IN THE TRIAL CHAMBER
Before:
Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Judgement of: 16 November 1998
PROSECUTOR
v.
ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"
JUDGEMENT
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Teresa McHenry
Counsel for the Accused:
Ms. Edina Residovic, Mr. Eugene O’Sullivan, for Zejnil Delalic
Ms. Nihada Buturovic, Mr. Howard Morrison, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Ms. Cynthia McMurrey, Ms. Nancy Boler, for Esad Landzo
The trial of Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo (hereafter "accused"), before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereafter "International Tribunal" or "Tribunal"), commenced on 10 March 1997 and came to a close on 15 October 1998.
Having considered all of the evidence presented to it during the course of this trial, along with the written and oral submissions of the Office of the Prosecutor (hereafter "Prosecution") and the Defence for each of the accused (hereafter, collectively, "Defence"), the Trial Chamber,
HEREBY RENDERS ITS JUDGEMENT.
1. The International Tribunal is governed by its Statute (hereafter "Statute"), which was adopted by the United Nations Security Council on 25 May 1993, and by its Rules of Procedure and Evidence (hereafter the "Rules"), adopted by the Judges on 11 February 1994, as subsequently amended. Under the Statute, the Tribunal has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. Articles 2 through 5 of the Statute further confer upon the International Tribunal jurisdiction over grave breaches of the Geneva Conventions of 12 August 1949 (Article 2); violations of the laws or customs of war (Article 3); genocide (Article 4); and crimes against humanity (Article 5).
2. The Indictment against the four accused (hereafter "Indictment") was issued on 19 March 1996 by Richard J. Goldstone, being, at that time, the Prosecutor of the International Tribunal, and was confirmed by Judge Claude Jorda on 21 March 1996. Four of the original forty-nine counts were subsequently withdrawn at trial, at the request of the Prosecution. The Indictment is set forth in full in Annex B to this Judgement. At the time of the alleged commission of the crimes charged therein, the accused were citizens of the former Yugoslavia and residents of Bosnia and Herzegovina.
3. The Indictment is concerned solely with events alleged to have occurred at a detention facility in the village of Celebici (hereafter "Celebici prison-camp"), located in the Konjic municipality, in central Bosnia and Herzegovina, during certain months of 1992. The Indictment charges the four accused with grave breaches of the Geneva Conventions of 1949, under Article 2 of the Statute, and violations of the laws or customs of war, under Article 3 of the Statute, in connection with acts allegedly perpetrated within the Celebici prison-camp.
4. During the entire relevant period, the accused Esad Landzo is alleged to have worked as a guard at the Celebici prison-camp. Hazim Delic and Zdravko Mucic are also alleged to have worked within the prison-camp and to have acted in the capacity of commanders, with Zdravko Mucic being commander, and Hazim Delic being deputy commander from May to November 1992, when he replaced Zdravko Mucic as commander. Zejnil Delalic is alleged to have exercised authority over the Celebici prison-camp in his role first as co-ordinator of the Bosnian Muslim and Bosnian Croat forces in the area, and later as Commander of the First Tactical Group of the Bosnian Army.
5. Esad Landzo and Hazim Delic are primarily charged with individual criminal responsibility pursuant to Article 7(1) of the Statute, as direct participants in certain of the crimes alleged, including acts of murder, torture and rape.. Zdravko Mucic and Zejnil Delalic are primarily charged as superiors with responsibility, pursuant to Article 7(3) of the Statute, for crimes committed by their subordinates, including those alleged to have been committed by Esad Landzo and Hazim Delic. Several counts in the Indictment also charge Hazim Delic in his capacity as a superior with command responsibility. There follows a brief summary of the charges and the supporting factual allegations contained in the Indictment as they relate to each of the accused.
1. ESAD LANDZO
6. Esad Landzo, also known as "Zenga", was born on 7 March 1973, and is alleged in the Indictment to have worked as a guard at the Celebici prison-camp from approximately May 1992 to December 1992. In this capacity, he is charged as a direct participant with the following crimes under international humanitarian law.
(a) Wilful Killing and Murder
7. Esad Landzo is charged under counts 1, 5, 7 and 11 of the Indictment with wilful killing, a grave breach punishable under Article 2(a) of the Statute, and under counts 2, 6, 8 and 12 of the Indictment with murder, a violation of the laws or customs of war punishable under Article 3 of the Statute, for his alleged acts and omissions with respect to the deaths within the Celebici prison-camp of the following individuals:
Scepo Gotovac, aged between 60 and 70, who was subjected to extensive beatings by Hazim Delic and Esad Landzo, among others, and who had an SDA badge nailed to his forehead. Mr. Gotovac died as a result of the injuries he sustained. (Indictment at paragraph 16 paraphrased.)
Simo Jovanovic, who was severely beaten over an extended period of time, sometime in July 1992, by a group including Hazim Delic and Esad Landzo. Mr. Jovanovic died as a result of his injuries, having been denied medical treatment. (Indictment at paragraph 18 paraphrased.)
Bosko Samoukovic, who was struck repeatedly with a wooden plank by Esad Landzo sometime in July 1992. The blows rendered him unconscious and he died as a result of his injuries. (Indictment at paragraph 19 paraphrased.)
Slavko Susic, who was subjected to repeated and severe beatings sometime in July or August 1992, by a group including Hazim Delic and Esad Landzo, who beat him with objects, including a bat and a piece of cable. They also tortured him using objects including pliers, lit fuses and nails. After several days, Mr. Susic died as a result of the injuries he sustained. (Indictment at paragraph 21 paraphrased.)
(b) Torture and Cruel Treatment
8. Esad Landzo is charged under counts 15, 16, 24, 25, 27, 28, 30 and 31 of the Indictment with torture, a grave breach punishable under Article 2(b) of the Statute, and a violation of the laws or customs of war punishable under Article 3 of the Statute. In the alternative to the charges of torture under Article 3 of the Statute, Mr. Landzo is charged under counts 17, 26, 29 and 32 with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute. These charges relate to his alleged acts and omissions with respect to the following individuals within the Celebici prison-camp:
Momir Kuljanin, who was severely and repeatedly beaten over a period beginning around 25 May 1992 until the beginning of September 1992, by Hazim Delic and Esad Landzo, among others. He was kicked to unconsciousness, had a cross burned on his hand, was hit with shovels, was suffocated and had an unknown corrosive powder applied to his body. (Indictment at paragraph 23 paraphrased.)
Spasoje Miljevic, who was mistreated by Hazim Delic and Esad Landzo, among others, on numerous occasions beginning around 15 June 1992 continuing until August 1992. The mistreatment included placing a mask over Mr. Miljevic’s face so he could not breathe, placing a heated knife against parts of his body, carving a Fleur de Lis on his palm, forcing him to eat grass and subjecting him to severe beatings using fists, feet, a metal chain and a wooden implement. (Indictment at paragraph 26 paraphrased.)
Mirko Babic, who was mistreated by Hazim Delic and Esad Landzo, among others, on several occasions sometime around the middle of July 1992. On one occasion, both accused allegedly placed a mask over Mr. Babic’s head and beat him with blunt objects until he lost consciousness. On another occasion, Esad Landzo burned Mr. Babic’s leg. (Indictment at paragraph 27 paraphrased.)
Mirko Dordic, who was mistreated by Esad Landzo from sometime around the beginning of June 1992 until the end of August 1992. The incidents of mistreatment included beating Mr. Dordic with a baseball bat, forcing him to do push-ups while being beaten and placing hot metal pincers on his tongue and in his ear. (Indictment at paragraph 28 paraphrased.)
(c) Causing Great Suffering or Serious Injury and Cruel Treatment
9. Count 36 of the Indictment charges Esad Landzo with wilfully causing great suffering or serious injury, a grave breach punishable under Article 2(c) of the Statute. He is further charged under count 37 with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute, for his alleged acts and omissions with respect to the following individual within the Celebici prison-camp:
Nedeljko Draganic, who was repeatedly mistreated by Esad Landzo from around the end of June 1992 through August 1992. The incidents of mistreatment included tying Mr. Draganic to a roof beam and beating him, striking him with a baseball bat and pouring gasoline on his trousers and setting them alight. (Indictment at paragraph 30 paraphrased.)
10. Esad Landzo is further charged under count 46 of the Indictment with wilfully causing great suffering or serious injury, a grave breach punishable under Article 2(c) of the Statute, and under count 47 of the Indictment with cruel treatment, a violation of the laws or customs of war, punishable under Article 3 of the Statute, for his alleged acts and omissions with respect to the following circumstances alleged to have existed in the Celebici prison-camp:
The subjection of the detainees at the Celebici camp between May and October 1992, to an atmosphere of terror created by the killing and abuse of other detainees and to inhumane living conditions through deprivation of adequate food, water, medical care as well as sleeping and toilet facilities, which conditions caused the detainees to suffer severe psychological and physical trauma. (Indictment at paragraph 35 paraphrased.)
2. HAZIM DELIC
11. Hazim Delic was born on 13 May 1964, and is alleged to have been the deputy commander of the Celebici prison-camp from approximately May 1992 to November 1992. After the departure of the alleged commander of the prison-camp, Zdravko Mucic, in November 1992, Hazim Delic is alleged to have taken up the position of commander until the closing of the camp in December 1992.
12. Hazim Delic is charged both as a direct participant and as a superior in relation to a number of the acts alleged in the Indictment. Those counts alleging his direct responsibility are set out here below, whereas those which concern him in a superior capacity are discussed in the following sub-section. In his capacity as a direct participant, Hazim Delic is charged with the following crimes under international humanitarian law.
(a) Wilful Killing and Murder
13. Hazim Delic is charged under counts 1, 3, 5 and 11 of the Indictment with wilful killing, a grave breach punishable under Article 2(a) of the Statute and under counts 2, 4, 6 and 12 of the Indictment with murder, a violation of the laws or customs of war punishable under Article 3 of the Statute, for his alleged acts and omissions with respect to the deaths of the following individuals detained within the Celebici prison-camp:
Scepo Gotovac, Simo Jovanovic and Slavko Susic (see above).
Zeljko Milosevic, who was repeatedly and severely beaten by guards over the course of several days, sometime around the middle of July 1992. Around 20 July 1992, Hazim Delic selected Mr. Milosevic and, along with several others, took him outside and administered severe beatings. By the next morning, Mr. Milosevic had died as a result of the injuries he sustained. (Indictment at paragraph 17 paraphrased.)
(b) Torture and Cruel Treatment
14. Hazim Delic is charged under counts 15, 16, 18, 19, 21, 22, 24, 25, 27 and 28 of the Indictment with torture, a grave breach punishable under Article 2(b) of the Statute, and a violation of the laws or customs of war punishable under Article 3 of the Statute. In the alternative to the charges of torture under Article 3, he is charged under counts 17, 20, 23, 26 and 29 with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute. These charges relate to his alleged acts and omissions with respect to the following individuals within the Celebici prison-camp:
Momir Kuljanin, Spasoje Miljevic and Mirko Babic (see above).
Grozdana Cecez, who was subjected to repeated incidents of forcible sexual intercourse by Hazim Delic and others over a period from around 27 May 1992 through early August 1992. During this period, Ms. Cecez was raped by three different persons in one night and on another occasion she was raped in front of other persons. (Indictment at paragraph 24 paraphrased.)
Witness A, who was subjected to repeated incidents of forcible anal and vaginal intercourse by Hazim Delic over a period from around 15 June 1992 until the beginning of August 1992. Hazim Delic raped Witness A during her first interrogation and continued to rape her every few days over a six-week period thereafter. (Indictment at paragraph 25 paraphrased.)
(c) Inhuman Treatment and Cruel Treatment
15. Hazim Delic is further charged, under count 42 of the Indictment, with inhuman treatment, a grave breach punishable under Article 2(b) of the Statute, and under count 43 of the Indictment with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute, for his alleged acts and omissions with respect to the following individuals within the Celebici prison-camp:
Milenko Kuljanin and Novica Dordic, who, among others, were subjected to mistreatment by Hazim Delic from around 30 May 1992 until the latter part of September 1992, whereby he used a device emitting electrical current to inflict pain on the detainees. (Indictment at paragraph 33 paraphrased.)
(d) Causing Great Suffering or Serious Injury and Cruel Treatment
16. Hazim Delic is further charged under count 46 of the Indictment with wilfully causing great suffering or serious injury, a grave breach punishable under Article 2(c) of the Statute, and under count 47 of the Indictment with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute, for his alleged acts and omissions with respect to the following circumstances alleged to have existed in the Celebici prison-camp:
The subjection of the detainees at the Celebici camp between May and October 1992, to an atmosphere of terror created by the killing and abuse of other detainees and to inhumane living conditions through deprivation of adequate food, water, medical care as well as sleeping and toilet facilities, which conditions caused the detainees to suffer severe psychological and physical trauma. (Indictment at paragraph 35 paraphrased.)
(e) Unlawful Confinement of Civilians
17. Hazim Delic is charged under count 48 of the Indictment (paragraph 36) with the unlawful confinement of civilians, a grave breach punishable under Article 2(g) of the Statute, for his alleged acts and omissions with respect to the unlawful confinement of numerous civilians in the Celebici prison-camp between May and October 1992.
(f) Plunder of Private Property
18. Hazim Delic is charged under count 49 of the Indictment with plunder, a violation of the laws or customs of war punishable under Article 3(e) of the Statute, for his acts and omissions with respect to the following events alleged to have been perpetrated in the Celebici prison-camp:
The plunder of money, watches and other valuable property belonging to persons detained at the Celebici camp between May and September 1992. (Indictment at paragraph 37 paraphrased.)
3. ZEJNIL DELALIC and ZDRAVKO MUCIC
19. Zejnil Delalic was born on 25 March 1948, and is alleged to have co-ordinated the activities of the Bosnian Muslim and Bosnian Croat forces in the Konjic area from approximately April 1992 to at least September 1992. From June 1992 to November 1992, he is alleged to have acted as Commander of the First Tactical Group of the Bosnian Army. In both capacities, he is alleged to have had authority over the Celebici prison-camp and its personnel.
20. Zdravko Mucic, also known as "Pavo", was born on 31 August 1955, and is alleged to have been the commander of the Celebici prison-camp from approximately May to November 1992.
21. It is alleged that Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, were responsible for the operation of the Celebici prison-camp and were in positions of superior authority to all of the guards at the camp and to those other persons who entered the camp and mistreated the prisoners therein. Furthermore, it is alleged that Zejnil Delalic, Zdravko Mucic and Hazim Delic knew or had reason to know of the mistreatment of detainees in the prison-camp by their subordinates, but failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. In their respective capacities as superiors at the prison-camp, Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, are charged with the following crimes under international humanitarian law.
(a) Wilful Killing and Murder
22. Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, are charged under count 13 of the Indictment with wilful killing, a grave breach punishable under Article 2(a) of the Statute, and under count 14 of the Indictment with murder, a violation of the laws or customs of war punishable under Article 3 of the Statute, for their alleged acts and omissions as superiors with respect to the killing of Scepo Gotovac, Zeljko Milosevic, Simo Jovanovic, Bosko Samoukovic and Slavko Susic, all alleged to have been committed by their subordinates. In addition, they are also charged in this manner with responsibility for the killing of the following individuals, alleged to have been committed by their subordinates in the Celebici prison-camp:
Milorad Kuljanin, who was shot by guards in June 1992;
Zeljko Cecez, who was beaten to death in June or July 1992;
Slobodan Babic, who was beaten to death in June 1992;
Petko Gligorevic, who was beaten to death in the latter part of May 1992;
Gojko Miljanic, who was beaten to death in the latter part of May 1992;
Zeljko Klimenta, who was shot and killed during the latter part of July 1992;
Miroslav Vujicic, who was shot on approximately 27 May 1992;
Pero Mrkajic, who was beaten to death in July 1992. (Indictment at paragraph 22 paraphrased.)
(b) Torture and Cruel Treatment
23. Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, are charged under counts 33 and 34 of the Indictment with torture, a grave breach punishable under Article 2(b) of the Statute, and a violation of the laws or customs of war punishable under Article 3 of the Statute, or alternatively under count 35 of the Indictment with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute, for their alleged acts and omissions as superiors with respect to the mistreatment of Momir Kuljanin, Grozdana Cecez, Witness A, Spasoje Miljevic, Mirko Babic and Mirko Dordic, alleged to have been perpetrated by their subordinates. In addition, they are also charged in this manner with responsibility for the following incident, alleged to have been committed by their subordinates in the Celebici prison-camp:
The placing in a manhole of Milovan Kuljanin for several days, without food or water. (Indictment at paragraph 29 paraphrased.
(c) Causing Great Suffering or Serious Injury and Cruel Treatment
24. Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, are charged under count 38 of the Indictment with wilfully causing great suffering or serious injury, a grave breach punishable under Article 2(c) of the Statute, and under count 39 of the Indictment with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute, for their alleged acts and omissions as superiors with respect to the mistreatment of Nedeljko Draganic, alleged to have been perpetrated by their subordinates. In addition, they are also charged in this manner with responsibility for the mistreatment of the following individuals by their subordinates in the Celebici prison-camp:
Mirko Kuljanin and Dragan Kuljanin, who were severely beaten;
Vukasin Mrkajic and Dusko Bendo, who had a burning fuse cord placed around their genital areas. (Indictment at paragraph 31 paraphrased.)
25. Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, are charged under count 46 of the Indictment with wilfully causing great suffering or serious injury, a grave breach punishable under Article 2(c) of the Statute, and under count 47 of the Indictment with cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute, for their alleged acts and omissions as superiors with respect to the following circumstances alleged to have been brought about by their subordinates in the Celebici prison-camp:
The subjection of the detainees at the Celebici camp between May and October 1992, to an atmosphere of terror created by the killing and abuse of other detainees and to inhumane living conditions through deprivation of adequate food, water, medical care as well as sleeping and toilet facilities, which caused the detainees to suffer severe psychological and physical trauma. (Indictment at paragraph 35 paraphrased.)
Zdravko Mucic is also charged as a direct participant with respect to the creation of the foregoing conditions in the Celebici prison-camp.
(d) Inhuman Treatment and Cruel Treatment
26. Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, are charged under count 44 of the Indictment with inhuman treatment, a grave breach punishable under Article 2(b) of the Statute, and under count 45 of the Indictment with cruel treatment, a violation of the laws or customs of war, punishable under Article 3 of the Statute, for their alleged acts and omissions as superiors with respect to the mistreatment of Milenko Kuljaninand Novica Dordic, alleged to have been committed by their subordinate, Hazim Delic(see above). In addition, they are charged in this manner for further acts of mistreatment by unnamed subordinates, including the following:
Forcing persons to commit fellatio with each other;
Forcing a father and son to slap each other repeatedly. (Indictment at paragraph 34 paraphrased.)
(e) Unlawful Confinement of Civilians
27. Zejnil Delalic and Zdravko Mucic, along with Hazim Delic are charged under count 48 of the Indictment (paragraph 36) with the unlawful confinement of civilians, a grave breach punishable under Article 2(g) of the Statute, for their alleged acts and omissions as superiors with respect to the unlawful confinement of numerous civilians in the Celebici prison-camp between May and October 1992. Zdravko Mucic and Zejnil Delalic are also charged with direct responsibility in relation to the foregoing charge.
(f) Plunder of Private Property
28. Zdravko Mucic, along with Hazim Delic, is charged under count 49 of the Indictment with plunder, a violation of the laws or customs of war punishable under Article 3(e) of the Statute, for their alleged acts and omissions as superiors with respect to the following events alleged to have been perpetrated by themselves and their subordinates in the Celebici prison-camp:
The plunder of money, watches and other valuable property belonging to persons detained at the Celebici camp between May and September 1992. (Indictment at paragraph 37 paraphrased.)
Zdravko Mucic is also charged with direct responsibility in relation to the foregoing charge.
29. Having outlined the offences charged in the Indictment and the alleged role of the accused therein, it is appropriate to set out the procedural history of the present case, both prior to trial and during the trial itself.
30. Towards the close of investigations into the events which occurred in the Celebici prison-camp during the recent conflict in Bosnia and Herzegovina, the Prosecutor, acting on information regarding the whereabouts of several individuals deemed to be suspects in relation to these events, made two separate requests to Germany and Austria for the provisional arrest of Zejnil Delalic and Zdravko Mucic, respectively, under Rule 40 of the Rules. Pursuant to these requests, both suspects were arrested on 18 March 1996. Thereafter, on 19 March 1996, the Prosecutor issued the Indictment, charging Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo with grave breaches of the Geneva Conventions and violations of the laws or customs of war in connection with acts allegedly perpetrated in the Celebici prison-camp. The Indictment was confirmed by Judge Claude Jorda on 21 March 1996 and arrest warrants for Hazim Delic and Esad Landzo, along with orders for their surrender, were transmitted to the authorities of Bosnia and Herzegovina. Arrest warrants for Zejnil Delalic and Zdravko Mucic, along with orders for their surrender, were issued to the authorities of Germany and Austria, respectively.
31. Thereafter, on 9 April 1996, Zdravko Mucic was transferred from Austria to the United Nations Detention Unit in The Hague (hereafter "Detention Unit") and subsequently, on 8 May 1996, Zejnil Delalic was transferred from Germany. Hazim Delic and Esad Landzo were both surrendered into the custody of the Tribunal by the Government of Bosnia and Herzegovina on 13 June 1996.
32. Zdravko Mucic, represented by Mr. Robert Rhodes, was the first to enter an initial appearance, on 11 April 1996, before Trial Chamber II, consisting of Judge Gabrielle Kirk McDonald, presiding, Judge Lal Chand Vohrah and Judge Rustam S. Sidhwa. Thereafter, on 9 May 1996, Zejnil Delalic entered his initial appearance, represented by Ms. Edina Residovic. Hazim Delic and Esad Landzo entered their initial appearances on 18 June 1996, represented by Mr. Salih Karabdic and Mr. Mustafa Brackovic respectively. The Prosecution team was led by Mr. Eric Östberg, appearing with Ms. Teresa McHenry. Each of the accused entered a plea of not guilty to all of the charges and they were thus remanded into the custody of the Detention Unit, pending trial.
33. This case is the first to be brought before the International Tribunal in which multiple accused have been jointly charged and tried. The trial covered a period of 19 months and was subject to numerous delays, for a variety of reasons. Over 1,500 exhibits were admitted into evidence during the course of the trial and the transcript of the proceedings runs to more than 16,000 pages in the English version. The parties also filed lengthy pre-trial briefs and final submissions.. The entire proceedings were conducted with simultaneous interpretation into English, French and Bosnian/Croatian/Serbian. The Trial Chamber. has been called upon to address a host of unprecedented procedural and substantive issues relating to the trial. Although not constituting a comprehensive analysis, the most significant of these issues are set forth below in summary form. They are here presented in subject matter groupings, and do not, therefore, necessarily appear in chronological order.
1. Indictment-Related Issues
34. Pursuant to Rules 72 and 73 of the Rules., three of the accused filed preliminary motions based on defects in the form of the Indictment, challenging, among other things, its alleged vague and unfounded allegations and cumulative charging.. Zdravko Mucic filed a motion of a similar nature, requesting the Trial Chamber to order the Prosecution to provide full particulars of the charges in the Indictment.. The Trial Chamber denied all of these motions., after which Hazim Delic and Zejnil Delalic sought leave to appeal the Trial Chamber’s ruling. Both of these applications for leave to appeal were, however, rejected by a Bench of the Appeals Chamber..
35. Upon discovering that the charges alleged in counts 9 and 10 of the Indictment were based on erroneous information, the Prosecution requested leave of the Trial Chamber to withdraw these counts pursuant to sub-Rule 50(A).. The Trial Chamber granted this request "with prejudice, such that the charges set forth in the said counts shall not be raised against any of the four accused persons at a later date.." Subsequently, the Prosecution sought to dismiss counts 40 and 41 of the Indictment, on the grounds that the relevant witness had refused to testify in the proceedings in support of these counts., and this motion was granted by the Trial Chamber..
2. Provisional Release and Fitness to Stand Trial
36. At an early stage, three of the accused filed motions seeking their provisional release pursuant to Rule 65.. The Trial Chamber, addressing the motions of Hazim Delic and Zejnil Delalic, determined that each of these accused had failed to meet the substantial burden of proving such exceptional circumstances as to warrant provisional release.. The Defence for both Zejnil Delalic and Hazim Delic applied for leave to appeal the Decisions, and this was rejected by a Bench of the Appeals Chamber.. In a confidential Decision, the Trial Chamber also denied Esad Landzo’s request for provisional release.. Thereafter, on 11 December 1996, the Prosecution made an oral request that the Trial Chamber make a formal finding as to whether the accused Esad Landzo was fit to stand trial. The Prosecution renewed this request in writing. and the Trial Chamber issued a Decision, on 23 June 1997, finding Esad Landzo fit to stand trial..
3. Matters Relating to the Detention Unit
37. It was brought to the attention of the Prosecution prior to trial that two of the accused, Zdravko Mucic and Zejnil Delalic, were attempting to communicate via notes left in a common area of the Detention Unit, arguably in violation of Regulation 6 of the Regulations to Govern the Supervision of Visits to and Communications with Detainees., which requires all such correspondence to be submitted to the Registrar for review. The Prosecution sought to obtain the confiscated communications, arguing that it had a continuing duty to investigate crimes under Rule 39, or, alternatively, on the ground that such communication could constitute evidence of contempt under sub-Rule 77(C). The Trial Chamber found that the Registrar had acted within her discretion under the Rules of Detention in withholding the confiscated communications from the Prosecution and deferred the decision regarding their disclosure to the President of the Tribunal.
38. The President’s Decision found that the only possible basis for permitting disclosure was that the confiscated material was relevant to the Prosecution’s "investigation of a serious violation of international humanitarian law. Accordingly, the Prosecution had to demonstrate that the material sought was relevant to an ongoing investigation or prosecution. After reviewing the confiscated communications, the President held that their content warranted total disclosure and directed the Registrar to provide certified copies of them to both the Prosecution and the Defence for Mr. Mucic and Mr. Delalic.
4. Assignment of Defence Counsel
39. Upon the request of lead counsel for Esad Landzo, Mr. Mustafa Brackovic, the Registrar assigned Ms. Cynthia McMurrey as his co-counsel in December 1996. Less than one month into the trial itself, Mr. Landzo submitted a written request to the Trial Chamber for the withdrawal of his lead counsel, Mr. Brackovic. The Trial Chamber denied the request. Thereafter, Mr. Brackovic himself requested that the Trial Chamber revoke his power of attorney to act in the capacity of lead counsel for Mr. Landzo and this was granted. On 25 May 1997, Mr. John Ackerman joined the Defence team for Mr. Landzo, as lead counsel, to be later replaced in this capacity by Ms. McMurrey, effective 16 March 1998. Upon the withdrawal of Mr. Ackerman, Ms. Nancy Boler was assigned to assist Ms. McMurrey as co-counsel.
40. Mr. Robert Rhodes was the first counsel assigned to represent Mr. Mucic. However, upon a request from Mr. Mucic, this assignment was withdrawn by the Registrar and, on 10 July 1996, Mr. Branislav Tapuskovic was assigned in replacement, assisted by Ms. Mira Tapuskovic as co-counsel. Within a month of the commencement of trial, at the request of Mr. Tapuskovic, Mr. Michael Greaves was appointed to replace Ms. Tapuskovic as co-counsel. By its Decision of 5 May 1997, upon a written request from Mr. Mucic, the Trial Chamber directed the Registrar to secure the services of Mr. Zeljko Olujic to replace Mr. Tapuskovic as lead counsel for Mr. Mucic. In April 1998, at the request of the new lead counsel, Mr. Michael Greaves was replaced by Mr. Tomislav Kuzmanovic as co-counsel. Thereafter, in July 1998, Mr. Mucic, alleging a loss of confidence, requested that his lead counsel, Mr. Olujic, be replaced by Ms. Nihada Buturovic. The Registrar denied this requestl. whereupon Mr. Mucic appealed the Registrar’s Decision to the President. The Vice-President, acting in the capacity of President, granted the request. On 4 September 1998, Mr. Kuzmanovic was replaced as co-counsel by Mr. Howard Morrison.
41. The Registrar assigned Ms. Edina Residovic as lead counsel for Zejnil Delalic after it was determined that the accused satisfied the requirements of indigency. In December 1996, Professor Eugene O’Sullivan was appointed as co-counsel and this Defence team remained unaltered throughout the trial. Lead counsel assigned to Hazim Delic, Mr. Salih Karabdic, also requested the assistance of co-counsel and this was granted by the Registrar who, in January 1997, assigned Mr. Thomas Moran to act in this capacity.
5. Matters Relating to Trial Proceedings
42. On 15 October 1996, the President of the Tribunal ordered the assignment of Judge Adolphus G. Karibi-Whyte (Nigeria) (presiding), Judge Elizabeth Odio Benito (Costa Rica) and Judge Saad Saood Jan (Pakistan) to the trial of the accused. A provisional date for the commencement of trial was then set for 1 November 1996. The final date for commencement of trial was established upon motions from two of the accused and in the interests of justice, for 10 March 1997.
43. In addition to challenging the Indictment itself, the Defence for Zdravko Mucic made an application for a trial separate from that of Esad Landzo and Hazim Delic. Thereafter, Zejnil Delalic also moved for a separate trial from the other three co-defendants, on the grounds that a joint trial could generate a conflict of interest, resulting in serious prejudice to the accused. The Trial Chamber ordered Hazim Delic and Esad Landzo to respond to these motions by Mr. Mucic and Mr. Delalic, and the Defence for each accused submitted motions accordingly. In its response, the Prosecution argued that separate trials would be duplicative and inefficient, since the crimes with which the four accused were charged arose out of the same underlying events. Accordingly, it was likely that almost every witness who would be called in a trial against Mr. Landzo and Mr. Delic would also be called in the trials of both Mr. Mucic and Mr. Delalic. The Trial Chamber denied the motions, finding that, in each case, there was no potential conflict of interest nor any interest of justice sufficient to warrant separate trials under sub-Rule 82(B). A Bench of the Appeals Chamber later rejected an application filed by Zejnil Delalic for leave to appeal the Trial Chamber’s Decision.
44. The Defence for Zejnil Delalic filed a further application requesting that all transcripts and other documents relating to the trial be provided in Bosnian, the language of the accused, pursuant to Rule 3. In its Decision on this motion, the Trial Chamber held that: (1) all evidence submitted by either party during trial and all the Orders and Decisions of the Trial Chamber must be made available in the language of the accused; (2) discovery should be made available in its original language, if that is the language of the accused, or in one of the working languages of the Tribunal; and (3) transcripts of the proceedings need only be made available in one of the working languages of the Tribunal. The same issue was subsequently raised in a motion by Zdravko Mucic who requested that all transcripts of witness statements and other official texts pertaining to the court proceedings be translated into the language of that accused. The Trial Chamber denied the motion on the grounds that the subject matter of the motion had been previously and authoritatively decided by the Trial Chamber.
45. Also in relation to the running of the trial and upon a motion by the Prosecution, the Trial Chamber ordered that the transmission of the video-recording of its proceedings to the public be delayed by a period of thirty minutes, so as to enable either party to object to their release, or to request that any transmission be edited, as appropriate.
46. At the beginning of the trial itself, the Defence for Zejnil Delalic, Hazim Delic and Esad Landzo filed a joint motion requesting that they be permitted to cross-examine the witnesses for the Prosecution in the order of their choosing. This request was granted by the Trial Chamber and the practice was adopted that, before the commencement of the cross-examination of a Prosecution witness, the Defence would inform the Trial Chamber of the order in which they would proceed.
47. Just prior to the completion of its evidence in chief, the Prosecution filed a motion requesting that the Trial Chamber order the Defence to provide advance notice of its upcoming witnesses at trial, in order to allow the Prosecution time to prepare an effective cross-examination. The Trial Chamber, exercising its power pursuant to Rule 54, ordered the Defence to provide the Prosecution with a list of the witnesses it intended to call, seven working days prior to their appearance at trial. This decision was sought to be appealed by the Defence for Zejnil Delalic but the application was unanimously rejected by a Bench of the Appeals Chamber. Thereafter, the Prosecution brought another motion seeking to establish the order in which Defence witnesses would be cross-examined.
48. Shortly before the close of its case, in June 1998, the Defence for Zejnil Delalic filed an application which sought an order from the Trial Chamber for the conclusion of its case in toto, including rebuttal evidence, if any, from the Prosecution, and for judgement and sentence, if any, to be delivered before the second accused should embark upon his case. The Trial Chamber denied this motion, concluding that it had not been given "any reason why it should, in the interests of justice, exercise its discretion to grant a separate trial at this stage of the joint trial."
6. Witness-Related Issues
(a) Protective Measures
49. A series of protective measures were sought by both the Prosecution and the Defence, pursuant to Rule 75, and implemented throughout the trial proceedings with respect to both Prosecution and Defence witnesses. At the pre-trial stage, upon an application filed jointly by both parties, the Trial Chamber issued an Order for the non-disclosure of the names or any identifying data of potential witnesses to the public or the media, to ensure the privacy and protection of such victims and witnesses.
50. The Trial Chamber’s first Decision on the issue during trial granted protective measures to several Prosecution witnesses, including such measures as ordering that protective screens be erected in the courtroom; employing image altering devices to prevent certain witnesses from being identified by the public; ensuring that no information identifying witnesses testifying under a pseudonym be released to the public, and requiring that transcripts of closed session hearings be edited so as to prevent the release of information that could compromise a witness’ safety. Thereafter, the Prosecution filed several additional motions seeking protective measures for its witnesses. Similarly, members of the Defence sought and were granted protective measures for certain of their respective witnesses.
(b) Video-Link Testimony
51. The Prosecution additionally brought motions requesting that certain witnesses, designated by the pseudonyms K, L and M, be permitted to give their testimony by means of a video-link mechanism in order to relieve them from having to come to the seat of the International Tribunal in The Hague to testify. The Trial Chamber granted such a motion with respect to Witnesses "K" and "L", where the circumstances met the relevant test for permitting video-link testimony although this was ultimately not availed of. A later, confidential, motion requesting video-link testimony for additional witnesses was denied.
(c) Disclosure of Witness Identity
52. Prior to trial, the Defence for Esad Landzo moved the Trial Chamber to compel the Prosecution to provide the names and addresses of its prospective witnesses. The Trial Chamber, while acknowledging that, under Article 20(1) of the Statute, the Defence was entitled to sufficient information to permit it to identify prospective Prosecution witnesses, denied the Defence request, holding that the current address of a witness was not necessary for the purposes of identification. Subsequently, the Trial Chamber, on a motion by the Prosecution, determined that the Defence, pursuant to sub-Rule 67(A)(ii), has an explicit obligation to disclose the names and addresses of "those of its witnesses who will testify to alibi and to any special defence offered." The Trial Chamber held that the Defence disclosure obligation under sub-Rule 67(A)(ii) is distinct from that of the Prosecution pursuant to sub-Rule 67(A)(i).
(d) Additional Witnesses and Issuance of Subpoenae
53. Subsequent to its filing of a list of witnesses intended to be called at trial, the Prosecution sought leave to call several additional witnesses. The Trial Chamber granted these requests, noting that, with respect to each additional witness, the Prosecution had fulfilled its obligation pursuant to sub-Rule 67(A) to disclose to the Defence the names of all witnesses as soon as it had formed an intention to call them at trial. Thereafter, the Prosecution sought leave from the Trial Chamber to call two additional expert witnesses. The Trial Chamber also granted this request on the basis that the proposed witnesses would testify on issues newly raised by the Opinion and Judgment in the case ofProsecutor v. Dusko Tadic (hereafter "Tadic Judgment").
54. After the close of the Defence case, the Prosecution filed a motion seeking to bring four witnesses in rebuttal. When the Trial Chamber denied the Prosecution’s motion with respect to three of these witnesses, the Prosecution filed a motion seeking to reopen its case on the grounds that the proposed evidence was new evidence which was unavailable prior to the close of the Prosecution’s case. The Trial Chamber denied the Prosecution’s motion.
55. In addition, on 14 October 1997, the Prosecution filed a motion requesting the Trial Chamber to issue subpoenae ad testificandum to certain specified persons who, after repeated requests from the Prosecution, were refusing to testify before the Tribunal and whose testimony was relevant to the case. The Prosecution further requested the Trial Chamber to issue an order to the Government of Bosnia and Herzegovina relating to the execution of such subpoenae. The Trial Chamber issued subpoenae ad testificandum to all but one of the individuals named in the Prosecution’s motion. Furthermore, the Trial Chamber issued a Request to the Government of Bosnia and Herzegovina for its assistance in compelling the individuals subject to the subpoenae to appear before the Tribunal. Thereafter, at the request of the Prosecution, the Trial Chamber vacated asubpoena as it related to one such witness.
56. At the request of the Defence for Hazim Delic, the Trial Chamber also issuedsubpoenae to two witnesses to appear and testify before the Trial Chamber on behalf of this accused, along with an accompanying request to the Government of Bosnia and Herzegovina. Thereafter, further subpoenae were issued on behalf of Mr. Delic. The Trial Chamber also granted a request by Esad Landzo for the issuance of subpoenae ad testificandum to certain individuals.
57. On several occasions during its case, the Defence for Zejnil Delalic was unable to produce sufficient witnesses, resulting in the cancellation of scheduled court sessions. On 2 June 1998, the Defence for Zejnil Delalic filed a schedule for the appearance of its remaining witnesses which provided for two weeks of witness testimony with an intervening week during which no witnesses were scheduled to appear. The Trial Chamber, in an oral ruling, stated that counsel for Zejnil Delalic should call all the scheduled witnesses during the continued sitting of the Trial Chamber, or close its case if it was unable to produce further witnesses. Thereafter, on 8 June 1998, the Defence for Mr. Delalic informed the Trial Chamber that it would be unable to call any additional witnesses and sought an adjournment of the trial until 22 June 1998 to enable it to do so, or, in the alternative, the issuance of subpoenae to certain individuals and a request for assistance to the Government of Bosnia and Herzegovina. The Trial Chamber denied the Defence motion. A subsequent application for leave to appeal this Decision filed by the Defence for Mr. Delalic was rejected by a Bench of the Appeals Chamber.
(e) Miscellaneous
58. The Prosecution further moved the Trial Chamber to issue an order allowing investigators who might be called to testify at trial to be present in the public gallery when other witnesses were giving their testimony. In its Decision on this motion, the Trial Chamber held that the provisions of sub-Rule 90(D) are "designed to ensure the purity of testimony admitted in evidence" and that permitting prospective witnesses to listen to the testimony of other witnesses in the case poses an "obvious risk to the administration of justice." Accordingly, the Trial Chamber denied the Prosecution motion and ordered that "Prosecution and Defence investigators who may be called as witnesses should not be present in the public gallery of the courtroom and should not, otherwise, follow the proceedings when other witnesses are testifying."
59. Finally, the Defence for Zdravko Mucic filed an ex parte motion seeking an order from the Trial Chamber to compel an interpreter who was present during certain interviews of Mr. Mucic by Prosecution investigators, to testify before the Tribunal in his defence. The Trial Chamber, however, denied the motion on the grounds that: (1) the interpreter cannot be relied upon to testify on the evanescent words of the interpretation in the proceedings between the parties; and (2) it is an important consideration in the administration of justice to insulate the interpreter from constant apprehension of the possibility of being personally involved in the arena of conflict, on either side, in respect of matters arising from the discharge of their duties.
7. Evidentiary Issues
(a) Disclosure Requirements
60. On a motion from the Defence for Mr. Delalic, the Trial Chamber issued a Decision setting forth its interpretation of the precise nature and scope of the parties’ disclosure requirements pursuant to Rule 66 of the Rules.
61. The Defence further filed a joint motion, arguing that, by virtue of its practice of serving additional evidence upon the Defence at very short notice, the Prosecution was in breach of its disclosure obligations under sub-Rule 66(A). The Defence urged the Trial Chamber to adopt a new rule of evidence in this regard, to ensure that the right of the accused to prepare an adequate defence was preserved. The Trial Chamber declined to exercise its powers under sub-Rule 89(B) and denied the motion.62. In addition, the Defence for Hazim Delic filed a motion requesting that the Prosecution be ordered, pursuant to Rule 68, to produce all exculpatory evidence in its possession pertaining to the issue of whether the persons detained in the Celebici prison-camp were prisoners of war for the purposes of the application of the Geneva Conventions of 1949. This motion was denied by the Trial Chamber on the grounds that the Defence had failed to specify the material it sought to have disclosed. On a motion by the Prosecution, the Trial Chamber also held that the Defence is not obliged under sub-Rule 67(C), to provide the Prosecution with a list of documents it intends to use at trial.
(b) Admissibility of Evidence
63. On another evidentiary issue, the Defence for Zdravko Mucic submitted a motion to exclude certain statements made by the accused prior to trial, urging their inadmissibility on several grounds. The relevant statements arose out of a series of interviews with Mr. Mucic conducted by the Austrian police and Prosecution investigators in Vienna, between 18 March and 21 March 1996. In its Decision, the Trial Chamber, in line with the Prosecution’s submissions on the matter, chose to analyse the interviews with the Austrian police separately from the questioning undertaken by the Prosecution investigators. The Trial Chamber, while conceding that the Austrian provision restricting the accused’s right to counsel during a criminal investigation "is within Article 6(3) [of the European Convention on Human Rights] as interpreted," nevertheless found it to be "inconsistent with the unfettered right to counsel in Article 18(3) [of the Statute] and sub-Rule 42(A)(i) [of the Rules]." Accordingly, the Trial Chamber found the statements made by Mr. Mucic to the Austrian police to be inadmissible. As to the statements made to the Prosecution investigators, the Trial Chamber rejected the three grounds advanced by the Defence as bases for their exclusion.
64. In addition, the Defence for Zejnil Delalic filed a motion, pursuant to sub-Rule 73(A)(iii) of the Rules, seeking to exclude certain of his pre-trial statements. The propriety of these so-called "Munich Statements" was first addressed in a Decision which dismissed the Defence arguments challenging the statements, but held that the Defence could object to the admissibility of the statements at trial where it could prove that the rights of the accused had been violated by irregularities in recording an interview. The Defence for Mr. Delalic made several follow-up motions regarding the admissibility of the Munich Statements, among others. Thereafter, the Trial Chamber determined that the transcripts of the Munich Statements were admissible, finding no violation of Rule 42. The Trial Chamber further held that the Defence could object to the admissibility of the audio or video-recordings of the Munich Statements under Rule 43, if the Prosecution later sought to tender them into evidence. With respect to statements made by Mr. Delalic in further interviews with the Prosecution, the Trial Chamber held that the Defence had presented insufficient evidence to establish a basis for excluding this evidence.
65. On another occasion, and in an oral motion, the Prosecution sought to have certain other documents and videotapes admitted into evidence. The material at issue had been seized by members of the Austrian police from the premises of a firm with which Zejnil Delalic was alleged to have close connections, and from the apartment of Mr. Mucic. Applying the relevant Rules, the Trial Chamber admitted all of this evidence tendered by the Prosecution. The Defence for Mr. Delalic then filed an application for leave to appeal the Trial Chamber’s Decision, which was unanimously rejected by a Bench of the Appeals Chamber. Thereafter, the Prosecution sought to introduce into evidence additional items seized by the Austrian police from Mr. Mucic’s apartment. The Defence for Mr. Delalic objected to this on the grounds that there were a number of irregularities in the police search. The Trial Chamber, finding that the evidence tendered was relevant and of probative value, determined that this evidence was also admissible.
66. The Prosecution also sought to introduce into evidence, through the testimony of a relevant witness, a letter purportedly written by Mr. Mucic containing information regarding his role in the Celebici prison-camp. The Prosecution argued several grounds for the admissibility of this document and submitted that, in the event that such grounds proved insufficient, the Trial Chamber should direct Mr. Mucic to provide a sample of his handwriting for analysis and identification. Upon the submission of written briefs by both parties on this issue, the Trial Chamber held that the letter contained sufficient indicia of reliability to be admissible. However, the Trial Chamber refused to order Mr. Mucic to provide a handwriting sample on the grounds that this would be tantamount to forcing him to testify against himself, and, as such, would constitute a violation of Article 21, paragraph 4(g) of the Statute.
67. Also in relation to statements made to the Prosecution prior to trial, the Defence for Esad Landzo filed a motion pursuant to sub-Rule 73(C) for relief from waiver to bring a motion under sub-Rule 73(A) to exclude such statements made by Mr. Landzo. The Trial Chamber held, however, that where the sole reason for the untimely filing of such a motion was the failure of Mr. Landzo’s previous counsel to recognise the need for such a motion, this did not constitute good cause sufficient to warrant a grant of relief from waiver under sub-Rule 73(C).
68. Similarly, the Defence for Hazim Delic filed a motion pursuant to sub-Rule 73(C), seeking relief from waiver to bring a motion under sub-Rule 73(A). The Trial Chamber held that the Defence argument that Mr. Delic’s statement was made involuntarily and was, therefore, inadmissible, was unfounded. Hence, this argument did not constitute good cause sufficient to warrant a grant of relief from waiver to bring a motion under sub-Rule 73(A) to exclude the statement.
69. Thereafter, the Defence for Zdravko Mucic filed a motion pursuant to sub-Rule 73(C), seeking relief from waiver to bring a motion to exclude certain pre-trial statements made by the accused which the Prosecution sought to introduce into evidence. The Defence argued that the statements had been obtained using methods which cast substantial doubt on their reliability. The Trial Chamber, in granting the motion, held that good cause had been shown as to why the relief should be granted, as it would be "unjust to deprive the accused of the right to challenge the admission of the Statements which are claimed to have been obtained in oppressive circumstances."
(c) Evidence of Prior Sexual Conduct
70. The Trial Chamber was also called upon to address the issue of the inadmissibility of evidence concerning the prior sexual conduct of victims of sexual assault. Such evidence is specifically excluded by virtue of sub-Rule 96(iv) and it was on the basis of this provision that the Trial Chamber ordered the redaction from the public record of references made in open court to the prior sexual conduct of a Prosecution witness while testifying to a charge of sexual assault. In its Decision on this matter, the Trial Chamber discussed the need for protection of the privacy of witnesses and the necessary balancing between such considerations and the general principle of public proceedings. However, where information has already entered the public domain, the Trial Chamber opined that it "cannot ordinarily transform a public fact into a private one by virtue of an order." Thus, instead of utilising its powers under Rule 75, the Trial Chamber analysed the nature of the information which had been revealed and subsequently sought to be removed from the record, and determined that it did indeed constitute evidence of prior sexual conduct and was, therefore, irrelevant and inadmissible.
8. Miscellaneous Issues Relating to the Regulation of Proceedings
71. The Defence for Esad Landzo filed several preliminary motions addressing a diverse range of issues on 14 January 1997. The Trial Chamber disposed of these motions in a single order. Included in these motions were: a Motion for Reconsideration of Application for Separate Trial, denied on the basis that the Defence had failed to establish good cause sufficient to warrant a grant of waiver pursuant to sub-Rule 73(C); and a motion entitled Defence Request for Bill of Particulars, denied in consideration of the Trial Chamber’s prior Decision on the Motion Based on Defects in the Form of the Indictment.72. On 17 March 1997, in open session, the Trial Chamber heard the testimony elicited on re-examination of the Prosecution witness, Mr. Mirko Babic. The Trial Chamber then refused to allow the Defence for Esad Landzo to re-cross-examine Mr. Babic, holding that the relevant provisions of the Rules do not envision a right to re-cross-examination. Thereafter, the Defence for Esad Landzo filed a motion asserting the right of the Defence under sub-Rule 85(B) of the Rules and Article 21, paragraph 4(e) of the Statute, to further cross-examine any Prosecution witness who is subject to re-examination. The Trial Chamber determined that such a right to re-cross-examination, by either party exists only in instances where "during re-examination new material is introduced. ? Similarly, where questions put to a witness by the Trial Chamber after cross-examination raise entirely new matters, the opponent is entitled to further cross-examine the witness on such new matters."
73. During the course of the trial, the Prosecution, in a closed session hearing, raised with the Trial Chamber the issue of an alleged disclosure and subsequent publication in the media of confidential information, by one of the accused. The Trial Chamber referred the Prosecution’s complaint to the President of the International Tribunal who, after a series of investigations, issued a confidential report containing his findings and recommendations on the matter. Thereafter, the Trial Chamber issued an order on the Prosecution’s complaint accepting all but one of the President’s conclusions. The Trial Chamber rejected the President’s decision to leave the door open for the Prosecution to initiate proceedings against Zejnil Delalic for contempt of the Tribunal, on the grounds that "the findings in the report disclose no evidence on which the President could have relied for casting any element of doubt on the uncontradicted and unequivocal denial of [the] accused Zejnil Delalic."
74. Another issue which arose during the trial involved a joint Defence motion alleging that the Prosecution had acted in an unprofessional and reprehensible manner by communicating with the President of the Tribunal on a matter relating to the trial. The Trial Chamber found the allegations of impropriety to be ill-founded and denied the motion.
75. Lead counsel for Mr. Mucic, Mr. Zeljko Olujic, was himself the subject of a series of orders issued by the Trial Chamber in May and June of 1998. The first such order related to a document filed by Mr. Olujic in response to a Scheduling Order previously issued by the Trial Chamber. The Trial Chamber found this response to be insufficient in fulfilling the obligations of the Defence for Mr. Mucic pursuant to the Scheduling Order, in addition to being "unacceptable as a document filed with the International Tribunal, in the quality of its language, its attacks on the Office of the Prosecutor and its impugning of the proceedings of the International Tribunal itself." Thereafter, on 9 June 1998, the Trial Chamber filed a written order, requesting that Mr. Olujic comply with an oral order of the Trial Chamber directing counsel for all four accused to reassess their proposed witness lists and submit revised lists with a reduction in the number of proposed witnesses. When Mr. Olujic failed to comply with the Order of 9 June 1998, the Trial Chamber issued a subsequent order compelling compliance, in which it reminded Mr. Olujic that he had been given two warnings under Rule 46 and, should he continue to resist compliance, the Trial Chamber would exercise its discretion under Rule 46 to refuse him further audience as the legal representative of Mr. Mucic.
76. At a status conference on 21 May 1998, having reviewed the proposed witness lists filed by each of the accused, the Trial Chamber impressed upon the Defence the need to limit their witness lists so as to avoid repetition and unnecessary duplication. The Trial Chamber further stated that, in the absence of compliance with its direction in this regard, it would itself take steps to limit the number of witnesses each accused would be permitted to call. In a joint motion, the Defence objected to the Trial Chamber’s proposal. In its Decision on the issue, the Trial Chamber found that the exercise of its right to regulate the proceedings, pursuant to Article 20(1) of the Statute, did not impinge upon the accused’s right to a fair trial and in particular the rights enshrined in Article 21(4)(e) where the Trial Chamber sought to prescribe guidelines to assist the Defence in calling its witnesses so as to avoid duplication of witnesses and repetitive testimony.
77. At the request of the Trial Chamber and during the case for the last accused, the Prosecution provided notification of the witnesses it anticipated calling in rebuttal. The Trial Chamber granted leave to call only one of the four witnesses requested by the Prosecution. Thereafter, the Prosecution filed an application to re-open its case to allow the other three proposed rebuttal witnesses to testify as additional witnesses (see sub-section 6(d) above). This motion was denied by the Trial Chamber and the Prosecution’s subsequent application for leave to appeal was rejected.
9. Defence of Diminished or Lack of Mental Capacity
78. In response to the charges brought against him, Esad Landzo raised the defence of diminished, or lack of, mental capacity at an early stage and later made a submission requesting clarification from the Trial Chamber as to the precise legal parameters of this defence. The Trial Chamber determined that a party offering a special defence of diminished or lack of mental responsibility "carries the burden of proving this defence on the balance of probabilities," but reserved a decision on the definition of diminished or lack of mental capacity until final judgement. The Trial Chamber refused to reconsider a further request by the Defence for Esad Landzo to provide a legal definition of diminished, or lack of, mental capacity.
10. Judges’ Terms of Office
79. Early in the trial, the Prosecution filed a motion seeking a hearing to address the fact that the Judges’ terms of office were likely to expire before the trial had ended. The Prosecution sought to elicit any objections the accused might have to the Judges of the Trial Chamber sitting beyond the expiry of their current terms. The Trial Chamber determined that a hearing on the issue was unnecessary, since, pursuant to Article 13(4) of the Statute, which incorporates article 13(3) of the Statute of the International Court of Justice (hereafter "ICJ") by reference, the Judges, though replaced, are empowered, and indeed required, to finish any cases which they may have begun. Subsequently, a Security Council resolution extended the Judges’ terms of office until the conclusion of the Celebici trial.
80. The Defence filed a joint motion requesting that Judge Odio Benito cease to take part in the proceedings on the grounds that her judicial independence had been compromised by virtue of having taken the oath of office of Vice-President of Costa Rica. The issue was referred to the Bureau of the Tribunal for determination. The Bureau, consisting of President McDonald, Vice-President Shahabuddeen, Judge Cassese and Judge Jorda, concluded that, since Judge Odio Benito had stated that she would not take up any of her duties as Vice-President of Costa Rica until she had completed her judicial duties at the International Tribunal and was, in essence, holding her political position in name alone, she was not disqualified under sub-Rule 15(A) of the Rules.
11. Motion for Judgement of Acquittal
81. At the conclusion of the case for the Prosecution, on 16 February 1998, the Defence indicated that it would move to dismiss the case against each of the accused. The Defence for Zejnil Delalic, Hazim Delic and Esad Landzo filed a joint Defendant’s Motion for Judgement of Acquittal or in the alternative Motion to Dismiss the Indictment at the Close of the Prosecutor’s Case on 20 February 1998 (hereafter "Motion to Dismiss"). The Defence for Zdravko Mucic filed a separate motion for judgement of acquittal, or, in the alternative, dismissal, or provisional release. Thereafter, the Prosecution filed a comprehensive response, setting forth its arguments as to why the motion should be denied.
82. In its Decision on these motions, the Trial Chamber observed that the submission of a motion for judgement of acquittal constituted an effective closing of the Defence case, thereby entitling the Trial Chamber to determine the guilt or innocence of the accused, whereas a request for dismissal of the Indictment, if unsuccessful, would permit the accused to continue with their respective cases. In response to questions posed during oral argument, each of the Defence counsel submitted that they did not seek to close their respective cases at this time and that the motions should therefore be understood as requests for dismissal of all counts of the Indictment. Thereafter, the Trial Chamber held that, as a matter of law, the Prosecution had presented sufficient evidence relating to each element of the offences charged to allow a reasonable tribunal to convict, were such evidence to be accepted. Accordingly, the Trial Chamber dismissed the Motion to Dismiss and the motion submitted by Mr. Mucic, in so far as it constituted a request for dismissal of the Indictment. The Trial Chamber also dismissed Zdravko Mucic’s motion in so far as it constituted a request for provisional release, finding that the issue was not appropriately raised.
12. Sentencing Procedure
83. At the Eighteenth Plenary Session of the International Tribunal, on 9 and 10 July 1998, the Judges, sitting in plenary, adopted several amendments to the rules pertaining to the Tribunal’s procedure for sentencing. Whereas previously a separate hearing was held to determine sentencing where necessary, only after the judgement had been rendered as to the accused’s guilt or innocence, the amended Rules provide for simultaneous judgement and sentencing . Accordingly, on 10 September 1998, nine days after the final presentation of evidence in the trial, the Trial Chamber issued a scheduling order, noting the aforementioned changes in the Rules and further noting that pursuant to sub-Rule 6(C) of the Rules, "an amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused." Having determined that the application of the new sentencing procedures pursuant to amended sub-Rule 87(C) would not prejudice the rights of the accused, nor in any way indicate the guilt or otherwise of the accused, the Trial Chamber established a schedule for the parties submissions and subsequent hearings on the issue of sentencing.
84. Pursuant to the 10 September Scheduling Order, the Prosecution filed its submissions on sentencing on 1 October 1998. Thereafter, the Defence for each accused filed their respective submissions on the issue of sentencing. A four-day hearing was subsequently held, commencing on 12 October 1998, during which the parties presented their evidence and final submissions as to sentencing.
85. This Judgement is divided into six sections, each constituting an integral part of the whole. The introductory section has briefly addressed the mandate of the International Tribunal, introduced the Indictment and set out the procedural history of the case. The following section discusses the background and preliminary factual findings as to the conflict in the Konjic municipality and the political structure that existed during the relevant period, as well as the military forces involved in the fighting and the existence of the Celebici prison-camp.
86. Section III addresses the applicable provisions of the Statute and their interpretation in the present context. The first eight sub-sections pertain to the provisions of the Statute concerning the subject-matter and personal jurisdiction of the International Tribunal and general principles of interpretation. In the final sub-section the Trial Chamber sets forth the elements of each of the offences alleged in the Indictment.
87. Section IV contains the Trial Chamber’s factual and legal findings in relation to the allegations made in the Indictment. The role of each of the accused in the facts found proven is thus determined. Section V contains the discussion of sentencing and its applicability to each of the accused. Finally, in Section VI, the Judgement of the Trial Chamber on the guilt or innocence of each of the accused in relation to each of the charges against them, is laid out and the sentence for each accused in relation to those counts of which they are found guilty is imposed. The attached annexes include a glossary of abbreviations, the Indictment, a plan of the Celebici prison-camp and certain photographs.