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IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Mr Hans Holthuis
20 February 2001
Radoslav BRDANIN & Momir TALIC
DECISION ON OBJECTIONS BY MOMIR TALIC
TO THE FORM OF THE AMENDED INDICTMENT
The Office of the Prosecutor:
Ms Joanna Korner
Mr Nicholas Koumjian
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1 The application
1. The accused Momir Talic (Talic) has filed a preliminary motion in accordance with Rule 72 of the Rules of Procedure and Evidence (Rules),1 in which he alleges that the form of the amended indictment is defective.2 By that Motion, Talic seeks a number of rulings:3
(1) The facts grounding the charges against him give no indication of places, time frame, identity of the perpetrators and victims or offences put forward.4
(2) The amended indictment fails to identify whether he is alleged to have committed the acts charged himself, or had them committed or whether he knew of those acts or should have known of them.5
(3) The prosecution has impermissibly charged him with cumulative charges based upon the same facts, and it must elect upon which of the charges he is to be prosecuted .6
(4) The allegation of grave breaches against the Geneva Conventions of 1949 (counts 5, 7 and 10) are irrelevant to the case, because the indictment does not allege that any of the acts charged occurred during an international armed conflict.7
2 The amended indictment
2. The amended indictment alleges that:8
(i) In 1992, the Assembly of the Serbian People in Bosnia and Herzegovina adopted a declaration on the Proclamation of the Serbian Republic of Bosnia and Herzegovina , an entity which eventually became known as Republika Srpska.9
(ii) The significant Bosnian Muslim and Bosnian Croat populations in the areas claimed for the new Serbian territory were seen by the political leaders of the Bosnian Serbs as a major problem in the creation of such a territory in those areas, and the removal of nearly all of those populations (or ethnic cleansing) was part of the overall plan to create the new Serbian territory.10
(iii) To achieve this goal, the Bosnian Serb authorities initiated and implemented a course of conduct which included:
(a) the creation of impossible conditions (involving pressure and terror tactics , including summary executions) which would have the effect of encouraging the non -Serbs to leave the area;
(b) the deportation and banishment of those non-Serbs who were reluctant to leave ; and
(c) the liquidation of those non-Serbs who remained and who did not fit into the concept of the Serbian state.11
(iv) Between April and December 1992, forces under the control of the Bosnian Serb authorities seized possession of those areas deemed to be a risk to the accomplishment of the overall plan to create a Serbian state within Bosnia and Herzegovina. By the end of 1992, the events which took place in these take-overs had resulted in the death of hundreds, and the forced departure of thousands, from the Bosnian Muslim and Bosnian Croat populations from those areas.12 Those events constitute the crimes with which the two accused Radoslav Brdanin (Brdanin) and Talic are charged jointly as having both individual responsibility and superior responsibility.
(v) The forces immediately responsible for those events (which are referred to in the indictment collectively as the Serb forces) comprised the army, the paramilitary, and territorial defence and police units.13 The Bosnian Serb authorities under whose control the Serb forces acted are not identified in the indictment beyond including the two accused.14 These authorities had authority and control over:
(a) attacks on non-Serb villages and areas in the Autonomous Region of Krajina ( ARK);
(b) destruction of villages and institutions dedicated to religion;
(c) the seizure and detention of the Bosnian Muslims and Bosnian Croats;
(d) the establishment and operation of detention camps;
(e) the killing and maltreatment of Bosnian Muslims and Bosnian Croats; and
(f) the deportation or forcible transfer of the Bosnian Muslims and Bosnian Croats from the area of the ARK.
The Bosnian Serb authorities also had power to direct a body identified only as the regional CSB which appears to be the Regional Centre for Public Security and the Public Prosecutor to investigate, arrest and prosecute any persons believed to have committed crimes within the ARK.15
(vi) Brdanin was the President of the ARK Crisis Staff, one of the bodies responsible for the co-ordination and execution of most of the operational phase of the plan .16 As such, he had executive authority in the ARK and was responsible for managing the work of the Crisis Staff and the implementation and co-ordination of Crisis Staff decisions.17
(vii) Talic was the Commander of the 5th Corps/1st Krajina Corps, which was deployed in the ARK into, or near, areas predominantly inhabited by Bosnian Muslims and Bosnian Croats.18 He had authority to direct and control the actions of all forces assigned to the 5th Corps/1st Krajina Corps or within his area of control, and all plans for military engagement and attack plans had to be approved by him in advance. Troops under his command took part in the events which constitute the crimes for which the two accused are charged as having responsibility.19 His approval or consent was required for any significant activity or action by forces under the command or control of the 5th Corps/1st Krajina Corps, all units under his command were required to report their activities to him, and he had power to punish members of those units for any crimes they may have committed.20 In addition (with respect to attacks conducted against Bosnian Muslims and Bosnian Croatians in municipalities such as Prijedor and Sanski Most within the ARK), he had power to direct and control the actions of the territorial defence units, the police and paramilitary forces,21 which were immediately responsible for the events which occurred there.22
(viii) Talic was also a member of the ARK Crisis Staff,23 and he and Brdanin, as such members, participated individually or in concert in the operations relating to the conduct of the hostilities and the destruction of the Bosnian Muslim and Bosnian Croat communities in the ARK area. The ARK Crisis Staff worked as a collective body to co-ordinate and implement the overall plan to seize control of and ethnically cleanse the area of the ARK. After the dissolution of the ARK Crisis Staff, Brdanin and Talic continued in their respective positions in the Bosnian Serb power structures with the implementation of this overall plan .24
3. Brdanin and Talic are charged with twelve counts:
(a) genocide25 and complicity in genocide ;26
(b) persecutions,27 extermination,28 deportation29 and forcible transfer (amounting to inhumane acts),30 as crimes against humanity;
(c) torture, as both a crime against humanity31 and a grave breach of the Geneva Conventions;32
(d) wilful killing33 and unlawful and wanton extensive destruction and appropriation of property not justified by military necessity,34 as grave breaches of the Geneva Conventions; and
(e) wanton destruction of cities, towns or villages or devastation not justified by military necessity35 and destruction or wilful damage done to institutions dedicated to religion,36 as violations of the laws or customs of war.
3 Delay in disposal of Motion
4. The Motion was filed by Talic within six weeks of the date of the amended indictment ,37 and the submissions of the parties followed a regular course with a response by the prosecution,38 a reply by Talic,39 and a further response by the prosecution.40 Following the statement by the prosecution that it was not calling as witnesses a number of persons whose statements formed part of the supporting material accompanying the indictment when confirmation was sought,41 Talic filed a Memorandum with further submissions as to the validity of the indictment .42 The prosecution has not filed any response to that Memorandum.
5. The usual practice of this Trial Chamber is to give its decision on preliminary motions indeed, on any procedural motions as soon as it is able conveniently to do so consistently with its obligation to hear evidence in other trials. That practice was not followed by the Trial Chamber in relation to the Motion in this present case. The reason for not doing so was the inclusion in that Motion of the application by Talic for a ruling that he had been impermissibly charged with cumulative charges based upon the same facts, and that the prosecution must elect which of the charges he is being prosecuted for.
6. In support of that application, reliance was placed by Talic upon the judgment given early last year, in Prosecutor v Kuprekic,43 in which attention was paid to the issue of cumulative charges and views were expressed which were inconsistent with the then state of jurisprudence within the Tribunal. That judgment is the subject of an appeal by the prosecution to the Appeals Chamber. The same issue was also raised by two of the appellants in the Celebici Appeal,44 in which argument was heard last June. The arguments in that appeal covered many different issues, but considerable attention was paid to the issue of cumulative charging and cumulative convictions. It was understood that the judgment in that appeal would deal with the issue comprehensively.
7. If the Trial Chamber had given its decision on the Motion before judgment had been given in the Celebici Appeal whether it decided to follow the previous jurisprudence of the Tribunal concerning cumulative charging, or whether it decided to follow the views expressed in the Kuprekic Judgment, or whether it formed its own views concerning cumulative charging the unsuccessful party upon this issue would have had to appeal, an appeal which in turn would obviously not have been decided until judgment had been given in the Celebici Appeal. It therefore seemed to the Trial Chamber that the more expeditious course was for it to await the judgment of the Appeals Chamber in the Celebici Appeal, whose ratio decidendi upon this issue would be binding on the Trial Chamber.45 No further appeal would then be necessary.
8. The Trial Chamber has twice drawn the attention of the prosecution during status conferences to the very apparent lack of particularity in the amended indictment , and warned it to start work in advance of the decision on the Motion on the further amendments which will be necessary to the amended indictment for it to comply with the principles discussed in the Trial Chambers earlier decisions in Prosecutor v Krnojelac.46 These principles are again discussed later, in Sections 4 and 5 of this decision. The prosecution was also told that, in view of the time available to it to make those amendments once such a specific warning had been given and whilst the judgment in the Celebici Appeal was awaited, it would be given a very short period after this decision is given in which to file a further amended indictment.47
4 The alleged responsibility of the accused
9. The amended indictment asserts that each of the two accused is individually responsible pursuant to Article 7.1 of the Tribunals Statute for the crimes alleged against him in the indictment.48 The pleading then defines individual criminal responsibility, using all of the terminology employed in Article 7.1:
Individual criminal responsibility includes committing, planning, instigating, ordering or otherwise aiding and abetting in the planning, preparation or execution of any crimes referred to in Articles 2, 3, 4 and 5 of the Tribunal Statute.
The order in which the different terms of Article 7.1 are used here is not the same as they are used in Article 7.1. It may or may not be significant that the prosecution has promoted the term committing to first in order, rather than the later position in which it is found in the Statute.
10. It was appropriate for the indictment to define individual responsibility in such extensive terms only if the prosecution intended to rely upon each of the different ways pleaded. If the prosecution did not have that intention, then the irrelevant material should not have been pleaded because of the ambiguity it creates, and the prosecution should have made its intention clearer. It has been firmly stated that pleading individual responsibility by reference merely to all the terms of Article 7.1 is likely to cause ambiguity.49 The nature of the prosecution case should not be dependent upon such an ambiguity .
11. So far as the present indictment is concerned, the apparent intention of the prosecution is that one of the ways in which each of the accused is being charged with individual responsibility is that, in addition to aiding and abetting in various ways, he himself actually committed the crime in the sense that he personally did the acts, such as the killing and maltreatment of Bosnian Muslims and Bosnian Croats, which amounted to the crimes charged. That is the sense in which the word committed is used in Article 7.1.50 The description of Talics powers and authority given in pars 20-21 of the amended indictment51 are not expressed as limiting his alleged responsibility pleaded in general terms in par 25,52 as the prosecution claims.53 It is this form of pleading which leaves the prosecution open to the criticism that it is attempting to make its allegations as broad and as comprehensive as possible, even though it has no evidence to support them, to enable it to take advantage of a subsequent discovery of such evidence without the need to amend its indictment .54 If it has no evidence that the two accused personally committed any of the acts which amounted to the crimes charged , it must withdraw any reference to their personal responsibility for committing the crimes.
12. Other ways in which the amended indictment asserts that each of the two accused was individually responsible for the crimes alleged against him involve different forms of aiding and abetting in the commission by others of those crimes, as defined in Article 7.1 and quoted earlier, in par 9 of this decision. Each of the two accused is also said to have participated, as members of the ARK Crisis Staff, individually or in concert in the operations relating to the conduct of the hostilities and the destruction of the Bosnian Muslim and Bosnian Croat communities in the ARK area.55 This formula of the two accused acting individually and in concert is repeated in relation to different counts in the amended indictment.56 In its context, this appears to have been intended as an allegation that each of the accused acted individually and in concert with each other, but it could also be interpreted as meaning in concert with others. It may or may not be significant that the earlier joint indictment against the two accused, dated 12 March 1999, pleaded that the two accused had acted in concert with others.57 This sort of ambiguity should not remain. If the prosecution seeks to rely upon the accomplice liability of acting in concert as part of a common purpose or design , or as part of a common criminal enterprise, held by the Appeals Chamber to fall within Article 7.1,58 then this should be made clear.
13. Finally, the amended indictment asserts that each of the two accused, whilst in the position of authority set out in pars 19-23 of the pleading,59 is also criminally responsible for the acts of his subordinates pursuant to Article 7.3 of the Tribunals Statute.
5 Particularity in pleading
14. Talic has complained that the amended indictment does not comply with the requirements of the Tribunals Statute and Rules as interpreted by the jurisprudence of the Tribunal , which is said to require the indictment in every case, whatever the nature of the responsibility alleged, to contain information as to the identity of the victims , the place and date of the offence and the methods used to perpetrate it.60 Talic says that the indictment fails to identify the actual perpetrators of the alleged crimes, or any connection between them and himself, or the nature of his responsibility for their acts.61
15. Talic also argues that, following the statement by the prosecution that it does not intend to call as witnesses a number of persons whose statements formed part of the supporting material accompanying the indictment when confirmation was sought , the amended indictment now has no validity; the suggestion is made that a number of these statements provided the only material before the confirming judge in relation to various of the alleged events pleaded.62 As stated earlier, the prosecution filed no response to this argument, but it may nevertheless be dismissed. The Trial Chamber has already pointed out that, once the indictment has been confirmed, the issue as to whether there is evidence to support any charge pleaded in the indictment is to be determined by the Trial Chamber at the conclusion of the trial or (if the issue is raised) at the close of the prosecution case.63 The absence of material which was before the confirming judge has no relevance to the form of the indictment .
16. In relation to the other issues raised by Talic, the prosecution denies that it is obliged in an indictment to give the details to which Talic has referred, and it says that such details should be the subject of a request for further and better particulars.64 It dismissed the decisions of this Trial Chamber to the contrary effect as being out of line with the decisions of the other Trial Chambers.65 These two assertions are dealt with separately.66
17. This Trial Chamber does not accept that its decisions are inconsistent with those of other Trial Chambers. It is not proposed to restate in this decision what has already been said in previous decisions (and not just those of this Trial Chamber ) concerning the need for particularity in pleading, except where necessary to deal with a particular issue raised in the present case.
18. The starting point in the present case is the need for the accused to be informed of the nature and cause of the charge against him.67 A distinction is drawn in the Tribunals jurisprudence between the material facts upon which the prosecution relies (which must be pleaded) and the evidence by which those material facts will be proved (which need not be pleaded).68 Whether a particular fact is a material one which must be pleaded depends in turn upon the nature of the case which the prosecution seeks to make, and of which the accused must be informed. The materiality of such details as the identity of the victim, the place and date of the events for which an accused is alleged to be responsible , and the description of the events themselves, necessarily depends upon the alleged proximity of that accused to those events.69
19. In a case based upon superior responsibility, what is most material is the relationship between the accused and the others who did the acts for which he is alleged to be responsible, and the conduct of the accused by which he may be found to have known or had reason to know that the acts were about to be done, or had been done, by those others, and to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who did them.70 However, so far as those acts of the other persons are concerned, although the prosecution remains under an obligation to give all the particulars which it is able to give , the relevant facts will usually be stated with less precision, and that is because the detail of those acts (by whom and against whom they are done) is often unknown and because the acts themselves often cannot be greatly in issue.71
20. In a case based upon individual responsibility where it is not alleged that the accused personally did the acts for which he is to be held responsible where the accused is being placed in greater proximity to the acts of other persons for which he is alleged to be responsible than he is for superior responsibility again what is most material is the conduct of the accused by which he may be found to have planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of those acts.72 But more precision is required in relation to the material facts relating to those acts of other persons than is required for an allegation of superior responsibility . In those circumstances, what the accused needs to know as to the case he has to meet is not only what is alleged to have been his own conduct but also in somewhat more detail than for superior responsibility what are alleged to have been the acts for which he is to be held responsible,73 subject of course to the prosecutions ability to provide such particulars.74 But the precision required in relation to those acts is not as great as where the accused is alleged to have personally done the acts in question.75
21. Another form of accomplice liability within the meaning of Article 7.1 is that of acting in concert as part of a common purpose or design, or as part of a common criminal enterprise, referred to above.76 Where such liability is charged, the indictment must inform the accused of the nature or purpose of the joint criminal enterprise (or its essence), the time at which or the period over which the enterprise is said to have existed, the identity of those engaged in the enterprise so far as their identity is known, but at least by reference to their category as a group and the nature of the participation by the accused in that enterprise.77
22. In a case based upon individual responsibility where the accused is alleged to have personally done the acts pleaded in the indictment, the material facts must be pleaded with precision the information pleaded as material facts must, so far as it is possible to do so, include the identity of the victim, the places and the approximate date of those acts and the means by which the offence was committed.78 Where the prosecution is unable to specify any of these matters, it cannot be obliged to perform the impossible .79 Where the precise date cannot be specified, a reasonable range of dates may be sufficient.80 Where a precise identification of the victim or victims cannot be specified, a reference to their category or position as a group may be sufficient.81 Where the prosecution is unable to specify matters such as these, it must make it clear in the indictment that it is unable to do so and that it has provided the best information it can.82
6 Relief in the event that the form of the indictment is defective
23. It is not the function of a Trial Chamber to check for itself whether the form of an indictment complies with the pleading principles which have been laid down. The Trial Chamber is, of course, entitled proprio motu to raise issues as to the form of an indictment but, unless it does so, it waits until a specific complaint is made by the accused before ruling upon the compliance of the indictment with those pleading principles.83 This is fundamental to the primarily adversarial system adopted for the Tribunal by its Statute.
24. The only sufficiently specific complaints made by Talic in relation to the form of the amended indictment in the present case are two in number:
(1) that he has been improperly charged cumulatively with a number of charges based upon the same facts, and
(2) that the charges alleging grave breaches of the Geneva Conventions are irrelevant in the absence of any allegation in the indictment that the acts upon which the charges are based took place in the course of an international armed conflict.
Both of these complaints are dealt with in the succeeding sections of this decision .
25. The remaining complaints are very general in nature no real attempt has been made to identify the specific allegations to which they relate. This approach by Talic was perhaps understandable in view of the almost complete lack of detail in the amended indictment, but it does not assist the Trial Chamber to make specific orders against the prosecution in relation to the defects in its indictment. However, this difficulty largely disappeared when the Senior Trial Attorney for the prosecution very fairly and properly conceded that the defects in the indictment were a result of a misapprehension on her part as to of the pleading principles which had been laid down in the Tribunal, and her belief that it would be sufficient for the prosecution to provide schedules to the defence disclosing these details at a later stage.84
26. Now that this misapprehension has been dispelled, it is sufficient, in the opinion of the Trial Chamber, simply to order the prosecution to file a further amended indictment which does comply with the pleading principles which have been laid down by the Tribunal and discussed in the Krnojelac cases. Despite the impression conveyed by some sections of the Office of the Prosecutor that it is the prosecution policy to avoid disclosing what the real nature of its case is until as late a stage as possible, the Trial Chamber is confident from the assurances given by the Senior Trial Attorney for the prosecution during the status conferences to which reference has been made that it will now comply with those pleading principles. Bearing in mind that subject to contingencies beyond its control the Trial Chamber hopes to be able to commence the trial in this case in May or June this year, there is a need for the form of the indictment to be finalised as soon as possible without further litigation. If the defence is dissatisfied with the prosecutions compliance with those pleading principles, the Trial Chamber will entertain a new motion objecting to the form of the further amended indictment provided that the motion identifies the specific allegations to which it takes objection.85
27. It is, however, necessary to dispose of the suggestion earlier made by the prosecution , that the detail missing from this indictment should be the subject of a request for further and better particulars. The right of an accused to seek further and better particulars of an allegation in the indictment does not overcome a deficiency in the form of the indictment. The indictment must state all of the material facts upon which the prosecution relies to establish the charges laid. If the evidentiary material provided by the prosecution during the pre-trial discovery process does not sufficiently identify the evidence upon which the prosecution relies to establish those material facts,86 then and only then is it appropriate for an application to be made to the Trial Chamber for an order that the prosecution supply particulars (and even then only if a request to the prosecution for such particulars has not been satisfactorily answered).87 The response by the prosecution that the complaints made by Talic in relation to the form of the indictment should have been the subject of an application for further and better particulars is rejected.
28. There is one final statement to be made in relation to the form of the further amended indictment which the prosecution is being ordered to file. This Trial Chamber has stated that, in order to avoid ambiguity, it is preferable that an indictment indicate precisely and expressly the particular nature of the responsibility alleged in relation to each individual count.88 The extent to which the prosecution adopts this Trial Chambers preferred manner of pleading in this regard will provide a good indication of the degree to which the prosecution is prepared now to co-operate with the Trial Chamber in this case.
7 Cumulative charging
29. Talic says that the indictment does not respect the principles of international law that:89
(i) only a single legal characterisation may be applied to the same facts,
(ii) where the same facts may constitute two offences, only the charge which contains the more specific elements may be charged (a principle which he says is derived from the Blockburger case),90 and
(iii) genocide, as a composite offence, incorporates the ingredients of persecution , extermination, wilful killing, torture, deportation and forcible transfer, and therefore cannot be charged with any of those separate offences in relation to the same facts.91
30. Yet, Talic says,92 he has been charged cumulatively in relation to the same facts in each case with:
(a) both genocide and/or complicity in genocide (counts 1 and 2);
(b) not only the genocide charges in counts 1 and 2, which he says amount to a charge of an aggravated crime against humanity, but also persecution as a crime against humanity (count 3);
(c) not only the genocide charges in counts 1 and 2, but also extermination as a crime against humanity (count 4) and wilful killing as a grave breach of the Geneva Conventions (count 5);
(d) not only the genocide charges in counts 1 and 2, but also torture both as a crime against humanity (count 6) and as a grave breach of the Geneva Conventions (count 7); and
(e) both deportation (count 8) and forcible transfer amounting to inhumane acts (count 9), each as a crime against humanity.
The prosecution responds that such cumulative charging is permitted by the Tribunals jurisprudence.93
31. The fundamental concern raised by the issue of accumulated charges is that an accused should not be subjected to punishment more than once in respect of the same criminal act. The most obvious consequence of this principle is that a Trial Chamber should be vigilant to ensure that the sentence imposed on an accused does not penalise him cumulatively for different offences in respect of the one piece of conduct. The complaint that such accumulation of offences may lead to cumulative convictions based upon the same conduct has been repeatedly rejected by Trial Chambers in the past when considering the form of the indictment, on the basis that the existence of cumulative convictions is a matter to be considered only when imposing penalty .94
32. This Trial Chamber, however, accepts that the penalty which must not be duplicated refers not only to cumulative sentences but also to the entering of cumulative convictions. An accused should not be convicted of more than one offence in respect of the same conduct where the conduct does not genuinely constitute more than one offence. Such a conclusion had already been reached in some Trial Chamber decisions, before the judgment in the Celebici Appeal.95
33. In the Kuprekic Judgment, upon which Talic relies in part, the Trial Chamber considered a number of issues raised in relation to cumulative convictions . In relation to the question of whether and on what conditions the same act or transaction may constitute two or more offences under international law, it determined that the applicable tests are:96
(i) whether each offence requires proof of an element that the other does not (that is, an element unique or materially distinct to each offence, the different elements test), and
(ii) even if it does not, whether each offence protects substantially different values.
The Kupreskic Judgment said that an affirmative answer to either of those questions will justify convictions for both crimes; but, if it is found that there is not more than one distinct offence, the Trial Chamber must convict on the more specialised offence only.97 The judgment relied on the United States Supreme Court line of authority deriving from Blockburger v United States98 as the principal source for the different elements test, which it considered to be the primary and more important test.
34. The identification of the principles to be applied in determining whether a single act or course of conduct constitutes more than one offence is a complex exercise , one which has now been conducted by the Appeals Chamber in the Celebici Appeal. It is therefore unnecessary in the present case for the Trial Chamber to deal further with the issue relating to cumulative convictions in order to determine the issue which arises in this application, relating to cumulative charges.
35. The Kupreskic Judgment also considered the question of when the Prosecutor may present cumulative charges for the same act or transaction,99 which is of significant relevance to the present application. The Trial Chamber referred to two potentially conflicting considerations relevant to the issue: the necessity to safeguard the right of the accused under Article 21.4(a) of the Statute to be informed of the charges against him, and the requirement that the Prosecutor must be granted all the powers consistent with the Statute to enable her to fulfil efficiently her mission of prosecuting persons responsible for serious violations of international humanitarian law. The accused has a right to be put in a position to know the legal elements of the offence charged but, on the other hand, the efficient fulfilment of the Prosecutions mission favours a system that is not hidebound by formal requirements of pleading in the indictment.100 The Trial Chamber regarded these requirements as having the result that the Prosecutor :101
(a) may make cumulative charges whenever it contends that the facts charged violate simultaneously two or more provisions of the Statute in accordance with the criteria discussed above;
(b) should charge in the alternative rather than cumulatively whenever an offence appears to be in breach of more than one provision, depending on the elements of the crime the Prosecution is able to prove [ ];
(c) should refrain as much as possible from making charges based on the same facts but under excessive multiple heads, whenever it would not seem warranted to contend, in line with the principles set out above in the section on the applicable law, that the same facts are simultaneously in breach of various provisions of the Statute.
36. This Trial Chamber does not accept that the authority upon which the Kuprekic Judgment relied justified the principles which it stated in relation to cumulative charging. The Blockburger case upon which that judgment relied related to the double jeopardy clause of the Fifth Amendment. That clause provides, relevantly :
[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb [ ].
That clause has, however, been interpreted as being concerned with successive prosecutions upon different charges arising out of the same facts, rather than with cumulative charges in the same prosecution.102 Thus, even though the prohibition on double jeopardy protects a defendant against even the risk of being convicted twice for the same offence, such a prohibition is limited to the sense that, not only is it impermissible to convict an accused twice for the same offence, it is also impermissible to subject him to a further trial in which he has been charged with an offence of which he has already been acquitted or convicted.103 The double jeopardy provision has been expressly interpreted as not prohibiting the pleading of cumulative charges in a single prosecution.104 These cases were not considered in the Kuprekic Judgment.
37. In the context of international human rights law, the double jeopardy principle has also been expressed in terms which suggest that it is not intended to preclude cumulative charging in the same proceedings. Article 14 (7) of the International Covenant on Civil and Political Rights provides:
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
This provision clearly limits the protection against cumulative trial or penalty to offences for which a person has already been finally convicted or acquitted . Its focus is on preventing an accused already convicted or acquitted of an offence being subjected to subsequent proceedings in respect of the same offence. Nothing in this provision suggests that an accused may not, in one indictment relating to the same proceedings, be charged with more than one offence in respect of the same set of facts.
38. This Trial Chamber does not, therefore and with all due respect, agree with the Kuprekic Judgment insofar as it seeks to restrict the right of the prosecutor to charge an accused person with more than one offence arising out of the same set of facts unless the cumulative offences are charged in the alternative. In the context of this Tribunals work, such a restriction would unfairly impede the prosecution in the execution of its duties on behalf of the international community . There are two particular reasons why the limitation should not be imposed.
39. Primarily, and as an important practical matter, it is not reasonable to expect the prosecution to select between charges until all of the evidence has been presented . It is not possible to know with any precision, prior to that time, which offences among those charged the evidence will ultimately prove, particularly in relation to the proof of the differing pre-requisites such as, for example, the existence of an international armed conflict for Article 2 offences, a requirement which does not apply to offences falling under Article 3. Thus the second of the guidelines in the Kuprekic judgement which requires the prosecution to charge in the alternative whenever an offence appears to be in breach of more than one provision, depending upon the elements of the crime the prosecution is able to prove is difficult to apply in practice, given that, at the time of drafting the indictment, the prosecution is not yet realistically in a position to know which crimes it is able to prove. Nor is it possible for the prosecution to assess in advance of drafting the indictment which of two or more charges based upon the same set of facts will prove to be the most serious of those charges in the circumstances of the particular case, and thus the most appropriate to select as the first charge , to which the others would be made alternative. The ultimate success of the prosecutions case should not be made to depend upon the technicalities of pleading, so that what turns out on the evidence to be the most serious charge fails if what turns out to be the least serious charge has been selected as the first of a number of alternative charges. Nor will the requirement of alternative charging save any trial time, as the prosecution must still necessarily lead evidence in support of all of the charges (including the alternative charges). The defence must also still necessarily test such evidence and, where appropriate, lead evidence in contradiction of the prosecution evidence in relation to all charges.
40. There is no readily identifiable prejudice to an accused in permitting cumulative charging, when the issues arising from an accumulation of offences are determined after all of the evidence has been presented,105 whereas the very real possibilities of prejudice to the prosecution in restricting such charging are manifest. From a practical point of view, therefore, the argument for permitting cumulative charging to continue is an overwhelming one.
41. Secondly, the offences in the Tribunals Statute do not refer to specific categories of well-defined acts (as are to be found in domestic legislation), but rather to broad groups of offences of which the elements are not always clearly defined, and which may still remain to be clarified in the Tribunals jurisprudence.106 Although this situation may well change over the next few years, the obligations imposed by the Kuprekic Judgment upon the prosecution to assess at the outset whether particular facts do genuinely contravene different provisions of the Statute is an almost impossible task at this stage of the Tribunals jurisprudence. The Trial Chamber does not place as much importance upon this second reason as it does upon the practical problems already discussed.
42. This Trial Chamber therefore does not regard the principle of avoiding any accumulation of penalty as precluding the cumulative charging of offences in respect of the same conduct. The Trial Chamber agrees with what was said in the Tadic proceedings:107
What can [ ] be said with certainty is that penalty cannot be made to depend upon whether offences arising from the same conduct are alleged cumulatively or in the alternative. What is to be punished by penalty is proven criminal conduct and that will not depend upon the technicalities of pleading.
Since the above was written, the Appeals Chamber has now given judgment in the Celebici Appeal, where it has expressly and unanimously stated that cumulative charging is permitted.108
43. This complaint by Talic concerning the form of the indictment in the present case is therefore rejected.
8 The international issue
44. The other specific objection taken by Talic to the form of indictment is to the inclusion of charges alleging grave breaches of the Geneva Conventions, notwithstanding the absence of any allegation in the amended indictment that the acts upon which the charges are based took place in the course of an international armed conflict,109 or of any facts pleaded which could establish that the armed conflict in Bosnia Herzegovina was in fact international in character.110 Talic says, therefore, that these charges alleging grave breaches of the Geneva Conventions are irrelevant to the case.111
45. The prosecution says that pars 24, 25 and 27 of the amended indictment sufficiently plead the necessary pre-requisites for the charges alleging grave breaches of the Geneva Conventions.112 Paragraph 24 states:
At all times relevant to this indictment, a state of armed conflict and partial occupation existed in the Republic of Bosnia and Herzegovina. All acts or omissions herein set forth as Grave Breaches of the Geneva Conventions of 1949, recognised by Article 2 of the Statute of the Tribunal, occurred during that armed conflict and partial occupation.
Paragraph 25 alleges that each of the two accused is individually responsible for the crimes alleged against him in the indictment, and it states the substance of Article 7(1) of the Tribunals Statute. Paragraph 27 states:
At all times relevant to this indictment, all of the accused were required to abide by the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 1949.
The prosecution observes that, in this respect, the amended indictment in the present case is in the same form as the indictment in the Tadic case, in which a finding that the armed conflict was an international one was ultimately made by the Appeals Chamber, a decision by which this Trial Chamber is said to be bound.113
46. In reply, Talic dismisses the reference to the Tadic indictment as irrelevant , points out that par 24 of the amended indictment in the present case makes no reference to an international armed conflict, and repeats that no facts pleaded in the indictment could establish that such was the nature of that armed conflict .114 In a further document filed in relation to another (related) application which he had made, Talic added that it is only the ratio decidendi of an Appeals Chamber decision (one which relates solely to questions of law) which is binding upon the Trial Chambers; thus , the question of the international character of the armed conflict (which the Appeals Chamber itself described as a factual finding)115 is for the Trial Chamber in each case to determine for itself upon the evidence given in that case.116 The Trial Chamber agrees with Talic that it is not bound by the factual finding by the Appeals Chamber in the Tadic Conviction Appeal Judgment.117
47. Article 2 of the Tribunals Statute gives to the Tribunal power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Convention of 12 August 1949, which the Article goes on to identify as a number of specified acts against persons or property protected under the provisions of the relevant Geneva Convention. The Appeals Chamber has concluded that, in the present state of development of international law, Article 2 applies only to offences committed within the context of international armed conflicts, and that an international armed conflict is both a pre-requisite for its applicability and relevant to establishing that the persons against whom they were committed were protected under the provisions of the relevant Geneva Convention.118
48. It is a fundamental rule of pleading that the indictment must identify each of the essential factual ingredients of the offence charged.119 That requirement includes any legal pre-requisites to the application of the offence in the circumstances of the particular case. Such a rule is not a mere technicality ; compliance with it is essential to enable the accused to know the nature of the case against him, as Article 21.4(a) of the Tribunals Statute requires. Each of those essential factual ingredients must usually be pleaded expressly, although it may be sufficient in some circumstances if it is expressed by necessary implication .120 This fundamental rule of pleading , however, is not complied with if the pleading merely assumes the existence of the pre-requisite.
49. The amended indictment does not, as it must when an Article 2 offence is charged , plead either that the armed conflict within which the offence is alleged to have been committed was an international one or sufficient facts from which such a finding could be made. The facts pleaded in pars 24, 25 and 27 are not sufficient for that purpose. The character of the armed conflict is not identified by necessary implication it is merely assumed. Nor does the amended indictment give any indication of the basis upon which the prosecution will be asserting that the armed conflict was international in character. The basis upon which such an assertion is made is clearly also a material fact which must be pleaded to enable the accused to know the nature of the case against them.
50. If, for example, the prosecution is relying upon the evidence from which the Appeals Chamber in the Tadic Conviction Appeal Judgment concluded that the armed conflict in that case was international, it would have to plead as a material fact that the armed forces of the Bosnian Serbs were acting in the armed conflict in the present case under the overall control of and on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro).121 If the evidentiary material provided by the prosecution during the pre-trial discovery process has not sufficiently identified the evidence upon which the prosecution relies to establish that material fact, and if a request to the prosecution for such particulars has not been satisfactorily answered, it would be appropriate for an application to be made to the Trial Chamber for an order that the prosecution supply particulars of that allegation.
51. The objection to the indictment taken by Talic is therefore made out. It is not to the point that the indictment in Tadic was similarly deficient. No point was raised by the accused in that case as to the absence of such an allegation ,122 so the form of the Tadic indictment provides no authority in support of the form of the indictment in this case.
52. There has been no consistent practice within the Tribunal as to the precise nature of the relief granted when upholding a complaint by an accused in relation to the form of the indictment.123 In the circumstances of some urgency to which reference was made earlier in this decision, the Trial Chamber believes that no good purpose would be served by striking out the allegation of grave breaches of the Geneva Conventions as irrelevant; the more appropriate course is simply to order the prosecution to plead, as material facts, the allegation that the armed conflict was international in character and the basis upon which such an assertion is made. If the prosecution fails to do so within the period allowed, the Trial Chamber will entertain an application from the defence to strike out the allegation of grave breaches of the Geneva Conventions .
9 Time to amend
53. As earlier stated,124 the prosecution has been aware since at least 17 November last that it would be ordered to amend the indictment further so that it complied with the principles discussed in the Trial Chambers earlier decisions in Krnojelac. It has also been aware since at least 2 February that it would be given a very short period after this decision is given in which to file such an amended pleading. A period of something like two weeks was suggested.125 On both occasions the prosecution was urged to commence that exercise without waiting for the decision.
54. The Trial Chamber is particularly concerned that any further delay in the production of an adequate indictment could well result in an impermissible delay in the commencement of the trial. Because of the number and length of the cases ahead of it in this Trial Chambers list, the trial in this case has already been delayed in what is unfortunately the ordinary course in the Tribunal. It is therefore vital that, when the Trial Chamber is ready to hear the case, it is ready to proceed. With all the warnings which the prosecution has been given, there can be no prejudice to it if the prosecution is given a very short period after this decision to file the further amended indictment which complies with the principles discussed in the Krnojelac Decisions. The only practical effect of the cumulative charging issue in relation to which this decision has been delayed was whether the various cumulative charges could be pleaded without restriction or only in the alternative . That had no effect, or only minimal effect, upon the task of redrafting the indictment .
55. For the foregoing reasons, the Trial Chamber determines as follows:
(i) The complaint by Momir Talic that he has been impermissibly charged with cumulative offences based upon the same facts is dismissed.
(ii) The complaint by Momir Talic that, in the absence of any allegation that the acts charged occurred during an international armed conflict, the allegations of grave breaches of the Geneva Conventions are irrelevant is upheld.
(iii) The complaint by Momir Talic that the amended indictment does not comply with the requirements of the Tribunals Statute and Rules as interpreted by the jurisprudence of the Tribunal is upheld insofar as it related to a lack of particularity in the pleading, but is otherwise dismissed.
(iv) The prosecution is to file on or before 13 March 2001 a further amended indictment which:
(a) complies with the pleading principles stated in Sections 4 and 5 of this decision , and
(b) pleads, as material facts, that the armed conflict was international in character and the basis upon which such an assertion is made.
(v) In the event that some unforeseen problem arises in relation to the ability of the prosecution to comply with this order in the time allowed, an application may be made to the Pre-Trial Judge for an extension of time.
Done in English and French, the English text being authoritative.
Dated this 20th day of February 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1- Motion for Dismissal of the Indictment,
8 Feb 2000 (Motion).
2- The original indictment was amended at the request of the prosecution in order to add further charges based on new material: Prosecutions Response to Motion to Separate Trials Filed by Counsel for the Accused Momir Talic, 21 Oct 1999, p 2. The need for an amended indictment had already arisen because of some confusion over the extraction of the charges against these two accused in this case Radoslav Brdanin (Brdanin) and Talic from the original, sealed, indictment which charged more than the two accused so far revealed; the confusion is discussed in Prosecutor v Talic, Decision Deferring Decision on Motion for Separate Trials, 4 Nov 1999, pars 4-12.
3- Motion, pp 15-16 (English translation).
4- This is dealt with in the fifth section of the decision, headed Particularity in pleading. As a matter of convenience, it is dealt with after the section dealing with the alleged responsibility of the accused.
5- This is dealt with in the fourth section, headed The alleged responsibility of the accused.
6- This is dealt with in the seventh section, headed Cumulative charging.
7- This is dealt with in the eighth section, headed The international issue.
8- Counsel for Talic has expressed a fear that a recitation of the allegations in the indictment may be understood as an indication that the Trial Chamber regards as established what are nothing more than allegations: Request to Appeal Against the Decision of 9 March 2000, 16 Mar 2000, p 4 (English translation). The Trial Chamber makes it clear that it is dealing only with the form of the amended indictment, without forming any view as to whether the allegations in it will be established.
9- Amended Indictment, par 6.
10- Ibid, par 7.
11- Ibid, par 8.
12- Ibid, par 16.
13- Ibid, par 16.
14- Ibid, par 8.
15- Ibid, par 22.
16- Ibid, pars 14, 19. The various Crisis Staffs were re-designated as War Presidencies and later as War Commissions, but were still commonly referred to as Crisis Staffs: ibid, par 15.
17- Ibid, par 19.
18- Ibid, pars 11, 20.
19- Ibid, par 20.
20- Ibid, pars 20-21.
21- Ibid, par 21.
22- Ibid, par 16.
23- Ibid, par 18.
24- Ibid, par 23.
25- Count 1, Article 4(3)(a) of the Tribunals Statute.
26- Count 2, Article 4(3)(e).
27- Count 3, Article 5(h).
28- Count 4, Article 5(b).
29- Count 8, Article 5(d).
30- Count 9, Article 5(i).
31- Count 6, Article 5(f).
32- Count 7, Article 2(b).
33- Count 5, Article 2(a).
34- Count 10, Article 2(d).
35- Count 11, Article 3(b).
36- Count 12, Article 3(d).
37- The time limit imposed by Rule 72 (not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66(A)(i)) has not yet expired. This is because of the long and protracted course taken by the prosecution seeking protective measures which prevent the identity of certain witnesses being made known to the accused at this stage: Decision on Motion by Prosecution for Protective Measures, 3 July 2000, pars 5-21.
38- Prosecutions Response to Motion for Dismissal of the Indictment Filed by Counsel for the Accused Momir Talic, 28 Feb 2000 (Response).
39- Application for Leave to Reply and Reply to the Response of the Prosecutor of 28 February 2000, 20 Mar 2000 (Reply).
40- Prosecutions Response as per Scheduling Order of 27 March 2000, 28 Mar 2000 (Further Response).
41- This was raised in a number of the applications made by the prosecution for protective measures: first, in the Prosecutions Second Motion for Protective Measures for Victims and Witnesses, 31 July 2000, par 10(f); secondly, in the Prosecutions Fourth Motion for Protective Measures for Victims and Witnesses, 21 Sept 2000, par 10(d); and, thirdly, in the Prosecutions Fifth Motion for Protective Measures for Victims and Witnesses, 10 Oct 2000.
42- Memorandum, 11 Oct 2000.
43- Case IT-95-16-T, 14 Jan 2000 (Kuprekic Judgment).
44- Prosecutor v Delalic, Case IT-96-21-A (Celebici Appeal).
45- Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgment, 24 Mar 2000 (Aleksovski Appeal Judgment), par 113.
46- Case IT-97-25-PT. These warnings were given on 17 Nov 2000 (Status Conference Transcript, pp 220-222) and on 2 Feb 2001 (Ibid, p 262).
47- Status Conference, 2 Feb 2001, Transcript, p 262.
48- Amended Indictment, par 25.
49- Prosecutor v Krnolejac, Decision on Preliminary Motion on Form of Amended Indictment, 11 Feb 2000 (Second Krnolejac Decision), par 60; Aleksovski Appeal Judgment, par 171, footnote 319, which cites the Second Krnojelac Decision; Prosecutor v Delalic, Case IT-96-21-A, Judgment, 20 Feb 2001 (Celebici Appeal Judgment), par 351.
50- Prosecutor v Tadic, Case IT-94-1-A, Judgment, 15 July 1999 (Tadic Conviction Appeal Judgment), par 188.
51- These are summarised in par 2(vii), supra.
52- They are quoted in par 9, supra.
53- Response, par 6.
54- Second Krnojelac Decision, par 23.
55- Amended Indictment, par 23.
56- Ibid, pars 31, 35, 39, 43 and 47.
57- Original Indictment publicly disclosed, par 39.
58- Tadic Conviction Appeal Judgment, pars 185-229.
59- The allegations in these paragraphs of the amended indictment are summarised in par 2(vi)-(viii), supra.
60- Motion, pp 3-4 (English translation); Reply, pp 2-3 (English translation).
61- Motion, pp 5-7 (English translation); Reply, pp 2-4 (English translation).
62- Memorandum, 11 Oct 2000, pars 3, 3.1, 3.2.
63- Prosecutor v Brdanin, Case IT-99-36-PT, Decision on Motion to Dismiss Indictment, 5 Oct 1999, par 15, where reference is made to a submission made, pursuant to Rule 98bis (Motion for Judgment of Acquittal), that there is no case to answer.
64- Response, par 7.
65- Status Conference, 17 Nov 2000, Transcript, p 218.
66- The issue of particulars is dealt with in par 27, infra.
67- Tribunals Statute, Article 21.4(a).
68- Prosecutor v Krnolejac, Case IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb 1999 (First Krnojelac Decision), par 12; Prosecutor v Doen & Kolundija, Case IT-98-8-PT, Decision on Preliminary Motions, 10 Feb 2000 (Doen Decision), par 21; Second Krnolejac Decision, par 17; Prosecutor v Naletilic & Martinovic, Case IT-98-34-PT, Decision on Defendant Vinko Martinovics Objection to the Indictment, 15 Feb 2000 (Martinovic Decision), pars 17-18; Prosecutor v Furundija, Case IT-95-17/1-A, Judgment, 21 July 2000, par 153; Prosecutor v Krajisnik, Case IT-00-39-PT, Decision Concerning Preliminary Motion on the Form of the Indictment, 1 Aug 2000 (Krajisnik Decision), par 8 (Leave to appeal was refused on the basis that there had been no abuse of the Trial Chambers discretion: Prosecutor v Krajisnik, Case IT-00-39-AR72, Decision on Application for Leave to Appeal the Trial Chambers Decision Concerning Preliminary Motion on the Form of the Indictment, 13 Sept 2000, p 3).
69- Second Krnojelac Decision, par 18; Krajisnik Decision, par 9.
70- Statute, Article 7(3).
71- Prosecutor v Kvocka, Case IT-99-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr 1999 (Kvocka Decision), par 17; Second Krnojelac Decision, par 18(A); Krajisnik Decision, par 9.
72- Statute, Article 7(1).
73- First Krnojelac Decision, par 38.
74- Ibid, par 40.
75- Kvocka Decision, par 17; Second Krnojelac Decision, par 18(B).
76- Paragraph 12, supra.
77- Prosecutor v Krnojelac, Decision on Form of Second Amended Indictment, 11 May 2000 (Third Krnojelac Decision), par 16.
78- Tribunals Statute, Articles 18.4, 21.4(a) and 21.4(b), and Rule 47(C); Prosecutor v Tadic, (1995) I JR ICTY 293 at 301, Decision on the Defence Motion on the Form of Indictment, par 12; Prosecutor v Blakic, Case IT-95-14-PT, Decision on the Defence Motion to Dismiss the Indictment Based Upon Defects in the Form Thereof, 4 Apr 1997, par 20; First Krnojelac Decision, par 12; Doen Decision, par 8; Second Krnojelac Decision, pars 18(C), 21. The ruling in the Kvocka Decision, at par 17, is consistent with the differing obligations to give particularity, depending upon the proximity of the accused to the acts in question, as stated in the Krnojelac cases.
79- First Krnojelac Decision, par 40; Second Krnojelac Decision, par 57.
80- First Krnojelac Decision, par 42.
81- First Krnojelac Decision, par 58; Third Krnojelac Decision, par 18.
82- Second Krnojelac Decision, pars 33-34, 43; Third Krnojelac Decision, par 18.
83- Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on Prosecutors Response to Decision of 24 February 1999, 20 May 1999, par 18.
84- Status Conference, 17 Nov 2000, Transcript pp 221-222.
85- See pars 23-25, supra, and par 50, infra.
86- See Rule 66 of the Rules of Procedure and Evidence.
87- Martinovic Decision, par 17.
88- Second Krnojelac Decision, par 60. The statement in the text has been quoted with approval by the Appeals Chamber, in the Aleksovski Appeal Judgment, par 171, footnote 319, and in the Celebici Appeal Judgment, par 351.
89- Motion, pp 8-9 (English translation).
90- Blockburger v United States 284 US 299 (1932), a decision of the US Supreme Court which is discussed later in this decision.
91- Talic also raised in his Reply an argument that the principle upon which Article 10 of the Tribunals Statute (Non-bis-in-idem) is based also precludes two convictions upon the same facts within this Tribunal: Reply, par II 2. The Trial Chamber agrees with the prosecution that this principle relates to successive prosecutions upon different charges arising out of the same facts, rather than with cumulative charges in the same prosecution: Further Response, par 2. The authorities are cited in par 36, infra. In any event, the Trial Chamber is now bound by the judgment of the Appeals Chamber in the Celebici Appeal.
92- Motion, p 16 (English translation).
93- Response, pars 9-17.
94- See, for example, Prosecutor v Tadic, Case No IT-94-1-T, Decision on the Defence Motion on the Form of the Indictment, 14 Nov 1995, pars 15-18; Prosecutor v Delalic, Case No IT-96-21-T, Decision on Motion by the Accused Zejnil Delalic Based on Defects in the Form of the Indictment, 2 Oct 1996, par 24; Ibid, Decision on Motion by the Accused Hazim Delic Based on Defects in the Form of the Indictment, 15 Nov 1996, par 22. Leave to appeal was refused in respect of the decisions on both motions: Prosecutor v Delalic, Case IT-96-21-PT, Decision on Application for Leave to Appeal (Form of the Indictment), 15 Oct 1996; Ibid, Decision on Application for Leave to Appeal by Hazim Delic (Defects in the Form of the Indictment), 6 Dec 1996. See also Prosecutor v Blakic, Case No IT-95-14-PT, Decision on the Defence Motion to Dismiss the Indictment Based on Defects in the Form Thereof, 4 Apr 1997, par 32; Prosecutor v Kuprekic, Case No IT-95-16-PT, Decision on Defence Challenges to Form of the Indictment, 15 May 1998, p 3; First Krnojelac Decision, par 5.
95- Kuprekic Judgment, par 719; Martinovic Decision, par 9; Prosecutor v Krstic, Case No IT-98-33-PT, Decision on Defence Preliminary Motion on the Form of the Amended Indictment, Counts 7-8, 28 Jan 2000 (Krstic Decision), pp 6-7.
96- Kuprekic Judgment, pars 681-682, 693.
97- Ibid, par 719.
98- 284 US 299 (1932), at 304.
99- Kuprekic Judgment, par 720.
100- Ibid, pars 724-726.
101- Ibid, par 727 (the emphasis appears in the original).
102- North Carolina v Pearce, 395 US 711 (1969), at 717: The double jeopardy clause protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. See also Green v United States 355 US 184 (1957), at 187-188; United States v Dixon 509 US 688 (1993), at 696, 704. See also First Krnojelac Decision, par 9.
103- Abney v United States 431 US 651 (1977), at 660-662.
104- Ohio v Johnson 467 US 493 (1984), at 500: While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.
105- See Martinovic Decision, par 12. This Trial Chamber acknowledges that there may be specific examples of obviously duplicative charging, where there is no reason in the particular circumstances that the prosecution needs to see how the evidence turns out before selecting the most appropriate charge. In those circumstances, it may be oppressive to allow cumulative charging.
106- Krstic Decision, pp 6-7.
107- Prosecutor v Tadic, Case No IT-94-1-T, Decision on the Defence Motion on Form of Indictment, 14 Nov 1995, par 17.
108- Celebici Appeal Judgment, par 400; Separate and Dissenting Opinion by Judge Hunt and Judge Bennouna, par 12.
109- Motion, p 14 (English translation). Reliance is placed upon Prosecutor v Tadic (1995) I JR ICTY 353 (Tadic Jurisdiction Appeal Decision), at 443-445 (pars 79 and 81).
110- Motion, pp 14-15 (English translation).
111- Ibid, p 16 (English translation).
112- Response, par 20.
113- Ibid, pars 20-21. The Appeals Chamber held that, for the period with which the Tadic case was concerned, the armed forces of what is described as the Republika Srpska were to be regarded as acting under the overall control of and on behalf of the Federal Republic of Yugoslavia (Serbia and Montenegro), hence the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authority of Bosnia and Herzegovina must be classified as an international armed conflict: Tadic Conviction Appeal Judgment, pars 162, 167.
114- Reply, p 5 (English translation).
115- Tadic Conviction Appeal Judgment, par 167.
116- Memorandum Relating to Prosecutors Response of 15 May 2000, 16 May 2000, par 3 (filed in relation to Talics Request for Disqualification of a Trial Judge, 4 May 2000).
117- See Aleksovski Appeal Judgment, par 113(iii).
118- Tadic Jurisdiction Appeal Decision, pars 79-84. This interpretation was restated in, and not contested by the parties to, the subsequent Tadic Conviction Appeal Judgment, at pars 80-83.
119- First Krnojelac Decision, par 12 (footnote 19).
120- Third Krnojelac Decision, par 22.
121- Tadic Conviction Appeal Judgment, pars 162, 167. That was the evidence upon which the Appeals Chamber relied, although the legal test which it applied referred only to overall control (pars 137, 145).
122- A motion was filed concerning the form of that indictment, but this point was not argued: Prosecutor v Tadic (1995) I JR ICTY 293, Decision on the Defence Motion on the Form of the Indictment. At the time when that motion was filed and disposed of, the Appeals Chamber had not given its Tadic Jurisdiction Appeal Decision which established the requirement.
123- Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on Prosecutors Response to Decision of 24 February 1999, 20 May 1999, pars 7-8.
124- Paragraph 8, supra. See also par 54, infra.
125- Status Conference, Transcript, T 262.
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