Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Albertus Swart

Registrar:
Mr Hans Holthuis

Decision of:
16 March 2004

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr Daryl Mundis
Mr Chester Stamp
Ms Tecla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

TRIAL CHAMBER II (“Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”),

BEING SEISED of the Motion of the Accused Hadzihasanovic Regarding the Prosecution’s Examination of Witnesses on Alleged Violations Not Covered by the Indictment filed by Defence Counsel for Enver Hadzihasanovic (“Defence”) on 23 February 2004 (“Motion ”), in which the Defence requests the Chamber to (a) hold that the Third Amended Indictment of 26 September 2003 contains no allegations concerning the use of persons to dig trenches on the front lines, be it directly or indirectly through Article 3(1)(a) of the Geneva Conventions; (b) declare as irrelevant any question put by the Prosecution to witnesses relating to the use of persons to dig trenches on the front lines; and (c) should the matter arise, not allow the Prosecution to amend the Third Amended Indictment in order to incorporate a charge relating to the use of persons to dig trenches, when such a charge was withdrawn proprio motu by the Prosecution from the initial Indictment;

NOTING the Defence submissions in support of the relief sought, that is (1) that the Third Amended Indictment makes no reference whatsoever to the fact that persons were allegedly taken to the front lines to dig trenches, (2) that the fact that the Prosecution incorporated references into its Pre-Trial Brief in no way changes the content of the Indictment; (3) that it would contravene the principle of non bis in idem and the right of the Accused Hadzihasanovic to a fair and equitable trial were the Prosecution allowed to backtrack and amend the Indictment in order to re-incorporate such allegations, and (4) that it would infringe the rights of an Accused to employ the general charge of cruel treatment under Article 3(1)(a) of the Geneva Conventions to charge an individual with having used a person to dig trenches on the front lines, even though the Geneva Conventions and their Additional Protocols contain specific provisions governing this type of conduct;¹

NOTING the Prosecution Filing Pursuant to 18 February 2004 Oral Order of the Trial Chamber Regarding Evidence Concerning Trench-Digging filed by the Office of the Prosecutor (“Prosecution”) on 23 February 2004 (“Filing”), in which the Prosecution requests the Chamber to admit the evidence referring to the trench-digging on the front lines;

NOTING the Prosecution’s submissions that taking detainees to the front lines to dig trenches may be seen as a form of cruel treatment and that (a) cruel treatment constitutes count 4 of the Third Amended Indictment, b) consequently, the said fact is included in the Third Amended Indictment, and (c) the Third Amended Indictment and the Pre-Trial Brief, filed by the Prosecution on 10 October 2003, put the Defence on sufficient notice to allow it to prepare its defence;²

CONSIDERING that, pursuant to Article 18(4) of the Statute of the Tribunal (“Statute”), an indictment must contain a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute, that, moreover , Article 21(2) and Article 21(4)(a) and (b) of the Statute set out that an accused is entitled to a fair hearing, to be informed in detail of the nature and cause of the charge against him and to have adequate time and facilities for the preparation of his defence, and that Rule 47(C) of the Rules of Procedure and Evidence (“Rules ”) specifies that the indictment shall set forth a concise statement of the facts of the case and the crime with which the suspect is charged;

CONSIDERING that it emerges from the jurisprudence of the Tribunal that the Prosecution is obliged to state the material facts underpinning the charges in the indictment, and that, according to that jurisprudence, an indictment is pleaded with sufficient particularity only if it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence;³

CONSIDERING, in particular, that the Appeals Chamber in the Kupreskic case stressed that the materiality of a particular fact cannot be decided in the abstract, that everything depends on the objective of the Prosecution case and that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused;⁴

CONSIDERING that, in the Rutaganda case, the Appeals Chamber of the International Criminal Tribunal for Rwanda considered that, before a Chamber holds that an alleged fact is not material or that differences between the wording of the indictment and the evidence adduced are minor, it must generally ensure that such a finding is not prejudicial to the accused and that the issue will be to determine whether an accused could reasonably identify the crime and conduct specified in each paragraph of the indictment;⁵

CONSIDERING that the jurisprudence of the Appeals Chamber does not exclude the possibility that an indictment which does not refer to all the material facts may be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him;⁶

CONSIDERING that counts 3 and 4 of the Third Amended Indictment deal with “killing” and “cruel treatment” and that paragraph 42 of that Indictment refers to “physical and/or psychological abuse” and “inhuman treatment”;

CONSIDERING that the expressions “cruel treatment” and “inhuman treatment ” have been apparently used in the Third Amended Indictment as synonyms; that, in accordance with the Tribunal’s jurisprudence, the use of detainees for forced labour may, in certain circumstances, be characterised as inhuman or cruel treatment,⁷ and that, consequently, the legal terminology used in the Third Amended Indictment does not, in itself, exclude cruel or inhuman treatment consisting of the use of detainees to dig trenches at the front or in other circumstances;

CONSIDERING that, in defining the physical and/or psychological abuse and inhuman treatment suffered by detainees, paragraph 42 of the Third Amended Indictment uses general expressions such as “including” and “included”, thereby indicating that the treatment expressly described is not the only treatment envisaged by the document in question;

CONSIDERING, moreover, that paragraph 42 of the Third Amended Indictment does not refer expressly to forced labour;

CONSIDERING, however, that in the section dealing with the inhuman treatment of the detainees, the Pre-Trial Brief of 10 October 2003 refers to trench-digging and other forms of forced labour in paragraphs 116, 119, 121, 123, 125, 126 and 127; that footnote 331 of the said Brief states that the “forced labour in those conditions rises to the level of ‘Cruel Treatment’ proscribed in the Geneva Conventions”; that footnotes 350, 360, 380 and 388 refer to persons who could testify to forced labour before the Chamber;

CONSIDERING that, in its Motion of 23 February 2004, the Defence states that, with regard to conduct which may constitute both inhuman treatment and unlawful labour, the Prosecution is obliged to set out the specific provisions in the Geneva Conventions and their Additional Protocols relating to forced labour and cannot merely refer to the more general provisions relating to cruel or inhuman treatment;⁸

CONSIDERING that the Chamber does not share this viewpoint, if only on the sole ground that the provisions applicable in the case in point safeguard different values, since the offence of forced labour was created to safeguard human freedom and the offence of cruel or inhuman treatment to safeguard an individual’s physical and/or psychological health; that, furthermore, the jurisprudence of the Tribunal provides an example of a judgement in which an accused was convicted of cruel treatment for having used detainees to carry out forced labour under special circumstances;⁹

CONSIDERING that a more in-depth textual analysis of paragraphs 41-43 of the Third Amended Indictment should first be carried out;

CONSIDERING that, in setting out in detail the physical abuse to which the detainees were subjected, paragraph 42 of the Indictment refers to beatings inflicted with a wide variety of weapons and provides some examples of the effects of those beatings on detainees; that the examples of inhuman treatment set out in that paragraph all relate to the physical conditions in which persons were held in the detention facilities and to the lack of basic necessities; that the psychological abuse included threats of bodily injury and death and that, as such, prisoners were forced to dig their own graves and threatened with amputation;

CONSIDERING that the objective meaning of general expressions such as “including ” and “included” used in relation to the treatment suffered by detainees is above all determined by the specific examples provided of that treatment; that it is reasonable to suppose, therefore, that other forms of treatment not set out explicitly are of the same nature as the examples of treatment referred to explicitly;

CONSIDERING that the use of detainees to carry out forced labour at the front or in other circumstances would constitute a form of inhuman treatment of a different nature to the other forms of inhuman treatment explicitly referred to after the word “including” in paragraph 42; that an objective reading of the text does not therefore suggest that this form of treatment is envisaged in the text; that the same conclusion appears necessary with regard to the passages dealing with the physical and/or psychological abuse;

CONSIDERING that this analysis is not contradicted by the sub-section of paragraph 43 of the Third Amended Indictment which refers to the killing by beating to death of Mario Zrno; that it results from the text of sub-section (d) of that paragraph that the allegation that the person in question had been taken from his place of detention to carry out forced labour was only a circumstance surrounding his death and not the cause thereof;

CONSIDERING that the textual analysis of paragraph 42 is supported by a reading of paragraphs 41-43 of the Third Amended Indictment in their entirety; that those paragraphs list the municipalities and places where the killings and cruel treatment allegedly took place; that those places are apparently where the detainees were deprived of their freedom; that the Third Amended Indictment does not state whether those places were located at the front lines which divided the armed forces of the Accused from the enemy armed forces or whether they were in the immediate vicinity of those front lines;

CONSIDERING, secondly, that certain amendments made to the indictment in this case should be noted;

CONSIDERING that, in relying on the existence of an international armed conflict , the initial Indictment of 5 July 2001 included the counts of murder and cruel treatment (counts 6-10), which correspond word for word to counts 3-4 of the Third Amended Indictment; that, furthermore, the initial Indictment included counts concerning unlawful labour, the taking of hostages, the taking of civilians as hostages and the use of human shields (counts 11-15); that, with regard to unlawful labour, paragraph 22 of this indictment referred to the use of Croat and Serb detainees in certain places; that the paragraph referred to the “use of Bosnian Croat and Bosnian Serb detainees to dig trenches, to build bunkers, and to collect wounded and dead ABiH soldiers in hostile, hazardous and combat conditions on the front lines with both HVO and Serb forces in the municipalities of Bugojno, Donji Vakuf, Gornji Vakuf, and Zenica, which resulted in a number of such detainees being killed or injured ”; that paragraph 23 of the initial Indictment specified the names of detainees allegedly killed or injured while digging trenches on the front lines;

CONSIDERING, moreover, that paragraph 14 of the initial Indictment set out that: “Bosnian Croats and Bosnian Serbs who were imprisoned and otherwise detained were forced, inter alia, to dig trenches, to build bunkers and to collect human bodies in hostile and otherwise hazardous conditions. Some such imprisoned and otherwise detained persons were killed in the course of being forced to engage in such activities. Imprisoned and otherwise detained Bosnian Croats and Bosnian Serbs were used as both human shields and hostages”; that paragraph 16 of the initial indictment stated that the allegations contained in paragraphs (1) to (15) “are re-alleged and incorporated in each charge”;

CONSIDERING that, in its Decision of 7 December 2001, Trial Chamber II criticised , inter alia, the relevance of Articles 40 and 51 of the Third Geneva Convention and Articles 49, 50 and 52 of the Fourth Geneva Convention to the count of unlawful labour;¹⁰

CONSIDERING that, further to the said Decision, the Prosecution filed an amended Indictment on 11 January 2002, which no longer relied on the existence of an international armed conflict but on the existence of an internal armed conflict ; that, secondly, the counts of unlawful labour, taking of hostages, taking of civilians as hostages and use of human shields were removed from the amended Indictment; that , thirdly, paragraphs 40-43 of that indictment no longer included allegations concerning forced labour and the use of human shields and hostages amongst the allegations which, pursuant to paragraph 44, were “re-alleged and incorporated in each charge ”;

CONSIDERING that the letter attached to the amended Indictment of 11 January 2002 sets out that the aforementioned amendments were made for the sake of judicial economy;

CONSIDERING that the Second Amended Indictment of 15 August 2003 and the Third Amended Indictment of 26 September 2003 contain no amendments relevant to the issues on which the Chamber is required to rule in this decision;

CONSIDERING that a systematic, textual analysis of paragraphs 19-21 of the initial Indictment of 5 July 2001 which relate to the murder and abuse of the detainees leads to the same findings as those resulting from the analysis of paragraphs 41 -43 of the Third Amended Indictment, that is, that the forced labour consisting of the use of detainees to dig trenches at the front or for other purposes does not appear to be included as inhuman treatment; that the analysis applies also to the relevant paragraphs of the Amended Indictment of 11 January 2002 and the Second Amended Indictment of 15 August 2003;

CONSIDERING that it is true that, in paragraph 14, the initial Indictment sets out a general allegation relating to forced labour, which was applicable to each of the counts, but that, as already noted by the Chamber, this paragraph was not retained in the Amended Indictment of 11 January 2002;

CONSIDERING that the Amended Indictment of 11 January 2002 and the Second Amended Indictment of 15 August 2003 were not accompanied by pre-trial briefs; that , consequently, the Accused was not informed in a clear and explicit manner of the Prosecution’s intention to prosecute him on the count of cruel treatment consisting of the use of detainees to carry out forced labour before he was sent the Pre-Trial Brief of 10 October 2003;

CONSIDERING that, on the contrary, the removal of the counts concerning unlawful labour, the taking of hostages – including civilians – and the use of human shields from the Amended Indictment of 11 January 2002, and the removal of the allegation of forced labour from the list of allegations which were re-alleged and incorporated in each charge, were such as to potentially give rise to misunderstandings and lead the Accused to believe that he would no longer be prosecuted for the alleged use of detainees to carry out forced labour, either as unlawful labour or cruel treatment ;

CONSIDERING that, under such conditions, the Prosecution should have informed the Accused in early January 2002 that it still intended to prosecute him for the use of detainees to carry out forced labour as inhuman treatment, instead of providing very concise information as to the reasons which led it to amend the initial Indictment ; that, by omitting to take this initiative through an appropriate amendment of the initial Indictment, it was reasonable for the Accused to believe that this would not be the case;

CONSIDERING that it emerges from an examination of the text of the Third Amended Indictment and on analysis of the history thereof that the Chamber can find only that the Third Amended Indictment does not include the count of inhuman treatment consisting of the use of detainees to carry out forced labour;

FOR THE FOREGOING REASONS,

PURSUANT to Article 18(4) and Article 21(2) and (4) of the Statute and Rules 47(C) and 50 of the Rules,

STATES that the Third Amended Indictment does not include inhuman treatment consisting of the use of detainees to carry out forced labour,

REJECTS the Prosecution’s request to adduce evidence in relation to those allegations.

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

Done this sixteenth day of March 2004
At The Hague
The Netherlands

________________
Presiding Judge of the Chamber
Jean-Claude Antonetti

[Seal of the Tribunal]