IN THE TRIAL CHAMBER

Before:
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
5 December 2000

THE PROSECUTOR

v.

MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC
DRAGOLJUB PRCAC

___________________________________________

DECISION ON THE DEFENSE "MOTION REGARDING CONCURRENT PROCEDURES BEFORE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA AND INTERNATIONAL COURT OF JUSTICE ON THE SAME QUESTIONS"

___________________________________________

The Office of the Prosecutor:

Ms. Brenda Hollis
Mr. Michael Keegan
Mr. Kapila Waidyaratne

Defence Counsels:

Mr. Krstan Simic for Miroslav Kvocka
Mr. Zarko Nikolic for Milojica Kos
Mr. Toma Fila for Mladjo Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Jovan Simic for Dragoljub Prcac

 

TRIAL CHAMBER I ("the 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 ("the Tribunal");

BEING SEISED of the "Motion regarding concurrent procedures before International Criminal Tribunal for the former Yugoslavia and International Court of Justice on the same questions” (“the Motion”) filed by the defense counsel for Zoran Zigic ("the Accused") on 24 October 2000, in which he requests the Chamber to suspend decision on questions pending before the International Court of Justice ("the ICJ"), or to rule that such questions will not be decided and to request an advisory opinion from the ICJ;

NOTING the "Prosecution’s response to Zoran Zigic’s ‘Motion regarding concurrent procedures before International Criminal Tribunal for the former Yugoslavia and International Court of Justice on the same questions’" filed on 16 November 2000 objecting to the Motion, and the corrigendum filed on 27 November 2000;

NOTING the annex to the Motion1;

NOTING that Bosnia and Herzegovina filed an application on 20 March 1993 at the Registry of the ICJ, alleging violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the "Genocide Convention") and of several other international obligations by the Federal Republic of Yugoslavia ("the application of Bosnia and Herzegovina"), and that a Judgement was issued by the ICJ2 on the 11 July 1996, confirming that it has jurisdiction in the matter on the basis of Article IX of the Genocide Convention3;

NOTING the Accused’s submission that such questions as the nature of the armed conflict in Bosnia and Herzegovina, the identity of the parties to the conflict, and whether crimes were committed in the course of that conflict are subject to determination both by the Tribunal in the current matter and by the ICJ in the application of Bosnia and Herzegovina;

NOTING the Accused’s submissions that the ICJ and the Tribunal should not hold opposing views on the same factual or legal questions, and that the Tribunal should follow the decisions of the ICJ, because the ICJ is the principal judiciary organ of the United Nations while the Tribunal is a subsidiary organ;

NOTING the Prosecutor’s submission that the Motion is in reality a motion challenging the jurisdiction of the Tribunal, and should thus be dismissed as untimely in accordance with Rule 72(A), and further that the measures requested by the Accused would, if taken, deprive the Tribunal of its independence;

CONSIDERING that the ICJ, the principal judicial organ of the United Nations, deals with State responsibility, while the Tribunal, established by the Security Council on the basis of Chapter VII of the United Nations Charter, deals with individual criminal responsibility;

CONSIDERING that "StChe Security Council's decision in resolution 808 (1993) to establish an international tribunal is limited in scope and purpose: the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991"4;

CONSIDERING that many of the issues identified by the Accused as subject to determination by both judicial organs have already been pronounced upon by the Tribunal;

CONSIDERING that the application of Bosnia and Herzegovina is still pending and that, consequently, no factual or legal finding has been made in the matter by the ICJ;

CONSIDERING therefore that the question of whether there might be a contradiction between the findings of the Tribunal and the findings of the ICJ must, at this stage, be based purely on speculation;

CONSIDERING FURTHER that staying the proceedings in this case until the ICJ makes a final determination in the application of Bosnia and Herzegovina would both run contrary to the purpose of the establishment of this Tribunal and deprive the Accused of his right to a fair and expeditious trial;

FOR THE FOREGOING REASONS

DISMISSES the Motion.

 

Done in English and French.

___________
Almiro Rodrigues
Presiding Judge

Dated this 5th day of December 2000,
At The Hague
The Netherlands.

[Seal of the Tribunal]


1. The Motion describes this annex as "a copy of Application instituting proceedings edited by the Agent for the Republic BiH before ICJ taken from the book ‘The Bosnian people charge genocide’ by F. A. Boyle, Alethia press, Amherst, Massachussets 1996’".
2. Application instituting Proceedings filed in the Registry of the Court on 20 March 1993, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro)).
3. Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary objections, 11 July 1996.
4. As emphasised by the Secretary General in his Report Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, para. 12.