Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque

IN THE TRIAL CHAMBER

Before: Judge Antonio Cassese, Presiding

Judge Richard May

Judge Florence Ndepele Mwachande Mumba

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 17 February 1999

PROSECUTOR

v.

Zoran KUPRESKIC, Mirjan KUPRESKIC, Vlatko KUPRESKIC,
Drago JOSIPOVIC, Dragan PAPIC, Vladimir SANTIC, also known as "VLADO"

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DECISION ON EVIDENCE OF THE GOOD CHARACTER OF THE ACCUSED AND THE DEFENCE OF TU QUOQUE

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The Office of the Prosecutor:

Mr. Franck Terrier
Mr. Michael Blaxill

Counsel for the Accused:

Mr. Ranko Radovic, for Zoran Kupreskic
Ms. Jadranka Glumac, for Mirjan Kupreskic
Mr. Borislav Krajina, Mr. Zelimir Par, for Vlatko Kupreskic
Mr. Luko Susak, Ms. Goranka Herljevic, for Drago Josipovic
Mr. Petar Puliselic, Ms. Nika Pinter, for Dragan Papic
Mr. Petar Pavkovic, for Vladimir Santic

TRIAL CHAMBER II 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 ("International Tribunal");

CONSIDERING the Trial Chamber’s oral rulings rendered at the hearing of 15 February 1999 concerning (1) the permissibility or otherwise of adducing evidence of the good character of the accused, and (2) the impermissibility of adducing evidence to prove a tu quoque defence, namely the defence of one Party to an armed conflict, or member thereof, to an allegation of the commission of atrocities, that the other Party has committed similar atrocities;

CONSIDERING the request of counsel Mr. Radovic that the Trial Chamber’s oral ruling be also rendered in writing;

CONSIDERING as regards the first issue of evidence of good character that:

(i) generally speaking, evidence of the accused’s character prior to the events for which he is indicted before the International Tribunal is not a relevant issue inasmuch as (a) by their nature as crimes committed in the context of widespread violence and during a national or international emergency, war crimes and crimes against humanity may be committed by persons with no prior convictions or history of violence, and that consequently evidence of prior good, or bad, conduct on the part of the accused before the armed conflict began is rarely of any probative value before the International Tribunal, and (b) as a general principle of criminal law, evidence as to the character of an accused is generally inadmissible to show the accused’s propensity to act in conformity therewith;

(ii) that the Prosecution expressly conceded at the hearing of 27 January 1999 that all of the accused were of good character prior to the events the subject of the indictment:

"as far as the Prosecution is concerned, there is no doubt as to the character of the witnesses. We are not aiming to prove before this Court that the accused before the conflict were horrible human beings who had terrifying relations with their Muslim neighbours. I think the contrary is true, and we are not contesting that particular point. So if the Defence are trying to prove that the accused were good neighbours and good human beings, I think indeed Rule 94 ter could be relied upon. We will not contest that point of the Defence strategy".

It follows that the question of whether or not the accused are of good character is not a material issue in dispute in this case;

(iii) a distinction should be made between character witnesses and witnesses as to fact. As regards character witnesses, and notwithstanding the foregoing, in the interests of fairness to the accused the Trial Chamber has indicated that, although it will permit each defence counsel to call at least one exemplary character witness, Rule 94 ter should however be applied to admit affidavits of other witnesses to corroborate such character evidence, subject to the absence of objection by the Prosecution to any such affidavit evidence;

(iv) As regards fact witnesses, the Trial Chamber considers it unnecessarily repetitious to ask such witnesses questions as to the accused’s character, and accordingly requests defence counsel to refrain from so doing.

CONSIDERING, as regards the second issue, of tu quoque, that the Chamber stated in its Decision On Defence Motion to Summon Witness of 3 February 1999:

"Defence counsel has so far not persuasively proved the relevance to the issue of innocence or guilt of the accused of the alleged commission by Bosniaks (Bosnian Muslims), or forces of the Bosnian army, of large-scale crimes against Croats in Bosnia and Herzegovina. In this connection the Chamber reiterates what it indicated to all defence counsel at the hearing of 11 January 1999, namely that the tu quoque principle does not apply to international humanitarian law. This body of law does not lay down synallagmatic obligations, i.e obligations based on reciprocity, but obligations erga omnes (or, in the case of treaty obligations, obligations erga omnes contractantes) which are designed to safeguard fundamental human values and therefore must be complied with regardless of the conduct of the other party or parties."

CONSIDERING that the Trial Chamber reiterated this point at the hearing of 15 February 1999;

CONSIDERING, accordingly, that evidence that Bosnian Muslims may have committed atrocities against Bosnian Croat civilians in villages in the vicinity of Ahmici or elsewhere in the Lasva River valley is, as such, irrelevant because it does not tend to prove or disprove any of the allegations made in the indictment against the accused, and that, likewise, evidence which is adduced to show that one Party to the Croat-Muslim conflict was responsible for starting the conflict is equally irrelevant and hence inadmissible in these proceedings;

CONSIDERING that, on the other hand, evidence of events occurring in villages other than Ahmici may be admissible in so far as it tends to disprove allegations made by the Prosecution that Bosnian Muslims were subjected to persecution by the Bosnian Croats, or to disprove any other material averments by the Prosecutor;

CONSIDERING that defence counsel have also raised the following legitimate uses of such evidence:

(i) to rebut evidence brought by the Prosecution concerning developments within the Lasva Valley as a whole in order "to give the Trial Chamber a full impression of what was happening, because the conflict did not occur only in Ahmici, nor did it begin in Ahmici but in another area and sometime prior to Ahmici" (Mr. Ranko Radovic, Hearing of 11 January 1999, p. 4997);

(ii) to explain the behaviour of the accused by reference to reports of atrocities committed by the other side, for example to explain that the accused may have evacuated their families from Ahmici on 15 April 1993 in light of reports of an imminent attack by Bosnian Muslims, reports which seemed credible given the prevailing circumstances, and that such evacuation was not conducted in anticipation of a Croat offensive (Mr. Ranko Radovic, Hearing of 11 January 1999, pp. 4997-4998);

(iii) to rebut the allegation of the Prosecution in the indictment that the attack on Ahmici was part of a coordinated attack involving other villages in the Vitez area, namely Donja Veceriska, Sivrino Selo, Santici, Nadioci, Stara Bila, Gacice, Pirici and Preocica, and thus to rebut the allegation that the alleged crimes may be regarded as crimes against humanity and/or to rebut the allegation that there was an armed conflict in the region at the relevant time (Ms. Jadranka Slokovic-Glumac, Hearing of 11 January 1999, p. 4997);

(iv) to provide information as to the organisation and activities of the BiH army and of the HVO (Ms. Jadranka Slokovic-Glumac, Hearing of 11 January 1999, p. 5000);

CONSIDERING that these uses may be legitimate provided the evidence is not repetitious and is duly circumscribed;

CONSIDERING that the admissibility of evidence of atrocities committed against Bosnian Croats depends, therefore, on the purpose for which it is being adduced, and that accordingly defence counsel should on each occasion, before adducing such evidence, explain to the Trial Chamber the purpose for which it is being submitted;

PURSUANT TO Rules 54, 73 ter, 94 ter and 89 of the Rules of Procedure and Evidence;

REQUESTS defence counsel to refrain from asking fact-witnesses questions which are designed solely to prove the good character of the accused and which are therefore likely to be repetitious in nature;

REQUESTS defence counsel to use as much as possible the provisions of Rule 94 ter of the Rules of Procedure and Evidence with respect to character witnesses;

REQUESTS defence counsel to explain beforehand the relevance to these proceedings of questions put to defence witnesses which are designed to elicit evidence that atrocities were committed against Bosnian Croat civilians elsewhere other than Ahmici at the material time;

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

_________________

Antonio Cassese

Presiding Judge

Dated this seventeenth day of February 1999

At The Hague

The Netherlands

[Seal of the Tribunal]