Case No. IT-05-87-PT

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
22 March 2006

The Office of the Prosecutor:

Thomas Hannis
Christina Moeller
Carolyn Edgerton

Counsel for the Accused:

Eugene O’Sullivan and Slobodan Zecevic for Milan Milutinovic
Tomislav Visnjic and Peter Robinson for Dragoljub Ojdanic
Toma Fila and Vladimir Petrovic for Nikola Sainovic
John Ackerman and Aleksander Aleksic for Nebojsa Pavkovic
Mihaljo Bakrac for Vladimir Lazarevic
Theodore Scudder for Sreten Lukic

THIS TRIAL 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”) is seized of the “Prosecution’s Notice of Filing Amended Joinder Indictment and Motion to Amend the Indictment With Annexes,” filed on 16 August 2005 (the “Motion to Amend the Indictment” or “Motion”). The Motion was filed in response to two decisions¹ that granted the Prosecution’s motion to join the case against Milan Milutinovic, Dragoljub Ojdanic and Nikola Sainovic² with the case against Nebojsa Pavkovic, Vladimir Lazarevic, Vlastimir Dordjevic and Sreten Lukic,³ and ordered the Prosecution to submit a proposed consolidated indictment. The Prosecution’s “Amended Joinder Indictment” (the “Proposed Indictment”), which reflects the Prosecution’s allegations against all seven individuals (collectively, “the Accused”), is attached as Annex A of the Motion to Amend the Indictment. The Trial Chamber is also seized of five motions – filed by Milutinovic,⁴ Pavkovic,⁵ Sainovic,⁶ Lazarevic⁷ and Lukic⁸ – that allege defects in the form of the Proposed Indictment (collectively, the “Challenges to the Proposed Indictment”).

1. In addition to granting the Prosecution’s motion for joinder and ordering the submission of a consolidated indictment, the Trial Chamber on 8 July 2005 also granted parts of motions, filed by Lazarevic and Lukic, that alleged defects in the form of the pre-existing Pavkovic indictment.⁹ In those decisions (the “Decisions of 8 July 2005”), the Chamber agreed with the two Accused that the pre-existing indictment was defective in a number of ways, and ordered the Prosecution to cure those defects in the consolidated indictment that is now under consideration.

2. The Prosecution submits that the Proposed Indictment is filed pursuant to Rules 48 and 50 of the Rules of Procedure and Evidence (“Rules”), is in compliance with this Chamber’s Decisions of 8 July 2005,¹⁰ does not include any new charges against any Accused and that, apart from stylistic changes,¹¹ serves only to: (1) list the acts and conduct of each Accused by which their individual criminal responsibility can be determined;¹² (2) clarify the forces and units over which each Accused is alleged to have had authority; ¹³ (3) delete or edit repetitive or unnecessary text;¹⁴ and (4) correct or clarify certain factual allegations due to on-going investigation and recent developments in other cases and the jurisprudence of the Tribunal.¹⁵

3. Besides the Challenges to the Proposed Indictment, three Accused – Milutinovic,¹⁶ Ojdanic¹⁷ and Pavkovic¹⁸ – also filed separate motions asserting the Tribunal’s lack of jurisdiction to consider the Proposed Indictment’s alternative charge that the Accused can be found guilty as “indirect co-perpetrators.”¹⁹ The Trial Chamber addresses that argument in a separate decision.

4. The Trial Chamber’s Decisions of 8 July 2005 ordered the Prosecution to, among other things, more specifically identify the forces allegedly responsible for physically perpetrating the charged crimes. The Chamber found that the “mere reference in the SpreviousC Indictment to ‘forces of the FRY and Serbia’ does not constitute a sufficient description of the categories of forces in question.”²⁰ The Chamber ordered the Prosecution to

specify the category of persons alleged to have committed the crimes charged by indicating which of the forces and units allegedly subordinated to the Accused were involved in the events in each municipality and specify whether it is the Prosecution’s case that it is only those forces and units that were involved in the commission of the crimes charged.²¹

Additionally, the Trial Chamber ordered the Prosecution to “SsCpecify the forces of the FRY and Serbia that were allegedly involved in each of the enumerated incidents of murder.”²²

5. In response to this directive, Paragraph 20 of the Proposed Indictment states that the

phrase “forces of the FRY and Serbia” in this indictment encompasses the following forces and units: VJ SYugoslav ArmyC, MUP SMinistry of the Interior PoliceC (including special units of the police (“PJP”), special anti-terrorist units (“SAJ”), police reserve units, MUP secretariat (“SUP”) personnel, units for special operations (“ JSO”) and other units of the state security (“RDB”)), the Pristina military district, military-territorial units, civil defence units, civil protection units, civilian groups armed by the VJ and/or the MUP and formed into village defence units acting under the control and authority of the VJ and/or the MUP, and volunteers incorporated into units of the VJ and/or the MUP.²³

6. The Accused contend that this is inadequate. Lukic argues, for example, that “the list of units merely recites every possible type of unit within the MUP (Ministry of Internal Affairs – Police) and the VJ (Yugoslav Army) without any clarification as to which units reported to the Accused, Mr. Lukic, etc.”²⁴ “Rather than narrowing down the Indictment,” says Lukic, “the Prosecutor has... made the Indictment even more expansive, vague and nebulous. It is respectfully submitted that this is not proper, given the explicit orders of the Trial Chamber and the pleading requirements of the Tribunal.”²⁵ Likewise, Lazarevic claims that “[f]or the accused to be able to adequately prepare his defence, it is necessary that the Prosecution say clearly and unmistakably which of these formations Slisted in paragraph 20 of the Proposed IndictmentC participated in each concrete incident.”²⁶

7. Although the Prosecution states, in its responsive submissions, that “paragraph 20 of the indictment... sets out in detail” the forces of the FRY and Serbia,²⁷ and that “[a]t least one of those units, and always at least one MUP unit, was present at each of the crimes sites,”²⁸ the Prosecution also states that it “is unable to provide a complete list of all units present at individual crime sites.”²⁹ The Prosecution attributes this primarily to two factors. First, the Prosecution cites the witnesses’ inability to identify unit numbers or other precise information, which is said to be understandable given that the witnesses were civilians and that the perpetrators in some cases wore a mix of military, police and unofficial attire or otherwise endeavoured to conceal their identities.³⁰ Second, the Prosecution highlights the fact that the military and police records of the FRY and Serbia are incomplete, and that the testimony given by former officers of those bodies regarding precise troop placement can be inconsistent.³¹ The Prosecution accordingly submits that it “could not compile complete lists of all the units because the information available is incomplete.”³²

8. Article 21(4)(a) of the Statute of the Tribunal (the “Statute”) entitles an accused “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” As to an indictment, Article 18(4) provides that it must set out “a concise statement of the facts and the crime or crimes with which the accused is charged.” Rule 47(C) of the Rules likewise requires an indictment to contain a “concise statement of the facts of the case.” As the Appeals Chamber explained in Prosecutor v. Kupreskic et al.,

an accused is entitled to a fair hearing and, more particularly, 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. In the jurisprudence of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven. Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether 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.³³

The Trial Chamber considers that this principle is designed to ensure that an accused has sufficient notice of the case against him to prepare a defence.

9. Although the Prosecution has alleged that a mix of military, police and civilian forces physically perpetrated the crimes charged, it more specifically asserts in its responsive briefs that “at least one MUP unit” was present at each crime scene. The Trial Chamber considers such an allegation sufficient to satisfy the notice requirements described in the preceding paragraph in respect of offences allegedly committed by the MUP. The Tribunal’s precedents hold that Article 7(3) of the Statute, under which, among other articles, the Accused are charged, requires the pleading of “subordinates sufficiently identified,”³⁴ but “in a case based on superior responsibility, it is sufficient to identify the persons who committed StheC alleged crimes... by means of the category or group to which they belong.”³⁵ Here, the MUP is the “category or group” identified, and similar averments have been found acceptable in other cases. In Prosecutor v. Stanisic, for example, the Trial Chamber held that, although “police forces” was too vague a description of the alleged physical perpetrators, changing that phrase to “RS MUP” would make the indictment adequately precise.³⁶ The Prosecution made the change, and the Chamber accepted the indictment.³⁷ Similarly, in Prosecutor v. Dragomir Milosevic, the Trial Chamber found an allegation that the Accused commanded Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps to be sufficiently specific.³⁸ This Trial Chamber accordingly finds that the Prosecution’s assertion, that “at least one MUP unit” was present at each crime scene, adequately describes the alleged physical perpetrators of the crimes charged such that the Accused are able to prepare a defence. But given that this assertion appears only in the Prosecution’s responses to the Challenges to the Proposed Indictment, and not in the indictment itself, the Prosecution must amend the indictment to include this particular averment.

10. The remaining allegations regarding the physical perpetrators do not clearly identify which forces besides the MUP were present at the various crime scenes. Paragraph 20 of the Proposed Indictment defines “forces of the FRY and Serbia” to include at least 21 different forces, sub-groups and mixed units comprised of military or police personnel or civilians. Neither the Proposed Indictment nor any of the Prosecution’s subsequent submissions complies, other than in relation to MUP units, with this Chamber’s prior order to “indicatSeC which of the forces and units allegedly subordinated to the Accused were involved in the events in each municipality.”³⁹ The Trial Chamber finds that this failure to plead the identity of the physical perpetrators prejudices the Accused’s ability to prepare a defence. To put the Accused on adequate notice, the Prosecution must identify either the particular forces involved at each municipality or the facts from which it reasonably can be inferred that the physical perpetrators were the subordinates of one or more Accused.

11. Although the Proposed Indictment charges the Accused only with crimes that occurred between 1 January 1999 and 20 June 1999,⁴⁰ it contains several references to crimes allegedly committed in 1998.⁴¹ The Prosecution states that it intends to rely on these 1998 crimes to prove that the Accused were members of the joint criminal enterprise (“JCE”) alleged to have existed during the indictment period,⁴² that the Accused had the requisite state of mind to commit the charged crimes⁴³ and “for other purposes as well, such as to show knowledge, intent, command ability, or just as part of the story that unfolded in Kosovo leading up to the crimes of the indictment period.”⁴⁴

12. The Accused argue that these intended uses of the 1998 crimes amount to bringing a new charge⁴⁵ and introducing new material facts⁴⁶ and that, in any event, the alleged crimes are not described with enough detail to allow them to prepare a defence.⁴⁷ In a comment that reflects the views of the other Accused, Lukic states that the intended reliance on the 1998 crimes “causes unfair prejudice to the defense of Mr. Lukic, who has insufficient notice of the new charges against him, and is faced with the unduly burdensome task of expending his scant and limited defense resources to undertake a complex and intricate defense to vague and far reaching charges.”⁴⁸ The Accused ask that the Prosecution be required to delete its references to the 1998 crimes from the Proposed Indictment, or that it be made to provide a detailed description of the 1998 crimes so the Accused are able to prepare a defence.⁴⁹

13. The Prosecution filed a response to each of the Accused’s motions.⁵⁰ The Prosecution responds that “although the SProposed IndictmentC does discuss events occurring in 1998, it does not allege criminal liability for anything occurring outside the indictment period of 1 January 1999 to June 1999. It is thus not a new charge.”⁵¹ Similarly, the Prosecution contends that referring to the alleged crimes of 1998 does not plead new material facts because the events of 1998 are described in previous versions of the indictment ⁵² and the Prosecution’s Pre-Trial Brief,⁵³ and “would have been presented in the Prosecution’s case-in-chief regardless of whether the information was in the indictment.”⁵⁴ Accordingly, the Prosecution argues, the references to the 1998 crimes do not prejudice any of the Accused because they were aware that the crimes would be relied upon, and thus there is “no additional research or preparation required beyond that already required.”⁵⁵ Finally, in response to the claim that the alleged crimes of 1998 are insufficiently described, the Prosecution asserts that the “crimes and other events of 1998 were not charged, and therefore specifics involving the identity of victims, detailed location of the crimes, orders given by the accused in relation to them, etc. need not be pled in the indictment.”⁵⁶ In any case, the Prosecution contends, its previous submissions contain adequate detail.⁵⁷

14. The Trial Chamber agrees that the Prosecution’s references to the alleged crimes of 1998 are not new charges.⁵⁸ Even if the allegations regarding the 1998 crimes could in theory provide a legally or factually distinct basis for convicting the Accused, the Prosecution’s disavowal of using the alleged crimes for that purpose precludes any such conviction. In any case, these averments fall outside the indictment period. The Trial Chamber will accordingly proceed on the understanding that the Accused can be convicted only of charged crimes proven to have been committed within the indictment period of 1 January 1999 to 20 June 1999.

15. That the Accused are not in jeopardy of being convicted of the alleged crimes of 1998 does not, however, settle the matter. As stated above, the Prosecution has indicated that it intends to rely on the 1998 crimes to prove that the Accused were members of the JCE, that the Accused had the requisite mens rea to commit the charged crimes and “for other purposes as well, such as to show knowledge, intent, command ability, or just as part of the story that unfolded in Kosovo leading up to the crimes of the indictment period.”⁵⁹ Although the events of 1998 could be used merely to provide background, in light of the Prosecution’s stated intention to use them in its efforts to prove the Accused’s criminal responsibility, the Trial Chamber considers them to be material facts that must be pleaded sufficiently.

16. If allegedly criminal acts, even those not charged in an indictment, are relied upon to establish responsibility for the crimes charged such that they amount to material allegations, they must be pleaded with sufficient specificity to enable the preparation of a defence. It is clear from a review of the Proposed Indictment, as well as of the sections of the Pre-Trial Brief that the Prosecution cites, that the alleged crimes of 1998 are insufficiently described. The Proposed Indictment describes the crimes with what appears to be the least possible detail, referring to them as “crimes during 1998,”⁶⁰ “crimes committed in Kosovo in 1998”⁶¹ or “crimes in Kosovo committed by the forces of the FRY and Serbia in 1998.”⁶² The Prosecution’s Pre-Trial Brief offers more detail but the descriptions are still too vague:

• “The KLA conducted operations... throughout 1998.... In response, the FRY and Serbian forces engaged in a campaign of persecutions... [that] included the shelling of predominantly Kosovo Albanian towns and villages, widespread destruction of property, and expulsions and killings of the civilian population from areas in which the KLA was active.”⁶³
• “At a meeting with Milosevic in October 1998, at which Sainovic and Milutinovic were both present, witnesses warned them about the need to withdraw excess forces from Kosovo and to end the disproportionate use of force against the civilian population there. In November and December 1998, there were more reports of violations, many of which were triggered by the KLA, but with the Serb forces reacting disproportionately against villages and civilians.”⁶⁴
• “In 1998, the conflict intensified between the KLA and the forces of the FRY and Serbia.... Forces of the FRY and Serbia in Kosovo engaged in co-ordinated attacks on ethnic Albanian villages across large parts of Kosovo, expelling ethnic Albanians from their homes, killing civilians, and looting and destroying property....”⁶⁵
• “By 15 October 1998, the figures reported by UNHCR stated that 220.000 inhabitants of Kosovo were displaced.”⁶⁶

These representative passages obviously allege that crimes within this Tribunal’s jurisdiction were committed in 1998 but, although the Prosecution might supplement them with greater detail at trial, they do not enable the Accused to prepare a defence. Elsewhere in its Pre-Trial Brief, on the other hand, the Prosecution states that “Milutinovic had the ability to ask for and receive reports from MUP staff including the Minister. He did so after the massacre at the Jashari family compound on 5 March 1998.”⁶⁷ Although the Chamber considers that the Prosecution’s Pre-Trial Brief does not cure the indictment’s inadequacies regarding the crimes of 1998, this allegation demonstrates how notice may properly be given: it alerts Milutinovic that the Prosecution might rely on a particular alleged crime of which he is said to have been aware. In sum, an adequate pleading of the alleged crimes of 1998 requires the Prosecution to identify, at minimum, the dates and locations of the crimes, along with the alleged connection to each Accused. And “if the Prosecution is in a position to name the victims, it should do so.”⁶⁸

17. Finally, Lazarevic argues that “for the Prosecution to rely on possible crimes committed in 1998 it has first to prove that the crimes were committed.”⁶⁹ The Trial Chamber agrees, and considers that the facts relating to these events and their significance are for determination at trial.

18. Sainovic and Lazarevic argue that the Proposed Indictment insufficiently describes the Joint Command for Kosovo and Metohija (“Joint Command”). Sainovic argues that the references to the Joint Command constitute new material facts⁷⁰ and that the proposed indictment “does not contain even the basic minimum information in relation to the body that could be identified as the Joint Command.”⁷¹ He claims that this prejudices his ability to prepare his defence, particularly in light of the allegation that he was the head of the Joint Command. Sainovic cites the lack of details such as the Joint Command’s legal status, date of creation or membership in requesting that all references to the Joint Command be deleted from the indictment.⁷² Lazarevic makes similar arguments and requests the same relief.⁷³ Lukic joins Sainovic’s submission, and specifically asserts that the Proposed Indictment’s references to the Joint Command reflect the Prosecution’s “attempt to create a new factual backdrop and form of liability.”⁷⁴

19. The Prosecution responds that its references to the Joint Command are not new, as the command was described in previous disclosures, such as its Pre-Trial Brief in the Milutinovic case, and because its reliance on the Joint Command is merely “a description of the evidence underlying the fact to be proven by the Prosecution.”⁷⁵ The Prosecution maintains that the Joint Command is adequately described in the Proposed Indictment, which “provides details on the accused’s role in the Joint Command, its basic structure, and what it did.”⁷⁶ The Prosecution also claims that the details that the Accused point to in arguing that the description is insufficient are “matters of evidence to be presented at trial, not matters of notice to be pled in the indictment.”⁷⁷

20. Paragraph 25 of the Proposed Indictment states, in relevant part, that

the Joint Command, headed by NIKOLA SAINOVIC,... was mandated to co-ordinate the work of civil affairs organs with the activities of the organisations that constituted the forces of the FRY and Serbia in Kosovo and to ensure that they conducted operations in accordance with political objectives. The Joint Command also exercised de facto command authority over these bodies.... The Joint Command included senior members of the civilian, political and military leadership including NEBOJSA PAVKOVIC, the commander of the Third Army, VLADIMIR LAZAREVIC, the commander of Pristina Corps, SRETEN LUKIC, the Head of the MUP Staff,... and other leaders from the VJ and MUP.⁷⁸

The Proposed Indictment alleges that Sainovic, “[a]s the Head of the Joint Command,... commanded, controlled, directed and otherwise exercised effective control over forces of the FRY and Serbia in Kosovo, which were involved in the perpetration of the crimes charged in this indictment.”⁷⁹ Similarly, the Proposed Indictment alleges that Lazarevic, “[a]s a member of the Joint Command,... commanded, controlled, and directed or otherwise exercised effective control over the Third Army, including the Pristina Corps and forces subordinated to or working in concert with the VJ, which were involved in the perpetration of the crimes charged in this indictment.”⁸⁰

21. The Trial Chamber finds, for the reasons that follow in the three paragraphs below, that, although the Proposed Indictment’s references to the Joint Command present new facts, the references are sufficiently specific to enable the preparation of a defence and do not levy a new charge.

22. First, the Proposed Indictment’s references to the Joint Command, together with the allegations regarding which positions the Accused held in that Command, are new facts. Put simply, there is no mention of the Joint Command anywhere in the two previous indictments,⁸¹ and although the Prosecution’s Pre-Trial Brief in the prior Milutinovic case refers to the Joint Command,⁸² the Chamber considers those references insufficient to cure the inadequacies of the indictment.

23. Second, the Joint Command is in fact described with sufficient specificity. Unlike the Prosecution’s references to the crimes of 1998, the allegations regarding the Joint Command describe a discrete body with particular powers that some of the Accused allegedly commanded or staffed. The Accused are at this stage not entitled to details such as “whether the J[oint] C[ommand] is a de facto or a de jure organ,” “the position of the JC in the constitutional legal sense” or the Joint Command’s “time of... creation, as well as the time it ceased to exist as such.”⁸³ Such particulars can be offered as evidence at trial, and do not need to be pleaded in the indictment.⁸⁴

24. Third, the new facts regarding the Joint Command do not amount to a new charge against the Accused. As this Trial Chamber explained in Prosecutor v, Halilovic,

[w]hen considering whether a proposed amendment results in the inclusion of a “new charge”, it is... appropriate to focus on the imposition of criminal liability on a basis that was not previously reflected in the indictment. In the opinion of the Trial Chamber the key question is, therefore, whether the amendment introduces a basis for conviction that is factually and/or legally distinct from any already alleged in the indictment.⁸⁵

In the Proposed Indictment, the Prosecution alleges for the first time that the Accused were leaders or members of the Joint Command, a body that the Prosecution maintains “exercised effective control over forces of the FRY and Serbia in Kosovo, which were involved in the perpetration of the crimes charged in this indictment.”⁸⁶ Although the alleged roles of the Accused in the previous indictments⁸⁷ are factually distinct from their alleged positions in the Joint Command, this factual distinction is not, in the language of Halilovic, a “basis for conviction.” The Prosecution does not suggest that having held a position in the Joint Command was criminal; it instead contends that the Accused used their positions in the Joint Command to commit the charged crimes. In other words, it was the actions of the Accused, and not their membership in the Joint Command, that is alleged to be criminal. The Trial Chamber therefore considers that, while the averments regarding the Joint Command might amount to a more detailed pleading of the alleged JCE, they do not form a factually or legally separate basis upon which the Accused can be convicted. The Chamber thus finds that the Proposed Indictment’s reference to the Joint Command is not a new charge.

25. Lukic argues that the Proposed Indictment fails to identify, as required by the Decisions of 8 July 2005,⁸⁸ any specific conduct by which individual criminal responsibility might be attributed to him under Article 7(1) of the Statute.⁸⁹ He also argues that the Proposed Indictment does not identify, as required by the Chamber’s decisions,⁹⁰ the facts on which the Prosecution intends to rely to prove that Lukic was aware of the alleged JCE and possessed the requisite mens rea.⁹¹

26. The Prosecution responds that the Proposed Indictment “provides the accused with ample details as to his involvement in the crimes charged.”⁹² The Trial Chamber agrees: unlike the previous indictment, the Proposed Indictment adequately identifies the alleged conduct and facts upon which Lukic’s criminal responsibility and mens rea might be proven under Article 7(1) of the Statute.⁹³ The Proposed Indictment contains over two dozen allegations regarding the acts and state of mind required for Lukic’s conviction under Article 7(1). In addition to making general allegations regarding the individual criminal responsibility of the Accused,⁹⁴ the Proposed Indictment pleads Lukic’s 7(1) liability by alleging inter alia his “involvement as the Head of the MUP Staff in the arming and training of predominantly non-Albanian civilians into local or village defence units while disarming predominantly Albanian villages,”⁹⁵ and his knowledge “of the massive displacement of Kosovo Albanians and the perpetration of numerous other crimes through, among other things, the reporting systems of the VJ, the media, [and] his meetings with VJ and MUP senior staff in the Joint Command.”⁹⁶ Such allegations are sufficiently specific.

27. Lukic also argues that the Prosecution has failed to, as required by the Decisions of 8 July 2005, “SsCpecify the state of mind required for the crime of persecution.”⁹⁷ The Prosecution responds that “the accused had the intent to discriminate against the Albanian population in Kosovo and/or knew of the discriminatory intent of those who committed the crimes....”⁹⁸ The Trial Chamber accepts this as an adequate specification of the state of mind required for the crime of persecution, and notes that it is incorporated in the Proposed Indictment via the Prosecution’s Corrigendum.⁹⁹

28. Lazarevic and Lukic argue that the Proposed Indictment does not plead either the knowledge of wrongdoing or the failure to prevent or punish such wrongdoing required to convict an accused under Article 7(3) of the Statute.¹⁰⁰ The Decisions of 8 July 2005 ordered the Prosecution to “SiCdentify specific aspects of the conduct of the accused, from which the knowledge and failure to act required to establish... superior responsibility with regard to the crimes charged may be inferred.”¹⁰¹

29. The Prosecution responds that the Proposed Indictment’s allegations are sufficiently pleaded to support a finding of guilt under Article 7(3),¹⁰² and the Trial Chamber agrees. The Proposed Indictment alleges that Lazarevic, as commander of the Pristina Corps, “encouraged and gave legitimacy to crimes committed against Kosovo Albanians by failing to report and/or investigate crimes or alleged crimes against them, to follow up on such allegations and/or investigations, and /or to punish or discipline members of the Pristina Corps and subordinated forces.”¹⁰³ According to the Prosecution, the Proposed Indictment

shows that the accused had the authority to control his troops... [,] sets out the chain of command for reporting incidents, and for enforcing orders... [and] sets out the crimes that were committed. The failure of the accused to prevent these crimes, and the lack of evidence that he did anything to punish them, are the omissions that form the basis of 7(3) liability.¹⁰⁴

The Trial Chamber considers this to be so, and finds this an adequate description of the conduct for which a conviction under Article 7(3) could be secured. Similar considerations apply to the allegations regarding Lukic, which the Trial Chamber finds adequately plead Article 7(3) criminal responsibility.¹⁰⁵

30. Finally, Sainovic and Lazarevic assert that the Proposed Indictment and Prosecution submissions do not satisfy the requirements of Rule 50(A)(ii) of the Rules.¹⁰⁶ That Rule states that “leave to amend an indictment shall not be granted unless the Trial Chamber or Judge is satisfied there is evidence which satisfies the standard set forth in Article 19, paragraph 1, of the Statute to support the proposed amendment.” Article 19(1) of the Statute requires “a prima facie case [to have] been established by the Prosecutor.” To comply with Rule 50(A)(ii), the Prosecution must identify supporting documentation only for proposed amendments that are new ; material information contained in a prior confirmed or amended indictment is presumed to possess the requisite evidentiary support.¹⁰⁷ In this case, the Chamber finds that two sets of allegations are new: those concerning the alleged crimes of 1998, and those concerning the Joint Command.

31. A question arises whether Rule 50(A)(ii) applies to all proposed amendments, or only to those that levy a new charge. Case law¹⁰⁸ and the plain language of the Rule¹⁰⁹ support the former interpretation,¹¹⁰ and the Chamber considers that Rule 50(A)(ii) must be applied to every material proposed amendment. It is particularly appropriate to require evidentiary support where proposed amendments concern, as they do here, the alleged criminal responsibility of the Accused. Although it would be inaccurate to say that supporting material must in all cases be provided for every single proposed amendment, no matter how minor, it is appropriate to require evidentiary support for a new averment, such as one here, that the Accused were members of an organisation that gave them the authority to order potentially criminal acts. The Prosecution intends to use the new allegations to help prove the Accused’s guilt, whether by their ordering atrocities from their positions in the Joint Command or their knowledge, inferred from the 1998 crimes, of how their forces would act. Given this, the Chamber should have sight of material that, for example, at least demonstrates the existence of the Joint Command.

32. The Trial Chamber rejects the Prosecution’s assertion that information concerning the 1998 crimes “was present in previous versions of the indictment.”¹¹¹ The Prosecution cites paragraph 95 of the “Third Amended Indictment” in “Case No. IT-99-37-PT” to support this proposition.¹¹² The Chamber notes that there is no record of a “Third Amended Indictment” in case IT-99-37-PT, and that the closest document resembling that description is the “Amended Indictment” in case number IT-99-37-I, whose paragraph 95 alleges nothing about crimes committed in 1998. Paragraph 85 of that document concerns the crimes of 1998, but appears in a section entitled “Additional Facts” that is full of general allegations not necessarily relevant to the charged crimes.¹¹³ The Trial Chamber declines to assume that review of that indictment pursuant to Rule 50(A)(ii) involved the submission or consideration of supporting material for such “additional facts.” Other paragraphs in prior indictments also refer to the 1998 crimes, but also appear in sections labelled “Background”¹¹⁴ or “Additional Facts.”¹¹⁵ Although one paragraph of a prior indictment, contained in Count One of that indictment, refers to one crime committed in 1998,¹¹⁶ the Chamber considers the reference too fleeting to have necessitated identification of supporting material for the 1998 crimes on which the Prosecution now plans to rely. Likewise, the Prosecution’s mention of the crimes in its Pre-Trial Brief does not obviate the need for supporting material, as an accused’s mere awareness of material allegations does not satisfy Rule 50(A)(ii)’s requirement that there be evidentiary support for such allegations. This same analysis applies to the allegations regarding the Joint Command. Thus pursuant to Rule 50(A)(ii), the Prosecution must identify supporting material for both the 1998 crimes and the Joint Command if the Prosecution intends to rely on these allegations at trial.

33. For the reasons above, pursuant to Article 19 of the Statute and Rules 47(C), 50, 54 and 72 of the Rules, the Challenges to the Proposed Indictment are GRANTED IN PART, and the Trial Chamber ORDERS as follows:

(1) the requests of Milutinovic and Pavkovic to file oversized motions are GRANTED and the Chamber accepts the motions as filed;

(2) the Prosecution’s request to dismiss Lukic’s Motion as untimely is DENIED, and the Chamber accepts Lukic’s Motion as filed;

(3) the Prosecution shall submit a redacted proposed joinder indictment that complies fully with the orders contained in this Chamber’s Decisions of 8 July 2005. In particular,

a. the Prosecution must identify the alleged physical perpetrator(s) of the charged crimes. An allegation that “at least one MUP unit” was involved at each crime scene will suffice, but if the Prosecution intends to argue at trial that any other forces committed crimes, it must identify either the particular forces involved at each municipality or the facts from which it reasonably can be inferred that the physical perpetrators were the subordinates of one or more Accused;

b. if the Prosecution intends to rely at trial on the alleged crimes of 1998, the Prosecution must identify the dates and locations of the crimes, the connection to each Accused and supporting material for its allegations;

c. if the Prosecution intends to rely at trial on the allegations concerning the Joint Command, it must identify supporting material for such allegations;

(4) the Prosecution shall file the redacted proposed indictment no later than 14 days after the filing of this Decision;

(5) the Accused shall have 15 days from receipt of the B/C/S translation of the redacted proposed indictment to file any challenges not disposed of in this Decision;

(6) the Prosecution’s Motion to Amend the Indictment is hereby held in abeyance pending submission of the redacted proposed indictment.

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

____________________________
Judge Patrick Robinson
Presiding

Dated this twenty-second day of March 2006.
At The Hague,
The Netherlands.

[Seal of the Tribunal]