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 DEFENCE MOTION TO
STRIKE THE AMENDED INDICTMENT FOR VAGUENESS
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 "Defense Motion to Strike the Amended Indictment for Vagueness"
filed by counsel for the accused, Dario Kordic ("the Defence") on 22 January
1999, together with the "Prosecutors Response to Motion to Strike the Amended
Indictment for Vagueness" filed by the Office of the Prosecutor
("Prosecution") on 5 February 1999.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and
oral arguments of the parties heard on 16 February 1999,
HEREBY ISSUES ITS WRITTEN DECISION.
Arguments of the Parties
- In its Motion the Defence argues that pursuant to Article 21, paragraph 4(e), of the
Statute of the International Tribunal ("Statute"), the accused has a right to be
"informed promptly and in detail . . . of the nature and cause of the charges"
against him and submits that the Amended Indictment does not contain sufficient factual
allegations in support of the charges against the accused, thereby rendering it
impermissibly vague and preventing the accused from preparing an adequate defence.
- The Defence submits that the Prosecutor is attempting to impute criminal liability to
the accused by demonstrating the criminal conduct of organisations to which the accused is
alleged to have belonged.
- The Defence submits that the Amended Indictment fails to identify the basis for the
accuseds criminal liability, the accuseds alleged role in the criminal
activity and how each of the alleged criminal acts was committed. The Defence contends
that, instead, each allegation reiterates the language of Article 7, paragraph 1, without
specifying a basis for criminal liability. The Defence further submits that it is
illogical for the Prosecutor to plead Article 7, paragraph 1, and Article 7, paragraph 3,
as alternate bases of criminal liability for the same conduct as the facts required to
demonstrate criminal responsibility under Article 7, paragraph 1, are totally distinct
from those required to prove criminal liability under Article 7, paragraph 3. The Defence
argues that until the Prosecutor specifies a precise basis for liability in each instance,
it is virtually impossible for the accused to prepare a defence.
- Further, the Defence contends that the Amended Indictment fails to identify with
specificity the accuseds alleged accomplices, co-conspirators and subordinates. The
Defence submits that this is especially problematic where the individual criminal
liability of the accused is predicated on the acts of others. Similarly, the Amended
Indictment fails to identify the alleged victims or targets of the crimes with any
- The Defence submits that Counts 1 and 2 of the Amended Indictment are impermissibly
vague, as the factual allegations underlying the charges of persecution comprise acts
which do not appear to constitute crimes under either the Statute or customary
international law generally.
- In response, the Prosecution argues that under the Statute and Rules of Procedure and
Evidence of the International Tribunal ("Rules"), an indictment need only
provide a concise statement of the facts of the case and the crimes with which the accused
is charged. Previous decisions of the International Tribunal relating to allegations of
vagueness in an indictment have held that the Prosecution is not required to provide a
detailed statement of the facts and evidence of the case and the accuseds conduct.
In particular, the Prosecution submits that the indictment need not specify precise
details as to the names and numbers of victims, the dates and sites of the crimes, nor the
identities of any alleged accomplices or subordinates.
- The Prosecution further submits that it is permissible to charge the accused with many
forms of participation in the same offence under Article 7, paragraph 1, if the
accuseds conduct in relation to such a charge assumes all such forms. The
Prosecution submits that the Amended Indictment specifies certain acts through which the
accused is alleged to have participated in the campaign of persecution and violence which
forms the basis for the charges in the Amended Indictment. The accuseds liability
for the crimes alleged is also based on the nature of his position in the organisations
carrying out the persecutory campaigns. Under Counts 1 and 2 the accused is charged for
his involvement in the overall campaign of persecution, and in the subsequent counts he is
charged separately with each of the components of this persecutory campaign.
- In response to the Defences argument that the acts charged as persecution must
constitute crimes within the jurisdiction of the International Tribunal, the Prosecution
submits that it has no obligation at this stage to explain in detail the legal foundation
for each of the offenses included in the Amended Indictment. The Prosecutor also contends
that the jurisprudence of the International Tribunal does not require that the acts
underlying a charge of persecution constitute crimes in themselves. Instead, the act need
only violate a basic or fundamental right of the victim.
- At the hearing on the Motion, the Prosecution undertook to provide a pre-trial brief
setting out in more detail the particulars of the offences charged in the Amended
Indictment and their factual bases.
- The Trial Chamber finds that the contention of the Defence that the Amended Indictment
attempts to impute criminal liability to the accused by demonstrating the criminal conduct
of organisations of which the accused is alleged to have been a member, does not raise an
issue that affects the form of the indictment and that ultimately it will be for the Trial
Chamber to determine whether each and every charge is substantiated on the basis of the
- As for the Defence argument that the Amended Indictment is impermissibly vague in that
it fails to identify with specificity the precise basis for liability in respect of each
charge, the accuseds alleged accomplices and victims, the Trial Chamber reiterates
the general position reflected in prior decisions of this International Tribunal that,
pursuant to Rule 47(C) of the Rules and Article 18, paragraph 4, of the Statute, what is
required at this stage is "a concise statement of the facts of the case and of the
crime with which the suspect is charged".
- The Trial Chamber has reviewed carefully the arguments of the Defence and finds that the
Amended Indictment meets these requirements.
- As to the Defence contention that Counts 1 and 2 of the Amended Indictment are
impermissibly vague in that they include as persecutory conduct acts that do not
constitute crimes under either the Statute or customary international law, the Trial
Chamber determines that the question of the legal bases for offences is a matter that is
best resolved at trial.
For the foregoing reasons
PURSUANT TO Rule 72 of the Rules of Procedure and Evidence of the
THE TRIAL CHAMBER DISMISSES the Defence Motion to Strike the
Amended Indictment for Vagueness.
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]