IN THE TRIAL CHAMBER
Before: Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 2 March 1999
DECISION ON THE JOINT DEFENSE MOTION TO STRIKE
COUNTS 37 AND 40 FOR FAILURE TO PLEAD
ALL REQUIRED ELEMENTS UNDER ARTICLE 2(D)
The Office of the Prosecutor
Mr. Geoffrey Nice
Mr. Rodney Dixon
Counsel for the accused
Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr.,
and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez
Pending before this Trial Chamber of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Law Committed
in the Territory of the Former Yugoslavia since 1991 ("International Tribunal")
is the motion, "Joint Defense Motion to Strike Counts 37 and 40 for Failure to Plead
All Required Elements Under Article 2(d)" ("the Motion") filed by counsel
for the two accused, Dario Kordic and Mario Cerkez (together "the Defence") on
22 January 1999, together with the "Prosecutors Response to Joint Defence
Motion to Strike Counts 37 and 40 for Failure to Plead All Required Elements Under Article
2(d)" filed by the Office of the Prosecutor ("Prosecution") on 5 February
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the
HEREBY ISSUES ITS WRITTEN DECISION.
A. Arguments of the Parties
- The Defence submits that Counts 37 and 40 of the Amended Indictment, which charge the
accused with "extensive destruction of property," a grave breach of the Geneva
Conventions of 1949, falling under Article 2 of the Statute of the International Tribunal
("the Statute"), should be struck in their entirety. The Defence argues that to
constitute a grave breach under Article 2 of the Statute, the property alleged to have
been destroyed must be "protected" under the relevant Geneva Convention. The
Amended Indictment fails to state that the property alleged to have been destroyed was
"protected" in this way. The Defence asserts that the Prosecutions failure
to allege a requisite element of a crime renders the charge fatally defective.
- The Defence further argues that Article 2(d) requires a showing of appropriation of
property as well as destruction. The Defence argues that the Amended Indictment fails to
allege that the property at issue was subject to "appropriation" by the accused
and therefore that the allegations fail to make out a charge under Article 2(d).
- The Prosecution submits that with respect to the charges contained in Counts 37 and 40,
it has fulfilled its obligations at this stage of the proceedings adequately to inform the
accused of the nature and cause of the charges against him. The Prosecution further
contends that the Defence submissions regarding the elements of an offence under Article
2(d) of the Statute are incorrect. In fact, a review of the relevant provisions of the
Geneva Conventions clearly illustrate that "appropriation" and
"destruction" of property are considered as two separate offences.
- The Trial Chamber is of the view that failure to allege specifically in the Amended
Indictment that the destroyed property was protected under the Geneva Conventions does not
render the Amended Indictment invalid, as the accused is charged with a "grave breach
as recognised by Article 2(d) . . . of the Statute," and the provisions of that
Article, which include the element of protection of property, are therefore incorporated
by reference in Counts 37 and 40.
- A reasonable construction of the relevant part of Article 2(d) of the Statute does not
yield the conclusion that an accused person can only be indicted for appropriating and
destroying protected property. There is nothing in the Article itself that suggests that
the intention was to treat destruction and appropriation of property as a single offence.
Furthermore, the relevant provisions of the Fourth Geneva Convention of 1949, and the
Commentary thereto, clearly demonstrate the separate nature of these two offences.
For the foregoing reasons
PURSUANT TO Rule 72 of the Rules of Procedure and Evidence of the International
THE TRIAL CHAMBER DISMISSES the Joint Defence Motion to Strike Counts 37 and 40 for
Failure to Plead All Required Elements Under Article 2(d).
Done in both English and French, the English text being authoritative.
Dated this second day of March 1999
At The Hague
[Seal of the Tribunal]