International Criminal Tribunal for the Former Yugoslavia: Current Survey: 1. Proceedings Prior to the First Appearance of the Accused

International Criminal Tribunal for the Former Yugoslavia: Current Survey

A. Review and Confirmation of Indictments

B. Deferral Proceedings

C. Rule 61 Proceedings

1. Proceedings Prior to the First Appearance of the Accused

A. Review and Confirmation of Indictments

The Tribunal's Statute places with the Prosecutor the authority and responsibility for investigating crimes within the jurisdiction of the Tribunal. If the Prosecutor determines that 'a prima facie case exists', he 'shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute'.⁸ The indictment is then submitted to a Trial Chamber judge for review.⁹ The judge, `[i]f satisfied that a prima facie case has been established by the Prosecutor', confirms the indictment.¹⁰ If the judge is not so satisfied, he must dismiss the indictment. At this stage, the judge may 'at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial'.¹¹

The procedure for submission and review of indictments is further explicated in Rule 47 of the Tribunal's Rules. Rule 47(A) develops the 'prima facie case' standard of Article 18(4) of the Statute; it requires the Prosecutor to submit an indictment for confirmation if he 'is satisfied that there are reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal.¹² With respect to the standard of review to be used by the judge to whom the indictment is presented, the Rule is less clear than the Statute and provides only that the indictment will be reviewed by a judge who 'may confirm or dismiss each count'.¹³ The confirming judge is also given the option of adjourning the review of the indictment, which is not provided for in the Statute. Finally, Rule 47(E) provides that the dismissal of a count in an indictment 'shall not preclude the Prosecutor from subsequently bringing a new indictment based on the acts underlying that count if supported by additional evidence'.

Thus far, the Prosecutor has issued indictments against seventy-five persons, all of which have been confirmed in accordance with the procedure described above. All confirmations take place in Chambers and the proceedings are not open to the public. The resulting decisions reviewing the indictments are, however, public documents. There is some variety in the indictment review's issued by the judges.

These reviews can be divided into three main categories. First, the vast majority of the indictments submitted by the Prosecutor are confirmed by a simple one-page order. Second, some reviews explicitly examine the evidence submitted against the accused to see whether it meets the required threshold.¹⁴ Finally, a few confirmations have addressed legal issues arising out of the confirmation process.¹⁵

B. Deferral Proceedings

The procedure for deferral by states to the competence of the Tribunal has evolved out of the twin principles of concurrent jurisdiction and the Tribunal's primacy over national courts. Article 9 of the Statute provides:

Concurrent jurisdiction

1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.

2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal..

The Statute makes plain that, although the Tribunal and national courts have concurrent jurisdiction over war crimes in the former Yugoslavia, the Tribunal can request national courts to defer to its competence.

The Tribunal's Rules set out three grounds on which the Prosecutor may propose to a Trial Chamber that a formal request for deferral be made. The Prosecutor may make such a proposal when it appears to him that, in the investigations or criminal proceedings instituted in the courts of any state:

(i) the act being investigated or which is the subject of proceedings is characterised as an ordinary crime;

(ii) there is a lack of impartiality or independence, or the investigations or those proceedings are designed to shield the accused from international criminal responsibility or the case is not diligently prosecuted; or

(iii) what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal.¹⁶

If it appears to the Chamber that 'on any of the grounds specified in Rule 9, deferral is appropriate, the Trial Chamber may issue a formal request to the state concerned that its court defer to the competence of the Tribunal'.¹⁷ It is significant that the first two grounds for deferral set out in Rule 9 derive from Article 10 of the Statute, which addresses the instances in which the Tribunal may try persons who have previously been tried for acts constituting serious violations of international humanitarian law. All the deferral requests decided by the Tribunal, however, have been based on the third ground of deferral set out in Rule 9 - namely, that the national proceedings raised issues closely related to, or otherwise involved, significant factual or legal questions that may have implications for investigations or prosecutions before the Tribunal.¹⁸ The appropriateness of this ground for deferral was raised by the Defence in a motion on non-bis-in-idem in the Tadic case, but was not addressed by the Chamber.¹⁹

Finally, it is noteworthy that all the deferral application, made by the Prosecutor thus far have been filed prior to the issuance of the related indictments. The early filing of deferral applications has the advantage of minimizing defendants' risk of double jeopardy. As discussed later, the Tribunal has held that, although the Prosecutor has discretion to assess the suitability and timing for submitting to the Tribunal proposals for deferral, he must exercise care to avoid prejudice to the accused.²⁰

C. Rule 61 Proceedings

1. The Rule 61 Mechanism

The Tribunal's Statute does not allow for trials in absentia. Article 21(4)(d) of the Statute provides that '[i]n the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled ... to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing'. The Report of the United Nations Secretary-General, which accompanied the Statute, indicates that this provision was inspired by Article 14 of the ICCPR. The Secretary-General explained that:

[a] trial should not commence until the accused is physically present before the International Tribunal. There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence.²¹

Nonetheless, when drafting the Tribunal's Rules, the judges of the Tribunal could not overlook the possibility that, because of the political situation in the former Yugoslavia, it was possible that certain accused persons would not be arrested and brought before the Tribunal. The judges therefore fashioned an unusual and innovative procedure to provide some measure of recourse for situations where arrest warrants had not been executed. This procedure is known as the 'Rule 61 procedure'.

The Rule 61 procedure is activated when arrest warrants for accused persons are not executed within a 'reasonable time' of their issuance. In such cases, the judge who initially confirmed the indictment invites the Prosecutor to report on the measures taken to effect personal service of the indictment. If satisfied that the Prosecutor has taken 'all reasonable steps to effect personal service', including recourse to the appropriate authorities of the relevant state or states, and has otherwise tried to inform the accused of the existence of the indictment against him by seeking publication of newspaper advertisements, the confirming judge orders the Prosecutor to submit the indictment to the judge's own Trial Chamber.²²

A Rule 61 hearing is then held, during which the Prosecutor must submit the indictment to the full Trial Chamber in open court, together with all the evidence that was before the confirming judge; the Prosecutor also may examine any witness whose statement was submitted to the confirming judge.²³ The Prosecutor may tender additional evidence to the Chamber. The Chamber considers the indictment anew to determine whether there are reasonable grounds to believe that the accused has committed all or any of the crimes with which he is charged.²⁴

The Rule 61 decisions rendered by the Tribunal's Trial Chambers have repeatedly emphasized that such proceedings are not trials and do not result in the conviction or acquittal of the accused. Rather, the purpose of such proceedings, explained by Trial Chamber I, is as follows:

Recourse to Rule 61 means that the Tribunal, which does not have any direct enforcement powers, is not rendered ineffective by the non-appearance of the accused and can proceed nevertheless. The review by a panel of Judges, sitting in a public hearing, of an indictment initially confirmed by a single Judge, reinforces the rights of the accused and enhances the solemnity and gravity of the Judges' decision. The Rule 61 procedure, which is initiated by the Prosecutor, cannot be considered a trial in absentia; it does not culminate in a verdict nor does it deprive the accused of the right to contest in person the charges brought against him before the Tribunal. However, the rights of alleged victims should not be denied; the Rule 61 proceedings provide them with the opportunity to be heard in a public hearing and to become a part of history.²⁵

In addition to the public consideration of the evidence against an accused, a Rule 61 determination has two consequences for an accused person: an international arrest warrant for the accused is transmitted to all states and the Chamber 'may order a State or States to adopt provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties'.²⁶ The latter measure has not yet been employed by the Tribunal.

Rule 61 proceedings may also have repercussions for states. If a Trial Chamber finds that the failure to effect personal service is due in whole or in part to a failure or refusal of a state to cooperate with the Tribunal, the President of the Tribunal `shall notify the Security Council [of this finding] in such manner as he thinks fit'.²⁷ Such findings and notifications have been made in all but one of the Rule 61 proceedings conducted by the Tribunal.

2. Rule 61 Proceedings Conducted by the Chambers

The Tribunal's Trial Chambers have thus far reviewed and confirmed five indictments pursuant to Rule 61. The principal aspects of the decisions in these cases are discussed below.

(a) Prosecutor v. Nikolic, Case No. IT-94-2-R61

The indictment against Dragan Nikolic was confirmed on 4 November 1994 by Judge Odio-Benito and warrants for his arrest were sent to the Republic of Bosnia and Herzegovina and to the Bosnian-Serb administration in Pale.²⁸ The Prosecutor alleges that in 1992 Nikolic was the commander of the Susica camp in north-eastern Bosnia. According to the Prosecutor, Nikolic, along with certain soldiers under his command, committed a series of crimes against persons in the camp. Nikolic is charged with direct and command responsibility for wilful killings, torture, inhuman acts, imprisonment of civilians, persecution on religious grounds, illegal appropriation and plunder of property and illegal transfer of civilians. These acts are characterized as grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war and/or crimes against humanity.

In May 1995, the confirming judge, satisfied that the requirements for the activation of Rule 61 had been met, ordered the Prosecutor to submit the matter to Trial Chamber I so that it could examine the indictment in open court. At the Rule 61 hearing, which was held from 9 to 13 October 1995, the Prosecutor submitted the confirmation record to the Trial Chamber. He also presented the testimony of fifteen witnesses, including experts, alleged victims and an investigator from his office.

The Chamber's decision, which was rendered on 20 October 1995, provides an interesting insight into its views regarding the respective roles of the Prosecutor and the judges of the Tribunal with regard to the crimes charged in indictments.²⁹ The Trial Chamber took a very broad view of its authority to control the Indictments under its review. Although no provision of the Tribunal's Statute or Rules explicitly authorized it to do so, the Chamber assumed for itself the power to 'invite' the Prosecutor to amend the indictment in order to recharacterize the crimes charged and to add new charges.

The Chamber first recommended that the Prosecutor give greater prominence to certain charges. It noted that in the indictment various legal characterizations were posited for the same acts. Thus, a particular act was qualified alternatively as a grave breach of the Geneva Conventions, a violation of the laws or customs of war and/or a crime against humanity. The Chamber proposed - without prejudice to the determination of the judges at an eventual trial in the matter - that the Prosecutor revise the indictment to focus on the charges of crimes against humanity because 'there are reasonable grounds for believing that the crimes [charged in the indictment] are more appropriately characterized as crimes against humanity'.³⁰

Second, based on the material submitted by the Prosecutor, the Chamber invited the Prosecutor to supplement the indictment to add charges of rape, sexual assault and 'ethnic cleansing'. The Chamber went so far as to suggest the basis of the Tribunal's jurisdiction for such additional theoretical charges. In its opinion, rape and other forms of sexual violence committed against women constituted acts of torture, which could be characterized as grave breaches of the Geneva Conventions, violations of the laws or customs of war and/or crimes against humanity. As for ethnic cleansing, the Chamber, emphasizing the extreme gravity of the discriminatory acts that fell under this heading and their genocidal nature, concluded that the Tribunal would have jurisdiction over such crimes by virtue of Article 4 of the Statute (genocide). The Chamber therefore invited the Prosecutor to pursue his investigations with a view to indicting Nikolic for complicity in genocide or acts of genocide.³¹

The Trial Chamber confirmed all counts of the indictment against Nikolic and issued an international arrest warrant for him. Based on its conclusion that the failure to serve the indictment was due to the refusal of the Bosnian-Serb administration to cooperate with the Tribunal, the Chamber invited the President of the Tribunal to so inform the United Nations Security Council.³²

(b) Prosecutor v. Martic, Case No. IT-95-11-R61

On 25 July 1995, Judge Jorda confirmed the indictment against Milan Martic.³³ The Prosecutor alleged that Martic, the former President of the Croatian-Serb administration, knowingly and wilfully ordered the shelling of Zagreb with Orkan rockets on 2 and 3 May 1995, thereby causing death or injury to numerous civilians. He is also charged with command responsibility for failing to take the reasonable and necessary measures to prevent the attacks and for failing to punish the perpetrators of the attacks. These crimes are characterized by the Prosecutor as violations of the laws or customs of war. Upon confirmation of the indictment, arrest warrants were immediately drawn up for transmission to the Croatian-Serb administration in Knin³⁴ and the Federal Republic of Yugoslavia. An additional arrest warrant was sent, in December 1995, to the Republic of Croatia.³⁵

By February 1996, the arrest warrants for Martic had still not been executed. At the request of the confirming judge, the Prosecutor reported on the measures taken to inform Martic of the existence of an indictment against him and to execute the warrant. On considering this report, the confirming judge concluded that the Prosecutor had established that the accused was personally aware of the indictment against him because, during a programme broadcast on the CNN television network which members of the Office of the Prosecutor watched, the accused acknowledged that he had been indicted. Satisfied with the measures taken by the Prosecutor to execute the arrest warrants, the confirming judge ordered the Prosecutor to submit the case to Trial Chamber I for public review under Rule 61.³⁶

The hearing in this matter was held on 27 February 1996. In addition to the evidence submitted to the confirming judge, the Prosecutor summoned four witnesses whose testimony included inter alia a description of the attacks on Zagreb and their disastrous effects on the civilian population.

On 8 March 1996, the Chamber rendered its decision in the case. Since the offences identified by the Prosecutor were not expressly covered by Article 3 of the Statute, the Chamber verified that they constituted violations of the laws or customs of war referred to in that Article. This exercise was one of the first applications by a Trial Chamber of the test articulated by the Appeals Chamber in its decision on jurisdiction in the Tadic case³⁷ for determining whether particular acts are within the purview of Article 3. The central issue was whether there existed conventional or customary norms underlying the charges against Martic and whether these norms applied to all armed conflicts.

With respect to conventional norms, the Trial Chamber recalled that the Appeals Chamber had already established that Article 3 of the Statute covered violations of Additional Protocols I and II to the 1949 Geneva Conventions. It noted that 'all States which were part of the former Yugoslavia and parties to the present conflict at the time the alleged offences were committed were bound by Additional Protocols I and II'.³⁸ The Chamber concluded that under the terms of these instruments. attacks against civilians were prohibited; such attacks therefore fell within the Tribunal's jurisdiction under Article 3, regardless of the character of the conflict at issue.

As regards customary law, the Chamber followed the Appeals Chamber's view in the Tadic jurisdiction decision that the prohibition on attacking a civilian population was a fundamental rule of customary international law applicable to all armed conflicts. It held:

There exists, at present, a corpus Of Customary international law applicable to all armed conflicts irrespective of their characterisation as international or non-international armed conflicts. This cot-pus includes general rules and principles designed to protect the civilian Population as well as rules governing means and methods of warfare. As the Appeals Chamber affirmed, the general principle that the right of the parties to the conflict to choose methods or means of warfare is not unlimited and the prohibition on attacking the civilian Population as such, or individual civilians, are both undoubtedly part of this corpus of customary law.³⁹

Nor was an attack against a civilian population permissible in reprisal. The Chamber held that such reprisals were unlawful in all circumstances.

The prohibition against attacking the civilian population as such as well as individual civilians must be respected in all circumstances regardless of the behaviour of the other party. The opinion of the great majority of legal authorities permits the Trial Chamber to assert that no circumstances would legitimise an attack against civilians even if it were a response proportionate to a similar violation perpetrated by the other party.⁴⁰

The Chamber concluded that there were reasonable grounds for believing that Martic had committed the crimes charged in the indictment. It therefore confirmed all four counts of the indictment and issued an international warrant for his arrest.

(c) Prosecutor v. Mrksic, Radic and Sljivancanin, Case No. IT-95-13-R61

The indictment in what is called the Vukovar Hospital case was confirmed on 7 November 1995 by Judge Riad. Arrest warrants addressed to the Federal Republic of Yugoslavia were issued on the same day for the three accused persons, Mile Mrksic, Miroslav Radic and Veselin Sljivancanin, all of whom allegedly were officers in the Yugoslav People's Army (JNA).⁴¹

In the indictment, the Prosecutor alleges that, after several months of resistance against an armed offensive led by the JNA, the town of Vukovar in Croatia finally fell to Serbian attackers under the command or control of the accused. As local resistance began to crumble, the city's hospital became a point of convergence for civilian victims, resistance combatants who had laid down their weapons and a significant number of injured persons. On or about 20 November 1991, JNA soldiers and Serbian paramilitary groups commanded or controlled by the accused are alleged to have led approximately 260 non-Serbian men from the hospital to sites in surrounding areas. There, the men were beaten for hours and then shot to death. For their acts and omissions with respect to these beatings and killings, the defendants are charged with grave breaches of the 1949 Geneva Conventions (wilfully causing great suffering and wilful killing), violations of the laws or customs of war (cruel treatment and murder) and/or crimes against humanity (inhuman acts and executions).

Having found that the conditions for the activation of Rule 61 had been satisfied, the confirming judge ordered, on 6 March 1996, that the matter be submitted to Trial Chamber I in open court.⁴² During the hearings, held on 20, 26, 27 and 28 March 1996, the Chamber considered the evidence that had been submitted to the confirming judge and heard several witnesses summoned by the Prosecutor. Some witnesses benefited from protective measures ordered by the Chamber, such as the use of pseudonyms, non-disclosure of identifying data to the public and voice- and image-altering devices.⁴³

In a decision dated 3 April 1996, the Chamber confirmed all counts of the indictment.⁴⁴ As in the Nikolic Rule 61 decision,⁴⁵ the Chamber asserted its control over the characterization of crimes in the indictment. It found that the alleged crimes seemed to be part of a widespread and systematic attack against the civilian population of the city of Vukovar and therefore emphasized that the indictment showed 'first and foremost that a crime against humanity was committed'. The Chamber issued international warrants for the arrest of the defendants.

The Chamber also certified that the failure to effect service of the indictment was due to the refusal of the Federal Republic of Yugoslavia to cooperate with the Tribunal. In reaching this conclusion, the Chamber relied on the Deputy Prosecutor's assertion in his closing argument that the accused 'hide behind the shelter of the Government of the Federal Republic of Yugoslavia that sent them [to Vukovar] and ... still seeks to protect them'. In this regard, the Chamber opined that 'when a Government gives refuge and support to criminals, in the eyes of the world, that Government then too becomes criminal, and this is exactly what the Belgrade Government has; done in this case'.⁴⁶ The President of the Tribunal was entrusted with the responsibility of informing the United Nations Security Council of Yugoslavia's failure too cooperate with the Tribunal.⁴⁷

(d) Prosecutor v. Rajic, Case No. IT-95-12-R61

The indictment against Ivica Rajic was confirmed by Judge Sidhwa on 29 August 1995.⁴⁸ It alleges that in October 1993 troops under Rajic's command attacked a Muslim village in central Bosnia, Stupni Do, killing civilians and destroying the village. For these actions, Rajic is charged with grave breaches of the Geneva Conventions (wilful killing of civilians and the destruction of property) and/or with violations of the laws or customs of war (deliberate attack on a civilian population and wanton destruction of a village).⁴⁹

In March 1996, Judge Sidhwa found that the conditions for holding a Rule 61 hearing had been met and issued an order for a review of the indictment by Trial Chamber II.⁵⁰ The Rule 61 hearing was held on 2 and 3 April 1996. Several witnesses, including a number of UN military officials, testified during the hearing.

The Chamber's decision was issued on 13 September 1996.⁵¹ Judge Sidhwa annexed a separate opinion to the decision.⁵²

As an initial matter, the Chamber addressed certain evidentiary issues. Among other things, it held that in reaching its decision it would disregard the testimony of an investigator from the Office of the Prosecutor who had orally recounted portions of statements that he had taken from eye witnesses to the attack. This issue is examined in detail in Judge Sidhwa's separate opinion in the case, which is discussed below.

The principal focus of the Chamber's decision was whether it had subject-matter jurisdiction under the Tribunal's Statute over the offences with which the accused was charged. With respect to Article 2 of the Statute (grave breaches provisions of the 1949 Geneva Conventions), the Chamber noted that, based on the Appeals Chamber jurisdiction decision in the Tadic case,⁵³ there were two prerequisites for its application: '(a) there must be an international armed conflict in the sense of Article 2 common to the Conventions; and (b) the crime must be directed against persons or property protected under the provisions of the relevant Convention'.⁵⁴ Because the crimes with which Rajic was charged allegedly were directed against civilian persons and property, the Chamber considered these requirements in the context of Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War ('Geneva Convention IV').

The Chamber agreed with the Prosecutor that the conflict at issue could be classified as 'international' based on the direct military involvement of Croatia in Bosnia and the existence of hostilities resulting therefrom. It held that:

... for purposes of the application of the grave breaches provisions of Geneva Convention IV, the significant and continuous military action by the armed forces of Croatia in support of the Bosnian Croats against the forces of the Bosnian Government on the territory of the latter was Sufficient to convert the domestic conflict between the Bosnian Croats and the Bosnian Government into an international one.⁵⁵

Perhaps the most interesting part of the Chamber's decision is its treatment of the Prosecutor's additional argument that the conflict between the Bosnian Government and the Bosnian Croats should be regarded as international because of the relationship between Croatia and the Bosnian Croats. The Prosecutor had asserted that 'Croatia exerted such political and military control over the Bosnian Croats that the latter may be regarded as an agent or extension of Croatia'.⁵⁶

The Chamber agreed with the innovative approach proposed by the Prosecutor, it held that 'an agency relationship between Croatia and the Bosnian Croats - if proven at trial -would also be sufficient to establish that the conflict between the Bosnian Croats and the Bosnian Government was international in character'.⁵⁷ Reviewing the evidence, it found reasonable grounds for believing that such a relationship existed.

The Chamber's acceptance of the 'agency' theory had important consequences for its examination of the protected person requirement set out in Article 4 of Geneva Convention IV.⁵⁸ The Chamber characterized the issue to be whether the agency relationship between Croatia and the Bosnian Croats was sufficient to meet the test of Article 4, under which a person would be 'protected' if they were 'in the hands of a state of which they were not nationals. It emphasized that the Commentary of the International Committee of the Red Cross ('ICRC Commentary') on Geneva Convention IV indicated that the protected person requirement was to be interpreted broadly and that the term 'in the hands of' need not necessarily be understood in the physical sense, but meant only that the person was in territory under the control of the state in question. On the basis of the evidence showing that the Bosnian Croats controlled the territory surrounding, Stupni Do, and the control of the Bosnian Croats by Croatia, the Chamber held:

[A]Ithough the residents of Stupni Do were not directly or physically 'in the hands of' Croatia, they can be treated as being constructively 'in the hands of' Croatia, a country of which they were not nationals. The Trial Chamber therefore finds that the civilian residents of Stupni Do were - for the purposes of the grave breaches provisions of Geneva Convention IV - protected persons vis-à-vis the Bosnian Croats because the latter were controlled by Croatia.⁵⁹

Because the indictment against Rajic included counts relating to property, Trial Chamber II considered whether the protected property definition of Article 53 of Geneva Convention IV was met.⁶⁰ Article 53 requires an occupation, so that the key question for the Chamber was 'whether the degree of control exercised by the [Bosnian Croat] forces over the village of Stupni Do was sufficient to amount to an occupation within the meaning of Article 53'.⁶¹ The ICRC Commentary indicated hat, as with the protected person requirement, a broad interpretation of the protected property requirement was warranted. The Chamber adopted an expansive view of the term 'occupation', essentially equating it with 'control'. It concluded that, because the Bosnian Croats controlled the territory around Stupni Do and because Croatia controlled the Bosnian Croats, the village came under the control of Croatia and 'the property of Stupni Do became protected property for the purposes of the grave breaches provisions of Geneva Convention IV'.⁶²

The Chamber next turned to an examination of the requirements for the application of Article 3 of the Statute (violations of the laws or customs of war), The first charge under Article 3, wanton destruction of a village, was covered by the text of Article 3(b). This prohibition clearly applied in situations of international armed conflict, which the Chamber had already found existed in the case before it. It therefore had subject-matter jurisdiction over this charge and did not have to consider whether the prohibition applied also in internal armed conflicts. With respect to the second charge Linder Article 3, attack on a civilian population, the Chamber agreed with the analysis conducted by Trial Chamber I in Martic⁶³ and held that it had jurisdiction over the charge, regardless of the nature of the conflict.

Having found that it had jurisdiction over the charges against Rajic, the Chamber reviewed the evidence against him. It found that the evidence provided a reasonable basis for the charges against him.

The final issue addressed by the Trial Chamber was the cause of the non-execution of the arrest warrants for Rajic. The Chamber concluded that the failure to effect personal service of the indictment and to execute the warrants of arrest for Rajic could be ascribed to the refusal of the Republic of Croatia and the Federation of Bosnia and Herzegovina to cooperate with the Tribunal. Accordingly, the Chamber so certified for the purpose of notifying the Security Council.⁶⁴

Judge Sidhwa, while joining with the Chamber's decision, filed a separate opinion in the case on 'certain issues regarding the treatment of evidence'.⁶⁵ First, Judge Sidhwa addressed an issue that had arisen during the Rule 61 hearing but was not addressed in the Chamber's opinion: namely, the status of the materials submitted by the Prosecutor in support of an indictment at the Rule 61 stage. Contrary to the Prosecutor's contentions, Judge Sidhwa was of the view that these materials were public unless subject to a non-disclosure order. Second, Judge Sidhwa discussed in detail the admissibility of the testimony of an investigator who had summarized witness statements at the Rule 61 hearing. He read the Tribunal's Statute and Rules to support a preference for direct over secondary evidence and a suspicion of hearsay evidence, which would exclude the investigator's testimony. Judge Sidhwa concluded that, given the ex parte character of Rule 61 proceedings. no laxity ill the application of evidentiary rules could be tolerated. He cautioned that the Rule 61 procedure, which

... plac[ed] the examination of a prima facie case at a higher authoritative level [than the review of an indictment under Rule 47], with a hearing open to the public, so that the world at large may be able to assess the involvement of the accused in the crime imputed, cannot be allowed to be degraded by permitting a procedure which involves ocular accounts being accepted through proxies and substitutes.⁶⁶

(e) Prosecutor v. Karadzic and Mladic, Cases Nos. IT-95-5-R61 and IT-95-18-R61

Radovan Karadzic, the former President of the Bosnian-Serb administration and Ratko Mladic, the former commander of the Bosmian-Serb army, are the subject of two indictments, which were confirmed on 25 July and 16 November 1995.⁶⁷ Warrants for their arrest were sent to the Federal Republic of Yugoslavia, the Republic of Bosnia and Herzegovina, and to the Bosnian-Serb administration in Pale.

The first indictment alleges that Karadzic and Mladic were responsible for the general policy of 'ethnic cleansing' that the Bosnian-Serbs used against the Bosnian Muslim and Bosnian Croat populations residing in Bosnia. The two leaders are charged with grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and/or crimes against humanity, based on a series of serious violations of international humanitarian law committed throughout the territory of Bosnia since 1992 in furtherance of this policy. The second indictment charges Karadzic and Mladic with genocide, crimes against humanity and/or violations of the laws or customs of war for the atrocities committed in the course of military operations leading to and following the fall of the United Nations safe area of Srebrenica.

In June 1996, having found that the conditions for activating Rule 61 had been met, the two confirming judges separately ordered that the matter be submitted to Trial Chamber I for joint consideration of the indictments in open court.⁶⁸ In the course of the hearings, held on 27 and 28 June and on 1, 3, 4 and 8 July 1996, the Prosecutor tendered the evidence previously provided to the confirming judges, as well as certain additional materials. The Chamber heard the testimony of fourteen witnesses, including experts, an investigator, eye-witnesses and two amici curiae.

In its decision of 11 July 1996, the Chamber confirmed all counts of the indictments and issued international arrest warrants for transmission to all states, Interpol and IFOR.⁶⁹

The Chamber's decision concentrated on whether the defendants could be held criminally responsible for the policy of ethnic cleansing. The evidence submitted by the Prosecutor led the Chamber to conclude that the acts at issue were committed as part of a political programme that was devised by the accused persons in order to seize power in certain parts of Bosnia. The acts were, moreover, carried out by an institutional and military organization led by the accused. The Chamber found that the defendants' political plan corresponded to the programme of the Serbian Democratic Party of Bosnia and Herzegovina and was carried out with the direct military and logistical support of the Yugoslav People's Army. In the Chamber's view, the policy of ethnic cleansing promoted by Karadzic and Mladic reached the apogee of horror with the extermination of thousands of Muslims after the fall of the safe area of Srebrenica. The Chamber particularly noted that Mladic was thoroughly involved in the preparation of the Srebrenica operation and masterminded its implementation.

As in the Rule 61 decisions in Nikolic and Vukovar Hospital, the Trial Chamber suggested that the Prosecutor recharacterize the crimes in the indictment and posited the possibility of adding new charges. For example, the Chamber found that, although the evidence showed that the defendants had command responsibility for the atrocities charged in the indictment, their liability was better characterized as direct responsibility because

... the evidence and testimony tendered all concur in demonstrating that Radovan Karadzic and Ratko Mladic would not only have been informed of the crimes allegedly committed Linder their authority, but also and, in particular, that they exercised their power in order to plan, instigate, order or otherwise aid and abet in the planning, preparation or execution of the said crimes.⁷⁰

The Chamber therefore invited the Prosecutor to supplement the indictment of 25 July 1995 in order to emphasize the direct criminal responsibility of the two defendants. It also went beyond the parameters of the indictment and invited the Prosecutor's office to 'investigate decision-making responsibility at the same or higher echelons'.⁷¹

Finally, the Chamber took the view that, with the exception of one charge, a characterization of crimes against humanity or genocide was most appropriate for the totality of the acts charged in the indictments. This conclusion was without prejudice to the findings of the judges who would conduct the eventual trial of the case.

Turning to the arrest warrants issued for the defendants, the Chamber concluded that the failure to execute the warrants was attributable to the refusal of the Federal Republic of Yugoslavia and the Republika Srpska to cooperate with the Tribunal. The Chamber determined that the Republika Srpska was refusing to cooperate with the Tribunal based on the fact that the accused persons resided on its territory and occupied official positions of authority in that entity. It certified the refusal of the Federal Republic of Yugoslavia to cooperate on the ground that the accused persons had been on its territory on a number of occasions and had not been arrested. The Chamber's conclusion regarding the Federal Republic of Yugoslavia's refusal to cooperate with the Tribunal was also based on the ground that, under the Dayton Accords, it was responsible for the Republika Srpska's cooperation with the Tribunal. The Chamber called upon the President of the Tribunal to so inform the United Nations Security Council.⁷²

One feature of the Karadzic and Mladic cases that sets them apart from the Tribunal's other Rule 61 proceedings is that on two occasions attorneys for Karadzic attempted to participate in the proceeding. The motions filed by Karadzic's lawyers and the Tribunal's decisions thereon raise the issue of whether Rule 61 proceedings satisfy the requirements of international law regarding the protection of accused persons.

First, armed with a power of attorney granted by Karadzic, Igor Pantelic, a lawyer from Belgrade, petitioned the Chamber on 27 June 1996 for free access to the courtroom and to all relevant documents and case-files submitted by the Prosecutor. In a decision rendered the same day, the Chamber noted that Rule 61 proceedings were not trials and rejected the request for access to relevant documents and casefiles on the ground that such access could only be granted as part of a trial following the accused's submission to the Tribunal's jurisdiction.⁷³ The Chamber interpreted Mr. Pantelic's request to attend the Rule 61 hearing as an assertion of the 'right of his client to be given the fullest information possible as provided by Article 21, paragraph 4(a) of the Statute of the Tribunal'. It therefore decided that the indictments against Karadzic should be read in open court in the presence of his attorney and that, while Mr. Pantelic could not remain in the courtroom during the Rule 61 hearing, an observer's seat would be reserved for him for the entire duration of the hearing. Almost immediately after the reading of the indictments, Mr. Pantelic informed the Tribunal's Registry that he could not represent his client under the conditions imposed by the Trial Chamber and withdrew from the case.

Second, on 5 July 1996, two other attorneys for Karadzic filed a motion seeking to challenge the fairness of the Rule 61 procedure and requesting access to documents and the proceedings. The Chamber denied their motions, holding that no such challenge could be made until the accused appeared before the Tribunal and that access to documents would also be provided after that time. The attorneys were granted observer status on the same conditions as were established in respect of Mr. Pantelic.⁷⁴

3. Issues Raised by Rule 61 Proceedings

As illustrated by the Defence motions filed in the Karadzic and Mladic Rule 61 proceedings, the unique and innovative nature of these proceedings generates concerns regarding the extent to which proceedings of this character are compatible with international standards regarding the rights of the accused. The motions raised issues relating to the conduct of Rule 61 proceedings, i.e., whether the accused's right to obtain information about the charges against him and to defend himself were applicable in such proceedings. Equally important are undecided questions regarding the effects of Rule 61 proceedings on subsequent trials conducted by the Tribunal. The discussion above demonstrates that, in several Rule 61 decisions, the Tribunal's Trial Chambers have decided significant questions of law. The precedential effect of these legal conclusions, which were reached without the benefit of defence arguments, is unknown. For instance, could the Trial Chambers' rulings on the conditions necessary for the Tribunal's exercise of its subject-matter jurisdiction pursuant to Articles 2, 3, 4 or 5 of the Statute, which are found in each of the Rule 61 decisions, be considered as precedents in future trials? The same question could be raised with regard to Trial Chamber I's identification of the elements of various crimes in Nikolic, Vukovar Hospital and Karadzic and Mladic, as well as its exclusion of the defence of reprisal in the ex parte proceedings in Martic. Even more troubling is the potential precedential import of Rule 61 decisions on mixed questions of law and fact, such as whether a certain conflict was international or internal. For example, can Trial Chamber It's decision in Rajic that the conflict between the Bosnian Croats and the Bosnian Government was international in character serve as a precedent when Trial Chamber I is called upon to examine the same conflict in the upcoming trial in the Blaskic case'? Finally, the status of evidence submitted in Rule 61 proceedings must be carefully considered. Will the record of such proceedings, which would include the un-cross-examined testimony of witnesses, automatically become part of the record at a subsequent trial or will the Prosecutor have to 'start from scratch' to prove his case? The resolution of these issues will, of course, have to be guided by the accused's paramount right to a fair trial set out in the Tribunal's own Statute and in numerous international instruments.

8 ICTY Statute, Art. 18(4)

9 Ibid, Arts. 18(4), 19(1)

10 Ibid, Art. 19(1)

11 Ibid. Art. 19(2)

12 ICTY Rules, Rule 47(A) (emphasis added)

13 Ibid. Rule 47(D).

14 See, e.g., Prosecutor v. Karadzic and Mladic, Case No. IT-95-18-I, Review of the Indictment, reg. pg. nos. 352-347 (16 Nov. 1995); Prosecutor v. Erdemovic, Case No. IT-96-22-I, Review of Indictment, reg. pg. nos. 124-121 (29 May 1996).

15 See, e.g., Prosecutor v. Rajic, Case No. IT-95-12-I, Review of the Indictment, reg. pg. nos. 219-210 (29 Aug. 1995): Prosecutor v. Kordic and Others, Case No. IT-95-14-I, Review of the Indictment, reg. pg. nos. 1678-1674 (10 Nov. 1995).

16 ICTY Rules, Rule 9.

17 Ibid, Rule 10(A).

18 See In the Matter of a Proposal for a Formal Request for Deferral to the Competence of the International Tribunal, Case No. IT-94- 1-D Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral to the Competence of the International Criminal Tribunal for the Former Yugoslavia in the Matter of Dusko Tactic (Pursuant to Rules 9 and 10 of the Rules of Procedure and Evidence) (8 Nov. 1994) (no registry page numbers available) (hereinafter Tadic Deferral Decision): In the Matter of a Proposal for a Formal Request for Deferral to the Competence of the International Tribunal Addressed to the Republic, of Bosnia and Herzegovina Concerning Crimes Committed Against the Population of Lasva River Valley, Case No. IT-95-6-D, Decision. reg. pg. nos. 78-67 (11 May 1995); In the Matter of a Proposal for a Formal Request for Deferral to the Competence of the Tribunal Addressed to the Republic of Bosnia and Herzegovina in Respect of Radovan Karadzic, Ratko Mladic and Mica Stanisic, Case No. IT-95-5-D, Decision, reg. pg. nos. 127-112 (16 May 1995); In the Matter of a Proposal for a Formal Request for Deferral to the Competence of the International Tribunal Addressed to the Federal Republic of Yugoslavia in the Matter of Drazen Erdemovic, Case No. IT-96-22-D, Decision, reg. pg. nos. 142-133 (29 May 1996) (hereinafter Erdemovic Deferral Decision).

19 See infra text accompanying notes 92-95.

20 See infra text accompanying in- notes 175-177.

21 Report of the Secretary-General, supra note 4, para. 101 (references omitted).

22 ICTY Rules, Rule 61(A).

23 Ibid, Rule 61 (B).

24 Ibid, Rule 61 (C).

25 Prosecutor v. Martic, Case No. IT-95-13-R61, Decision, reg. pg. nos. 183-170, at 182-181 (8 March 1996) (hereinafter Martic Rule 61 Decision). Accord Prosecutor v. Nikolic, Case No. IT-94-2-R61, Review of the Indictment Pursuant to Rule 61, reg. pg. no,. 52/1573bis-1/1573bis, at 24/15 73 bis (20 Oct. 1995) (hereinafter Nikolic Rule 61 Decision); Prosecutor v. Rajic, Case No. IT-95-12-R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, reg. pg. nos. 1423-1392, at 1419(13 Sept. 1996) (hereinafter Rajic Rule 61 Decision).

26 ICTY Rules Rule 61 (D).

27 Ibid, Rule 61(E).

28 Prosecutor v. Dragan Nikolic, Case No. IT-94-2-I,(4 Nov. 1994) (reg. pg. nos. not available).

29 See Nikolic Rule 61 Decision, reg. pg. nos. 25/1573bis-1/1573bis and Corr. reg. pg. nos. 2257-2255 (20 Oct. 1995).

30 Ibid, at reg. pg. no. 12/1573bis.

31 Ibid, at reg. pg. nos. 6/1273bis-5/1273bis.

32 On 31 October 1995, the President of the Tribunal notified the Security Council of the failure of the Bosnian-Serb administration to cooperate with the Tribunal. The President emphasized that 'all States in the region - including self-proclaimed entities de facto exercising governmental functions- must comply with their legal obligation to cooperate with the Tribunal'. Letter from the President of the International Criminal Tribunal for the Former Yugoslavia to the President of the Security Council, UN Doc. S/1995/910 (31 Oct. 1995).

33 See Martic, Case No. IT-95-11 -I, Review of the Indictment, reg. pg. nos. 20-18 (25 July 1995); Indictment. Martic, Case No. IT-95-1 1 -1. reg. pg. nos. 12-10 (24 July 1995).

34 This arrest warrant could not be transmitted to this self-proclaimed entity because it ceased to exist.

35 On 24 December 1995, following the signature of the Dayton Accords, and at the request of the Prosecutor, Judge Jorda ordered that a copy of the indictment he transmitted to the multinational military Implementation Force deployed in the territory of Bosnia and Herzegovina (IFOR).

36 See Martic, Case No. IT-95-11-I, Order to Review the Indictment in Open Court, reg. pg. no. 122 ( 15 Feb. 1996).

37 See infra text accompanying note 82.

38 Martic Rule 61 Decision, at reg. pg. no. 180.

39 Ibid, at reg. pg. no. 179.

40 Ibid.

41 See Prosecutor v Mrksic Radic and Sljivancanin (hereinafter Vukovar Hospital), Case No. IT-95 13-I, Confirmation of the Indictment, reg. pg. nos. 3/216bis-1/216bis (7 Nov. 1995); Indictment, Vukovar Hospital, Case No. IT-95-13-I. reg. pg. nos. 212-204 (7 Nov. 1995).

42 See Vukovar Hospital Case No. IT-95-13-I, Order for Review in Open Court of the Indictment, reg. pg. nos. 207-264 (6 March 1996).

43 See Vukovar Hospital, Case No. IT-95-13-I, Decision on the Prosecutor's Application Requesting Protective Measures for Victims and Witnesses, reg. pg. nos. 291-284 (19 March 1996). For a discussion of the standards used to determine the necessity and appropriateness of protective measures, see infra text accompanying notes 83-92, 128-137.

44 See Vukovar Hospital, Case No. IT-95-13-I, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, reg. pg. nos. 18/312bis-1/312bis (3 April 1996) (hereinafter Vukovar Hospital Rule 61 Decision).

45 See supra text accompanying notes 26-29.

46 Vukovar Hospital Rule 61 Decision, at reg. pg. no. 3/312bis.

47 In response to the notification of the President of the Tribunal, the President of the Security Council expressed the Council's great concern with the failure of the Federal Republic of Yugoslavia to cooperate, deplored the Republic's refusal to act on the arrest warrants, and recalled Security Council Resolution 1022 of November 1995, which provided inter alia that the obligation to comply with requests for assistance and orders of the Tribunal constituted a fundamental aspect of the implementation of the Dayton Accords. See Public Statement of the President of the Security Council, UN Doc. S/PRST/1996/23 (8 May 1996).

48 See Rajic, Case No. IT-95-12-I, Review of the Indictment, reg. pg. nos. 1423-1392 (29 Aug. 1995).

49 See Indictment Rajic, Case No. IT-95-12-I, reg. pg. nos. 197-195 (29 Aug. 1995).

50 Rajic, Case No. IT-95-12-I, Order for Review of the Indictment under Rule 61 and Temporary Non-Disclosure, reg. pg. nos. 303-299 (6 March 1996).

51 See Rajic Rule 61 Decision, reg. pg. nos. 1423-1392 (13 Sept. 1996).

52 See Ibid. Separate Opinion of Judge Sidhwa, reg. pg. nos. 1177-1164.

53 See infra text accompanying notes 79-80.

54 Rajic Rule 61 Decision, at reg. pg. no. 1417.

55 Ibid, at reg. pg. no. 1415.

56 Ibid, at reg. pg. no. 1410.

57 Ibid.

58 Article 4 states: `Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.'

59 Rajic Rule 61 Decision at reg. pg. nos. 1405-1404.

60 Article 53 states: 'Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited. except where such destruction is rendered absolutely necessary by military operations.'

61 Rajic Rule 61 Decision, at reg. pg. no. 1403

62 Ibid.

63 See supra text accompanying notes 35-38.

64 On 16 September 1996, the President of the Tribunal informed the Security Council of the "refusal" by the Republic of Croatia a Member State of the United Nations, and by the Federation of Bosnia and Herzegovina, to cooperate with the Tribunal and to comply with its orders, as required by Article 29 of the Tribunal's Statute'. The President of the Tribunal added that 'the failure to cooperate in the arrest of Ivica Rajic is not an isolated incident, but forms part of a general pattern of failure in respect of matters concerning the Tribunal'. Letter from the President of the International Criminal Tribunal for the Former Yugoslavia, to the president of the Security Council, UN Doc. S/1996/763 (17 Sept. 1996).

65 Rajic Rule 61 Decision, Separate Opinion of Judge Sidhwa. at reg. pg. no. 1176.

66 Ibid, at reg. pg. no. 1166.

67 See Indictment, Karadzic and Mladic. Case No. It-95-5-I reg. pg. nos. 337-315 (24 July 1995); Karadzic and Mladic, Case No. IT-95-5-I, Review of Indictment. reg. pg. nos. 345-343 (24 July 1995); Indictment. Karadzic and Mladic, Case No. IT-95-18-I, reg. pg. nos. 338-325 (15 Nov. 1995); Karadzic and Mladic Case No. IT-95-18-I, Review of the Indictment, reg. pg. nos. 352-347 (16 Nov. 1995).

68 See Karadzic and Mladic, Cases Nos. IT-95-5-I, reg. pg. nos. 635-631 (20 June 1996) and IT-95-18-I, reg. pg. nos. 509-506 (21 June 1996).

69 See Karadzic and Mladic, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, Cases Nos. IT-95-5-R61 and IT-95-18-R61, reg. pg. nos. 58/1440bis-1/1440bis (11 July 1996).

70 Ibid, at reg. pg. nos. 13/1440bis.

71 Ibid, at reg. pg. nos. 12/1440bis.

72 The President of the Tribunal informed the Security Council of the Trial Chamber's decision by a communication dated 11 July 1996. See Letter from the President of the International Criminal Tribunal for the Former Yugoslavia, to the President of the Security Council, UN Doc.S/1996/556.

73 See Karadzic and Mladic, Case No. IT -95-5-R61, Decision Partially Rejecting the Request Submitted by Mr. Igor Pantelic. reg. pg. nos. 3/1348bis-1/1348bis (2 July 1996). For a different perspective on this issue, see supra text accompanying notes 63-64 (discussing Judge Sidhwa's separate opinion in Rajic).

74 See Karadzic and Mladic, Decision Rejecting the Request Submitted by Messrs. Medvene and Hanley III Case No. IT-95-5-R61, reg. pg. nos. 1368/5bis-1368/1bis (5 July 1996).

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