IN THE TRIAL CHAMBER
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Mrs. de Sampayo Garrido-Nijgh, Registrar
28 November 2000
MLADEN NALETILIC aka "TUTA"
VINKO MARTINOVIC aka "STELA"
DECISION ON PROSECUTION MOTION TO AMEND COUNT 5 OF THE INDICTMENT
The Office of the Prosecutor:
Mr. Kenneth Scott
Counsel for the Accused:
Mr. Kresimir Krsnik, for Mladen NALETILIC
Mr. Branko Seric, for Vinko MARTINOVIC
TRIAL CHAMBER I 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 (hereafter "Tribunal"):
BEING SEISED of the "Prosecutors Motion to Amend Count 5 of the Indictment", dated 11 October 2000 (hereafter "the Motion");
NOTING the "Declaration for the Defence for the accused Vinko Martinovic to the Pre-Trial Documents Submitted by the Prosecutor", dated 23 October 2000, addressing the objections that Martinovic has in respect of the Motion;
NOTING ALSO the "Statement of the Defence of Mladen Naletilic to the Prosecutors Statement in Respect of Pre-Trial Filings of 11 October 2000", dated 24 October 2000, addressing the objections that Naletilic has to the Motion;
NOTING that the accused Martinovic and Naletilic are charged in a 22 count indictment, dated 18 December 1998 (hereafter "Indictment"), with crimes against humanity, grave breaches of the Geneva Conventions of 1949, and violations of the laws and customs of war, for their role in acts alleged to have taken place in and around the city of Mostar in Bosnia-Herzegovina between 1993 and 1994;
NOTING that the Indictment alleges that the accused Martinovic and Naletilic were responsible for forcing prisoners from various detention centres to perform dangerous military tasks such as carrying ammunition and explosives across the confrontation line, and the use of prisoners to draw enemy fire; and that Count 5 of the Indictment charges these acts as violations of the laws and customs of war under Article 3 of the Statute of the Tribunal, and recognised by Article 51 of Geneva Convention IV, and Articles 49 and 50 of Geneva Convention III;
NOTING that pursuant to Rule 50 (A) of the Rules of Procedure and Evidence of the Tribunal (hereafter "Rules") the Prosecutor seeks to add a reference to Article 52 of Geneva Convention III, which prohibits dangerous and humiliating labour, to Count 5 to the Indictment;
NOTING that the Prosecutor does not seek to add any new factual allegations as part of the proposed amendment; and that no additional witnesses would be required as a result of the amendment;
NOTING that the accused Naletilic objects to the amendment on the grounds that he would thereby be charged with an increased quantity of criminal acts; that the Prosecutor has no evidentiary basis for the charge; and that there is nothing to warrant amendment of the Indictment, as the Prosecutor has acquired no new evidence;
NOTING that the accused Martinovic argues that in the absence of new evidence, an amendment to the indictment should only be made where it favours the accused;
NOTING that Rule 50 governs the amendment of indictments and that Rule 50 (B) provides that:
"If the amended indictment includes new charges and the accused has already appeared before a Trial Chamber in accordance with Rule 62, a further appearance shall be held as soon as practicable to enable the accused to enter a new plea on the charges";
And Rule 50 (C) provides that:
"The accused shall have a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of new charges and, where necessary, the date for trial may be postponed to ensure adequate time for the preparation of the defence";
RECOGNISING that the word "charge" is used interchangeably with the word "count" throughout the Rules;1
NOTING that, although the Prosecutor proposes only to include the reference to Article 52 of Geneva Convention III in the existing Count 5, the question arises as to whether that amendment is nonetheless a new count/charge;
CONSIDERING that, in order to ensure precision and certainty in the charges made against an accused person, each count of an indictment should deal with only one type of offence;2
CONSIDERING that if one count in an indictment deals with more than one type of offence, the accused may be "embarrassed or prejudiced" in the conduct of his or her defence by being unable to enter a single plea of guilty or not guilty to the count in question;
CONSIDERING FURTHER that, the for purposes of sentencing, each count should deal with only one type of offence;
NOTING that the text of Article 51 of Geneva Convention IV (relating to protection of the civilian population) is as follows:
(Enlistment of Labour)
The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.
The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations. The Occupying power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour.
The work shall be carried out only in the occupied territory where the persons whose service have been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force in the occupied territory concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article.
In no case shall requisition to labour lead to a mobilization of workers in an organization of a military or semi-military character;
NOTING that the text of Article 49 of Geneva Convention III (relating to prisoners of war) is as follows:
The Detaining Power may utilize the labour of prisoners of war who are physically fit, taking into account their age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good state of physical aptitude, and with a view particularly to maintaining them in a good state of physical and mental health.
Non-commissioned officers who are prisoners of war shall only be required to do supervisory work. Those not so required may ask for other suitable work which shall, so far as possible, be found for them.
If officers or persons of equivalent status ask for suitable work, it shall be found for them so far as possible, but they may in no circumstances be compelled to work;
NOTING that the text of Article 50 of Geneva Convention III (relating to prisoners of war) is as follows:
Besides work connected with camp administration, installation or maintenance, prisoners
of war may be compelled to do only such work as is included in the following classes:
(b) industries connected with the production of the extraction of raw materials, and manufacturing industries, with the exception of metallurgical, machinery and chemical industries; public works and building operations which have no military character or purpose;
(c) transport and handling of stores which are not military in character or purpose;
(d) commercial business, and arts and crafts
(e) domestic service;
(f) public utility services having no military character or purpose.
Should the above provisions be infringed, prisoners of war shall be allowed to exercise their right of complaint, in conformity with Article 78;
NOTING that the text of Article 52 of Geneva Convention III (relating to prisoners of war) is as follows:
(Dangerous or Humiliating Labour)
Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature.
No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Powers own forces.
The removal of mines or similar devices shall be considered as dangerous labour;
CONSIDERING that it would be possible for an accused to enter a different plea in relation to a charge under Article 52 of Geneva Convention III than that made in relation to the other sections of the Geneva Conventions mentioned in Count 5 of the Indictment;
FINDING that Article 52 of Geneva Convention III constitutes a separate type of offence to those already referred to in Count 5 of the Indictment; and that the amendment proposed by the Prosecutor thereby constitutes a new charge/count;
FINDING that the interests of justice require that the Prosecutors proposed amendment should take the form of a new count, and that each of the accused be given an opportunity to enter a plea in relation to it;
FINDING that the amendment will not result in any prejudice to the accused, as the Indictment has always contained the factual allegations to support a charge under Article 52 of Geneva Convention III; and that it is not necessary to grant the Defence any additional time to prepare for trial.
FOR THE FOREGOING REASONS
GRANTS the Prosecutors Motion; and
ORDERS that the accused enter a plea to the charge under Article 52 of Geneva Convention III at the Pre-Trial Conference on 7 December 2000;
Done in both French and English, the English version being authoritative.
Done this 28th day of November 2000,
At The Hague,
Presiding Judge, Trial Chamber I
(Seal of the Tribunal)