Decision on Form of Further Amended Indictment and Prosecution Application to Amend

IN TRIAL CHAMBER II

Before:
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun

Registrar:
Mr Hans Holthuis

Decision of:
26 June 2001

PROSECUTOR

RADOSLAV BRDANIN & MOMIR TALIC
____________________________________________________________

DECISION ON FORM OF FURTHER AMENDED INDICTMENT
AND PROSECUTION APPLICATION TO AMEND
____________________________________________________________

The Office of the Prosecutor:

Ms Joanna Korner
Mr Andrew Cayley
Mr Nicolas Koumjian
Ms Anna Richterova
Ms Ann Sutherland

Counsel for Accused:

Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic

1 The application and its background

1. The accused Momir Talic ("Talic") has filed a Preliminary Motion in accordance with Rule 72 of the Rules of Procedure and Evidence ("Rules"),¹ in which he alleges that the form of the further amended indictment now filed by the prosecution is defective.²

2. The further amended indictment pleads the same twelve counts against Talic as were pleaded in the amended indictment.³ These are:

(a) genocide,⁴ and complicity in genocide ;⁵

(b) persecutions,⁶ extermination,⁷ deportation⁸ and forcible transfer (amounting to inhumane acts),⁹ as crimes against humanity;

(c) torture, as both a crime against humanity,¹⁰ and a grave breach of the Geneva Conventions;¹¹

(d) wilful killing,¹² and unlawful and wanton extensive destruction and appropriation of property not justified by military necessity,¹³ as grave breaches of the Geneva Conventions; and

(e) wanton destruction of cities, towns or villages or devastation not justified by military necessity,¹⁴ and destruction or wilful damage done to institutions dedicated to religion,¹⁵ as violations of the laws or customs of war.

The material facts upon which those charges are based as pleaded in the further amended indictment do not appear to be different in substance from those facts pleaded in the amended indictment. In relation to some matters they are differently expressed , and in relation to other matters additional material facts have been pleaded.

3. The main burden of the complaints made by Talic is that the further amended indictment still fails to plead those material facts in sufficient detail. These complaints are disputed by the prosecution,¹⁶ although its response does make clear some matters which had not been made sufficiently clear in the pleading. An application in the Talic Motion for "a deadline" for filing a reply to the Prosecution Response "should he elect to do so",¹⁷ has been refused.¹⁸ Following a discussion at a recent Status Conference concerning the validity of the way common purpose has been pleaded,¹⁹ the prosecution sought leave to amend the indictment further in relation to the allegation of common purpose.²⁰ Talic objected to the proposed amendment upon two bases: (1) that the proposed amendment does not correct the deficiencies in the common purpose pleaded in the current indictment,²¹ and (2) that the proposed amendment is itself defective in form.²² The prosecution was granted leave to file a reply to three of the specific issues raised by Talic,²³ and the prosecution has done so.²⁴ Talic has subsequently been refused leave to file a further response to that reply, upon the basis that the reply had raised no fresh issues.²⁵ The application to amend is discussed later in the decision.²⁶

4. The Trial Chamber has already outlined in detail the obligations which have been placed upon the prosecution by the Tribunal’s jurisprudence in pleading indictments , in its decision on the form of the previous indictment in this case.²⁷ It did so because the prosecution had sought to explain the inadequacies of that indictment upon the basis that those responsible for its drafting had been ignorant of those obligations.²⁸ It was therefore necessary to ensure that there could be no further claim of ignorance as to the Trial Chamber’s view of that jurisprudence. The prosecution was instructed to file a further amended indictment which complied with the pleading principles which had been stated in that decision.²⁹

5. The Trial Chamber had understood the prosecution to have indicated an intention to be co-operative with it in the production of an indictment which would enable the trial to proceed with some expedition, following the long delay caused by the need to resolve various issues raised unsuccessfully not only by the two accused but also to a large extent by the prosecution itself.³⁰ The 20 February 2001 Decision accordingly drew the attention of the prosecution to the Trial Chamber’s preference for an indictment to indicate precisely and expressly the particular nature of the responsibility alleged in relation to the accused in each individual count. Such an indictment would avoid many of the ambiguities engendered by the style of pleading adopted by the prosecution in this and other cases.³¹ The Trial Chamber said that the extent to which the prosecution adopted its preferred manner of pleading in this regard would provide a good indication of the degree to which the prosecution was prepared to co-operate with it in bringing this case to trial .³²

6. The further amended indictment now filed by the prosecution has ignored the Trial Chamber’s preferred manner of pleading. It has repeated the prosecution’s previous style, by pleading the alleged criminal responsibility of the accused merely by reciting all of the terms of Articles 7.1 and 7.3 of the Tribunal’s Statute, to be applied globally to all counts.³³ This style of pleading continues to cause ambiguity, as has become apparent once again in relation to the Talic Motion. This is unfortunate, but it is obvious that the Trial Chamber can no longer expect the prosecution to give it the cooperation to which the Trial Chamber is entitled.³⁴ So that the trial may commence within the reasonable future, the Trial Chamber will accordingly need to ensure, by the terms in which its orders are expressed, that any continued non-cooperation by the prosecution does not prevent proper expedition in the resolution of these present issues.

7. Except where it is necessary to do so, it is not proposed to repeat what has already been said by the Trial Chamber as to the obligations placed upon the prosecution in pleading an indictment. This decision deals with the various complaints made so far as possible in the order in which those complaints occur in the Talic Motion .

2 The nature of the alleged criminal responsibility of the accused

8. Talic complains that the mere recitation in pars 33-34 of the indictment of the terms of Articles 7.1 and 7.3, without further elucidation,³⁵ leaves him unaware as to whether he is alleged to have "planned and/or instigated and/or ordered and/or aided and abetted in the crimes with which he is charged".³⁶ The prosecution has not addressed this complaint in its Response. The Trial Chamber has already said that it is appropriate to define individual responsibility in such extensive terms only if the prosecution intends to rely upon each of the different ways pleaded.³⁷ The repetition of this style of pleading in the further amended indictment following that statement by the Trial Chamber necessarily means that the prosecution does indeed intend to rely upon each of the different ways pleaded.³⁸

9. Talic complains that, although the prosecution has conceded that it does not (presently) suggest that either accused engaged in the "physical perpetration of the crime", it reserves the right to rely upon any evidence indicating "actual physical perpetration of a crime by one or both of the accused".³⁹ Talic says that the prosecution should therefore plead as material facts all the specific details known to it of the victims, places, dates and the means by which the offences were committed by him personally.⁴⁰ The prosecution’s response is that, as Talic is not accused of "physically" perpetrating any of the crimes in the indictment, the provision of such particulars "would make the indictment far from a ‘concise’ statement of the facts and would be of little or no assistance to the accused in this case".⁴¹

10. The opposing stands taken by the parties in relation to this issue demonstrate clearly the ambiguities which remain as a result of the prosecution’s persistence in pleading that the accused "committed" the various crimes charged (in the sense of personally perpetrating the offences). The prosecution’s fallacious argument that it was entitled to do so in order to comprehend the participation of the accused in a common purpose to perpetrate them has already been rejected by the Trial Chamber .⁴²

11. This trial has become very complex. That is the inevitable consequence of the very general nature of the case which the prosecution has pleaded. Unfortunately , however, the prosecution appears to have adopted a policy of avoiding a disclosure of as much of that case as possible until as late as possible.⁴³ The Trial Chamber draws the inference that the prosecution has done so to enable it to mould its case in a substantial way during the trial, according to how its evidence actually turns out. The only alternative explanation for the recalcitrant attitude which the prosecution is exhibiting is that it still does not know what its case is. The Trial Chamber would be hesitant to draw such an inference. Both the Trial Chamber and the accused are entitled to know what the prosecution case is from the outset. The Trial Chamber acknowledges that the evidence may sometimes turn out differently to the expectations of the prosecution, and that it may be necessary in the interests of justice to permit the prosecution to change its case so as to adjust it to that evidence. But such changes must be made openly, if necessary by amendments to the indictment even during the course of the trial;⁴⁴ they must not be made covertly, to the detriment of the interests of justice.

12. There have been, and there remain, enormous problems posed by the flood of paper which is still in the process of being disclosed by the prosecution in accordance with what it sees to be its obligations under the Rules. It appears that the prosecution is also either unwilling or unable to explain to the defence even in general terms the possible relevance of this material.⁴⁵ It is obvious that any fair trial in the present case (with all of its complexities ) within a reasonable period will require a strict insistence by the Trial Chamber that the prosecution case is made very clear to the accused (and to the Trial Chamber itself) from the outset, and that such case is not thereafter unfairly enlarged by the chance introduction of evidence which is not presently available, particularly if it were to be enlarged to the radical extent contemplated by the prosecution. In the circumstances of the present case (including the mode of pleading adopted by the prosecution), it would necessarily be unfair to the accused if, after the trial has commenced and without sufficient notice, they had to face a case for the first time that they are guilty of "personal perpetration" of the offences charged.

13. The prosecution has referred to the judgment of the Appeals Chamber in the Celebici Appeal⁴⁶ as a justification for its approach.⁴⁷ An issue arose in that appeal (which the Appeals Chamber found unnecessary to consider)⁴⁸ as to whether, in view of the very general wording used in the indictment in that case, the accused had been sufficiently put on notice during the trial that "offences " in addition to those pleaded were alleged against him, and of the nature of those offences, so that he could meet the allegations in his defence case.⁴⁹ That was a case where the existing counts incorporated many separate offences – such as murder – which were identified by lists introduced by the word "including ". The prosecution had argued that murders not included in the list but which assisted in establishing the existing count should have been considered by the Trial Chamber when sentencing the accused.⁵⁰ That was not a case where the prosecution gave notice during the trial for the first time of its intention to establish a case that the accused personally perpetrated the crime charged. Such a new case would require extensive amendments to the current indictment, to include detailed material facts such as the identity of the victim , the place and the approximate date of the crime and the means by which the crime was committed.⁵¹ In some cases, _ it may be appropriate to permit an amendment of the indictment during the trial to change completely the basis of criminal responsibility upon which the case had hitherto proceeded. In this case, the prosecution has declined to plead at this time even those details of such a case which are presently known to it, upon the ground that Talic is not accused of "physically" perpetrating any of the crimes in the indictment.⁵² That is a course which the prosecution was entitled to take, but the absence of a proper opportunity for the defence to investigate even the details which are presently known to the prosecution will be relevant to any application to raise such a case for the first time during the course of the trial.

14. The Trial Chamber proposes therefore to strike the word "committed" from par 33 of the further amended indictment, which is incorporated in each of the counts , so that any suggestion that either of the accused "committed" the crimes (in the specific sense of personally perpetrating the offences) is presently removed.⁵³ There can be no prejudice to the prosecution, which concedes that it has nothing to support such a case. Only in this way will it be possible to ensure that the parties concentrate their attention on the case which the prosecution contends that it is able to prove, and to deflect their attention from a case which the prosecution concedes that it is presently unable to prove. If the prosecution does obtain evidence which is capable of supporting a conviction of either of the accused on the basis that he "committed" any of these crimes (in that same specific sense), it may seek to amend the indictment to reinstate that allegation. Such an application will be considered on its merits in the circumstances which then obtain. At this stage, however, the trial will not commence with the prospect of it becoming completely destabilised by the ambiguities which result from the way in which the indictment is presently pleaded.

3 Multiple bases alleged for the accused’s criminal responsibility

15. Talic complains that his criminal responsibility is "indiscriminately" portrayed as commander of the 1st Krajina Corps, as a member of the Crisis Staff and as a participant in a criminal enterprise, thus rendering the further amended indictment vague.⁵⁴ He asserts that, as commander of the 1st Krajina Corps, he would not be responsible for acts committed by a unit which did not form part of the 1st Krajina Corps,⁵⁵ or for acts committed within the Krajina Region which were not within his area of responsibility as such commander.⁵⁶ Since not all of the municipalities fell within his area of responsibility as such commander at the same time,⁵⁷ he says that the indictment should indicate in relation to each municipality when it fell within his area of responsibility as such.⁵⁸

16. Talic then complains that, as the indictment alleges that he was responsible for implementing the policy of incorporating the Autonomous Region of Krajina (" ARK") into a Serb state,⁵⁹ and a plan to separate the ethnic communities in Bosnia and Herzegovina,⁶⁰ as both the commander of the 1st Krajina Corps and a member of the ARK Crisis Staff , he would be made responsible for acts committed outside the area of responsibility of the 1st Krajina Corps and for acts which were not done under his authority. Since his powers are not the same under each of these positions of authority, particularly his power to issue orders or to punish the perpetrators of crimes, he says that he is entitled to know, in relation to each act for which he is sought to be made criminally responsible, whether that responsibility is alleged to flow from his position as commander of the 1st Krajina Corps or as a member of the ARK Crisis Staff.⁶¹

17. The prosecution concedes that the indictment does seek to make Talic responsible as commander of the 1st Krajina Corps for acts committed by units of that Corps where they operated outside its geographical area of responsibility.⁶² The Trial Chamber accepts that, if there be evidence to support the allegation, it would be appropriate to charge Talic with such responsibility upon the basis that he was in effective control of those units in such circumstances. He is not charged as being the commander of some defined geographical area, but as the commander of the 1st Krajina Corps. He may therefore be found criminally responsible as such commander in relation to the acts of those over whom he was in effective control , regardless of the place where those acts took place. It is, in any event, unclear to the Trial Chamber just where the indictment does assert expressly that units of the 1st Krajina Corps did act outside that geographical area.⁶³ If it is indeed the prosecution case that units of the 1st Krajina Corps committed crimes outside its geographical _area of responsibility, and that Talic is responsible for those crimes because he was in effective control of the Corps when they did so, it must identify with sufficient detail the areas outside whatever geographical area is defined where, it is alleged, the units of the 1st Krajina Corps committed such crimes. The prosecution will be ordered to do so.⁶⁴

18. The prosecution also responds that the link between the criminal acts charged and the criminal responsibility of Talic for those acts does not belong exclusively to either his position as commander of the 1st Krajina Corps or his position as a member of the ARK Crisis Staff.⁶⁵ The Trial Chamber agrees with the prosecution that this is made clear in the further amended indictment.⁶⁶ The Trial Chamber also accepts that the prosecution is entitled to plead its case in this way. It causes no prejudice (in the relevant sense of rendering his trial unfair) or embarrassment to Talic, provided that the basis upon which he is alleged to be criminally responsible in each position of authority is pleaded with sufficient particularity in the indictment .

19. So far as the Article 7.1 responsibility of Talic as commander of the 1st Krajina Corps is concerned, he is alleged to have commanded the Corps when it executed the policy of the ARK Crisis Staff.⁶⁷ By virtue of his authority set out in identified military documents, it is alleged that he controlled the work of the Corps by making decisions and issuing orders to subordinates.⁶⁸ As such commander , and in accordance with identified military instructions,⁶⁹ it is also alleged that he was obliged to prevent those under his command violating the international laws of war and international humanitarian law and to punish those who did so.⁷⁰ The Trial Chamber is satisfied that the current indictment is pleaded with sufficient particularity in relation to the basis upon which Talic is alleged to be criminally responsible as commander of the 1st Krajina Corps. Anything further would be pleading the evidence by which those material facts are to be established. That evidence should be apparent from the witness statements made available by the prosecution to the accused in accordance with Rule 66(A). If Talic claims that the evidence is not so apparent from that material, his remedy is to request the prosecution to supply particulars of the statements upon which it relies to prove the specific material fact in question . If the prosecution’s response to that request is unsatisfactory, and only then , he may seek an order from the Trial Chamber that such particulars be supplied.⁷¹

20. So far as the Article 7.1 responsibility of Talic as a member of the ARK Crisis Staff is concerned, the indictment presently appears to allege only that he implemented its policies as the commander of the 1st Krajina Corps.⁷² If the prosecution case was intended to be so limited, there may well be a problem for the prosecution in establishing Talic’s responsibility for crimes committed by persons who were not under his authority as such commander. There is no express allegation, for example, that Talic participated in the decisions of the ARK Crisis Staff. If such participation is to be the prosecution case, then Talic would also appear to be responsible for the acts of persons who were not under his authority as the commander of the 1st Krajina Corps. If such participation is not to be the prosecution case, it is difficult to understand from the indictment what his membership of the ARK Crisis Staff adds to the prosecution case, other than perhaps as a source of information concerning the objectives of the alleged joint criminal enterprise. However, if it is part of the prosecution case that Talic is criminally responsible because he participated in the decisions of the ARK Crisis Staff, this is a material fact which must be pleaded expressly .

21. The prosecution case in relation to the responsibility of Talic as a member of the ARK Crisis Staff is certainly not clearly or sufficiently stated in the indictment . The prosecution was obliged to identify with some precision in the indictment the basis or bases upon which it seeks to make Talic criminally responsible as a member of the ARK Crisis Staff, and it has failed to do so. It will be ordered to make good that deficiency.⁷³

4 Common purpose

22. Talic next complains of the way in which his alleged participation in what has been described as "a common purpose" has been pleaded. Following his complaint, and as already stated,⁷⁴ the prosecution sought leave to amend the indictment in relation to this issue. Talic has asserted that the proposed amendment does not correct the deficiencies in the current indictment and is itself defective in form. It will be convenient to deal with all of the objections taken to common purpose before determining whether the amendment sought should be granted.

23. As proposed to be amended,⁷⁵ par 27 of the further amended indictment pleads common purpose in this way (the amendments are shown in italics):⁷⁶

Radoslav Brdanin and Momir Talic each participated in a criminal enterprise, in their roles as set out in paragraphs 17-26 above. The common purpose of the enterprise was the permanent removal, through unlawful means , of the majority of Bosnian Muslim and Bosnian Croat inhabitants from the territory of the planned Serbian state […].

This criminal enterprise is alleged to have come into existence no later than 24 October 1991 and to have continued until the signing of the Dayton Accords in 1995 . Various named groups of persons are alleged to have participated with the two accused in that criminal enterprise. The participation by the two accused in this enterprise is identified by reference to their roles described in an earlier part of the indictment.⁷⁷ As proposed to be amended, the paragraph concludes:

All of the crimes enumerated in Counts 1 though 12 of this indictment, were natural and foreseeable consequences of this enterprise. Radoslav Brdanin and Momir Talic, aware that these crimes were likely to result from the implementation of the common purpose, knowingly and wilfully participated in the criminal enterprise .

The Tadic Conviction Appeal Judgment

24. Before considering the submissions which have been made, it is necessary to discuss in some detail just what is involved in the notion or concept of "common purpose" upon which the prosecution relies, in particular the state of mind of the accused which must be established by the prosecution. The starting point, so far as this Trial Chamber is concerned, is the Tadic Conviction Appeal Judgment .⁷⁸ The issues which the Appeals Chamber determined in that judgment were (i) whether the acts of one person can give rise to the criminal responsibility of another person where both persons participate in the execution of "a common criminal plan", and (ii) the degree of mens rea required in such a case.⁷⁹ The first issue was subsequently re-stated as being whether criminal responsibility in a "common criminal purpose" fell within the ambit of individual responsibility in Article 7(1) of the Tribunal’s Statute.⁸⁰ The Appeals Chamber labelled this concept variously, and apparently interchangeably , as a common criminal plan,⁸¹ a common criminal purpose,⁸² a common design or purpose,⁸³ a common criminal design ,⁸⁴ a common purpose,⁸⁵ a common design,⁸⁶ and a common concerted design.⁸⁷ The common purpose is also described, more generally, as being part of a criminal enterprise,⁸⁸ a common enterprise,⁸⁹ and a joint criminal enterprise.⁹⁰ For reasons which will become clear, the Trial Chamber prefers the last of these labels, a " joint criminal enterprise", to describe a common purpose case. It proposes to adhere to that label wherever possible. The Appeals Chamber held that the notion of a joint criminal enterprise "as a form of accomplice liability" was firmly established in customary international law, and that it was available under the Tribunal’s Statute .⁹¹

25. The Appeals Chamber stated that three "distinct categories of collective criminality " were encompassed within the concept of joint criminal enterprise,⁹² although it subsequently suggested that the second category was in many respects similar to the first,⁹³ and that it was really a variant of the first category.⁹⁴ However, in order to make clear how the Appeals Chamber went on to define the relative state of mind in relation to crimes based upon each of the categories, it is preferable to describe all three:

Category 1:⁹⁵ All of the participants in the joint criminal enterprise,⁹⁶ acting pursuant to a common design, possessed the same criminal intention. The example is given of a plan formulated by the participants in the joint criminal enterprise to kill, where, although each of the participants in the plan may carry out a different role, each of them has the intent to kill.⁹⁷

Category 2:⁹⁸ All of the participants in the joint criminal enterprise were members of military or administrative groups acting pursuant to a concerted plan, where the person charged held a position of authority within the hierarchy; although he did not personally perpetrate any of the crimes charged, he actively participated in enforcing the plan by aiding and abetting the other participants in the joint criminal enterprise who did perpetrate them. The example is given of a concentration camp, in which the prisoners are killed or otherwise mistreated pursuant to the joint criminal enterprise.

Category 3:⁹⁹ All of the participants were parties to a common design to pursue one course of conduct , where one of the persons carrying out the agreed object of that design also commits an act which, whilst outside the "common design", was nevertheless a natural and foreseeable consequence of executing "that common purpose".¹⁰⁰ The example is given of a common, shared intention on the part of a group to remove forcibly members of one ethnicity from their town, village or region (labelled " ethnic cleansing"), with the consequence that, in the course of doing so, one or more of the victims is shot and killed.

26. It is clear from the Tadic Conviction Appeal Judgment that, in relation to both the first and the second categories, the prosecution must demonstrate that all of the persons charged and all of the persons who personally perpetrated the crime charged had a common state of mind – that the crime charged should be carried out, and the state of mind required for that crime. This is an appropriate use of the phrase "common purpose",¹⁰¹ and it is reflected in various other phrases used in the judgment, such as "acting in pursuance of a common criminal design".¹⁰² Insofar as the first category is concerned, this is stated expressly:¹⁰³

[...] all co-defendants, acting pursuant to a common design, possess the same criminal intention [...].

The example is given of a plan to kill in effecting this common design, and it is said that, even though the various participants in that plan may be carrying out different roles within that plan, it must be shown that "all possess the intent to kill". The passage concludes:

[The] accused, even if not personally effecting the killing, must nevertheless intend this result.

Insofar as the second category is concerned, the position is stated a little more discursively, but nevertheless to the same effect. After referring to the joint criminal enterprise as being one "to kill or mistreat prisoners",¹⁰⁴ and as "a system of repression",¹⁰⁵ the judgment states:¹⁰⁶

The mens rea element comprised: (i) knowledge of the nature of the system and (ii) the intent to further the common concerted design to ill-treat inmates.

27. As the Appeals Chamber has suggested, the second category is not substantially different to the first. The position of the accused in the second category is exactly the same as the accused in the first category. Both carry out a role within the joint criminal enterprise to effect the object of that enterprise which is different to the role played by the person who personally perpetrates the crime charged. The role of the accused in the second category is enforcing the plan by aiding and abetting the perpetrator.¹⁰⁷ Both of them must intend that the crime charged is to take place.¹⁰⁸ The Trial Chamber accordingly proposes to deal with the first and second categories together as the basic form of joint criminal enterprise, and with the third category as an extended form of joint criminal enterprise.

28. Insofar as the third category (the extended form of joint criminal enterprise ) is concerned, the Appeals Chamber identified the relevant state of mind in various ways. The first statement was in these terms:¹⁰⁹

Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both [sic] a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk.

The next passage summarises the relevant state of mind in these terms:¹¹⁰

What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called dolus eventualis is required (also called "advertent recklessness" in some national legal systems).

The third passage summarises the relevant state of mind in these terms:¹¹¹

[…] responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.

29. It is unfortunate that expressions conveying different shades of meaning have been used in these three formulations, apparently interchangeably. So far as the subjective state of mind is concerned, there is a clear distinction between a perception that an event is possible and a perception that the event is likely (a synonym for probable). The latter places a greater burden on the prosecution than the former. The word "risk" is an equivocal one, taking its meaning from its context. In the first of these three formulations stated ("the risk of death occurring "), it would seem that it is used in the sense of a possibility. In the second formulation, "most likely" means at least probable (if not more), but its stated equivalence to the civil law notion of dolus eventualis would seem to reduce it once more to a possibility.¹¹² The word "might" in the third formulation indicates again a possibility. In many common law national jurisdictions, where the crime charged goes beyond what was agreed in the joint criminal enterprise, the prosecution must establish that the participant who did not himself commit that crime nevertheless participated in that enterprise with the contemplation of the crime charged as a possible incident in the execution of that enterprise. This is very similar to the civil law notion of dolus eventualis or advertent recklessness. So far as the objective element to be proved is concerned, the words "predictable" in the first formulation and "foreseeable" in the third formulation are truly interchangeable in this context .

30. Accordingly, in the case of a participant in the joint criminal enterprise who is charged with a crime committed by another participant which goes beyond the agreed object of that enterprise, the Trial Chamber interprets the Tadic Conviction Appeal Judgment as requiring the prosecution to establish:

(i) that the crime was a natural and foreseeable consequence of the execution of that enterprise, and

(ii) that the accused was aware that such a crime was a possible consequence of the execution of that enterprise, and that, with that awareness, he participated in that enterprise.

The first is an objective element of the crime, and does not depend upon the state of mind on the part of the accused. The second is the subjective state of mind on the part of the accused which the prosecution must establish. None of the various formulations in Tadic Conviction Appeal Judgment require the prosecution in such a case to establish that the accused intended such further crime to be committed, or that he shared with that other participant the state of mind required for that further crime. The Trial Chamber is satisfied that the prosecution does not have to do so.

31. The state of mind of the accused to be established by the prosecution accordingly differs according to whether the crime charged:

(a) was within the object of the joint criminal enterprise, or

(b) went beyond the object of that enterprise, but was nevertheless a natural and foreseeable consequence of that enterprise.

If the crime charged fell within the object of the joint criminal enterprise , the prosecution must establish that the accused shared with the person who personally perpetrated the crime the state of mind required for that crime. If the crime charged went beyond the object of the joint criminal enterprise, the prosecution needs to establish only that the accused was aware that the further crime was a possible consequence in the execution of that enterprise and that, with that awareness , he participated in that enterprise.

32. A familiar example of a joint criminal enterprise, which incorporates both the basic and the extended forms of the enterprise, will illustrate these differences more clearly.

Three men (A, B and C) reach an understanding or arrangement amounting to an agreement between them that they will rob a bank, and that they will carry with them a loaded weapon for the purposes of persuading the bank teller to hand over the money and of frightening off anyone who attempts to prevent the armed robbery from taking place. The agreement is that A is to carry the weapon and to demand the money from the teller, B is to stand at the doorway to the bank to keep watch, and C is to drive the getaway vehicle and to remain with the vehicle whilst the other two go inside the bank. The basic form of the joint criminal enterprise is therefore one to commit an armed robbery.

During the course of the armed robbery, A produces the weapon and demands that the bank teller hand over the money. As the teller does so, A observes him also pressing a button, which A thinks would alert the police that a robbery is taking place. A panics and fires his weapon, wounding the bank teller. In such a situation, in order to establish that all three men (A, B and C) were guilty of the armed robbery (the basic form of the joint criminal enterprise), the prosecution would have to prove that all three men intended the armed robbery to take place and that they shared the relevant state of mind required for the crime of armed robbery. If B and C are shown to have shared that state of mind with A, they are guilty with him of the armed robbery, even though they did not personally perpetrate the crime themselves .

The wounding of the teller, however, was not within the object of the basic joint criminal enterprise to which B and C had agreed. In order to establish that not only A but also B and C were responsible for the wounding of the teller (the extended form of the joint criminal enterprise), the prosecution would have to prove that such a wounding was a natural and foreseeable consequence of carrying a loaded weapon during an armed robbery, that each of B and C was aware that the wounding of someone was a possible consequence in the execution of the armed robbery he had agreed to , and that, with that awareness, he participated in that armed robbery. The prosecution would not have to establish that B and C intended that anyone would be wounded or that they shared with A the relevant state of mind required for the further crime of wounding.

The objections taken by Talic

33. Talic has taken three objections to the form in which the joint criminal enterprise is proposed to be pleaded:

(1) the state of mind of the accused now pleaded by the prosecution in its proposed amendment is insufficient;¹¹³

(2) there is no definition of the "unlawful means" through which the criminal enterprise effected the permanent removal of the majority of Bosnian Muslim and Bosnian Croat inhabitants from the territory of the planned Serbian state;¹¹⁴ and

(3) the indictment provides no details of Talic’s intention to participate voluntarily in the criminal enterprise or of his knowledge of its existence.¹¹⁵

By way of a general response, the prosecution asserts that par 27, as it is proposed to be amended, already provides greater detail regarding the accused’s state of mind than is required.¹¹⁶ It relies upon an 1999 Trial Chamber decision which held:

[…] the indictment need not specify the precise elements of each crime, since all that is required under Article 18, paragraph 4, is a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute.¹¹⁷

Article 18.4 of the Tribunal’s Statute does indeed require the Prosecutor to prepare an indictment "containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute". That obligation of the Prosecutor must be interpreted in the light of the entitlement given to the accused, by Article 21.4(a), "to be informed promptly and in detail [...] of the nature and cause of the charge against him". Where the state of mind with which the accused carried out his alleged acts is relevant, that state of mind is just as much a fact to be proved by the prosecution as are the accused’s acts themselves . Where those acts of the accused are material facts to be pleaded, so to, in the opinion of this Trial Chamber, is the state of mind with which he carried out those acts (where relevant) a material fact to be pleaded, in accordance with these provisions of the Tribunal’s Statute. There are two ways in which the relevant state of mind may be pleaded:

(i) by pleading the evidentiary facts from which the state of mind is necessarily to be inferred,¹¹⁸ or

(ii) by pleading the relevant state of mind itself as the material fact.

In the event that the prosecution adopts the second course, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded.

(1) State of mind

34. In support of his first objection, Talic says that the state of mind as pleaded in the proposed amendment would render a person individually responsible for crimes committed by others merely because "he intellectually subscribed to a plan adjudged criminal".¹¹⁹ He asserts that it is necessary for the prosecution to plead in relation to the genocide charges that his intention was to destroy the discriminated group (at least in part),¹²⁰ as well as the specific intent required in the other crimes charged.¹²¹ He has maintained this objection notwithstanding the amendment proposed.¹²² He says that the proposed amendment does not allege that the criminal enterprise had as its objective any of the crimes charged,¹²³ and that it alleges only that he was aware that such crimes were likely to result from the execution of the common purpose (that is, the ethnic cleansing).¹²⁴ Talic repeats that the prosecution is obliged to plead "a special and direct intention " on his part, the specific intent required for genocide and the other crimes charged .¹²⁵ The indictment therefore fails to demonstrate "one of the essential ingredients of the international crimes the indictment alleged".¹²⁶ In response , the prosecution relies upon what is said in the Tadic Conviction Appeal Judgment, in particular what was said in the second of the three passages already quoted in this decision.¹²⁷

35. For the purposes of his objection, Talic has assumed that the object of the joint criminal enterprise to remove permanently the majority of Bosnian Muslim and Bosnian Croat inhabitants from the territory of the planned Serbian state did not include any of the crimes charged.¹²⁸ Both the current par 27 and the proposed amendment to it state that each (or all ) of the crimes charged were "natural and foreseeable consequences" of the pleaded joint criminal enterprise. The unexpressed assertion that the crimes charged were no more than natural and foreseeable consequences, and therefore that each (or all) of them went beyond the object of that enterprise, could therefore easily be assumed. A proper pleading would not have left such an important assertion unexpressed The criminal object of the enterprise must be clearly identified.¹²⁹ The Prosecution Reply proceeds upon the same assumption as that made by Talic,¹³⁰ and it may therefore be accepted that the prosecution does intend to assert that each (or all) of the crimes charged in the indictment went beyond the object of the joint criminal enterprise as pleaded. Unfortunately, however, both the current indictment and the proposed amendment to it remain possibly equivocal in relation to that issue. To that defect, the Trial Chamber will return.¹³¹

36. Nevertheless, if this assertion intended by the prosecution is correct – that each (or all) of the crimes charged in the indictment went beyond the object of the joint criminal enterprise as pleaded – the assertion made by Talic, that the prosecution is nevertheless obliged to plead and to prove that he shared with those who personally perpetrated the crimes charged the state of mind which those crimes require, is indeed contrary to what the Appeals Chamber has held in the Tadic Conviction Appeal Judgment. Again, if the assertion intended by the prosecution is correct, the proposed amendments to par 27 of the further amended indictment more than adequately allege the state of mind required of a participant in the enterprise where the crimes charged went beyond the object of that enterprise.¹³² The prosecution may even have accepted a greater burden than is necessary by pleading that the accused were aware that the crimes charged were "likely" to result from the implementation of that enterprise.

37. The objection taken by Talic is therefore rejected insofar as it relates to the crimes charged which went beyond the object of the joint criminal enterprise . The objection may perhaps have had its genesis in the misleading label given to the concept upon which the prosecution relies, that of "common purpose". That label may have respectable origins, but it remains a misleading one. The only " purpose" which the prosecution must prove to have been "common" to the participants in the joint criminal enterprise relates to the crime which fell within the agreed object of that enterprise. The prosecution does not have to prove that any crime committed which goes beyond the agreed object of that enterprise was also agreed to by the participants. It would be preferable for the prosecution to avoid the use of the misleading label "common purpose" in the future. The Appeals Chamber has treated the expression "joint criminal enterprise" as synonymous with common purpose.¹³³ That label does not produce the confusion which "common purpose" produces in relation to the relevant state of mind which must be established, depending upon whether the crime charged fell within the agreed object of the enterprise or was merely a foreseeable consequence of its execution.

38. The Trial Chamber, however, doubts whether the assertion intended by the prosecution could possibly be correct in fact. The "permanent removal" of inhabitants of a particular ethnicity from their normal place of residence to some other place in the circumstances pleaded would appear necessarily to imply, for example, actions which involve:

(a) deportation and/or forcible transfer directed against a particular civilian population in the course of an armed conflict – thus possibly crimes against humanity as pleaded in counts 8 and 9 of the current indictment, and

(b) appropriation of the property of those removed in the course of an international armed conflict, not justified by military necessity and carried out unlawfully and wantonly – thus possibly a grave breach of the Geneva Conventions of 1949 as pleaded in count 10 of the current indictment.

There may be other examples, but these two will suffice. If the Trial Chamber accepts the prosecution’s case that the object of the joint criminal enterprise was, to use the colloquial phrase adopted in the indictment, to effect ethnic cleansing, it may well be that it would be obliged to find that these crimes fell within the object of that enterprise, rather than that they went beyond that object. If any of the crimes charged do fall within the ethnic cleansing agreed to, the prosecution could succeed in relation to those crimes only if it established that the accused shared the state of mind required of the persons who personally perpetrated those crimes.

The need to characterise the offences charged

39. The Trial Chamber has already suggested that the prosecution case as pleaded , and even as it is proposed that it be amended, is possibly equivocal in relation to whether the crimes charged are necessarily to be regarded as having gone beyond the object of the joint criminal enterprise pleaded.¹³⁴ It is of considerable importance that both the Trial Chamber and the accused know with some precision from the terms of the indictment whether any particular crime charged is alleged by the prosecution to fall within the object of the enterprise (when each participant must have the specific intent required for that crime) or to go beyond that object (when each participant need only have been aware of its commission as a possible consequence of the execution of that enterprise when he participated in it). Just as with the other forms of accomplice liability identified in Article 7.1 of the Tribunal’s Statute, the prosecution must plead as material facts the conduct of the accused (which includes his state of mind) which is alleged to make him responsible for the crimes charged as a participant of a joint criminal enterprise.¹³⁵ The Trial Chamber proposes to order the prosecution to plead its case upon this issue expressly in the indictment.¹³⁶

40. It is, of course, always open to the prosecution (if it wishes to do so) to limit its case, and to rely upon such crimes only as having gone beyond the agreed object of the joint criminal enterprise. If it does limit its case in this way, and if the Trial Chamber does not accept that such crimes did go beyond that agreed object, then the prosecution case in relation to those particular crimes must necessarily fail, as the prosecution has not pleaded any case that the crimes fell within the agreed object. This would put the prosecution in an extraordinary position, and it would also be open to the prosecution (if it is able to prove such a case) to plead any of the crimes charged in the alternative – that they either fell within the agreed object of the joint criminal enterprise or went beyond that enterprise but were nevertheless a natural and foreseeable consequence of that enterprise.

41. However, if the prosecution does propose to rely upon such crimes charged as falling within the object of the joint criminal enterprise, either solely or in the alternative, it must plead such a case clearly in the indictment. And , when pleading any case that the crimes charged did fall within the agreed object of the joint criminal enterprise, it will be necessary for the prosecution to plead that the accused had the state of mind required for those crimes. If this is to be the prosecution case, the Trial Chamber will order the prosecution to include such material facts in the amendment which it is seeking.¹³⁷

(2) Unlawful means

42. In support of his second objection, Talic says that the purpose (or object) of the joint criminal enterprise must be "criminal in and of itself".¹³⁸ The prosecution accepts that this is so,¹³⁹ and the Trial Chamber agrees that, as the name suggests, the basic object of a joint criminal enterprise must itself be criminal in nature. Talic, however, goes on to say that, as none of the crimes charged falls within the pleaded objective of the criminal enterprise (the ethnic cleansing), the prosecution has failed to identify in the indictment the criminal objective of that criminal enterprise.¹⁴⁰ The prosecution responds that, by pleading that the object of the enterprise was effected "through unlawful means", it is asserting that the participants in that enterprise "had no lawful purpose for the removal of the non-Serb populations and no intent to use lawful means to accomplish their goal".¹⁴¹ It says that "it is not necessary to prove that each participant held the identical vision of the illegal means they planned to use", and therefore that it is sufficient merely to plead "through unlawful means" without identifying them in the indictment .¹⁴²

43. The stand taken by the prosecution fails, however, to acknowledge that the first thing which it must establish, in a case that the accused is responsible for a crime as a member of a joint criminal enterprise, is that he participated in a particular joint criminal enterprise, even where the crime charged went beyond the object of that enterprise. That is clear from the Tadic Conviction Appeal Judgment . There must be a common object, or a common purpose, to carry out a particular crime (the criminal object of the enterprise), and – if a further crime is committed which went beyond that criminal object of the enterprise, but which is nevertheless a natural and foreseeable consequence of executing that criminal object or enterprise – each participant in that enterprise will be responsible if he was aware that such a further crime was a possible consequence in the execution of that enterprise , and that, with that awareness, he participated in that enterprise.¹⁴³ Unless the criminal object of that enterprise is identified, it is not possible to determine whether the further crime charged was a natural and foreseeable consequence of executing that criminal object. That criminal object is not identified by asserting (and then only by implication in the indictment) merely that there was "no lawful purpose".

44. The Trial Chamber accepts that, where there could be a number of different criminal objects of a joint criminal enterprise, it is not necessary for the prosecution to prove that every participant agreed to every one of those crimes being committed.¹⁴⁴ But it is necessary for the prosecution to prove that, between the person who personally perpetrated the further crime charged and the person charged with that crime, there was an agreement (or a common purpose) to commit at least a particular crime, so that it can then be determined whether the further crime charged was a natural and foreseeable consequence of executing that agreed crime. Without such proof, it cannot be held that the accused was a member of a joint criminal enterprise together with the person who committed that further crime charged. The real difficulty which the prosecution faces in identifying the agreed criminal object of the enterprise in which these accused were members together with the persons who committed the crimes charged may lie in the extraordinarily wide nature of the case which it seeks to make in the present prosecution.

45. Although joint criminal enterprise cases can be applicable in relation to ethnic cleansing, as the Tadic Conviction Appeal Judgment recognises,¹⁴⁵ it is obvious that the Appeals Chamber had in mind a somewhat smaller enterprise than that which is invoked in the present case.¹⁴⁶ If, in the course of an armed conflict and a widespread or systematic attack directed against a civilian population, the commander of a small group of soldiers directs those soldiers to collect all the inhabitants of a particular ethnicity within a particular town and to remove them forcibly out of the region, he becomes a participant in an enterprise to commit deportation and forcible transfer (as crimes against humanity), and there could be little doubt, having regard to previous episodes of ethnic cleansing in the former Yugoslavia, that, for example, murder (as another crime against humanity) and wanton destruction of the town (as a violation of the laws and customs of war) were natural and foreseeable consequences of the execution of that enterprise. There would be no difficulty in determining what crimes fell within the agreed criminal object of the enterprise and whether any further crimes charged were natural and foreseeable consequences in the execution of that enterprise. It is only when the prosecution seeks to include within that joint criminal enterprise persons as remote from the commission of the crimes charged as are the two accused in the present case that a difficulty arises in identifying the agreed criminal object of that enterprise. That difficulty is of the prosecution’s own making, as it is a difficulty necessarily arising out of the case it seeks to make. That very difficulty may, of course, indicate that a case based upon a joint criminal enterprise is inappropriate in the circumstances of the present prosecution. That is a matter which will have to be determined at the trial. But the prosecution cannot avoid its difficulty simply by seeking to avoid pleading properly the joint criminal enterprise upon which it relies. It is sufficient at this stage for the Trial Chamber to say merely that, if the prosecution does plead that all of the crimes charged went beyond the object of the joint criminal enterprise, it must identify in the indictment the agreed criminal object of the enterprise upon which it relies. An order will be made accordingly.¹⁴⁷

(3) Knowledge of existence of criminal enterprise and intention to participate voluntarily

46. In support of his third objection, Talic asserts that the prosecution must plead and establish that he knew of the existence of the criminal enterprise and that he participated in it voluntarily. He relies upon the judgment of the International Military Tribunal at Nuremberg for his assertion that the participation must be shown to have been voluntary.¹⁴⁸ No reference is given to the relevant passage in that judgment which supports his objection. The only passage which could conceivably be relevant is that dealing with the Tribunal’s power under Article 9 of its Charter to declare organisations to be have been criminal in nature:¹⁴⁹

A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization . Membership alone is not enough to come within the scope of these declarations .

The prosecution responds that the proposed amendment to par 27 of the current indictment alleges that each of the accused, "aware that the crimes charged were likely to result from the implementation of the common purpose, knowing and wilfully participated in the criminal enterprise".¹⁵⁰

47. The Trial Chamber accepts that this allegation to be added to par 27 sufficiently takes up the issue of Talic’s knowledge of the existence of the enterprise and his voluntary participation in it. As already stated, the facts from which that state of mind is to be established are ordinarily matters of evidence.¹⁵¹ They are so in the present case. Again, if Talic claims that the evidence is not so apparent from the material which has been disclosed by the prosecution, his remedy is to request the prosecution to supply particulars of the statements upon which it relies to prove the specific material fact in question. If the prosecution’s response to that request is unsatisfactory, and only then, he may seek an order from the Trial Chamber that such particulars be supplied.¹⁵²

48. If a person does something "knowingly and wilfully", it may ordinarily be assumed that he did it voluntarily. The prosecution is not obliged to meet every issue which may be raised by an accused to avoid responsibility for his knowing and wilful acts until that issue is raised in evidence at the trial. If Talic wishes to raise an issue as to the voluntary nature of his participation in the joint criminal enterprise pleaded, and if that is a relevant issue in the case, he must at the trial point to or elicit evidence from which it could be inferred that there is at least a reasonable possibility that his participation was not voluntary. Only then does the prosecution bear the onus of establishing that his action was indeed voluntary. This is not to suggest that Talic bears some legal onus in relation to the issue. That legal onus remains at all times upon the prosecution. His onus is merely an evidentiary one – to point to or to elicit evidence which raises the particular issue, and which places an onus on the prosecution to establish its case upon that issue, just as in relation to an alibi.¹⁵³

49. The complaint made by Talic is rejected.

5 The application to amend

50. The basis upon which leave will be granted to amend the indictment was examined by the Trial Chamber in a recent decision in the present case.¹⁵⁴ The fundamental issue in relation to granting leave to amend an indictment is whether the amendment will prejudice the accused unfairly.¹⁵⁵ The word "unfairly" is used in order to emphasise that an amendment will not be refused merely because it assists the prosecution quite fairly to obtain a conviction . To be relevant, the prejudice caused to an accused would ordinarily need to relate to the fairness of the trial. Where an amendment is sought in order to ensure that the real issues in the case will be determined, the Trial Chamber will normally exercise its discretion to permit the amendment, provided that the amendment does not cause any injustice to the accused, or does not otherwise prejudice the accused unfairly in the conduct of his defence.¹⁵⁶ There should be no injustice caused to the accused if he is given an adequate opportunity to prepare an effective defence to the amended case. There is no suggestion in the present case that this amendment will cause delay such as to deny the two accused their right to be tried without undue delay.

51. The Trial Chamber has accepted that the proposed amendment is itself defective in form. Nevertheless, now that those defects have been identified, no reason has been put forward as to why leave should not be granted to make the amendment sought provided that those defects are remedied. No relevant prejudice resulting from the proposed amendment once those defects are cured has been suggested by Talic. The Trial Chamber has been informed orally by counsel for Brdanin that there is no objection to the amendment sought to par 27. The purpose of the amendment is to ensure that the real issues in the case will be determined. Leave will accordingly be granted subject to the condition that the defects upheld by the Trial Chamber are cured.¹⁵⁷

6 Other alleged deficiencies in particularity of pleading

General complaint relating to all counts

52. Talic concedes that the further amended indictment is more precise and detailed than its predecessor, but he asserts that it still does not satisfy the requirements stated in the 20 February 2001 Decision.¹⁵⁸ His general complaints are based upon the assumption that the prosecution is obliged in its indictment in this case to plead details such as the identity of the victim , the place and the approximate date of the alleged crime and the means used to perpetrate it. He concedes that the materiality of these details necessarily depends upon the degree of proximity he is alleged to have to the events for which he is charged with responsibility, but he says that, as the prosecution has reserved the right to proceed upon the basis that he personally committed these crimes, it must set down in detail everything which the prosecution knows.¹⁵⁹ In the light of the order to be made striking the word "committed" from par 33 of the further amended indictment,¹⁶⁰ there will no longer be any such case reserved. The complaint that the prosecution has failed to plead such details is dismissed.

Superior responsibility

53. Talic also complains that the indictment provides "no information whatsoever " regarding his conduct by which he may be found to have known or had reason to know that the acts were about to be done by those for whose acts he is charged with responsibility, or that those acts had been done by those persons. He says that his responsibility is based solely upon "his superior command position" with the 1st Krajina Corps.¹⁶¹ The prosecution case, however, is not so limited. The criminal responsibility of Talic is alleged to arise out of both his position as commander of the 1st Krajina Corps and his position as a member of the ARK Crisis Staff. Where the basic crimes for which he is alleged to be responsible were committed by persons other than units of the 1st Krajina Corps, the prosecution relies upon his position as a member of the ARK Crisis Staff to make him responsible.¹⁶²

54. Nor is the prosecution case against Talic limited to his responsibility as a superior, as is suggested by the reference in the Talic Motion to his "superior command position".¹⁶³ The indictment alleges, inter alia, that, as commander of the 1st Krajina Corps, Talic made decisions for the Corps and the subordinate units, he assigned tasks to his subordinates , he issued orders, instructions and directives, and he ensured their implementation .¹⁶⁴ Those allegations are clearly intended in part as an allegation of individual responsibility for any criminal acts so ordered, in accordance with Article 7.1 of the Tribunal’s Statute.¹⁶⁵ As already stated,¹⁶⁶ the indictment is deficient as to the basis upon which it seeks to make Talic criminally responsible as a member of the ARK Crisis Staff. If the amendment made pursuant to the order to plead that basis with some precision does not answer the present complaint made by Talic, this complaint will be revisited. However, the conduct upon which the prosecution relies to establish the responsibility of Talic as a superior is otherwise sufficiently pleaded in the indictment. Anything further would once more be pleading the evidence by which the material facts pleaded are to be established, and which should be apparent from the witness statements made available.

Genocide and complicity in genocide (counts 1 and 2)

55. The indictment alleges the participation of the accused in a campaign designed to destroy Bosnian Muslims and Bosnian Croats, in whole or in part, as national, racial or religious groups in various identified municipalities within the ARK.¹⁶⁷ The execution of the campaign is alleged to have "included": (1) the killing of Bosnian Muslims and Bosnian Croats by Bosnian Serb forces ("including" units of the 1st Krajina Corps) in villages and non-Serb areas, in camps and other detention facilities and during the deportation or forcible transfer of the Bosnian Muslims and Bosnian Croats; (2) causing serious bodily or mental harm to Bosnian Muslims and Bosnian Croats during their confinement in camps and other detention facilities , and during their interrogations at police stations and military barracks, where detainees were continuously subjected to or forced to witness inhumane acts "including " murder, rape, sexual assault, torture and beating; and (3) detaining Bosnian Muslims and Bosnian Croats under conditions calculated to bring about the physical destruction of a part of those groups, through beatings or other physical maltreatment described elsewhere in the indictment, starvation rations, contaminated water, insufficient or non-existent medical care, unhygienic conditions and lack of space.¹⁶⁸ Superior responsibility of the accused is also alleged in terms of Article 7.3 of the Tribunal’s Statute in relation to those acts and omissions.¹⁶⁹

56. The killings of Bosnian Muslims and Bosnian Croats are alleged to have "included " twenty-nine killing incidents. These are described by reference to the municipalities and the general area where they occurred and their approximate date.¹⁷⁰ The camps referred to are alleged to have been staffed and operated by military and police personnel under the direction of Crisis Staffs (plural) and the VRS ( the Army of the Serbian Republic of Bosnia and Herzegovina). They are said to have "included" thirteen facilities, which are described by reference to particular buildings in various identified municipalities.¹⁷¹ The killing of Bosnian Muslims and Bosnian Croats in the camps and detention facilities , or subsequent to their removal from those camps and detention facilities, are alleged to have "included" twelve killing incidents. These are described by reference to the municipalities and the place where they occurred and their approximate date .¹⁷² In addition, it is alleged that Bosnian Serbs "and others" were given access to camps where they subjected Bosnian Muslims and Bosnian Croat detainees to physical and mental abuse, "including " torture, beatings with weapons, sexual assaults and the witnessing of inhumane acts, "including" murder, causing them serious bodily or mental harm. As a result of these inhumane acts, it is alleged, a large number of Bosnian Muslims and Bosnian Croats died in these detention facilities.¹⁷³

57. Talic complains that insufficient details are supplied as to the victims and of the direct and immediate perpetrators of the crimes pleaded.¹⁷⁴ He asserts that the prosecution knows the identity of at least some of the victims because of exhumations carried out, and that it should therefore identify the victims by names, sex and age, or at least as either civil or military personnel.¹⁷⁵ He points out that the expression "Bosnian Serb Forces" is defined in par 8 of the indictment as the army, paramilitary, territorial defence, police units and civilians armed by those forces, and he says that not all of those units were under the control of the same authority. The particular units which were alleged to have committed these crimes should therefore be identified in as much detail as possible.¹⁷⁶ He argues that, where the prosecution is unable to specify either the victims or the perpetrators, there must be at least a reference to their category or position as a group. Where it is unable to do either of these things, he says, it must be made clear in the indictment that the prosecution is unable to do so and that it has provided the best information it can.¹⁷⁷

58. The prosecution has responded that the Bosnian Muslims and Bosnian Croats killed in the incidents identified in pars 38 and 41 (and presumably also in the incidents referred to in par 37) of the indictment were "non-combatants".¹⁷⁸ If that is indeed the prosecution case, it should have been pleaded as a material fact. Although that fact may be irrelevant to the genocide counts, the incidents pleaded in pars 38 and 41 are also incorporated in other counts (for example, extermination in count 4) where it is a relevant and material fact, as the consequences of killing non-combatants would usually be different from the consequences of killing combatants. The prosecution will be ordered to plead such a case expressly.¹⁷⁹

59. The remaining complaints made by Talic assume that the identity of the victims and of the perpetrators are material facts which must be pleaded in this case. However, they are not material facts to be pleaded where – as in this case – the accused person is remote in proximity from the crimes alleged to have been committed ; rather, they are matters of evidence. Talic nevertheless relies upon what was said by the Trial Chamber in par 22 of the 20 February 2001 Decision as requiring either such particularity or a statement in the indictment that the prosecution is unable to provide better particulars.¹⁸⁰ Paragraph 22 of that decision makes it clear that such an obligation arises primarily in "a case based upon individual responsibility where the accused is alleged to have personally done the acts pleaded in the indictment". In par 20 of the same decision, the Trial Chamber discussed the need for detail to be pleaded where the prosecution case is based upon the allegation that the accused is individually responsible for having aided and abetted the person who personally did those acts. It was also made clear that the extent of that detail depends again upon the degree of proximity alleged. Insistence upon such detail being pleaded has occurred only in those cases where the accused is alleged to have been in much greater proximity to those acts than are the two accused in the present case. For example, in the Krnojelac case, the accused is alleged to have been the warden of the prison where the crimes were committed and to have had direct and immediate authority over the perpetrators . The two accused in the present case are considerably more remote from the crimes for which they are alleged to be responsible than Mr Krnojelac was alleged to be . Such details are matters of evidence and not material facts which must be pleaded in the present case.¹⁸¹

60. Talic draws attention to the repeated use of the word "including" in the indictment – in the description of the way in which the ethnic cleansing campaign was executed , in the maltreatment of the detainees, in the killing incidents, in the identity of the facilities where the killings and maltreatment are alleged to have occurred and in the inhumane acts committed. He asserts that he is entitled to know whether these lists are intended to be exhaustive or, if they are not so intended, the details which are not presently listed.¹⁸² The prosecution responds that the lists are not intended to be exhaustive . It says that it will be leading evidence of each of the incidents listed and each of the facilities listed. In addition, evidence may be given in relation to other incidents and other facilities. It argues that it is permitted to do so where , as here, it does not assert that either of the accused was directly involved in those incidents.¹⁸³

61. The right of the prosecution to lead evidence in relation to facts not pleaded in the indictment is not as unlimited as its response to this complaint may suggest . Article 21.4(a) entitles the accused "to be informed promptly and in detail [...] of the nature and cause of the charge against him". For example, it would not be possible, simply because the accused was not alleged to be directly involved, to lead evidence of a completely new offence which has not been charged in the indictment without first amending the indictment to include the charge. Where, however, the offence charged, such as persecution and other crimes against humanity, almost always depends upon proof of a number of basic crimes (such as murder), the prosecution is not required to lay a separate charge in respect of each murder. The old pleading rule was that a count which contained more than one offence was bad for duplicity , because it did not permit an accused to plead guilty to one or more offences and not guilty to the other or other offences included within the one count. Such a rule is completely impracticable in this Tribunal, given the massive scale of the offences which it has to deal with.¹⁸⁴ But the rule against duplicity was nevertheless also one of elementary fairness, and the consideration of fairness involved was that the accused must know the nature of the case he has to meet.

62. Where, therefore, the prosecution seeks to lead evidence of an incident which supports the general offence charged, but the particular incident has not been pleaded in the indictment in relation to that offence, the admissibility of the evidence depends upon the sufficiency of the notice which the accused has been given that such evidence is to be led in relation to that offence.¹⁸⁵ Until such notice is given, an accused is entitled to proceed upon the basis that the details pleaded are the only case which he has to meet in relation to the offence or offences charged. Notice that such evidence will be led in relation to a particular offence charged is not sufficiently given by the mere service of witness statements by the prosecution pursuant to the disclosure requirements imposed by Rule 66(A). This necessarily follows from the obligation now imposed upon the prosecution to identify in its Pre-Trial Brief, in relation to each count, a summary of the evidence which it intends to elicit regarding the commission of the alleged crime and the form of the responsibility incurred by the accused.¹⁸⁶ If the prosecution intends to elicit evidence in relation to a particular count additional to that summarised in its Pre-Trial Brief, specific notice must be given to the accused of that particular intention.

63. Accordingly, at this stage and until given sufficient notice that evidence will be led of additional incidents or facilities in relation to a particular offence charged, both accused are entitled to proceed upon the basis that the lists of killings and facilities are exhaustive in nature.

64. Talic also complains that insufficient details are supplied as to the means by which the crimes other than the killings pleaded in the indictment were perpetrated .¹⁸⁷ Specifically, he complains that the prosecution has failed to provide any details as to the acts which constitute the torture, sexual assaults and other inhumane acts to which reference is made in the indictment in relation to these two counts.¹⁸⁸ The prosecution has responded that, in a case such as the present case, these are matters of evidence and not material facts, because the criminal responsibility of Talic is "based upon his high position within the leadership and a widespread and extensive pattern of criminal conduct, rather than on his proximity to any particular crime".¹⁸⁹

65. Reference has already been made in general terms to the way in which the genocide charges have been pleaded.¹⁹⁰ Such generality is not displaced by reference to the exact wording of the indictment. After asserting the participation of both accused in "a campaign designed to destroy Bosnian Muslims and Bosnian Croats, in whole or in part, as national, ethnical, racial, or religious groups, as such" in various identified municipalities within the ARK, the indictment proceeds:

[…] the execution of the above campaign included:

[…] causing serious bodily or mental harm to Bosnian Muslims and Bosnian Croats during their confinement in camps, other detention facilities, and during their interrogations at police stations and military barracks when detainees were continuously subjected to or forced to witness inhumane acts including murder, rape, sexual assault , torture and beating.¹⁹¹

Later, and still dealing with the genocide counts, the indictment returns to this subject:

In the camps and detention facilities, Bosnian Serb forces and others who were given access to the camps, subjected Bosnian Muslim and Bosnian Croat detainees from the municipalities to physical and mental abuse including torture, beatings with weapons , sexual assaults and the witnessing of inhumane acts, including murder, causing them serious bodily or mental harm. As a result of these inhumane acts, during the period from 1 April 1992 to 31 December 1992, a large number of Bosnian Muslims and Bosnian Croats died in these detention facilities.¹⁹²

No details at all are given of these matters. This is an omission which is repeated in relation to the count for persecutions as a crime against humanity (count 3), which alleges that the planning, preparation or execution of the persecution included :

[…] torture, physical violence, rapes and sexual assaults, constant humiliation and degradation of Bosnian Muslims and Bosnian Croats [...].¹⁹³

The omission is repeated yet again in relation to the counts for torture (counts 6 and 7), which allege that the campaign of terror designed to drive the Bosnian Muslim and Bosnian Croat population away included:

[…] the intentional infliction of severe pain or suffering on Bosnian Muslims or Bosnian Croats by inhumane treatment including sexual assaults, rape, brutal beatings , and other forms of severe maltreatment in camps, police stations, military barracks and private homes or other locations, as well as during transfers of persons and deportations. Camp guards and others, including members of the Bosnian Serb forces , used all manner of weapons during these assaults. Many Bosnian Muslims or Bosnian Croats were forced to witness executions and brutal assaults on other detainees.¹⁹⁴

66. Such generality must be contrasted with the amount of detail disclosed in the indictment in relation, for example, to the killings to be established in support of the genocide counts.¹⁹⁵ There , pars 38 and 41 of the indictment identify twenty-nine killing incidents by reference to the municipalities and the general area where they occurred and their approximate dates, and twelve further killing incidents by reference to the municipalities and the place where they occurred and their approximate date. The Trial Chamber has already determined that, because of the remoteness of the two accused from these crimes for which they are alleged to be responsible, the identities of the victims and of the perpetrators in those killings are matters of evidence and not material facts to be pleaded in the present case.¹⁹⁶ That is because there are sufficient material facts pleaded in relation to the killings to enable both the Trial Chamber and the accused to identify the issues to which evidence elicited by the prosecution is relevant. There is no such assistance given by the indictment in relation to these other matters. Any trial such as the present (with all its complexities) in which such issues are not identified on the record would be likely to descend quickly into confusion. The prosecution does not suggest that there is any relevant distinction between killings and the other acts to which reference is made, and the Trial Chamber cannot see any such distinction. The prosecution will be ordered to plead sufficient detail to enable the various incidents referred to in pars 37(2) and 42 of the further amended indictment to be identified, in the same way and to the same extent as it has given details of the killing incidents in pars 38 and 41.¹⁹⁷

Persecution as a crime against humanity (count 3)

67. Talic has complained, first, of the descriptions under this count of torture , physical violence, rapes and sexual assaults: of the use of the word "including ", and of the absence of any details of the direct and immediate perpetrators.¹⁹⁸ These complaints have already been considered, and dismissed.¹⁹⁹

68. Paragraph 47(3) of the further amended indictment alleges that the planning, preparation or execution of the persecution included:

the destruction of Bosnian Muslim and Bosnian Croat villages and areas, including the destruction or wilful damage to religious and cultural buildings and the looting of residential and commercial property […].

This statement is followed by a list which identifies, under various municipalities , the names of the localities, together with references to various mosques and Roman Catholic (that is, Bosnian Croat) churches. Talic says that it is unclear whether this list is intended to identify only the religious edifices which were destroyed or damaged or whether it is intended also to identify these localities as the "villages and areas" which were destroyed.²⁰⁰ The resolution of this lack of clarity is not assisted by the statement which follows the list, which appears to suggest that other "cities, towns [and] villages " were also destroyed:²⁰¹

During and after the attacks on these municipalities, Bosnian Serb forces systematically destroyed or damaged Bosnian Muslim and Bosnian Croat cities, towns, villages and property, including homes, businesses and Muslim and Roman Catholic sacred sites listed above.

69. The prosecution has responded that "the municipalities in which the crimes in the indictment are alleged to have occurred" are listed in par 4 of the indictment , and thus that the indictment is "sufficiently specific regarding the location of the crimes".²⁰² Paragraph 4 identifies sixteen municipalities as being some of those which constituted the ARK:

Banja Luka, Bihac-Ripac, Bosanska Dubica, Bosanska Gradiska, Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Celinac, Donji Vakuf, Kljuc, Kotor Varoš, Prijedor, Prnjavor , Sanski Most, Sipovo and Teslic.

This group of municipalities is referred to in each of the counts as the scene of the campaign of ethnic cleansing in which the accused are alleged to have participated , and they correspond to the municipalities under which various towns and religious edifices are listed in par 47(3) of the indictment.

70. But the reference to those sixteen municipalities does nothing to resolve the lack of clarity in the way the list in par 47(3) of the indictment has been compiled . There should be no confusion in an indictment of this complexity. The prosecution will be ordered to make it clear whether it is alleged that the localities against which the religious edifices are listed are the "villages and areas" and the "cities , towns [and] villages" which are alleged in the same paragraph to have been destroyed or damaged.²⁰³

Extermination as a crime against humanity (count 4) and as a grave breach (count 5)

71. Talic has complained of the vagueness of the descriptions under this count of the killings which are alleged to have taken place. He repeats the complaint which he made in relation to the details given of the killings alleged in the genocide counts (counts 1 and 2).²⁰⁴ That complaint has already been dismissed by the Trial Chamber.²⁰⁵ However, although details were given in pars 38 and 41 of the killings pleaded in relation to the genocide counts (which details the Trial Chamber has accepted as sufficient), no such details have been given of the killings which relate to these counts. Paragraph 51 of the further amended indictment says merely that, as part of the campaign designed to exterminate members of the Bosnian Muslim and Bosnian Croat population:

[…] a significant number of Bosnian Muslims and Bosnian Croats were killed by Bosnian Serb forces in villages and non-Serb areas, in camps and other detention facilities and during the deportations or forcible transfers.

72. Talic appears to have assumed that the lists of killings in pars 38 and 41 ( which relate to counts 1 and 2) were intended to relate also to these counts,²⁰⁶ and the prosecution has responded upon the assumption that they do.²⁰⁷ It is poor pleading that this is not stated expressly in par 51, but the intention has now been made sufficiently clear, and (unless the prosecution formally demurs ) the trial will proceed upon that basis. What has already been said in this decision in relation to counts 1 and 2 is therefore applicable also to counts 4 and 5: the details given of the killings are sufficient,²⁰⁸ and both accused are entitled to proceed upon the basis that the lists of killings are exhaustive at this stage and until given sufficient notice that evidence will be led of additional incidents in relation to a particular offence charged.²⁰⁹ The complaint made by Talic is rejected.

Torture as a crime against humanity (count 6) and as a grave breach (count 7)

73. Talic has complained of the vagueness of the descriptions under these counts of the serious bodily and mental injury which, it is asserted, is alleged in the indictment to have been inflicted on Bosnian Muslims and Bosnian Croats during a campaign of terror.²¹⁰ The relevant passage from par 55 of the indictment has already been quoted.²¹¹ It gives no detail which enables the various incidents to be identified, as the prosecution has been able to give in relation to the killings relied upon in the first and second counts pleading genocide (and perhaps also in the fourth and fifth counts pleading extermination and wilful killings). The prosecution has made the same response – that, in a case such as the present case, these are matters of evidence and not material facts, because (in effect) Talic was very remote in proximity to the commission of the offences for which he is alleged to be criminally responsible .²¹² The Trial Chamber repeats that any trial such as the present (with all of its complexities) in which such issues are not identified on the record would be likely to descend quickly into confusion .²¹³ The prosecution will be ordered to plead sufficient detail to enable the various incidents alleged to constitute the infliction of severe pain and suffering referred to in par 55 to be identified , in the same way and to the same extent as it has given details of the killing incidents in pars 38 and 41.²¹⁴

Unlawful and wanton extensive destruction and appropriation of property as a grave breach (count 10), wanton destruction of cities, towns or villages, or devastation not justified by military necessity as a violation of the laws or customs of war (count 11), and destruction or wilful damage done to institutions dedicated to religion as a violation of the laws or customs of war (count 12)

74. Talic has complained of the vagueness of the descriptions under these counts of the destruction of villages and religious edifices.²¹⁵ Paragraph 61 of the indictment incorporates in relation to these three counts the allegations made in par 47(3) of the indictment, which relates to count 3 ("Persecutions "). The complaint is one of lack of clarity. The relevant passage from par 47( 3) has already been quoted, and both the complaint and the prosecution’s response have already been discussed in the present decision.²¹⁶ The Trial Chamber has already stated that the prosecution will be ordered to make it clear in relation to par 47(3) whether it is alleged that the localities against which the religious edifices are listed are the "villages and areas" and the "cities , town [and] villages" which are alleged to have been destroyed or damaged.²¹⁷

The allegation of an international armed conflict

75. The previous indictment had charged the accused with various crimes as grave breaches of the Geneva Conventions without alleging that the acts upon which they were based took place in the course of an international armed conflict. An order was made by the Trial Chamber directing the prosecution to file a further amended indictment which pleads, as material facts, that the armed conflict was international in character and the basis upon which such an assertion is made.²¹⁸

76. Paragraph 30 of the further amended indictment now alleges:

At all times relevant to this indictment, a state of armed conflict and partial occupation existed in the Republic of Bosnia and Herzegovina. For the period material to this indictment, the armed forces of the Republika Srpska were acting under the overall control of and on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro). Hence, the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of Bosnia and Herzegovina was an international armed conflict.

The further amended indictment describes elsewhere the creation of the VRS (the Army of the Serbian Republic of Bosnia and Herzegovina) as having had the effect of transforming the units of the JNA (the Yugoslav People’s Army) remaining in Bosnia and Herzegovina into commands of the new VRS army, although the VRS is alleged to have retained strong links with the JNA.²¹⁹ There is no further reference elsewhere in the further amended indictment to the relationship between the armed forces of the Republika Srpska and the Federal Republic of Yugoslavia (Serbia and Montenegro).

77. Talic has complained that the further amended indictment fails, therefore, to identify the basis upon which the assertion is made that the armed conflict was an international one; he seeks an order that the prosecution provide "a detailed and accurate account of how in SitsC opinion the Federal Republic of Yugoslavia was directly involved as a belligerent".²²⁰ The prosecution responds that it has complied with what the Trial Chamber ordered it to do.²²¹

78. What the Trial Chamber said in relation to this issue was this:

50. If, for example, the prosecution is relying upon the evidence from which the Appeals Chamber in the Tadic Conviction Appeal Judgment concluded that the armed conflict in that case was international, it would have to plead as a material fact that the armed forces of the Bosnian Serbs were acting in the armed conflict in the present case under the overall control of and on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro). If the evidentiary material provided by the prosecution during the pre-trial discovery process has not sufficiently identified the evidence upon which the prosecution relies to establish that material fact, and if a request to the prosecution for such particulars has not been satisfactorily answered, it would be appropriate for an application to be made to the Trial Chamber for an order that the prosecution supply particulars of that allegation.

The Trial Chamber is satisfied that the basis upon which the prosecution asserts that the armed conflict was an international one has therefore been sufficiently pleaded. The prosecution has now also identified in its response the evidence upon which it relies to establish the material facts which have been pleaded.²²² This evidence is apparently contained in two binders (specifically identified as such), and it consists of evidence given in other trials before the Tribunal. The Trial Chamber has not considered whether this material constitutes sufficient basis for the allegation pleaded, and it makes no finding in relation to that issue.

79. Next, Talic asserts that the allegation of an international armed conflict pleaded in par 30 of the further amended indictment is inconsistent with the allegation in pars 18 and 19 of the same pleading.²²³ Paragraph 18 asserts that the crimes alleged in the indictment were committed by members of the municipal Crisis Staffs or by "members of the armed forces under the control of the leadership of the Bosnian Serbs". Paragraph 19 gives a brief description of the hierarchy within the VRS: that Talic was the commander of the 1st Krajina Corps, which was one of the five Corps within the VRS, and that each of these Corps had a commander and a command staff who were all "subordinated to General Mladic and the Main Staff of the VRS". Talic says that:

In no manner is it presumed that the Republika Srpska army Main Staff or General Mladic might be subordinated to the JNA.²²⁴

The Trial Chamber sees no necessary inconsistency between these allegations and the allegations now made in par 30, that the armed forces of the Republika Srpska were acting under the overall control of and on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro). The earlier allegations are concerned with the link between the accused and the persons who are alleged to have committed the crimes pleaded; the later allegation is concerned with the link between the armed forces of Republika Srpska, of which Talic is alleged to have been a member, and the Federal Republic of Yugoslavia. As a matter of pleading, the later allegation does not qualify the earlier allegations, nor is it affected by them, to such an extent as to make the form of the indictment embarrassing to the accused.

80. Finally, Talic asserts that it can easily be seen, merely by reading the indictment and examining "the historical truth", that the fighting constituted a civil war and not an international one. A brief description of "the historical truth" is supplied.²²⁵ However, a preliminary motion challenging the form of an indictment is not an appropriate procedure for contesting the accuracy of the facts pleaded.²²⁶ That is the function of the trial.

7 Disposition

81. For the foregoing reasons, Trial Chamber II makes the following orders :

(1) The word "committed" is struck out from par 33 of the further amended indictment .²²⁷

(2) The prosecution, if such be its case, is ordered to plead expressly that Momir Talic is criminally responsible for the crimes committed by units of the 1st Krajina Corps outside its geographical area of responsibility, upon the basis that he was in effective control of those units when they did so, and to identify with sufficient detail the areas outside that geographical area where, it is alleged, the units of the 1st Krajina Corps committed such crimes.²²⁸

(3) The prosecution is ordered to identify with some precision in its indictment the basis or bases upon which it seeks to make Momir Talic criminally responsible as a member of the Crisis Staff of the Autonomous Region of Krajina.²²⁹

(4) (a) The prosecution is ordered to plead its case expressly as to whether each of the crimes charged is alleged to have fallen within the object of the joint criminal enterprise which has been pleaded in par 27 of the further amended indictment or to have gone beyond that object.²³⁰

(b) If any of the crimes charged are alleged to fall within that object, either solely or in the alternative, the prosecution is ordered to plead that the accused had the state of mind required for that crime.²³¹

(c) If all of the crimes charged are alleged to go beyond that object, the prosecution is ordered to identify in the indictment the agreed criminal object of the joint criminal enterprise upon which it relies.²³²

(5) Leave is granted to the prosecution to amend par 27 of the further amended indictment as sought, provided that the prosecution complies fully with Order (4), supra.²³³

(6) The prosecution, if such be its case, is ordered to plead as a material fact that the Bosnian Muslims and Bosnian Croats killed in the incidents identified in pars 38 and 41 of the indictment (and the incidents referred to in par 37 of the indictment) were non-combatants.²³⁴

(7) The prosecution is ordered to plead sufficient detail to enable the various incidents referred to in pars 37(2) and 42 of the further amended indictment to be identified, in the same way and to the same extent as it has given details of the killing incidents in pars 38 and 41.²³⁵

(8) The prosecution is ordered to make it clear whether it is alleged that the localities against which the religious edifices are listed in par 47(3) of the further amended indictment are the "villages and areas" and the "cities, towns [and] villages" which are alleged in the same paragraph to have been destroyed or damaged.²³⁶

(9) The prosecution is ordered to plead sufficient detail to enable the various incidents alleged to constitute the infliction of severe pain and suffering referred to in par 55 of the further amended indictment to be identified, in the same way and to the same extent as it has given details of the killing incidents in pars 38 and 41.²³⁷

(10) The prosecution is to comply with the orders made within three weeks of the date of this decision.

Otherwise, the Trial Chamber dismisses the complaints made in the Talic Motion.

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

Dated this 26th day of June 2001,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Presiding Judge

[Seal of the Tribunal]

1 - Preliminary Motion Based on the Defects in the Form of the Indictment Dated 12 March 2001, 5 Apr 2001 ("Talic Motion"). Talic appears to have exceeded the limits imposed upon the lengths of motions and responses by the Practice Direction on the Length of Briefs and Motions (IT/184, 19 Jan 2001, par 5). The Practice Direction requires authorisation to exceed the limits imposed to be sought in advance, with an explanation of the exceptional circumstances necessitating the excess (Ibid, par 7). No doubt the failure in this case resulted from ignorance of the existence of the Practice Direction, and the breach will therefore be excused. The parties should, however, keep the existence of the Practice Direction in mind in relation to future filings.
2 - Further amended indictment, 12 Mar 2001.
3 - Amended Indictment, 16 Dec 1999.
4 - Count 1, Article 4(3)(a) of the Tribunal’s Statute.
5 - Count 2, Article 4(3)(e).
6 - Count 3, Article 5(h).
7 - Count 4, Article 5(b).
8 - Count 8, Article 5(d).
9 - Count 9, Article 5(i).
10 - Count 6, Article 5(f).
11 - Count 7, Article 2(b).
12 - Count 5, Article 2(a).
13 - Count 10, Article 2(d).
14 - Count 11, Article 3(b).
15 - Count 12, Article 3(d).
16 - Prosecution’s Response to "Preliminary Motion Based on the Defects in the Form of the Indictment Dated 12 March 2001" Filed by the Accused Momir Talic, 3 May 2001 ("Prosecution Response").
17 - Talic Motion, Section V: Conclusion, last paragraph.
18 - Decision on Filing of Replies, 7 June 2001 ("Decision on Replies"), par 1.
19 - Status Conference, 18 May 2001, Transcript pp 313-316.
20 - Prosecution’s Supplementary Response to "Preliminary Motion Based on the Defects in the Form of the Indictment Dated 12 March 2001" Filed by the Accused Momir Talic and Request for Leave to Amend the Further Amended Indictment, 22 May 2001 ("Prosecution Application"), par 5.
21 - Response to the Prosecutor’s Request for Leave to Amend the Further Amended Indictment, 1 June 2001 ("Talic Response"), Section III: Discussion, third paragraph.
22 - Ibid, pars 1-2.
23 - Decision on Replies, par 6.
24 - Prosecution’s Reply to the Talic Response to the Prosecutor’s Request for Leave to Amend the Further Amended Indictment, 14 June 2001 ("Prosecution Reply").
25 - Decision Refusing Leave to Momir Talic to File Further Response, 20 June 2001.
26 - Paragraphs 50-51, infra.
27 - Decision on Objections by Momir Talic to the Form of the Amended Indictment, 20 Feb 2001 ("20 February 2001 Decision"), Sections 4-5; see also Decision on Motion by Momir Talic for Provisional Release, 28 Mar 2001 ("28 March 2001 Decision"), Section 5.
28 - Status Conference, 17 Nov 2000, Transcript pp 221-222.
29 - 20 February 2001 Decision, par 55(iv)(a).
30 - Ibid, par 26.
31 - Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgment, 24 Mar 2000, par 171, footnote 319, citing Prosecutor v Krnolejac, Decision on Preliminary Motion on Form of Amended Indictment, 11 Feb 2000 ("Second Krnojelac Decision"), par 60; Prosecutor v Delalic, Case IT-96-21-A, Judgment, 20 Feb 2001 ("Celebici Appeal Judgment"), par 351.
32 - 20 February 2001 Decision, pars 26-28.
33 - Further amended indictment, pars 33-34. The terms of these paragraphs are quoted in footnote 35, infra.
34 - cf Prosecutor v Kordic, IT-95-14/2-A, Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001, par 14: The duty of the prosecution is to act as "ministers of justice assisting in the administration of justice".
35 - Paragraph 33 of the further amended indictment states: Each of the accused are [sic] individually responsible for the crimes alleged against him in this indictment, pursuant to Article 7(1) of the Tribunal Statute. Individual criminal responsibility includes planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation or execution of any crimes referred to in Articles 2, 3, 4 and 5 of the Tribunal Statute. Paragraph 34 states: Each of the accused whilst holding the positions of superior authority as set out in the foregoing paragraphs, is also criminally responsible for the acts of his subordinates, pursuant to Article 7(3) of the Tribunal Statute. A superior is responsible for the acts of his subordinate(s) if he knew or had reason to know that his subordinate(s) were about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
36 - Talic Motion, Section I: The Deficiencies in the Definition of General Talic’s Criminal Conduct, par 2.
37 - 20 February 2001 Decision, par 10.
38 - This is further confirmed in the document filed by the prosecution with its further amended indictment, entitled "Prosecutor’s Further Amended Indictment", 12 Mar 2001 ("Prosecution Explanation"). In par 3 of that document, the prosecution identifies that part of the indictment in which the characterisation of the criminal liability of each accused is pleaded as par 33, where it refers to "planning, instigating, ordering, committing, or otherwise aiding and abetting", and which is incorporated within each of the counts pleaded.
39 - Prosecution Explanation, par 4; Talic Motion, Section I, par 3.
40 - Talic Motion, Section III: The Deficiencies in the Facts Ascribed to General Talic, Part 1: Observations relating to all the counts, par 1.a.
41 - Prosecution Response, par 22. See also pars 23-24.
42 - 28 March 2001 Decision, pars 40-45.
43 - cf 20 February 2001 Decision, par 26.
44 - The basis upon which leave will be granted to amend an indictment is discussed in the recent decision of the Trial Chamber in the present case, Decision on Replies, pars 3-4.
45 - See, for example: Status Conference, 17 Nov 2000, Transcript p 213; Oral hearing, Motion by Talic for Provisional Release, 2 Feb 2001, Transcript p 247; Status Conference, 2 Feb 2001, Transcript pp 265-266, 268-270, 275-276; Motion (by Brdanin) to Dismiss the Indictment, 2 May 2001, pars 4-6.
46 - Celebici Appeal Judgment, pars 760-766.
47 - Prosecution Explanation, par 4.
48 - Celebici Appeal Judgment, par 766.
49 - Ibid, par 763.
50 - Such a situation is discussed elsewhere in this decision, at pars 60-63, infra.
51 - 20 February 2001 Decision, par 22.
52 - Paragraph 9, supra.
53 - Paragraph 81, infra, Order (1).
54 - Talic Motion, Section II: The Deficiencies Regarding General Talic’s Status, first paragraph.
55 - Ibid, par 1.1.
56 - Ibid, par 1.2.
57 - Further amended indictment, par 23.
58 - Talic Motion, Section II, par 1.2.
59 - Further amended indictment, pars 13, 24.
60 - Ibid, par 24.
61 - Talic Motion, Section II, par 2.
62 - Prosecution Response, par 17.
63 - Paragraph 23 of the further amended indictment provides only an inclusive, rather than an exclusive, definition of the geographical area of responsibility of the 1st Krajina Corps. Nor is the "planned Serbian state", where par 27 of the indictment alleges that the ethnic cleansing took place for which the two accused are held responsible, defined in any exclusive way – whether in par 4 or elsewhere in the indictment.
64 - Paragraph 81, infra, Order (2).
65 - Prosecution Response, par 15.
66 - Ibid, par 15, referring to par 13 of the further amended indictment.
67 - Further amended indictment, pars 12-13, 15, 19-20.
68 - Ibid, par 20. In its Response, the prosecution has further elaborated this allegation by asserting that Talic was in "effective control" of the Corps: Prosecution Response, par 17.
69 - "Instructions on the Application of the International Laws of War in the Armed Forces of the SFRY", published in 1988 (Further amended indictment, par 26).
70 - Further amended indictment, pars 25-26.
71 - cf Prosecutor v Naletilic, IT-98-34-PT, Decision on Defendant Vinko Martinovic’s Objection to the Indictment, 15 Feb 2000, par 17; Prosecutor v Brdanin and Talic, 20 February 2001 Decision, par 50.
72 - Further amended indictment, par 13.
73 - Paragraph 81, infra, Order (3). The attention of the prosecution is drawn to what is also said in relation to this issue in pars 54 and 59 (footnote 181), infra.
74 - Paragraph 3, supra.
75 - Prosecution Application, par 5.
76 - Further amended indictment, par 27, which is incorporated by reference within each count, and which is bolstered by the express reference in each count to the accused having acted "in concert".
77 - So far as Talic is concerned, this is as commander of the 1st Krajina Corps and as a member of the ARK Crisis Staff (see pars 16-21, supra).
78 - Prosecutor v Tadic, IT-94-1-A, Judgment, 15 July 1999 ("Tadic Conviction Appeal Judgment").
79 - Ibid, par 185.
80 - Ibid, par 187.
81 - Ibid, par 185.
82 - Ibid, par 187.
83 - Ibid, par 188.
84 - Ibid, pars 191, 193.
85 - Ibid, pars 193, 195, 204, 225.
86 - Ibid, pars 196, 202, 203, 204.
87 - Ibid, par 203.
88 - Ibid, par 199.
89 - Ibid, par 204.
90 - Ibid, par 220.
91 - Ibid, par 220.
92 - Ibid, par 195.
93 - Ibid, par 202
94 - Ibid, par 203.
95 - Ibid, par 196.
96 - The Tadic Conviction Appeal Judgment (at par 196) describes them all as "co-defendants", but the issue is the same where only some of the participants have been charged and are standing trial. The category does not depend upon just who has been charged.
97 - The judgment speaks here (also at par 196) of co-perpetrators, but such a description, with all due respect, begs the question.
98 - Tadic Conviction Appeal Judgment, par 202.
99 - Ibid, par 204.
100 - The judgment’s use of the word "perpetrator" (at par 196) is a reference to a person who personally perpetrates the crime falling within the agreed object of the common design, or joint criminal enterprise.
101 - Tadic Conviction Appeal Judgment, par 190.
102 - Ibid, pars 191, 193.
103 - Ibid, par 196.
104 - Ibid, par 202.
105 - Ibid, par 203.
106 - Ibid, par 203.
107 - Ibid, par 202.
108 - The burden carried by the prosecution in relation to the accused’s state of mind is therefore higher in relation to a case based upon a joint criminal enterprise (where the crime charged falls within the object of the enterprise) than it is for a case based solely upon aiding and abetting. In a case based solely upon aiding and abetting, the prosecution must establish that the accused knew that the perpetrator had the state of mind required for the crime committed, but it need not establish that he also shared that state of mind – as it must in a case based upon a joint criminal enterprise: Prosecutor v Furundzija , Case IT-95-17/1-T, Judgment, 10 Dec 1998 (“Furundzija Trial Judgment”), par 245 (“[…] it is not necessary for the accomplice to share the mens rea of the perpetrator"). In the same judgment (at par 249), the state of mind required for aiding and abetting is contrasted in this way with that required for a joint criminal enterprise, as it is also in Prosecutor v Kupreskic , Case IT-95-16-T, Judgment, 14 Jan 2000 ("Kupreskic Trial Judgment"), par 772. The Appeals Chamber has also drawn attention to the different states of mind required in the two cases: Tadic Conviction Appeal Judgment, par 229(iv); Prosecutor v Furundzija , Case IT-95-17/1-A, Judgment, 21 July 2000 (“Furundzija Appeal Judgment”), pars 118-119.
109 - Tadic Conviction Appeal Judgment, par 204.
110 - Ibid, par 220.
111 - Ibid, par 228. The emphasis appears in the judgment.
112 - Dolus eventualis is a subtle civil law concept with a wide application in relation to the state of mind required for different crimes. It requires an advertence to the possibility that a particular consequence will follow, and acting with either indifference or being reconciled to that possibility (in the sense of being prepared to take that risk). The extent to which the possibility must be perceived differs according to the particular country in which the civil law is adopted, but the highest would appear to be that there must be a "concrete" basis for supposing that the particular consequence will follow.
113 - Talic Response, Section III, par 2.3.
114 - Ibid, par 1.1.
115 - Ibid, pars 2.1, 2.2.
116 - Prosecution Reply, par 11.
117 - Prosecutor v Kordic, Case IT-95-14/2-PT, Decision on Defence Application for Bill of Particulars, 2 Mar 1999, par 8.
118 - 20 February 2001 Decision, pars 48-49.
119 - Talic Motion, Section II, par 3.1.
120 - Ibid, par 3.2.
121 - Ibid, par 3.3.
122 - Talic Response, Section III, par 2.3.
123 - Ibid, pars 1.1, 2.1. Paragraph 1.1 states: None of the crimes alleged were the objective of this enterprise. Stated otherwise, all the crimes alleged in the indictment go beyond the scope of the criminal enterprise. […] In the Prosecutor’s indictment, none of the crimes committed falls within the scope of the criminal enterprise […]. Paragraph 2.1 states: […] all of the alleged crimes fall outside the scope of the criminal enterprise […].
124 - Ibid, par 2.3.
125 - Ibid, par 2.3.
126 - Ibid, par 2.3.
127 - Prosecution Reply, par 6, referring to the Tadic Conviction Appeal Judgment, par 220, quoted in par 28, supra.
128 - Talic Response, Section III, pars 1.1, 2.1. The relevant passages are quoted in footnote 123, supra.
129 - Trial of the Major War Criminals before the International Military Tribunal, Judgment, Nuremberg 1947 (1995), Vol XXII ("Nuremberg Judgment"), p 467.
130 - Paragraph 6 of the Prosecution Reply identifies the principle stated in the Tadic Conviction Appeal Judgment, referring to the limited responsibility of the participants in a joint criminal enterprise for crimes which go beyond the object of that enterprise, as an answer to the complaint made by Talic.
131 - Paragraphs 39-41, infra.
132 - Paragraph 30, supra: The prosecution must establish that, "in the case of a participant in the joint criminal enterprise who is charged with a crime committed by another participant which goes beyond the agreed object of the enterprise, […] the accused was aware that such a crime was a possible consequence in the execution of that enterprise and that, with that awareness, he participated in that enterprise".
133 - Tadic Conviction Appeal Judgment, par 220.
134 - Paragraph 35, supra.
135 - 20 February 2001 Decision, par 20.
136 - Paragraph 81, infra, Order (4)(a).
137 - Ibid, Order 4(b).
138 - Talic Response, Section III, par 1.1.
139 - Prosecution Reply, par 3.
140 - Talic Response, Section III, par 1.1.
141 - Prosecution Reply, par 3.
142 - Ibid, par 4.
143 - Paragraphs 25 (Category 3) and 30, supra.
144 - Nuremberg Judgment, p 468.
145 - Paragraph 204.
146 - The example given in par 204 is of "a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to effect ‘ethnic cleansing’) with the consequence that, in the course of doing so, one or more of the victims is shot and killed". The emphasis has been added.
147 - Paragraph 81, infra, Order 4(c).
148 - Talic Response, Section III, par 2.2.
149 - Nuremberg Judgment, p 500.
150 - Prosecution Reply, par 10. The emphasis has been added.
151 - Paragraph 33, supra.
152 - Paragraph 19, supra.
153 - Celebici Appeal Judgment, par 581.
154 - Decision on Replies, pars 3-4.
155 - cf Prosecutor v Naletilic and Martinovic, Case IT-98-34-PT, Decision on Vinko Martinovic’s Objection to the Amended Indictment and Mladen Naletilic’s Preliminary Motion to the Amended Indictment, 14 Feb 2001, pp 4-7.
156 - Ibid, pp 4, 7.
157 - Paragraph 81, infra, Order (5).
158 - Talic Motion, Section III: The Deficiencies in the Facts Ascribed to General Talic, last paragraph in the general part.
159 - Ibid, par 1.a.
160 - Paragraph 14, supra.
161 - Talic Motion, Section III, par 1.b.
162 - The possible circularity of that argument has already been discussed in par 20, supra.
163 - Talic Motion, Section III, par 1.b.
164 - Further amended indictment, par 20.
165 - Article 7.1 includes actions whereby the accused "planned, instigated, ordered […] or otherwise aided and abetted in the planning, preparation or execution of a crime".
166 - Paragraph 21, supra.
167 - Further amended indictment, par 36.
168 - Ibid, par 37.
169 - Ibid, par 44.
170 - Ibid, par 38.
171 - Ibid, par 40.
172 - Ibid, par 41.
173 - Ibid, par 42.
174 - Talic Motion, Section III, par 2.1.
175 - Ibid, pars 2.1.1, 2.2.
176 - Ibid, par 2.1.2.
177 - Ibid, par 2.1.1.
178 - Prosecution Response, par 19.
179 - Paragraph 81, infra, Order (6).
180 - Talic Motion, Section III, par 2.1.1.
181 - The Trial Chamber has already stated that the prosecution will be ordered to identify with some precision in the indictment the basis upon which it seeks to make Talic criminally responsible as a member of the ARK Crisis Staff (par 21, supra.) It may be that the conclusion reached in the present paragraph will have to be revisited if some basis is shown for making Talic criminally responsible for the actions of persons other than those under his command as commander of the 1st Krajina Corps, in (for example) the subjection of Bosnian Muslim and Bosnian Croat detainees to physical and mental abuse by "others" pleaded in par 42 of the further amended indictment. (See pars 53-54, supra.)
182 - Talic Motion, Section III, pars 2.1.1, 2.3.
183 - Prosecution Response, pars 20-21.
184 - Prosecutor v Kvocka, Case IT-99-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr 1999, par 17.
185 - This is consistent with what was said by the Appeals Chamber in the Celebici Appeal Judgment, at pars 763, 766, when discussing the relevance of such evidence to the sentence to be imposed (see par 13, supra).
186 - Rule 65ter(E)(i).
187 - Talic Motion, Section III, par 2.1.
188 - Ibid, par 2.2.
189 - Prosecution Response, par 24.
190 - Paragraph 55, supra.
191 - Further amended indictment, par 37(2).
192 - Ibid, par 42.
193 - Ibid, par 47(2).
194 - Ibid, par 55.
195 - Paragraph 56, supra.
196 - Paragraph 59, supra.
197 - Paragraph 81, infra, Order (7).
198 - Talic Motion, Section III, par 3.
199 - Paragraphs 57-63, supra.
200 - Talic Motion, Section III, par 3.
201 - Further amended indictment, par 47(3).
202 - Prosecution Response, par 26.
203 - Paragraph 81, infra, Order (8).
204 - Talic Motion, Section III, par 4.
205 - Paragraph 59, supra.
206 - Talic Motion, Section V: Conclusion, par II, in which the heading incorporates both counts 1 and 2 and counts 4 and 5.
207 - Prosecution Response, pars 19-20.
208 - Paragraph 59, supra.
209 - Paragraph 63, supra.
210 - Talic Motion, Section III, par 5. Paragraph 55 of the indictment refers to "severe pain or suffering" ("grandes douleurs ou souffrances" in the French translation). The Talic Motion refers to "atteintes graves à l’intégrité physique ou mentale" ("serious bodily and mental injury" in the English translation). The two are not entirely synonymous.
211 - Paragraph 65, supra.
212 - Prosecution Response, par 24.
213 - Paragraph 66, supra.
214 - Paragraph 81, infra, Order (9).
215 - Talic Motion, Section III, par 6.
216 - Paragraphs 68-70, supra.
217 - Paragraph 70, supra.
218 - 20 February 2001 Decision, par 55(iv)(b).
219 - Further amended indictment, par 12.
220 - Talic Motion, Section IV: Vagueness as to the Allegation that There was an International Conflict. The paragraphs of this Section of the Talic Motion are unnumbered.
221 - Prosecution Response, par 29.
222 - Ibid, par 31.
223 - Talic Motion, Section IV.
224 - Ibid, Section IV.
225 - Ibid, Section IV.
226 - Prosecutor v Delalic, Case IT-96-21-T, Decision on the Accused Mucic’s Motion for Particulars, 26 June 1996, pars 7-8; Prosecutor v Blaskic , Case IT-95-14-PT, Decision on the Defence Motion to Dismiss the Indictment Based upon Defects in the Form Thereof, 4 Apr 1997, par 20; Prosecutor v Kupreskic , Case IT-95-16-PT, Order on the Motion to Withdraw the Indictment Against the Accused Vlatro Kupreskic, 11 Aug 1998, p 2; Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb 1999, par 20; 28 March 2001 Decision, par 23.
227 - See par 14, supra.
228 - See par 17, supra.
229 - See par 21, supra.
230 - See par 39, supra.
231 - See par 41, supra.
232 - See par 45, supra.
233 - See par 51, supra.
234 - See par 58, supra.
235 - See par 66, supra.
236 - See pars 70 and 74, supra.
237 - See par 73, supra.