Case No.: IT-95-13/1-PT
IN TRIAL CHAMBER II
Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Registrar:
Mr Hans Holthuis
Decision of:
19 June 2003
The Office of the Prosecutor:
Mr Jan Wubben
Counsel for the Accused:
Mr Miroslav Vasic
(a) count 1: persecution as a crime against humanity (Article 5);
(b) count 2: extermination as a crime against humanity (Article 5);
(c) counts 3 and 4: murder as a crime against humanity (Article 5) and as a violation of the law or customs of war (Article 3);
(d) count 5: imprisonment as a crime against humanity (Article 5);
(e) counts 6 and 8: torture as a crime against humanity (Article 5) and as a violation of the laws or customs of war (Article 3);
(f) count 7: inhumane acts as a crime against humanity (Article 5); and
(g) count 9: cruel treatment as a violation of the laws or customs of war (Article 3 ).
(a) that the accused is the superior20 (ii) of subordinates, sufficiently identified,21 (iii) over whom he had effective control - in the sense of a material ability to prevent or punish criminal conduct22 - and (iv) for whose acts he is alleged to be responsible;23
(b) the accused knew or had reason to know that the crimes were about to be or had been committed by those others,24 and (ii) the related conduct of those others for whom he is alleged to be responsible.25 The facts relevant to the acts of those others will usually be stated with less precision,26 the reasons being that the detail of those acts (by whom and against whom they are done) is often unknown, and, more importantly, because the acts themselves often cannot be greatly in issue;27 and
(c) the accused failed to take the necessary and reasonable measures to prevent such crimes or to punish the persons who committed them.28
4. Defence objections relating to the insufficiency of the pleading of material facts and supporting evidence
Joint Criminal Enterprise
Pleading different heads of responsibility under Article 7(1)
(a) The Motion is hereby granted in part, as follows:
(i) The Prosecution is ordered to amend the Second Amended Indictment in the terms set out in paragraphs 46 and 65 of this Decision; and
(ii) The Prosecution is ordered to disclose to the Defence the particulars highlighted by the Trial Chamber in paragraphs 29, 35, 41, 42, 43 and 48 of this Decision, or show good cause why it cannot do so at this stage.
(iii) The amended indictment is to be filed no later than 12:00 on 21 July 2003. A table indicating all the amendments and changes made to the indictment shall be filed by the same time (reorganisation table).
(iv) The Defence is to file complaints, if any, resulting from the amendments made in accordance with the above directions within thirty (30) days of the filing of the amended indictment (i.e., no later than 12:00 on 20 August 2003).
(b) The remainder of the Motion is denied.
Done in both English and French, the English version being authoritative.
Dated this nineteenth day of June 2003
At The Hague,
The Netherlands.
_________________
Wolfgang Schomburg
Presiding Judge
[Seal of the Tribunal]