in issue is closely related to, or otherwise

involves, significant factual or legal questions which may

have implications for investigations or prosecutions before

the Tribunal,

the Prosecutor may propose to the Trial Chamber

designated by the President that a formal request be made that

the national court defer to the competence of the Tribunal.

To comply with the enabling provisions for grant of the

application, the Prosecutor must therefore establish that:

(a) national investigations or criminal proceedings have been

instigated by the Republic of Bosnia and Herzegovina in

respect of suspects including Radovan Karadzic, Ratko Mladic

and Mico Stanisic;

(b) investigations are currently being conducted by the

Prosecutor into crimes within the jurisdiction of the

International Tribunal, including the individual criminal

responsibilities of persons in political, military and police

leadership positions, including Radovan Karadzic, Ratko Mladic

and Mico Stanisic;

(c) what is in issue in the national investigations or

criminal proceedings is closely related to, or otherwise

involves significant factual or legal questions which may have

implications for the investigations of the Prosecutor and any

subsequent proceedings before the International Tribunal.

the Prosecutor may propose to the Trial Chamber

designated by the President that a formal request be made that

the national court defer to the competence of the Tribunal.

To comply with the enabling provisions for grant of the

application, the Prosecutor must therefore establish that:

(a) national investigations or criminal proceedings have been

instigated by the Republic of Bosnia and Herzegovina in

respect of suspects including Radovan Karadzic, Ratko Mladic

and Mico Stanisic;

(b) investigations are currently being conducted by the

Prosecutor into crimes within the jurisdiction of the

International Tribunal, including the individual criminal

responsibilities of persons in political, military and police

leadership positions, including Radovan Karadzic, Ratko Mladic

and Mico Stanisic;

(c) what is in issue in the national investigations or

criminal proceedings is closely related to, or otherwise

involves significant factual or legal questions which may have

implications for the investigations of the Prosecutor and any

subsequent proceedings before the International Tribunal.



The Trial Chamber notes that Radovan Karadzic, Ratko

Mladic and Mico Stanisic are the subject of investigations

instituted by the Government of the Republic of Bosnia and

Herzegovina into the same alleged offences being investigated

by the Prosecutor and that the investigations and any criminal

proceedings that may be instituted by the national courts of

the Republic of Bosnia and Herzegovina in respect of the

matters issued in paragraphs 2 and 3 hereof, relate to the

same issues. The Government of the Republic of Bosnia and

Herzegovina does not contest these points.

The Trial Chamber further notes that the Prosecutor is

investigating a wide range of allegations covering offences

within the competence of the Tribunal including genocide,

offences against civilians and destruction of cultural and

historical monuments and that he is examining the individual

criminal responsibilities of persons in political military and

police leadership positions, including Radovan Karadzic, Ratko

Mladic and Mico Stanisic. It does indeed appear from the

application that the three named persons hold such positions

of authority.

A reading of the Schedule clearly supports the claim that

the investigations and proceedings instituted by the

Government of the Republic of Bosnia and Herzegovina in

respect of Radovan Karadzic, Ratko Mladic and Mico Stanisic

involve significant factual or legal questions which have an

impact on the investigations instituted by the Prosecutor in

respect of serious violations of international humanitarian

law in the territory of the former Yugoslavia. The Trial

Chamber refers in particular to paragraphs 3.1 and 3.2 of the

Schedule.

These issues are not disputed by the Government of the

Republic of Bosnia and Herzegovina.

Consequently, the Trial Chamber is satisfied that the

Prosecutor has shown that the investigations being carried out

by the Prosecutor and by the Government of the Republic of

Bosnia and Herzegovina in respect of Radovan Karadzic, Ratko

Mladic and Mico Stanisic, involve the same crimes, in

particular, genocide, offences against civilians and

destruction of cultural and historical monuments, and that the

issues in any criminal proceedings that may be instituted by

the Government of the Republic of Bosnia and Herzegovina in

respect of such crimes would involve significant factual or

legal questions which may have implications for investigation

or prosecutions before the International Tribunal.

The Government of the Republic of Bosnia and Herzegovina

has also made clear its intent to pursue its investigations of

Radovan Karadzic, Ratko Mladic and Mico Stanisic and to

proceed to trial in the absence of a formal request for

deferral.

Proceedings in respect of persons in positions of

authority before the International Tribunal derive expressly

from Article 7 of the Statute of the International Tribunal

and more particularly, from Articles 1, 2 and 3 thereof.

The punishment for the crimes allegedly committed by such

individuals is also based on the general principles of

international humanitarian law, and derives in particular from

the precedents laid down by Nuremberg and Tokyo; furthermore,

the principle of individual criminal responsibility of persons

in positions of authority has been reaffirmed in a number of

decisions taken by national courts, and adopted in various

national and international legal instruments.

It follows from the above principle that the that the official

capacity of an individual even de facto in a position

of authority -- whether as military commander, leader, or as

one in Government -- does not exempt him from criminal

responsibility and would tend to aggravate it; and, moreover,

it is that position of authority which would have enabled the

suspects to plan, instigate or order the crimes in respect of

which the above mentioned investigations have been conducted,

or given them the means to prevent the said crimes, or at the

least to punish their perpetrators.

Accordingly, more so than those just carrying out orders,

they would thus undermine international public order; and

therefore the International Tribunal established by the

international community to restore that order is particularly

well-founded to invoke its primacy over national courts, as

acknowledged in Article 9(2) of the Statute of the

International Tribunal.

The Trial Chamber has already concluded in paragraph 20

that the Prosecutor has established the grounds laid down in

Rule 9(iii). In addition, the Trial Chamber notes that the

International Tribunal is the appropriate forum to try the

persons responsible for the kinds of crimes covered by the

investigations currently being conducted by the Government of

the Republic of Bosnia and Herzegovina in respect of Radovan

Karadzic, Ratko Mladic and Mico Stanisic and to examine the

individual criminal responsibilities of persons in political,

military and police leadership positions. Indeed, it could be

stated that it is one of the fundamental purposes of the

International Tribunal to xercise its primacy in such cases.

The Trial Chamber is satisfied that deferral of the

investigations and proceedings which are the subject of this

application is appropriate and, pursuant to Article 9 of the

Statute and Rules 9 and 10, issues a formal request for

deferral to the Government of the Republic of Bosnia and

Herzegovina as hereinafter set forth.

The Trial Chamber, based on the foregoing, determines as

follows:

Considering all the matters before it and addressed in

the public hearing, and considering the requirements contained

in Rule 9(iii) of the Rules,

the Trial Chamber consisting of Judge Karibi-Whyte, as

Presiding Judge, Judge Odio Benito and Judge Jorda, being

seized of the Application made by the Prosecutor,

hereby grants the said Application,

formally requests the Government of the Republic

of Bosnia and Herzegovina, in respect of serious violations of

international humanitarian law over which the International

Tribunal has jurisdiction, as specified in Articles 2 to 5 of

the Statute of the International Tribunal, that the courts of

the Republic of Bosnia and Herzegovina defer to the competence

of the International Tribunal in regard to their

investigations and criminal proceedings involving Radovan

Karadzic, Ratko Mladic and Mico Stanisic,

invites the Government of the Republic of Bosnia and

Herzegovina to take all necessary steps, both legislative and

administrative, to comply with this formal request and to

notify the Registrar of the International Tribunal of the

steps taken to comply with this formal request, and,

requests that the Government of the Republic of Bosnia

and Herzegovina forward to the International Tribunal the

results of its investigations and a copy of the records and

judgment, if any, of its national courts.

The Trial Chamber requests the Registrar of the

International Tribunal to notify the Government of the

Republic of Bosnia and Herzegovina of this, its decision and

formal request.

This is the decision of the Trial Chamber. It is the

conclusion of the hearing of this Application.

(11.00)

(Tribunal adjourned)