Case No. IT-03-73-PT

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision:
8 March 2005

The Office of the Prosecutor:

Mr. Kenneth Scott
Ms. Laurie Sartorio

Counsel for the Accused:

Mr. Cedo Prodanovic and Ms. Jadranka Slokovic for Ivan Cermak
Mr. Miroslav Separovic and Mr. Goran Mikulicic for Mladen Markac

I. BACKGROUND
1. This decision of Trial Chamber II is in respect of Ivan Cermak’s and Mladen Markac’s preliminary motions pursuant to Rule 72(A) of the Rules of Procedure and Evidence (“Rules”) alleging defects in the form of the Indictment.

2. The Indictment against Ivan Cermak and Mladen Markac was confirmed on 24 February  2004. Both Accused surrendered voluntarily and were transferred to the seat of the Tribunal on 11 March 2004. At their initial appearances held on the following day each of the Accused pleaded “not guilty” to all counts of the Indictment.

3. On 9 July 2004 the Defence for Mladen Markac (“Markac Defence”) filed “Mladen Markac’s Preliminary Motion on the Defects in the Form of the Indictment” (“Markac Defence Motion”). On 15 July 2004 the Defence for Ivan Cermak (“Cermak Defence”) filed “Ivan Cermak’s Motion on the Form of the Indictment” (“Cermak Defence Motion ”). The Prosecution responded jointly opposing both Motions on 22 July 2004.¹

4. Each of the Accused is charged with four counts of crimes against humanity under Article 5 of the Statute of the International Tribunal (“Statute”), namely persecutions, deportation, forced displacement and other inhumane acts, and with three counts of violations of the laws or customs of war under Article 3, namely murder, plunder of property and wanton destruction of cities, towns or villages. The offences were allegedly committed in the Krajina Region of the Republic of Croatia between 4 August and 15 November 1995. Ivan Cermak is alleged to have been the Commander of the Knin Garrison from 5 August to 15 November 1995. Knin is the capital of the Krajina region. He is alleged to have had de jure and/or de facto authority over Croatian forces operating in the southern portion of the Krajina region at the material time. Mladen Markac is alleged to have been the Commander of the Special Police of the Ministry of the Interior of the Republic of Croatia and in this capacity is alleged to have deployed, issued orders to, and otherwise exercised control over, inter alia, the Special Police forces in the region at the material time. With respect to the form of individual criminal responsibility, both Articles 7(1) and 7(3) are relied on.
   II. GENERAL PLEADING PRINCIPLES

5. Article 18(4) of the Statute and Rule 47(C) of the Rules provide that an indictment shall contain a concise statement of the facts and the crimes with which the accused is charged. These provisions should be interpreted in conjunction with Article 21(2) and Article 21(4)(a) and (b) of the Statute, which provide for the right of an accused to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.² This right of the accused translates into an obligation on the part of the Prosecution to plead the material facts underpinning the charges against the accused.³ An indictment is pleaded with sufficient particularity when it sets out the material facts of the Prosecution case with enough detail to inform the accused clearly of the charges against him, thus allowing him to prepare his defence.⁴

6. The materiality of a particular fact depends on the nature of the Prosecution case.⁵ A decisive factor in this respect is the nature of the alleged criminal conduct charged against the accused,⁶ and in particular, the proximity of the accused to the events alleged in the indictment.⁷ The materiality of facts such as the identity of the victims, the place and date of the events and the description of the events themselves necessarily depend on the alleged proximity of the accused to those events.⁸

7. Where an indictment is based on individual criminal responsibility under Article 7(1) of the Statute, the Prosecution may be required to indicate in relation to each individual count the particular nature of the responsibility alleged, i. e. to indicate the particular form of participation.⁹ Where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation or execution of the alleged crimes, the Prosecution is required to identify the particular acts or course of conduct of the accused which form the basis for the allegations.¹⁰ In these circumstances the Prosecution must also plead the acts for which it is alleged the accused is to be held responsible, subject to the Prosecution’s ability to provide such particulars.¹¹ The precision required for these acts however is not the same as that required when the accused is alleged to have personally committed the acts.¹²

8. Further, in cases where the accused is charged with the “commission” of a crime pursuant to Article 7(1) of the Statute, the indictment should make clear whether this means “physical commission” by the accused or participation in a joint criminal enterprise (JCE), or both.¹³

9. When pleading participation in a JCE, the Prosecution is required to specify the following four categories of material facts in the Indictment:

   (a) the nature and the purpose of the JCE;

   (b) the time at which or the period over which the enterprise is said to have existed ;

   (c) the identity of those engaged in the enterprise, so far as their identity is known, but at least by general description such as a reference to their category as a group;

   (d) the nature of the participation by the Accused in that enterprise.¹⁴

10. Where an indictment is based on individual responsibility as the superior of the actual perpetrators under Article 7(3) of the Statute, the accused needs to know not only his alleged conduct forming the basis of his responsibility, but also what is alleged to have been the conduct of those persons for whom he is allegedly responsible, subject to the Prosecution’s ability to provide those particulars.¹⁵ In cases where individual responsibility as a superior, i.e. command responsibility, is alleged the following material facts should be pleaded:¹⁶

    (a) (i) that the Accused is the superior¹⁷ of (ii) subordinates sufficiently identified,¹⁸ (iii) over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct¹⁹ – and (iv) for whose acts he is alleged to be responsible;²⁰

    (b) the conduct of the Accused by which he may be found to (i) have known or had reason to know that the criminal conduct was about to be committed or was being committed, or had been committed, by his subordinates,²¹ and (ii) any related conduct of those subordinates for whom he is alleged to be responsible.²² The facts relevant to the acts of the subordinates for whose acts the Accused is alleged to be responsible as a superior, will usually be stated with less precision,²³ because the detail of those acts is often unknown, and because the acts themselves are often not critically in issue; nevertheless the Prosecution remains obliged to give the particulars which it is able to give,²⁴ and

    (c) the conduct of the Accused by which he may be found to have failed to take necessary and reasonable measures to prevent such acts or to punish the persons who committed them.²⁵

11. A reference in an indictment to the accused as a “commander” of a camp may be sufficient to ground the charges of command responsibility, where the alleged crimes were committed in that camp.²⁶ Further, a reference to the accused’s specific military duties has been found to be sufficient to identify the basis of his alleged command responsibility.²⁷

12. Where the state of mind with which the accused carried out his alleged acts is relevant the Prosecution must either (i) plead the relevant state of mind itself as a material fact, in which case the facts by which that material fact is to be established are ordinary matters of evidence, and need not to be pleaded; or (ii ) plead the evidentiary facts from where the relevant state of mind is to be inferred.²⁸ The Prosecution may not simply presume that the legal pre-requisites are met.²⁹ In general each of these facts should be pleaded expressly, though, under certain circumstances, they can be sufficiently pleaded by necessary implication.³⁰
    III. CHALLENGES TO THE FORM OF THE INDICTMENT

13. The Cermak Defence and Markac Defence submit that the form of the Indictment is defective in that material facts are not pleaded sufficiently to allow for an adequate preparation of the case. Their motions are largely formulated in identical terms. The Prosecution generally responds that all relevant material facts are contained in the Indictment.
    1. Lack of specification of the “background” section

    (a) Parties’ submissions

14. Each of the Accused submits that the Indictment does not conform to Rule 47 (C) as it fails to properly specify the factual context in which the alleged crimes took place.³¹ They submit that the Indictment gives a wrong interpretation of the factual context by placing the internationally recognized state of Croatia and the self-proclaimed formation of Rapubilka Srpska Krajina (RSK) on the same level,³² and by omitting Croatia’s efforts for peaceful settlements with the Serb population.³³ The Accused further argue that the “Operation Storm” is regarded as a modus operandi for the alleged joint criminal enterprise, whereas it constituted an internationally legalized means of re-integrating an illegally occupied territory.³⁴

15. The Prosecution responds that the background material is not essential for the charges against the Accused but is included solely for informational reasons.³⁵ As such, it does not have to meet the requirements of Rule 47(C).³⁶ It further submits that the reference in the Indictment to the RSK as “self-proclaimed ” is based on the very same language used in General Assembly Resolution A/RES/49 /43 of 9 December 1994, and rather emphasises the lack of any official recognition.³⁷ In addition, the Indictment does not deal with the issue of the legality of the “Operation Storm” but rather with the crimes allegedly committed in the course of this military operation.³⁸

    (b) Discussion

16. The “background” section of an indictment provides information to sketch the context in which the alleged crimes were committed.³⁹ Material facts of the alleged charges may in some cases depend upon facts forming part of the “background.”⁴⁰ However, it is the material facts, rather than the general background facts, that have to be pleaded with the necessary particularity.⁴¹ Therefore, a lack of particularity of background information does not normally amount to a defect in the form of the Indictment.

17. With regard to the objections alleging a wrongful presentation of facts, disagreements about the facts do not constitute a basis upon which it can be claimed that an indictment is defective. The veracity of the alleged facts is a matter to be determined on the basis of the evidence presented during the trial.⁴²

18. Moreover, the Chamber is not able to agree with the Defence’s submission that “Operation Storm” is characterized in the Indictment as illegal and as a modus operandi for the commission of the alleged crimes. While the charges are based on crimes committed in the context of that operation, the issue whether the operation itself was legal is irrelevant.

19. Finally, the Chamber would observe that the references in the Indictment to Croatia and the self-proclaimed territory of RSK are of a purely descriptive nature. They do not constitute a legal recognition of parts of the territory of Croatia as a State or a challenge to the recognition of Croatia as a State.

20. On the basis of the foregoing, the Trial Chamber dismisses the objections of the Defence relating to the background section of the Indictment.
    2. Identities of the victims and their properties

    (a) Parties’ submissions

21. The Defence for both Ivan Cermak and Mladen Markac object to the lack of factual particulars with regard to a causal nexus between the identities of the victims and their properties.⁴³ They argue that the identification, in the Indictment, of the victims as “Krajina Serbs,” “ Serb population” and “Krajina Serb population” and of the properties as “their homes ”, “habitation” or “outbuildings” is not sufficient.⁴⁴ Both Defences contend that this insufficiency is not remedied by the listing of names of villages and hamlets, dates, victims by name, age, sex and manner of death in the Schedule annexed to the Indictment. The Defences note in particular that the dates are sometimes described as “about” or “between,” the victims are often unidentified and their age or relevant circumstances of death are not established.⁴⁵ Moreover, the Cermak Defence points out that 118 of the 150 victims allegedly murdered between 4 August and 15 November 1995, according to paragraphs 30 and 33 of the Indictment, have not been sufficiently identified,⁴⁶ since the schedule contains information with respect to only 32 of the victims.⁴⁷

22. The Prosecution responds that the level of necessary specificity required for the prosecution of high-level perpetrators is met.⁴⁸ It argues that the present case involves massive-scale crimes which, in accordance with the case-law, do not require a high degree of specificity in the identification of victims and of the dates when the crimes were allegedly committed.⁴⁹

    (b) Discussion

23. The Trial Chamber refers to the general pleading principles outlined in Section II.⁵⁰ The Chamber notes that, in the Indictment, the Prosecution has identified the towns and villages where property was allegedly plundered in paragraphs 26 and 35, the municipalities where property was allegedly destroyed in paragraph 27 and 38, and the region of the Krajina from which Serbians were allegedly deported or forcibly displaced in paragraphs 28 and 41. There need not be a specific causal nexus pleaded or proved between a particular property and a particular victim. With respect to the allegations of murder, paragraphs 30 and 33 list the number of people allegedly murdered and the municipalities where the crimes are alleged to have taken place. In support of these two paragraphs is the annexed Schedule identifying some of the victims by name, sex, age and/or cause of death. All offences are alleged to have been committed in a short time span. In view of the large scale on which the crimes are alleged to have occurred, and the role and conduct alleged against each of the Accused, the Trial Chamber is persuaded that the victims and their properties have been sufficiently pleaded in the circumstances of this case.

24. On the basis of the foregoing, the Trial Chamber does not uphold this objection. It observes, however, that it would no doubt facilitate the speed and efficiency of the trial, if the Prosecution provided to the Defence any further particulars of the identity of the alleged murdered victims, which becomes known.
    3. Identification of “Croatian forces”

    (a) Parties’ submissions

25. The Cermak Defence submits that the Indictment does not sufficiently identify the military and police units involved, describing them merely in paragraph 22 as “[…] those units of HV, Croatian Air Force and units of the RH MUP that participated in Operation Storm and/or its aftermath and also the civilian and Special Police […].”⁵¹ The Markac Defence argues accordingly.⁵² Furthermore it submits that the wording in paragraph 16 of the Indictment, which reads “[…] Mladen Markac deployed and issued orders to, the Special Police forces and otherwise exercised control over them […]” is contrary to the command and responsibility role of the Accused Markac as described throughout the Indictment.⁵³

26. The Prosecution responds that the material facts are sufficiently stated, as the Croatian military units (HV) and the Special Police forces of the RH MUP, whose members allegedly carried out the crimes, have been characterised in detail in the Statement of Facts and the counts of the Indictment.⁵⁴ It refers to previous jurisprudence, according to which the exact perpetrators do not have to be identified in cases, such as the present one, where the Accused is not in close proximity to the acts.⁵⁵ The Prosecution argues that it is then sufficient for the perpetrators to be identified by category or group in the Indictment.⁵⁶

    Discussion

27. There are cases in which investigation has not been able to uncover the identity of the actual perpetrators of a crime, but what is known may provide a sufficient factual basis to connect them to an accused in a relevant way. Whether the identity of the actual perpetrators is a material fact that must be pleaded in an indictment in such a case depends, in particular, on the proximity of an accused to the alleged crimes⁵⁷ and also on the facts which might connect them to an accused in a relevant way. Their identity may not be material so as to require specific identification, in particular, when the accused is remote in proximity from the crimes allegedly committed.⁵⁸

28. By paragraph 10 of the Indictment it is alleged that both of the Accused are individually criminally responsible, pursuant to Article 7(1) of the Statute of the Tribunal, by planning, instigating, ordering, committing, and otherwise aiding and abetting the crimes. In so doing they are alleged to have acted individually and in concert with others. The actual physical perpetrators of the crimes are alleged to be “Croatian forces,” a term defined in paragraph 22 of the Indictment as meaning and including those units of the HV, the HRZ, and RH MUP and the civilian and Special Police that participated in “Operation Storm” and/or its aftermath in the southern Krajina region. That is a very general characterization of the alleged actual physical perpetrators. However, given that what is alleged is one single military operation over specified weeks in an identified geographical area, an operation in which villages, towns, farms, crops, etc are alleged to have been devastated or destroyed, and the inhabitants in large numbers displaced or killed, the Chamber is persuaded that this is a sufficient specification of the actual physical perpetrators for the purposes of this Indictment. The Indictment is charging Accused who are alleged to be responsible because of their roles, essentially as instigators, planners and commanders at a high level. Neither Accused is alleged to have been so proximate to the actual physical commission of the crimes charged, as to require specific identification of the actual perpetrators.

29. It does not follow, however, that the present indictment is satisfactory for all purposes. It is not the Prosecution case that either of the Accused had superior or immediate command of all the Croatian forces involved. For some bases of individual criminal responsibility command is not necessary. However, superior, i.e. command responsibility, pursuant to Article 7(3) is alleged against both Accused. This requires that the respective subordinates of each of the Accused, whose conduct is alleged to found superior or command criminal liability in each Accused, need to be sufficiently identified.⁵⁹ In this respect it is pleaded in paragraph 15 that Ivan Cermak, as Commander of the Knin Garrison, exercised de jure and de facto control over some of the Croatian forces, in particular units of the RH MUP and some elements of the HV including the Military Police and the civil administration through which he exercised territorial control over significant areas in which the crimes were committed. There is no greater specification of the forces under his effective control, so as to enable them to be distinguished from the remainder of the Croatian forces engaged in “Operation Storm.” The effect of this lack of specification is aggravated because the pleading does not make clear the alleged relevance of the “civil administration” and “territorial control” to the alleged superior liability of Ivan Cermak.

30. This difficulty does not affect Mladen Markac as it is the allegation in paragraph 16 that he exercised control as commander over the RH MUP, which as pleaded in paragraph 9, is the Special Police of the Ministry of the Interior. That is a sufficient identification in the circumstances of this case.

31. With respect to paragraphs 17 and 18 of the Indictment, the Chamber should make it clear that it reads these paragraphs as alleging only a failure by each Accused to prevent crimes of and to punish their respective subordinates, and not all Croatian forces as could be understood by the first sentence of paragraph 18.

32. The Chamber is not able to accept the submission that the allegation in paragraph 16 of the Indictment that Mladen Markac “deployed, and issued orders to, the Special Police forces, and otherwise exercised control over them” is contrary to the command and responsibility role described in the Indictment. The allegation in paragraph 16, and in paragraph 9, is that he was the Commander of the Special Police (the VH MUP). To deploy, issue orders and otherwise exercise control over forces are each usual manifestation in this pleading.

33. It is necessary therefore that the Indictment be amended to adequately identify the forces alleged to be under the effective control of Ivan Cermak and to clarify the matters identified in paragraph 29 above.
    4. The perpetrators and their relationship with the Accused

    (a) Parties’ submission

34. The Defence for each of the Accused further submits that the Prosecution has failed to plead the material facts establishing a relationship between the Accused and the perpetrators among the “Croatian forces.”⁶⁰ The Cermak Defence further objects that no material facts are provided in the Indictment in support of the allegation that Ivan Cermak had de jure or de facto control over the Croatian forces.⁶¹ In this respect, it submits that the Indictment does not describe sufficiently the subordinate units over which Ivan Cermak exercised control and is ambiguous as to which areas were under his territorial control, whether it was the town of Knin, the whole Sector South or the Krajina region.⁶² It is also submitted by the Cermak Defence that the material facts supporting the allegation that Ivan Cermak was responsible over the civil authorities have not been sufficiently pleaded.⁶³ Finally, it is submitted that the Prosecution failed to distinguish between the authority of Ante Gotovina and that of Ivan Cermak over the Croatian forces in the southern Krajina at the time.⁶⁴

35. The Prosecution responds that both Accused acted at high level positions which “gave them power and superior authority over their subordinates” and that there is no need for further specification.⁶⁵ The Prosecution further argues that the Indictment sets out clearly which units Ivan Cermak was responsible for as a commander of the RH MUP Special Police,⁶⁶ and that given the nature of the allegations, there is no requirement to distinguish between what the Accused and others, including Ante Gotovina, are alleged to have done.⁶⁷

    (b) Discussion

36. A number of the matters raised by the parties have already been considered in the preceding part of this decision. Subject to the need to amend the Indictment to deal with the matters already identified, the nature of the relationship between each of the Accused and their subordinates under their respective commands and the basis relied on for the allegation that Ivan Cermak had de jure and de facto control over his subordinates is sufficiently identified in the circumstances of this case by the references to their respective positions of commander. The argument of the Cermak Defence that the Indictment failed to distinguish the authority of Ivan Cermak from that of Ante Gotovina, who is not charged in this Indictment, appears to raise a false issue. Paragraphs 55 and 56 detail the alleged role of Ante Gotovina as “overall operational commander” of the Croatian that were deployed as part of “Operation Storm” in the southern portion of the Krajina region. Ivan Cermak is alleged to have been the commander of some of those forces. The clear effect of what is alleged in the Indictment is that Ante Gotovina was the superior of Ivan Cermak.

37. With regard to the other elements of individual criminal responsibility pursuant to Article 7(3) of the Statute the Indictment expressly pleads that each Accused had the required state of mind to engage criminal liability as a superior for the acts of subordinates. However, as indicated earlier in this decisions⁶⁸ the conduct by which each Accused had the means of knowledge that criminal conduct was about to be committed, was being, or had been committed by subordinates of that Accused should also be pleaded. In this respect the present form of the Indictment appears to fail to identify fully the Prosecution case. The only express pleading appears to be in paragraph 32, which identifies the means of knowledge of each Accused by the phrase “including as a result of being so informed by representatives of the international community.” The Chamber does not understand this to be the extent of the means of knowledge relied on, but merely an additional means. That leaves unpleaded the primary means of knowledge the Prosecution wishes to rely on. These appear to be what was known to each Accused as a commander of the subordinates and by virtue of the respective conduct of each Accused as alleged in paragraphs 10 to 14. If the Chamber’s understanding of the case which the Prosecution wishes to present is correct, then paragraph 32 needs to be amended to include these further means of knowledge. If not, the Prosecution will be confined to its pleading of information from representatives of the international community.

38. Further, paragraph 18 of the Indictment is presently unclear as to what is intended. The first sentence appears to allege that each Accused had power to prevent or punish offences committed by all the Croatian forces engaged in Operation Storm. That appears, however, not to be what is intended. The content of paragraphs 17 and 18 suggests that the power to prevent or punish of each of the Accused was confined to those Croatian forces which were their respective subordinates. If that is what is intended, the Indictment requires amendment to make that clear. Further, the last words of the second sentence of paragraph 18, “the perpetrators thereof” should also be amended accordingly, perhaps by substituting a phrase such as “their subordinates who were the perpetrators thereof.” Alternatively, however, if it is intended to allege that each of the Accused had power to prevent or punish offences by all Croatian forces participating in Operation Storm, then the factual basis for that allegation needs to be pleaded.

39. It is therefore necessary to amend the Indictment to satisfy the deficiencies identified in paragraphs 37 and 38 of this decision, and, to this extent, the Defence submissions are upheld.
    5. Cumulative charges

    (a) Parties’ submissions

40. The Defences for both Ivan Cermak and Mladen Markac submit that the specific forms of individual criminal responsibility are not sufficiently defined.⁶⁹ It is submitted that the Indictment does not make it clear whether the Accused participated in the commission of the crimes or merely aided and abetted.⁷⁰ Further it is submitted the Indictment does not sufficiently distinguish between aiding and abetting and participation in a JCE, in particular with regard to the reference to common design.⁷¹

41. The Prosecution responds that the word “committed” in the Indictment includes participation in a JCE.⁷² It maintains that charging the Accused with participating in, inter alia, the planning, instigating, ordering, committing or otherwise aiding and abetting the persons committing the particular crimes is consistent with Article 7(1).⁷³

    (b) Discussion

42. The Chamber notes that in paragraph 10 of the Indictment the conjunction “or ” is pleaded in respect of the various forms of liability pursuant to Article 7( 1), while the intention of the Prosecution seems to be that they are pleading the conjunction “and.” Both Accused are charged cumulatively with all forms of liability as defined in Article 7(1), including aiding and abetting, as well as with liability pursuant to Article 7(3) for the crimes alleged in counts 1, 3, 4, 5 and 6 of the Indictment.

43. While it is vital for an Indictment to specify under which Article the Accused’s responsibility is invoked,⁷⁴ cumulative charges do not violate the rights of the Accused.⁷⁵ As held in the Blaskic Appeal Judgement, where there is evidence sufficient to support such a pleading, the Prosecution is not required to decide in the indictment on one specific form of criminal liability of the Accused. It is allowed to plead a number or all of them.⁷⁶ The Accused will be on notice and can prepare the Defence case accordingly. It will be a matter to be determined by the Trial Chamber in such a case, whether the evidence can sustain a conviction on all or any of the bases alleged.

44. By paragraph 13 it is alleged that the crimes in Counts 2 and 7 were the natural and foreseeable consequences of the execution of the JCE, and each Accused was so aware. While from this it appears that the intention is to rely on JCE for counts 2 and 7, there is no reliance on Article 7(1) in the formulation of Counts 2 (paragraph 34) and 7 (paragraph 46). Very strictly, para 11 could also be read as not alleging JCE liability for counts 2 and 7 because the word “committed,” on which paragraph 11 turns, does not appear in the formulation of either of those counts. However, adopting a more purposive interpretation of the Indictment, the use of “commit ” in the chapeau to each of counts 2 and 7 can be regarded as an adequate interpretation of “committed” to allege JCE liability. It is necessary, therefore, for the Indictment to be amended to make it clear whether JCE is relied on in respect of counts 2 and 7 (perhaps by including Article 7(1) in the statement of each of these counts in the Indictment). If JCE is not relied on, paragraph 13 needs attention.

45. The pleading of cumulative charges in counts 1, 3, 4, 5 and 6 of the Indictment is in accordance with the jurisprudence of the Tribunal.
    6. Existence of a joint criminal enterprise (JCE)

    (a) Parties’ submissions

46. The Defence for each of the Accused submit that JCE is insufficiently pleaded in the Indictment.⁷⁷ In particular, it is maintained that the role of each of the Accused in conceiving the common design is not established,⁷⁸ that the purpose of the JCE is not sufficiently defined,⁷⁹ that not all participants in the JCE are identified,⁸⁰ and that the Indictment fails to determine the role of each participant in the commission of each crime.⁸¹ The Cermak Defence further submits that the Indictment does not provide supporting material regarding the existence of a JCE,⁸² that Ivan Cermak cannot have participated in a JCE for the launching of “Operation Storm” as he was mobilised at a later date, and that as a commander of the Knin Garrison, Ivan Cermak cannot be responsible for crimes committed outside that region.⁸³

47. The Prosecution responds that the Indictment complies with the requirements on pleading a JCE as established by the Tribunal’s jurisprudence.⁸⁴ Specifically it maintains that the purpose of the JCE is determined in paragraph 11 (“the forcible and permanent removal of the Serb population from the Krajina region”),⁸⁵ that the leading co-participants are identified by name, that the categories of perpetrators are defined in paragraph 22 as members of the Croatian forces, in particular units of HV, Croatian Air Force or the “HRZ,”⁸⁶ and that identification by category of participants is sufficient.⁸⁷ Further, it is submitted that the Indictment establishes the roles of the Accused and their co-participants, making reference to the positions of authority of each of the Accused, as well as the common purpose of the JCE and the means by which Croatian forces under the command of the Accused carried out that common purpose, i.e. persecution, plunder, destruction, and forced displacement of the Serbian population.⁸⁸

    (b) Discussion

48. As held earlier, when pleading a JCE the Prosecution is required to plead the nature and purpose of the JCE, the timeframe of its existence, the identity of the participants and the nature of each Accused’s participation.

    (i) Nature and purpose of the JCE

49. For the existence of a JCE, there must be a joining of two or more individuals in a common plan, design or purpose which amounts to or involves the commission of one or more crimes which are within the jurisdiction of the Tribunal. There is no necessity for this plan, design or purpose to have been previously arranged or expressly formulated. It may materialise extemporaneously. Its existence may be inferred. Further, the Accused must participate in the common purpose, by participation in the commission of the crime, or one of the crimes, contemplated, or by assisting in, or contributing to, the execution of the common plan, design or purpose.⁸⁹

50. Paragraph 11 of the Indictment defines the purpose of the JCE as “the forcible and permanent removal of the Serb population from the Krajina region, including by the plunder, damage or outright destruction of the property of the Serb population, so as to discourage or prevent members of that population from returning to their homes and resuming habitation.” Paragraph 12 states that the crimes alleged in counts 1 and 3 to 6 were within the common purpose of the JCE. Further, paragraphs 13 and 29 specifically set out that the alleged acts of murder and other inhumane acts, underlying the charge of persecutions (count 1), were the natural and foreseeable consequences of the JCE.

51. The Trial Chamber is satisfied that the nature and purpose of the JCE have been sufficiently pleaded.

    (ii) Timeframe of the JCE

52. The Indictment defines the timeframe of the JCE as “(d(uring and after Operation Storm, and at all times relevant to this Indictment.”⁹⁰ The Indictment specifies that “Operation Storm” began on 4 August 1995,⁹¹ that the Croatian government announced the completion of the operation on 7 August 1995 and that further follow-up actions continued until about 15 November 1995.⁹² The same timeframe, between 4 August 1995 and 15 November 1995, is set out with respect to each count of the Indictment where JCE is alleged.⁹³ In view of the above, the Chamber finds that the timeframe of the JCE is sufficiently pleaded.

53. The Cermak’s Defence submits that Ivan Cermak could not have participated in a JCE for the planning and ordering of “Operation Storm” as he was mobilised in the evening of 6 August 1995.⁹⁴ As held above, participation in a JCE after its establishment is possible. The purpose of the JCE alleged in the Indictment was “the forcible and permanent removal of the Serb population from the Kraijna region” and its timeframe was from 4 August to 15 November 1995. The alleged means through which this common purpose was carried out, namely the acts charged in the Indictment, are alleged to have taken place both before and after Ivan Cermak’s mobilisation. Therefore, this argument of the Cermak Defence is rejected.

    (iii) Identity of participants

54. Sufficient pleading of JCE requires identification of the alleged members of the JCE. However it has been held that identification of the members by category is sufficient, if the precise identity is not known⁹⁵ and that identification can only be obtained to the extent possible⁹⁶ as there cannot be an obligation on the Prosecution to perform the impossible.⁹⁷ However, even where a description of the members of a JCE by referring to them by reference to a group or category is considered sufficient, the Prosecution must make it clear in the indictment that it is unable to identify the participants in more detail.⁹⁸

55. The Prosecution submits that paragraph 22 of the Indictment defines the categories of perpetrators as members of the Croatian forces.⁹⁹ If that was intended, it is not made clear by the pleading. Paragraph 11 of the Indictment specifically names the two Accused, Ante Gotovina and Franjo Tudman as members of the JCE. Other members are not identified; they are solely referred to as “others.” This pleading does not provide sufficient information as to the identity of the other participants, or categories of participants. It is true that there is no express pleading of the relationship of President Tudman to Croatian forces but this is implicit in his office of President. There is, however, one further issue. There appears to be a failure of the Indictment to reflect what the Chambers understands to be a material aspect of the Prosecution case, that is, that the common purpose of the JCE was to be achieved, inter alia, by Croatian forces under the respective commands of the members of the JCE. If this is the case, which the Prosecution seeks to make out, which is a matter entirely for the Prosecution to determine, it should be expressly pleaded so that it is clear to the Defence.

56. The Chamber further observes that in paragraph 43 the allegation of concert alleges “others including President Tudman,” whereas for all other counts the equivalent phraseology is to “other members of the JCE.” If no distinction is intended, the language would be better standardized to avoid confusion.

57. The Defence objection to the Indictment therefore is partly upheld in this respect. The Prosecution is ordered to provide a more detailed identification of the alleged participants in the JCE by name or, if this is not possible, by some adequate categorization or grouping.

    (iv) Nature of the participation of each of the Accused

58. An accused may participate in a JCE in a number of ways. Paragraph 11 of the Indictment pleads the participation of each of the Accused in a JCE. The paragraph does not indicate the specific conduct by which each Accused is alleged to have participated in or furthered the JCE. Paragraph 14 of the Indictment further pleads that Croatian forces carried out the acts alleged to form the basis of the charges “(p(ursuant to the orders of each of the accused,” that by their acts and omissions the Accused “encouraged” others to commit crimes, and that the Accused failed to fulfil their duty to restore and ensure public order. It is not made clear whether these allegations are in support of the Accused’s personal liability or in support of the allegation about their pursuance of the JCE, or both. While paragraph 10 identifies conduct of each of the Accused, this appears to be directed to liability pursuant to Article 7(1) and there is no allegation in paragraph 11 that the conduct of each of the Accused alleged in paragraph 10 is also a conduct by which it is alleged that each of the Accused participated in the JCE.

59. There are further allegations with respect to the acts of each of the Accused in paragraphs 15 and 16. In particular, Ivan Cermak is alleged to have exercised territorial control over significant areas in which the crimes were allegedly committed,¹⁰⁰ and Mladen Markac to have deployed and issued orders to the Special Police forces and otherwise exercised control over them.¹⁰¹ However, it is not made clear whether these allegations are intended to be in support of the Accuseds’ participation in the JCE, or pursuant to Article 7(3), or pursuant to Article 7(1), or more than one of these. Further, as mentioned earlier, the alleged significance of territorial control for these respective purposes is not identified.

60. In view of the above, the nature of the Accuseds’ participation in the JCE is not sufficiently pleaded in the Indictment. This objection of the Defence is therefore upheld. The Prosecution is ordered to clarify the nature of the alleged participation of the each of the Accused in the JCE and in the other respects mentioned.
    7. Required state of mind

    (a) Parties’ submissions

61. The Markac Defence submits that the state of mind of the Accused with respect to all counts is not defined sufficiently.¹⁰² In particular, it argues that the sole reference in paragraph 12 of the Indictment to the Accused having “the state of mind necessary for the commission of each of these crimes” is not sufficient.¹⁰³

62. The Prosecution responds that in relation to the crimes under Article 7(1) and 7(3), there is no defect in the pleading of mens rea, because the jurisprudence of the Tribunal allows for the state of mind to be inferred from facts pleaded.¹⁰⁴ With regard to Article 7(1) in particular, the Prosecution submits that the Indictment specifies that the Accused are responsible “for planning, instigating, ordering, committing, or otherwise aiding and abetting in the above, or in the execution of crimes, or by foreseeing the likelihood that such crimes would be committed,”¹⁰⁵ and that the outline of the “crimes of killing, inhumane treatment, destruction and plunder” constitutes a sufficient basis from which the Accused’s state of mind can be inferred.¹⁰⁶ With respect to Article 7(3), the Prosecution refers to paragraph 17 of the Indictment, where it is stated that each Accused “knew or had reasons to know that his subordinates were about to commit such acts, or had done so, and the superior failed to take the necessary reasonable measures to prevent such acts or to punish the subordinates.”¹⁰⁷ Finally, with regard to the JCE, the Prosecution refers to the Rasevic case and submits that paragraphs 11 to 13 of the Indictment sufficiently specify that the Accused either shared the intent to perpetrate the crimes in the context of the JCE or were aware that the crimes could be perpetrated as a natural and foreseeable consequence of the JCE.¹⁰⁸

    (b) Discussion

63. As held earlier, where the state of mind is relevant the Prosecution must plead either the relevant state of mind as a material fact or the evidentiary facts from which the state of mind is to be inferred. In the present case, each of the Accused is charged with all forms of liability under Article 7(1), with criminal liability arising from participation in a JCE and with criminal responsibility of superiors under Article 7(3). Further, the charge of persecutions (count 1 of the Indictment ) requires a specific discriminatory intent in addition to the state of mind required for the commission of the underlying crime.

64. The mens rea required for participation in a JCE is different for the different categories of JCE. If the crimes charged in the Indictment fall within the common purpose of the joint criminal enterprise, the Accused’s intent to perpetrate a particular crime (being the shared intent of the co-perpetrators) is required.¹⁰⁹ Where the crime or crimes charged fall beyond that common purpose, both the Accused’s intent to participate in and further the common purpose is required, and also that it was foreseeable that such a crime might be perpetrated by one or other members of the group and that the Accused accepted that risk.¹¹⁰

65. Therefore if the Prosecution case is that a crime charged fell within the common object, it will be necessary for the Prosecution to prove that the accused had the state of mind required for that crime.¹¹¹ If the Prosecution case is that one or more crimes charged are beyond that common purpose, the Prosecution must prove the Accused’s intent to participate in and further the common purpose, and further, that each crime charged was the natural and foreseeable consequence of that plan and that the Accused accepted that risk.¹¹² These are the respective mental states of the Accused which must either be expressly pleaded, or alternatively, the Prosecution must plead the facts from which these mental states can be inferred.

66. Paragraph 12 of the Indictment pleads explicitly that “each of the Accused had the state of mind necessary for the commission of each of the (alleged( crimes.” This sentence is found among the three paragraphs of the Indictment alleging the Accused’s participation in a JCE and it may well deal only with JCE liability. In any event, however, this attempt at a shorthand pleading of the various states of mind which must be established for each of the offences charged and each forms of liability relied on, may well stem from words used in the Second Brdjanin Decision.¹¹³ In the Chamber’s view, however, this misunderstands the intention of these words in the context of that decision. What was said in the decision is not intended as a model form of pleading. Rather, it is a statement of the task which the Prosecution must fulfil to adequately plead its case.¹¹⁴ In other words, it is necessary for the Prosecution to sufficiently plead the respective states of mind which are relevant to each charge and each form of liability. The only alternative to this is to plead sufficient facts from which the states of mind could be inferred. While some of the states of mind may probably be inferred from the presently pleaded facts that is not the position for all states of mind. In the Chamber’s view there has not been an adequate express pleading of the necessary states of mind, although paragraphs such as 13 and 14 partially attempt to do so, and there is an insufficient pleading of facts to make good the alternative. The Prosecution must therefore amend the pleading to deal adequately with the necessary states of mind.

67. And finally, with respect to the state of mind required to engage individual responsibility of superiors under Article 7(3) of the Statute the Chamber refers to its earlier decision with regard to the pleading of the elements of command responsibility.¹¹⁵

68. It is necessary therefore that the Indictment be amended to plead adequately, whether expressly or implicitly, the states of mind as indicated in the preceding paragraphs.
    8. Individual role of the Accused in each incident

    (a) Parties’ submissions

69. The Defence for both Cermak and Markac further submit that the Indictment fails to specify the exact role of each of the Accused with regard to the specific counts charged, which does not allow for proper preparation of the case.¹¹⁶ The Prosecution responds that the Indictment as a whole sufficiently spells out the positions of each of the Accused as well as the area and the forces they had under their command and that it puts each of the Accused on notice their liability flows from their participation in high-level positions of authority.¹¹⁷

    (b) Discussion

70. The Indictment explicitly pleads the relevant form of liability, whether under both Article 7(1) and Article 7(3), or only under Article 7(3) of the Statute with respect to each count charged. The Trial Chamber has already found that the Indictment pleads sufficiently the position of authority of each of the Accused,¹¹⁸ subject to the need to identity the subordinates over whom Ivan Cermak is alleged to have exercised effective control.¹¹⁹ It has further found that the nature of the participation of each of the Accused in a JCE is not sufficiently pleaded in the Indictment.¹²⁰ The Defence objection as to the role of the Accused in each incident therefore is subsumed. The role of each of the Accused ought to be sufficiently identified once the Prosecution pleads sufficiently the subordinates of each of the Accused and the nature of each of the Accused’s participation in the JCE, as ordered earlier in this Decision. The Defence objection is therefore rejected.
    9. Other matters

71. The Chamber observes that a reference to forces “subordinated to him” is used in paragraph 40 of the Indictment, whereas such reference is not used in the other equivalent paragraphs. If no distinction is intended, the language would be better standardized to avoid confusion.

72. The Chamber notes that there are no particulars of the Inhumane Acts the subject of count 7 (paragraph 46). Given the factual statement in paragraph 45 it appears that beating and assault are intended. Particulars should be inserted.
    IV. DISPOSITION

    For the foregoing reasons and pursuant to Rule 72 of the Rules, the Trial Chamber

    (1) GRANTS partly the Motions as held in paragraphs 33, 39, 57, 60, and 68 of this Decision.

    (2) ORDERS the Prosecution to amend the Indictment as follows:

    (a) To adequately identify the forces alleged to be under the effective control of Ivan Cermak;¹²¹

    (b) To identify the conduct by which each of the Accused is alleged to have had the means of knowledge that criminal conduct was about to, was being, or had been committed by subordinates of that Accused;¹²²

    (c) To clarify the meaning of paragraphs 17 and 18 of the Indictment;¹²³

    (d) To clarify the meaning of paragraph 13 of the Indictment;¹²⁴

    (e) To provide a more detailed identification of the alleged participants in the JCE by name or, if this is not possible, by some adequate categorization or grouping ;¹²⁵

    (f) To clarify the nature of the alleged participation of each of the Accused in the JCE; ¹²⁶

    (g) To plead adequately, whether expressly or implicitly, the states of mind relied on;¹²⁷

    (h) To clarify the language used in paragraphs 40 and 46 of the Indictment;¹²⁸

    (3) ORDERS the Prosecution to file the amended indictment within twenty-one days of the filing of this Decision. Pursuant to Rule 50 of the Rules the Defence for each of the Accused is to file complaints, if any, resulting from the amendments made in accordance with the above directions within twenty-one days of the filing of the amended indictment.

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

Dated this eight day of March 2005
At The Hague
The Netherlands

______________
Carmel Agius
Presiding

[Seal of the Tribunal]