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UNITEDNATIONS

International Tribunal for theProsecution of Persons Responsiblefor Serious Violations ofInternational Humanitarian LawCommitted in the Territory of TheFormer Yugoslavia since 1991

Case No. IT-95-14-T

Date: 3 March 2000

EnglishOriginal: French

Case no.: IT-95-14-T 3 March 2000

IN THE TRIAL CHAMBER

Before: Judge Claude Jorda, PresidingJudge Almiro RodriguesJudge Mohamed Shahabuddeen

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 3 March 2000

THE PROSECUTOR

v.

TIHOMIR BLA[KI]

JUDGEMENT

The Office of the Prosecutor: Defence Counsel:

Mr. Mark Harmon Mr. Anto NobiloMr. Andrew Cayley Mr. Russell HaymanMr. Gregory Kehoe

Case no.: IT-95-14-T i 3 March 2000

TABLE OF CONTENTS

ANNEX ................................................................................................................................... viiI. INTRODUCTION.............................................................................................................. 1

A. The Tribunal................................................................................................................... 1B. The Indictment ............................................................................................................... 1

1. The general context and form of responsibility incurred........................................... 22. The crimes charged .................................................................................................... 4

a) Persecution............................................................................................................ 4b) Unlawful attacks upon civilians and civilian objects ........................................... 4c) Wilful killing and serious bodily injury................................................................ 5d) Destruction and plunder of property..................................................................... 5e) Destruction of institutions dedicated to religion or education.............................. 5f) Inhumane treatment, taking of hostages and use of human shields...................... 6

C. The main stages of the proceedings ............................................................................... 61. Issues relating to the composition of the Trial Chamber ........................................... 72. Issues relating to the detention of the accused........................................................... 8

a) Motions for modification to the detention conditions of the accused .................. 8b) Motions for provisional release of the accused .................................................... 9

3. Issues relating to evidence ......................................................................................... 9a) Disclosure obligations .......................................................................................... 9b) The exception to the disclosure obligation set down in Rule 70 of the Rules.... 11c) The admissibility of the evidence ....................................................................... 13d) Access to the confidential documents in related La{va Valley cases................. 14e) Orders for production of documents................................................................... 16

i) Proceedings regarding the Republic of Croatia......................................... 16ii) Other proceedings ..................................................................................... 18

4. Issues relating to the appearance and protection of victims and witnesses ............. 195. Issues relating to the length of proceedings............................................................. 206. The issue of the dismissal of some counts following the presentation of Prosecution

evidence................................................................................................................... 217. The summoning of Trial Chamber witnesses pursuant to Rule 98 of the Rules...... 228. The procedure for determining the sentence............................................................ 23

II. APPLICABLE LAW........................................................................................................ 24A. The requirement that there be an armed conflict ......................................................... 24

1. Definition ................................................................................................................. 242. Role.......................................................................................................................... 25

a) A condition for charging under Articles 2 and 3 of the Statute.......................... 25b) A condition for jurisdiction under Article 5 of the Statute................................. 25

3. Nexus between the crimes imputed to the accused and the armed conflict............. 26B. Article 2 of the Statute: Grave breaches of the Geneva Conventions.......................... 27

a) International nature of the armed conflict .......................................................... 28i) Direct intervention..................................................................................... 30ii) Indirect intervention .................................................................................. 34

b) Protected persons and property........................................................................... 44i) The “nationality” of the victims................................................................ 44ii) Co-belligerent States................................................................................. 47

a. Co-belligerence..................................................................................... 47b. Reasoning of Article 4 of the Fourth Geneva Convention................... 49

iii) Prisoners of war......................................................................................... 50iv) Protected property ..................................................................................... 51

Case no.: IT-95-14-T ii 3 March 2000

c) The elements of the grave breaches.................................................................... 51i) Article 2(a) – wilful killing (count 5)........................................................ 52ii) Article 2(b) – inhuman treatment (counts 15 and 19)............................... 52iii) Article 2(c) – wilfully causing great suffering or serious injury to body or

health (count 8).......................................................................................... 53iv) Article 2(d) – extensive destruction of property (count 11) ..................... 53v) Article 2(h) – taking civilians as hostages (count 17)............................... 53

C. Article 3 of the Statute – Violations of the Laws or Customs of War......................... 54a) Scope and conditions of applicability of Article 3 of the Statute ....................... 54

i) Customary international law and conventional law.................................. 55ii) Individual criminal responsibility ............................................................. 58iii) Protected persons (Common Article 3)..................................................... 59

b) The elements of the offences .............................................................................. 59i) Unlawful attack against civilians (count 3); attack upon civilian property

(count 4) .................................................................................................... 59ii) Murder (count 6) ....................................................................................... 60iii) Violence to life and person (count 9)........................................................ 60iv) Devastation of property (count 12) ........................................................... 60v) Plunder of public or private property (count 13)....................................... 60vi) Destruction or wilful damage to institutions dedicated to religion or

education (count 14).................................................................................. 61vii) Cruel treatment (count 16 and 20)............................................................. 61viii) Taking of hostages (count 18)................................................................... 61

D. Article 5 of the Statute: crimes against humanity........................................................ 621. The Arguments of the Parties .................................................................................. 63

a) The Prosecution .................................................................................................. 63b) The Defence........................................................................................................ 64

2. Discussion and conclusions ..................................................................................... 65a) The legal and factual elements ........................................................................... 65

i) The material element................................................................................. 66a. The widespread or systematic attack against any civilian population.. 66

i. A widespread or systematic attack ................................................ 66ii. A civilian population ..................................................................... 70

b. The sub-characterisations ..................................................................... 73i. Murder ........................................................................................... 73ii. Persecution .................................................................................... 73iii. Serious bodily and mental harm, infringements upon freedom and

attacks against property as forms of persecution........................... 74iv. Legal and factual elements of the forms of persecution specified in

the indictment ................................................................................ 78v. Discrimination ............................................................................... 79vi. Other inhumane acts ...................................................................... 80vii. Serious physical and mental injury as “other inhumane acts” ...... 80viii. Legal and factual elements of serious bodily or mental harm....... 81

ii) Mens Rea................................................................................................... 81a. Knowledge of the widespread or systematic attack ............................. 82

i. Knowledge of the context.............................................................. 82ii. Knowing participation in the context............................................ 83iii. The evidence.................................................................................. 85

b. Exclusion of discriminatory intent ....................................................... 86E. Article 7 of the Statute: Individual Criminal Responsibility ....................................... 86

1. Individual criminal responsibility under Article 7(1) of the Statute........................ 86

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a) Introduction......................................................................................................... 86b) The arguments of the Parties .............................................................................. 87

i) The Prosecution......................................................................................... 87ii) The Defence .............................................................................................. 89

c) Discussion and Findings ..................................................................................... 90i) Planning, instigating and ordering ............................................................ 90ii) Aiding and abetting ................................................................................... 91

2. Individual Criminal Responsibility Within the meaning of Article 7(3)................. 93a) Introduction......................................................................................................... 93b) The Superior-Subordinate Relationship ............................................................. 94

i) Arguments of the parties........................................................................... 94ii) Discussion and Findings............................................................................ 96

c) Mens Rea: “Knew or Had Reason to Know”..................................................... 97i) Arguments of the Parties........................................................................... 97ii) Discussion and Findings............................................................................ 97

a. “Actual knowledge” ............................................................................. 97b. “Had reason to know” .......................................................................... 98

d) Necessary and Reasonable Measures to Prevent or Punish.............................. 105i) Arguments of the Parties......................................................................... 105ii) Discussion and Conclusions.................................................................... 106

e) Concurrent Application of Articles 7(1) and 7(3) of the Statute ...................... 107III. FACTS AND DISCUSSION ......................................................................................... 109

A. The Lašva Valley: May 1992 – January 1993 ........................................................... 1091. The exacerbation in tensions.................................................................................. 109

a) The municipality of Vitez................................................................................. 109b) The municipality of Busova~a .......................................................................... 113c) The municipality of Kiseljak ............................................................................ 117d) Conclusions....................................................................................................... 120

2. The Vance-Owen Plan and the January 1993 conflicts ......................................... 121a) The Vance-Owen Plan...................................................................................... 121b) The January 1993 conflicts............................................................................... 122c) Conclusions....................................................................................................... 124

B. The municipality of Vitez .......................................................................................... 1251. Ahmici , Šanti}i , Pirici, Nadioci........................................................................... 125

a) A planned attack with substantial assets........................................................... 126i) An organised attack................................................................................. 126ii) The troops involved................................................................................. 129

b) An attack against the Muslim civilian population ............................................ 132i) The absence of military objectives.......................................................... 132ii) The discriminatory nature of the attack................................................... 137iii) Arrests ..................................................................................................... 138iv) Murders of civilians ................................................................................ 138v) Destruction of dwellings ......................................................................... 140vi) Destruction of institutions dedicated to religion ..................................... 141vii) Plunder .................................................................................................... 142

c) Conclusion ........................................................................................................ 142d) General Blaškic's responsibility........................................................................ 143

i) The orders issued by the accused ............................................................ 145ii) The accused ordered the attack of 16 April 1993.................................... 147iii) The accused ordered an attack aimed at the Muslim population ............ 147

a. The accused’s control over the Vite{ka brigade and the Home Guard(Domobrani)....................................................................................... 148

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b. The control exercised by the accused over the special units.............. 150c. The accused’s control over the Military Police.................................. 151

iv) The massive and systematic nature of the crimes as proof that they werecommitted on orders................................................................................ 155

v) The content of the orders......................................................................... 155vi) The risk taken by the accused ................................................................. 157vii) The accused knew that crimes had been committed ............................... 159viii) The accused did not take the necessary measures................................... 163

2. The events in Vitez and Stari Vitez ....................................................................... 167a) The attacks committed as from 16 April 1993 ................................................. 167b) The widespread or systematic nature of the attacks ......................................... 169

i) The 16 April 1993 attack......................................................................... 169ii) The booby-trapped lorry attack of 18 April 1993 ................................... 170iii) The 18 July 1993 attack .......................................................................... 171

c) The civilian and Muslim character of the target populations........................... 171i) The 16 April 1993 attack......................................................................... 171ii) The booby-trapped lorry of 18 April 1993.............................................. 173iii) The 18 July 1993 attack .......................................................................... 174

d) General Blaškic’s responsibility ....................................................................... 174i) The arguments of the parties ................................................................... 174ii) The individual criminal responsibility of General Blaškic ..................... 175

a. The accused’s orders or reports as evidence of a relationship ofsubordination ...................................................................................... 176

b. The other evidence that there existed a relationship of subordination178c. The organized nature of the attacks.................................................... 179d. Conclusions ........................................................................................ 180

3. Other villages in the municipality of Vitez............................................................ 180a) Donja Ve~eriska and Ga~ice............................................................................. 180

i) The arguments of the parties ................................................................... 181ii) The course of the attacks......................................................................... 182

a. Donja Ve~eriska ................................................................................. 182b. Ga~ice................................................................................................. 185

b) Grbavica............................................................................................................ 187i) The arguments of the parties ................................................................... 187ii) The course of the attack .......................................................................... 188

c) General Bla{ki}’s responsibility ....................................................................... 190C. The municipality of Busovaca ................................................................................... 191

1. The attacks against the villages in the municipality of Busovaca ......................... 191a) Loncari.............................................................................................................. 191b) Ocehnici............................................................................................................ 192c) Conclusions....................................................................................................... 193

i) The organized and massive nature of the attacks.................................... 193ii) The civilian and Muslim nature of the targeted populations................... 194

2. The responsibility of General Bla{ki}.................................................................... 195a) The arguments of the parties............................................................................. 195b) The individual criminal responsibility of General Bla{ki}............................... 196

i) The accused was the superior of the troops involved.............................. 196ii) The accused was responsible for the attacks on the villages of Lon~ari and

O~ehni}i .................................................................................................. 197D. The municipality of Kiseljak ..................................................................................... 199

1. The April and June 1993 attacks against the villages in the Kiseljak enclave ...... 199a) The attacks on the villages in the north of the municipality of Kiseljak .......... 199

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i) Behri}i and Gomionica............................................................................ 199ii) Gromiljak ................................................................................................ 200iii) Hercezi .................................................................................................... 201iv) Polje Vi{nijica and Vi{nijica................................................................... 201v) Rotilj........................................................................................................ 202vi) Svinjarevo................................................................................................ 204

b) The attacks against the villages in the south of the municipality of Kiseljak... 204i) Grahovci and Han Ploca.......................................................................... 204ii) Tulica....................................................................................................... 206

c) Conclusions....................................................................................................... 206i) The systematic and massive nature of the April and June 1993 attacks .207ii) The civilian and Muslim character of the targeted populations.............. 209

2. The responsibility of General Bla{ki}.................................................................... 212a) Arguments of the parties................................................................................... 212

i) The Prosecution....................................................................................... 212ii) The Defence ............................................................................................ 213

b) Discussion......................................................................................................... 214i) The combat preparation order and combat order.................................... 214

a. The texts of the combat preparation order and combat order............. 214b. The recipient of the orders.................................................................. 216c. Military assets..................................................................................... 217d. Conclusions ........................................................................................ 218

ii) The widespread and systematic nature of the crimes perpetrated........... 218iii) The general context of persecution of the Muslim populations.............. 220iv) Conclusions ............................................................................................. 221

E. The shelling of Zenica................................................................................................ 2211. The Prosecution argument ..................................................................................... 2222. The Defence argument........................................................................................... 2233. Conclusions............................................................................................................ 224

F. Detention related crimes ............................................................................................ 2251. Inhuman and cruel treatment.................................................................................. 226

a) Arguments of the parties................................................................................... 226b) Conclusions....................................................................................................... 227

i) Busova~a municipality ............................................................................ 228ii) Kiseljak municipality .............................................................................. 228iii) Vitez municipality................................................................................... 230

2. Taking of hostages ................................................................................................. 233a) Arguments of the parties................................................................................... 233b) Conclusions....................................................................................................... 234

3. Inhuman and cruel treatment: human shields ........................................................ 235a) The arguments of the parties............................................................................. 235b) Conclusions....................................................................................................... 236

4. Individual criminal responsibility of General Bla{ki} ........................................... 237a) Arguments of the parties................................................................................... 237b) Conclusions....................................................................................................... 238

i) Inhuman and cruel treatment (counts 15 and 16).................................... 238a. Detention centres ................................................................................ 238

i. Tihomir Bla{ki} exercised “effective control” over the perpetratorsof the crimes................................................................................ 238

ii. Tihomir Bla{ki} “knew or had reason to know” that crimes hadbeen committed ........................................................................... 239

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iii. Tihomir Bla{ki} did not take the necessary and reasonablemeasures to punish the perpetrators of the crimes....................... 241

b. Trench digging.................................................................................... 242ii) The taking of hostages (counts 17 and 18).............................................. 243iii) Inhuman and cruel treatment: human shields (counts 19 and 20)........... 243

IV. FINAL CONCLUSIONS ............................................................................................... 245V. PRINCIPLES AND PURPOSES OF SENTENCING................................................... 247

A. Applicable provisions ................................................................................................ 2471. Statute..................................................................................................................... 2472. Rules of Procedure and Evidence .......................................................................... 2483. General practice regarding prison sentences.......................................................... 2484. Purposes and objectives of the sentence ................................................................ 249

B. Sentencing.................................................................................................................. 2501. The accused............................................................................................................ 2502. Mitigating circumstances ....................................................................................... 251

a) The material mitigating circumstances............................................................. 251b) Personal mitigating circumstances ................................................................... 252

3. Aggravating circumstances.................................................................................... 256a) The scope of the crime...................................................................................... 256

i) How the crime was committed................................................................ 256ii) Effects of the crime upon the victims...................................................... 258

b) The degree of the accused’s responsibility....................................................... 258i) Command position .................................................................................. 258ii) Form of participation............................................................................... 260iii) Premeditation .......................................................................................... 261

4. Credit for time served ............................................................................................ 2615. The sentence........................................................................................................... 261

a) Legal bases and consequences of an objective ranking of the crimes.............. 262b) The principles set by the case-law of the two Tribunals .................................. 263

i) The principles.......................................................................................... 263ii) The method for assessing seriousness..................................................... 265

c) A single sentence .............................................................................................. 2656. Conclusion ............................................................................................................. 266

VI. DISPOSITION ............................................................................................................... 267

Case no.: IT-95-14-T vii 3 March 2000

ANNEX

Abbreviations

ABiH Muslim Army of Bosnia-Herzegovina

BH Republic of Bosnia-Herzegovina

BRITBAT UNPROFOR British Battalion

ICRC International Committee of the Red Cross

ECMM European Commission MonitoringMission

UNPROFOR United Nations Protection Force

HDZ Croatian Democratic Community

HOS Croatian Defence Forces

HV Army of the Republic of Croatia

HVO Croatian Defence Council

HZHB Croatian Community of Herceg-Bosna

JNA Yugoslav People’s Army

UN United Nations

FRY Federal Republic of Yugoslavia (Serbiaand Montenegro)

SDA Party of Democratic Action

SDS Serbian Democratic Party

SIS HVO Security and Information Service

TO Bosnian Territorial Defence

VJ Army of the FRY

VRS Army of Republika Srpska

CBOZ Central Bosnia Operative Zone

Case no.: IT-95-14-T viii 3 March 2000

Players

Miro Andri} HV Colonel, he was later the “number twoat the joint command of the BH armedforces” before returning to the HV inCroatia.

Mate Boban President of the HZHB and Commander-in-Chief of the HZHB military forces.

Janko Bobetko HV General, southern front commander.

Mario êrkez Commander of the HVO Vitez Brigade.

Filip Filipovi} HVO Colonel in Travnik.

Darko Geli} Liaison officer for General Bla{ki} to theUNPROFOR

Enver Hadìhasanovi} ABiH 3rd Army Corps Commander.

Dario Kordi} Vice-President of the HZHB.

Ignac Ko{troman Secretary-General of the HZHB and theHDZ in BH.

Pa{ko Ljubi~i} Military Police Fourth BattalionCommander.

Dèmo Merdan ABiH Chief-of-Staff.

Slobodan Milo{evi} President of the FRY.

Milivoj Petkovi} HV General, HVO headquarters Chief-of-Staff.

Slobodan Praljak HV General, former Croatian deputynational defence minister in Zagreb, hewas replaced by Petkovi} as HVO Chief-of-Staff on 27 July 1993.

Ivica Raji} HVO operative zone 3 Commander (inKiseljak).

Ante Roso HV General in charge of the Livno region,he replaced Praljak as HVO Chief-of-Staffin October 1993.

Case no.: IT-95-14-T ix 3 March 2000

Bruno Stoji} Head of the HZHB Defence Department.

Gojko [u{ak Croatian Minister of Defence.

Franjo Tudjman President of the Republic of Croatia.

Anto Valenta President of the HDZ in Vitez, deputypresident of the HDZ for the HZHB, vicepresident of the HVO (April 1993).

Ivica Zeko Deputy commander of the CBOZresponsible for intelligence activities.

Case no.: IT-95-14-T x 3 March 2000

Units

Brigades

a) HVO regular brigades

Ban Jela~i} Located in Kiseljak and commanded byMijo Bo`i} and, later, Ivica Raji}.

Bobovac Located in Vare{ and commanded by EmilHarah.

Frankopan Located in Gu~a Gora, Travnik andcommanded by Ilija Naki}.

Jure Franceti} Located in Zenica (until 14 May 1993 atthe latest) and commanded by @ivko Toti}.

Kotromani} Located in Kakanj and commanded byNeven Mari}.

Kralj Tvrtko Located in Sarajevo and commanded bySlavko Zeli}.

Nikola [ubi} Zrinski Located in Busova~a and commanded byDu{ko Grube{i}.

Stjepan Toma{evi} Located in Novi Travnik and commandedby @eljko Sablji}.

Vite{ka Located in Vitez and commanded byMario ^erkez.

III XP Located in @ep~e and commanded by IvoLozan~i}.

Zenica 2nd Brigade Located in Zenica (until 14 May 1993 atthe latest) and commanded by VinkoBare{i}).

Case no.: IT-95-14-T xi 3 March 2000

b) ABiH Chief-of-Staff

3rd Corps Located in Zenica and commanded byGeneral Had`ihasanovi}, the 3rd Corpscommanded the ABiH brigades in centralBosnia.

7th Muslim Brigade Brigade forming part of the 3rd Corpscommand structure, particularly wellequipped and comprised in part of foreignsoldiers (Mujahedin).

325th Mountain Brigade 3rd Corps Brigade in Vitez.

Military Police

Fourth Battalion Located in Travnik. Commanded initiallyby Zvonko Vukovi} who was replaced on18 January 1993 by Pa{ko Ljubi~i}. Pa{koLjubi~i} was removed from his position on23 July 1993 and replaced by MarinkoPalavra. In July 1993, the FourthBattalion was renamed the SeventhBattalion.

Seventh Battalion See the Fourth Battalion.

Case no.: IT-95-14-T xii 3 March 2000

Special Units

Bruno Bu{i} Located in Travnik and commanded bythe “director of the Defence Department”.The unit left the CBOZ before the April1993 conflict

Dòkeri Anti-terrorist units formed within theMilitary Police (Fourth Battalion).Located in the bungalows in Nadioci (stillcalled “Swiss chalet”). The immediatecommander was Vlado [anti} whoseheadquarters were in the Hotel Vitez.Anto Furundìja was appointedcommander, subordinate to Vlado [anti}.

Ludwig Pavlovi} Located at the Dubravica school (with theVitezovi).

Maturice Formed from the Ban Jela~i} brigade.Located in Kiseljak.

Tvrtko II Located in Nova Bila.

Vitezovi Located at the Dubravica school. Itsmembers were former HOS members.Commanded by Colonel Darko Kraljevi}and his deputy Niko Kriànac.

@uti HVO Frankopan Brigade unit. Located atthe Gu~a Gora school in Travnik andcommanded by @arko Andri} (nicknamed“@uti”).

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Others

Domobrani So-called Home Guard units positioned ineach village pursuant to a decision of theMostar Ministry of Defence dated 8February 1993.

SIS Commanded in the CBOZ by AnteSli{kovi}, office at the Hotel Vitez.

HOS Commanded in Bosnia by JadrankoJandri} who was replaced by MladenHolman before being incorporated into theHVO prior to 16 April 1993.

Case no.: IT-95-14-T 1 3 March 2000

I. INTRODUCTION

A. The Tribunal

1. 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 (hereinafter “the Tribunal”) was established by the Security Council1

pursuant to Chapter VII of the Charter of the United Nations.

B. The Indictment

2. General Tihomir Bla{ki}2 was initially indicted along with five other accused in a

single indictment, The Prosecutor v. Dario Kordi} et al, confirmed on 10 November 19953.

The indictment charged the accused alone with 13 counts. An Order of Judge McDonald

dated 22 November 1996 authorised a new indictment to be filed, The Prosecutor v. Tihomir

Bla{ki}, which incorporated seven new counts.

3. Further to the amendment, the Defence filed four preliminary motions all relating to

the amended indictment. The first requested that portions of the indictment alleging “failure

to punish” liability be struck out on the ground that it did not constitute an offence falling

under the jurisdiction of the Tribunal4. The Trial Chamber rejected the request of the Defence

since it deemed that, in most cases, such a failure also constituted a failure to prevent other

crimes from being committed5.

4. The Defence submitted a second preliminary motion so as to receive a more detailed

explanation of the criteria for the intent required for the charges alleging command

1 Resolution 827 (1993) adopted by the Security Council on 25 May 1993.2 At the time, the accused was a colonel. He was promoted to General of the army of the Republic of Croatiaafter the period covered by the indictment. In addition, the first name “Tihofil” was sometimes used in referringto him. To take this situation into account but also to ensure the presentation is consistent, the accused shall becalled “General Bla{ki}”, “Colonel Bla{ki}”, “Tihomir Bla{ki}” or simply “the accused”.3 Confirmation of the indictment, case no. IT-95-14-I, 10 November 1995. Originally, the document includedsix accused including Dario Kordi} , Tihomir Bla{ki}, Mario ^erkez and Zlatko Aleksovski. Followingseverances, the reference “IT-95-14” concerns Tihomir Bla{ki} only.4 Motion to strike portions of amended indictment alleging “failure to punish” liability, Case no. IT-95-14-PT,4 December 1996.5 Decision on the Defence Motion to strike portions of the amended indictment alleging “failure to punish”liability, Case no. IT-95-14-PT, 4 April 1997.


responsibility6. The Trial Chamber did not grant the Motion on the ground that it related to

the subject-matter of the prosecution and was premature at that stage of the proceedings7.

5. In a third preliminary motion, the Defence also requested the Trial Chamber to reject

those counts under Article 2 of the Tribunal’s Statute based on a failure to plead adequately

the existence of an international armed conflict8. The Motion was rejected because the Trial

Chamber considered that the Prosecutor did not have to present proof at this stage of the

proceedings that such a conflict did occur and that the formal validity of the indictment was

in no manner undermined thereby 9.

6. This Judgement responds to the indictment The Prosecutor v. Tihomir Bla{ki} as

amended for the second time on 25 April 1997 further to the Decision of the Trial Chamber

on the fourth and last preliminary motion tendered by the Defence for the dismissal of the

indictment based upon defects in the form thereof10. The Trial Chamber had granted the

Defence Motion in part and ordered the Prosecutor to add details relating to the times and

places of the facts characterised, the role of the accused and the type of responsibility alleged,

pursuant to the criteria set down by Article 18(4) of the Statute and Sub-rule 47(B) of the

Rules of Procedure and Evidence (hereinafter “the Rules”). Following a fresh Defence

motion, the Trial Chamber deemed that some of the amendments to the indictment did not

comply with its previous Decision11. The Prosecutor ultimately withdrew count 2 of the

indictment12.

1. The general context and form of responsibility incurred

7. The indictment of 25 April 1997 (hereinafter “the indictment”) contains twenty counts

including six grave breaches of the Geneva Conventions (counts 5, 8, 11, 15, 17 and 19),

6 Motion in limine regarding mens rea required for charges alleging command responsibility and for bill ofparticulars re command responsibility portions of indictment, Case no. IT-95-14-PT, 4 December 1996.7 Decision rejecting the Defence motion in limine regarding mens rea required for charges alleging commandresponsibility and for bill of particulars re command responsibility portions of indictment, Caseno. IT-95-14-95-PT, 4 April 1997.8 Motion to dismiss counts 4, 7, 10, 14, 16 and 18 based on failure to adequately plead existence of internationalarmed conflict, Case no. IT-95-14-PT, 16 Decmeber 1996.9 Decision to reject a motion of the Defence to dismiss counts 4, 7, 10, 14, 16 and 18 based on failure toadequately plead existence of international armed conflict, Case no. IT-95-14-PT, 4 April 1997.10 Decision on the Defence motion to dismiss the indictment based upon defects in the form thereof(vagueness/lack of adequate notice of charges), Case no. IT-95-14-PT, 4 April 1997.11 Decision on the Defence request for enforcement of an Order of the Trial Chamber, Case no. IT-95-14-PT,23 May 1997.


eleven violations of the laws or customs of war (counts 2, 3, 4, 6, 9, 12, 13, 14, 16, 18

and 20)13 and three crimes against humanity (counts 1, 7 and 10) under Articles 2, 3 and 5 of

the Tribunal’s Statute respectively. The crimes alleged in the indictment were purportedly

committed in the context of “serious violations of international humanitarian law against

Bosnian Muslims” by members of the armed forces of the Croatian Defence Council

(hereinafter “the HVO”) between May 1992 and January 199414, in the municipalities of:

Vitez, Busova~a, Kiseljak, Vare{, @ep~e, Zenica, Duvno, Stolac, Mostar, Jablanica,Prozor, ^apljina, Gornji Vakuf, Novi Travnik, Travnik, Kre{evo and Fojnica, all in theterritory of the Republic of Bosnia and Herzegovina15.

However, it emerges from the specific counts that the particular municipalities mentioned as

the setting for the crimes with which the accused is charged are Vitez, Busova~a, Kiseljak

and Zenica.

8. The indictment states that, throughout the period under consideration, a state of

international armed conflict and partial occupation existed in the territory of the Republic of

Bosnia and Herzegovina16.

9. Tihomir Bla{ki} was appointed commander of the HVO armed forces headquarters

in central Bosnia on 27 June 1992 and occupied the position throughout the period covered

by the indictment. In this position and pursuant to Article 7(1) of the Statute, he was accused

of having, in concert with members of the HVO, planned, instigated, ordered or otherwise

aided and abetted in the planning, preparation or execution of each of the crimes alleged. In

addition or in the alternative, Tihomir Bla{ki} was accused of having known or having had

reason to know that subordinates were preparing to commit those crimes or that they had

done so and that he had not taken the necessary and reasonable measures to prevent the said

crimes from being committed or to punish the perpetrators.

12 Summary of the Prosecutor’s Final Brief, 22 July 1999 (filed on 30 July 1999) (hereinafter “Prosecutor’sBrief”), paragraph (hereinafter “para.”) 8.2, p. 59.13 For counts 6, 9, 16, 18 and 20, the Prosecutor specifies Article 3 common to the Geneva Conventions of 12August 1949 (hereinafter “the Geneva Conventions”) for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field (hereinafter “the First Convention”), for the Amelioration of the Condition ofthe Wounded, Sick and Shipwrecked Members of Armed Forces at sea (hereinafter “the Second Convention”),Relative to the Treatment of Prisoners of War (hereinafter “the Third Convention”) and relative to the Protectionof Civilian Persons in Time of War (hereinafter “the Fourth Convention”); in addition, for counts 3 and 4, theProsecutor refers to Articles 51(2) and 52(1) respectively of Protocol I of 8 June 1977 Additional to the GenevaConventions of 1949 Relating to the Protection of Victims in International Armed Conflicts (hereinafter“Protocol I”).14 That is, in actual fact, between 1 May 1992 at the earliest and 31 January 1994 at the latest.15 Second amended indictment, Case no. ITR-95-14-PT, para. 1.16 Ibid., para. 5.10.


2. The crimes charged

10. The indictment brought by the Prosecutor groups the facts imputed to General

Bla{ki} into six distinct categories.

a) Persecution

11. Under count 1, Tihomir Bla{ki} is accused of a crime against humanity for

persecution17 of the Muslim civilian population of Bosnia18 throughout the municipalities of

Vitez, Busova~a, Kiseljak and Zenica on political, racial or religious grounds from

May 1992 to January 199419. The persecution was allegedly implemented through a

widespread, large-scale and systematic attack upon towns, villages and hamlets inhabited by

Bosnian Muslims20. During and after the attack, Bosnian Muslim civilians were allegedly

murdered and subjected to serious bodily harm21 whilst dwellings, buildings, private

property, livestock and businesses belonging to Bosnian Muslims as well as their institutions

dedicated to religion or education were all allegedly plundered and wilfully destroyed22.

Furthermore, the Prosecutor alleged that hundreds of Bosnian Muslim civilians were

systematically arrested, interned, treated inhumanly23, intimidated and coerced to leave their

homes or forcibly transferred by the HVO to zones outside the municipalities of Vitez,

Busova~a and Kiseljak. The forcible transfer of civilians was allegedly described “by HVO

representatives as a voluntary or humanitarian transfer of civilians […]”24. The persecutions

allegedly resulted in a considerable reduction of the Bosnian Muslim civilian population

within the three municipalities25.

b) Unlawful attacks upon civilians and civilian objects

12. Under counts 2 to 4, Tihomir Bla{ki} was accused of three violations of the laws or

customs of war26 for the unlawful attacks upon civilians and civilian objects and for the

destruction, not justified by military necessity, which were allegedly perpetrated in the

17 Article 5(h) of the Statute.18 The Trial Chamber states the neutrality of the expression, in any case used by the Prosecutor (hereinafter“Bosnian Muslims” or “Muslim civilians”).19 Second amended indictment, Case no. ITR-95-14-PT, para. 6.20 Ibid., para. 6.1.21 Ibid., para. 6.2.22 Ibid., para. 6.3.23 Ibid., paras. 6.4 and 6.5..24 Ibid., para. 6.7.25 Ibid., para. 7.26 Articles 3 and 3(b) of the Statute and Articles 51(2) and 52(1) of Protocol I for counts 3 and 4.


towns and villages of Ahmi}i, Nadioci, Piri}i, [anti}i, O~ehni}i, Vitez, Stari Vitez, Rotilj

and Zenica27.

c) Wilful killing and serious bodily injury

13. Under counts 5 to 10, Tihomir Bla{ki} was prosecuted for wilful killing and serious

physical and mental injury to civilians, allegedly committed from January 1993 to

January 1994 in the municipalities of Vitez, Busova~a, Kiseljak and Zenica28. The crimes

thus alleged were prosecuted as two serious breaches of the Geneva Conventions29, two

violations of the laws or customs of war30 and two crimes against humanity31.

d) Destruction and plunder of property

14. Under counts 11 to 13, Tihomir Bla{ki} was accused of a serious breach of the

Geneva Conventions32 and two violations of the laws or customs of war33 for the large-scale

plunder and destruction of Bosnian Muslim dwellings, buildings, businesses, private

property and livestock between January 1993 and September 1993, and more specifically in

Ahmi}i, Nadioci, Piri}i, [anti}i, O~ehni}i, Vitez, Stari Vitez, Donja Ve~eriska, Ga~ice,

Lon~ari, Behri}i, Svinjarevo, Gomionica, Gromiljak, Polje Vi{njica, Vi{njica and Rotilj in

April 1993, in Tulica and Han Plo~a/Grahovci in June 1993, again in Stari Vitez in

August 1993 and in Grbavica in September 199334.

e) Destruction of institutions dedicated to religion or education

15. Under count 14, Tihomir Bla{ki} was accused of a violation of the laws or customs

of war35 for the destruction or wilful damage done to Bosnian Muslim institutions dedicated

to religion or education between August 1992 and June 1993 – in Duhri in August 1992,

Busova~a, Stari Vitez and Svinjarevo in 1993, Ahmi}i, Kiseljak, Gromiljak and Kazagi}i in

April 1993, Hercezi, Han Plo~a and Tulica in June 1993 and Vi{njica in September 199336.

27 Second amended indictment, para. 8.28 Ibid., para. 9.29 Articles 2(a) and 2(c) of the Statute.30 Article 3 of the Statute and Article 3(1) of the Geneva Conventions.31 Articles 5(a) and 5(i) of the Statute.32 Article 2(d) of the Statute.33 Articles 3(b) and 3(e) of the Statute.34 Second amended indictment, para. 10.35 Article 3(d) of the Statute.36 Second amended indictment, para. 11.


f) Inhumane treatment, taking of hostages and use of human shields

16. Counts 15 to 20 concern the cruel and inhumane treatment inflicted from

January 1993 to January 1994 on Bosnian Muslims detained at facilities controlled by the

HVO37, the taking of Bosnian Muslim civilians as hostages between January 1993 and

January 1994 to obtain prisoner exchanges and the cessation of Bosnian military operations

against the HVO38 and, lastly, the use of Bosnian Muslim civilians between January 1993

and April 1993 as human shields to protect the HVO positions39. In this respect, the

Prosecutor charged the accused with three grave breaches of the Geneva Conventions40 and

three violations of the laws or customs of war41.

C. The main stages of the proceedings

17. Following Judge McDonald’s confirmation of the initial indictment on

10 November 1995, the warrants of arrest ordering the transfer of the accused were sent to

the authorities of the Federation of Bosnia-Herzegovina of the Republic of Bosnia-

Herzegovina and to the authorities of the Republic of Croatia42. Copies of the indictments

and warrants of arrest were subsequently sent to IFOR43 upon an Order of Judge Jorda.

Lastly, Judge Vohrah issued a warrant of arrest ordering the transfer of Tihomir Bla{ki} to

the Kingdom of The Netherlands on 28 March 199644.

18. Tihomir Bla{ki} voluntarily gave himself up to the International Tribunal on

1 April 1996 and, pursuant to Rule 62 of the Rules, his initial appearance hearing was held

on 3 April 1996 before Trial Chamber I composed of Judge Jorda, presiding, Judge

Deschênes and Judge Riad. The accused pleaded “not guilty” to all the counts brought

against him in the initial indictment. On 4 December 1996, Tihomir Bla{ki} pleaded “not

guilty” to the new counts confirmed against him45 following the first amendment of the

indictment on 22 November 1996. The second amendment of the indictment on

37 Ibid., paras. 13 and 14.38 Ibid., para. 15.39 Ibid., para. 16.40 Articles 2(b) and 2(h) of the Statute.41 Article 3 of the Statute and Article 3(1)(a) common to the four Geneva Conventions.42 Warrants of Arrest Order for Surrender of Tihomir Bla{ki} addressed to the Federation ofBosnia-Herzegovina, the Republic of Croatia and the Republic of Bosnia-Herzegovina, Case no. IT-95-14-I,10 November 1995.43 Order rendered on 24 December 1995 by Judge Claude Jorda, Case no. IT-95-14-I, 24 December 1995.44 Warrant of Arrest Order for Surrender of Tihomir Bla{ki} addressed to the Kingdom of The Netherlands,Case no. IT-95-14-I, 28 March 1996.45 Provisional English Transcript (hereinafter “PT”) of the hearing of 4 December 1996, p. 5.


25 April 1997 did not bring any new counts against the accused who, for that reason, did not

have to enter a new plea.

19. The proceedings against Tihomir Bla{ki} before the Tribunal were complex and at

each stage gave rise to many questions, often without precedent. Accordingly, during the

fourteen-month pre-trial phase, the Tribunal rendered eighty-two interlocutory decisions.

The trial proper commenced on 24 June 199746 and lasted a little over two years, closing on

30 July 1999. During this stage of the proceedings, seventy-eight interlocutory Decisions

were rendered, 158 witnesses heard and more than one thousand three hundred exhibits

filed47. The French version of the transcript runs to more than 18,300 pages. This chapter is

intended to recall the various stages of the lengthy proceedings in brief and according to the

issues. However, it will not deal with the issues relating to the indictment, which were

examined in the previous chapter or the proceedings relating to binding Orders for the

production of documents addressed to some States.

1. Issues relating to the composition of the Trial Chamber

20. The Trial Chamber hearing the present case was initially composed of Judge Jorda,

presiding, Judge Deschênes and Judge Riad. Since Judge Deschênes was unable to continue

sitting in the case, the President of the Tribunal ordered the temporary assignment of Judge

Li pursuant to Sub-rule 15(F) of the Rules48. On 18 April 1997, Judge Deschênes resigned

for medical reasons and was replaced on 16 June 1997 by Judge Shahabuddeen who was

assigned to the case in an Order of the President49 on the same day of his appointment to the

Tribunal.

21. Sub-rule 15(F) was implemented for a second time when Judge Riad became

unavailable for approximately three months for medical reasons. Upon consulting with the

parties at two status conferences50, the Presiding Judge of the Trial Chamber, Claude Jorda,

submitted a report to the President of the Tribunal expressing his preference for Judge Riad

to be replaced given the circumstances51. The said report recalled that the Prosecutor

46 Order for the holding of a hearing and the setting of a date for the start of trial, Case no. IT-95-14-PT, 17June 1997.47 Some of the exhibits contain several distinct parts, even up to around one hundred elements.48 Order of the President temporarily assigning a Judge to Trial Chamber I, Case no. IT-95-14-PT,27 January 1997.49 Order of the President assigning a Judge to a Trial Chamber, Case no. IT-95-14-T, 16 June 1997.50 PT of 12 and 21 January 1999.51 Report of the Presiding Judge of Trial Chamber I pursuant to Sub-rule 15(F) of the Rules of Procedure andEvidence, Decision on the production of discovery materials, Case no. IT-95-14-T, 26 January 1999.


favoured a solution which would enable Judge Riad to continue reviewing the case and

mentioned the document filed by the accused reiterating his conditional consent to the

continuation of the proceedings following the assignment of a new Judge52. In view of these

developments, the President of the Tribunal ordered the assignment of Judge

Almiro Rodrigues and the resumption of proceedings before the newly composed Trial

Chamber53.

2. Issues relating to the detention of the accused

22. The Trial Chamber considers that in this instance it is appropriate to distinguish

between the requests for modification to the detention conditions presented to the President

of the Tribunal pursuant to Rule 64 of the Rules and the Motions for provisional release

submitted to the Trial Chamber by the accused pursuant to Rule 65 of the Rules. Although in

this case, the requests were filed at the same time, they will be examined successively in this

chapter.

a) Motions for modification to the detention conditions of the accused

23. On the same day as Tihomir Bla{ki}’s surrender to the Tribunal, Defence Counsel

submitted to the President of the Tribunal pursuant to Rule 64 of the Rules a motion for

modification to the conditions of detention of the accused. The President authorised that the

accused be detained under strict conditions outside the United Nations Detention Unit

facilities “within the confines of a residence designated by the Netherlands authorities” 54.

The detention conditions were later modified, in particular as regards family visits and

movement of the accused outside55. Nonetheless, following serious threats to the security of

General Bla{ki}, these detention conditions were abandoned in a Decision of the Tribunal and

the accused was transferred to the United Nations Detention Unit56.

52 Conditional consent of the accused to the continuation of the proceedings following the assignment of a newJudge to the Trial Chamber, Case no. IT-95-14-T, 22 January 1999.53 Order of the President for the assignment of a Judge to the Trial Chamber, Case no. IT-95-14-T,29 January 1999.54 Decision on the motion of the Defence filed pursuant to Rule 64 of the Rules of Procedure and Evidence,Case no. IT-95-14-I, 3 April 1996, para. 24.55 Decision on the motion of the Defence seeking modification to the conditions of detention of General Bla{ki},Case no. IT-95-14-PT, 17 April 1996; Decision on the motion of the Defence seeking modification to theconditions of detention of General Bla{ki}, Case no. IT-95-14-PT, 9 May 1996; Decision on motion of theDefence seeking modification of the conditions of detention of General Bla{ki}, Case no. IT-95-14-PT, 9January 1997; Decision on the conditions of detention of General Bla{ki}, Case no. IT-95-14-PT, 26 May 1997.56 Order modifying the conditions of detention of General Bla{ki}, Case no. IT-95-14-PT, 20 June 1997;Decision on the modification of the conditions of detention of General Bla{ki}, Case no. IT-95-14-PT,23 June 1997; Decision, Case no. IT-95-14-T, 17 July 1997.


b) Motions for provisional release of the accused

24. Defence Counsel to Tihomir Bla{ki} twice presented a motion for provisional release

pursuant to Rule 65 of the Rules. The first gave rise to a Decision dated 25 April 1996 and

the second to a Decision dated 20 December 1996. In both instances the Trial Chamber

rejected the Motion upon reviewing all the elements to be taken into consideration57.

3. Issues relating to evidence

25. Throughout the trial, the administration of the evidence gave rise to many motions

relating both to the disclosure obligations of the parties and to the admissibility of the

evidence. One of the characteristics of this case is that the questions relating to disclosure

obligations, which typically arise at the pre-trial phase, persisted through the trial itself. It is

also appropriate to deal with the unprecedented matter of access to confidential documents in

related “La{va Valley” cases and the lengthy procedure for Orders addressed to States for the

production of documents.

a) Disclosure obligations

26. Seised of a Defence motion58, the Trial Chamber rendered a Decision on 27 January

1997 setting out how it interpreted the scope of the parties’ disclosure obligations under

Rules 66, 67 and 68 of the Rules59.

Pursuant to former Sub-rule 66(A) of the Rules, the Trial Chamber initially took up a broad

interpretation of the notion of disclosure by concluding that all the prior statements of the

accused appearing in the Prosecutor’s case-file had to be disclosed to the Defence without

delay whatever their nature or origin. The Judges further stated that the same criteria were to

apply mutatis mutandis to the prior statements of the witnesses under that same

Sub-rule 66(A). Nonetheless, the Trial Chamber attached two reservations to this

interpretation, grounded on Sub-rules 66(C) and 70(A) of the Rules respectively.

Secondly, on the issue of the disclosure of the Prosecution witnesses’ names to the Defence

provided for under Sub-rule 67(A), the Trial Chamber found that all the names of the

witnesses had to be disclosed “at the same time in a comprehensive document which thus

57 Decision rejecting a request for provisional release, Case no. IT-95-14-PT, 25 April 1996. Order denying amotion for provisional release, Case no. IT-95-14-PT, 20 December 1996.58 Motion to compel the production of discovery material, Case no. IT-95-14-PT, 26 November 1996.59 Decision on the production of discovery materials, Case no. IT-95-14-PT, 27 January 1997.

Case no.: IT-95-14-T 10 3 March 2000

permits the Defence to have a clear and cohesive view of the Prosecution’s strategy and to

make the appropriate preparations”60.

Thirdly, the Trial Chamber evaluated the scope and methods of application of Rule 68 of the

Rules relating to the Prosecutor’s disclosure of exculpatory material. It recalled that the

obligation was boundless and unquestionably fell upon the Prosecutor alone, though under

the control of the Trial Chamber, if only because she was in possession of the said

exculpatory material. However, the Trial Chamber drew a parallel between the evidence

identified under Sub-rule 66(B) of the Rules “material to the preparation of the Defence” and

Rule 68 exculpatory evidence. Applying the case-law on the interpretation of Sub-rule 66(B)

in the ^elebi}i case61 to Rule 68, it therefore deduced that where the Defence contested the

Prosecutor’s execution of her obligations it “must present a prima facie case which would

make probable the exculpatory nature of the materials sought”62.

27. The Trial Chamber subsequently heard fresh motions on the matter during the same

trial and clarified its case-law of 27 January 1997.

Hence, in response to a Defence motion, the Trial Chamber reviewed the notion of prior

statements in the light of its foregoing case-law on the subject and found that topographical

maps, personal journals and radio logs could not be likened to prior statements of witnesses

within the meaning of Sub-rule 66(A) of the Rules and did not need to be disclosed to the

Defence63. The matter was also raised in respect of written orders of Tihomir Bla{ki}. The

Trial Chamber assessed, however, that these were documents within the meaning of Sub-rule

66(B) of the Rules and fell under Sub-rule 66(A):

all statements made by the accused during questioning in any type of judicial proceedingswhich may be in the possession of the Prosecutor, but only such statements64.

The Defence also approached the Trial Chamber in order to have the statements of a third

party presented by a witness at a hearing disclosed to it. The Judges limited the field of

60 Ibid., para. 22.61 Decision on the Motion by the accused Zejnil Delali} for the disclosure of evidence, Case no. IT-96-21-T,26 September 1996.62 Decision on the production of discovery materials, Case no. IT-95-14-PT, 27 January 1997, para. 49.63 Decision on the Defence Motion to preclude testimony of certain Prosecution witnesses based upon theProsecution’s violation of the Tribunal’s Order compelling the production of discovery materials, Case no.IT-95-14-T, 25 August 1997.64 Decision on the Defence Motion for sanctions for the Prosecutor’s failure to comply with Sub-rule 66(A) ofthe Rules and the Decision of 27 January 1997 compelling the production of all statements of the accused, Caseno. IT-95-14-T, 15 July 1998, p. 3.

Case no.: IT-95-14-T 11 3 March 2000

application of Sub-rule 66(A) of the Rules to the statements of only those witnesses whom

the Prosecutor actually meant to call65, in addition to the elements provided to the

confirming Judge in support of the indictment.

28. In respect of application of Sub-rule 67(A) of the Rules on disclosure to the Defence

of the names of the Prosecution witnesses called to appear, the Prosecutor was instructed to

provide the Trial Chamber and the Defence with the list of the witnesses whom she intended

to call to appear at least two working days beforehand66. The Trial Chamber did not adjudge

it appropriate at this stage to rule on the proceedings as regards the reciprocal prior

disclosure of the names of Defence witnesses67. It was only just before the Defence began to

present its case that the Trial Chamber ordered that the names and identifying information of

the Defence witnesses whom the Defence intended to call and the summary of the facts on

which their testimony would bear be disclosed at least seven days before their appearance68.

This was done for the purposes of a faster and more efficient conduct of the proceedings and

pursuant to Rule 54 of the Rules.

29. Being seised of a Defence motion, the Trial Chamber clarified its initial case-law on

the interpretation of Rule 68 of the Rules and stated that it assumed that the Office of the

Prosecutor was acting in good faith. However it reserved the possibility to verify on a case

by case basis the potential failures and, at time of trial, draw the necessary conclusions as

regards the probative value to be given to the evidence in question69.

b) The exception to the disclosure obligation set down in Rule 70 of the Rules

30. Pursuant to Sub-rule 70(A) of the Rules:

reports, memoranda, or other internal documents prepared by a party, its assistants orrepresentatives in connection with the investigation or preparation of the case, are notsubject to disclosure or notification

65 Decision on the Defence Motion to compel the disclosure of Rule 66 and 68 material relating to statementsmade by a person known as “X”, Case no. IT-95-14-T, 15 July 1998.66 Decision on the Defence Motion to preclude testimony of certain Prosecution witnesses based upon theProsecution’s violation of the Tribunal’s Order compelling the production of discovery materials, Case no.IT-95-14-T, 25 August 1997.67 Decision of Trial Chamber I on the Prosecutor’s Motion for clarification of order requiring advance disclosureof witnesses and for Order requiring reciprocal advance disclosure by the Defence, Case no. IT-95-14-T,29 January 1998.68 Decision on the Prosecutor’s Motion for seven (7) days advance disclosure of Defence witnesses and Defencewitnesses statements, Case no. IT-95-14-T, 3 September 1998.69 Decision on the Defence Motion for “Sanctions for Prosecutor’s repeated violations of Rule 68 of the Rules ofProcedure and Evidence”, Case no. IT-95-14-T, 29 April 1998.

Case no.: IT-95-14-T 12 3 March 2000

The Trial Chamber took note that the accused, appearing as a witness in accordance with

Sub-rule 85(C) of the Rules, relied upon his personal notes made during the preparation of his

defence which included a war diary kept by his assistant and a military logbook of activities

held at the headquarters. The Judges were of the opinion that these materials did not constitute

internal documents within the meaning of Sub-rule 70(A) of the Rules and considered it

appropriate and in the interests of justice to be able to view them. In so doing and where need

be, they ordered the Defence or the Federation of Bosnia-Herzegovina to disclose them to the

Trial Chamber70. The Defence replied that it no longer had these materials in its possession.71

31. The other paragraphs under Rule 70 of the Rules deal with the exception to the

disclosure obligation set down in Rules 66, 67 and 68 of the Rules. The Trial Chamber

acknowledged that this was an exceptional and strictly governed right which benefited mutatis

mutandis the accused and was intended to allow the use of confidential source information

which, failing the said provision, would allegedly prove unusable72. In light of several

Prosecution and Defence submissions73 within the terms of Rule 70, the Judges stated its

conditions of applicability and its limits.

32. In accordance with Rule 70 of the Rules, the Trial Chamber held that the information

specified must meet several conditions, that is: be in the applicant’s possession; have been

disclosed confidentially - the holder or holding entity being the sole judge of its

confidentiality; and have been used for the sole purpose of collecting new evidence which,

contrary to initial information, did not enjoy Rule 70 protection.74

33. Pursuant to Sub-rule 70(B) of the Rules, the transmission and use in evidence of

information responding to the criteria specified above are subject to the consent of the person

or entity providing them. The Trial Chamber nevertheless firmly recalled the limits of this

protection where the rights of the Defence were involved and affirmed that once the person or

entity holding the information had consented to its use in evidence it had to be disclosed

without undue delay to the Defence and that the person or entity concerned could not

determine whether and, where applicable, when it was appropriate to disclose the said

70 Order for the production of documents used to prepare for testimony, Case no. IT-95-14-T, 22 April 1999.71 No response was received from the Federation.72 Decision of Trial Chamber I on the Prosecutor’s Motion for video deposition and protective measures, Caseno. IT-95-14-T, 11 November 1997, para. 10.73 Decision of Trial Chamber I on the Application of the Defence pursuant to Sub-rule 70(F) of the Rules, Caseno. IT-95-14-T, 12 January 1999 (under seal) and Decision of Trial Chamber I on the Motion to protect awitness, Case no. IT-95-14-T, 19 March 1999.74 Aforementioned Decision of 11 November 1997, paras. 10-23.

Case no.: IT-95-14-T 13 3 March 2000

information75. The Trial Chamber further observes that recourse to this provision of the Rules

allowed highly confidential evidence to be presented to the Trial Chamber, in particular by

former representatives of the government of a member State of the United Nations.

c) The admissibility of the evidence

34. The admissibility of the evidence presented at trial was also the subject of Decisions

on several occasions. The principle embodied by the case-law of the Trial Chamber on the

issue is the one of extensive admissibility of evidence - questions of credibility or authenticity

being determined according to the weight given to each of the materials by the Judges at the

appropriate time.

35. In this respect, it is appropriate to point out that the Trial Chamber authorised the

presentation of evidence without its being submitted by a witness. The Trial Chamber relied

on various criteria for this. At the outset, it is appropriate to observe that the proceedings were

conducted by professional Judges with the necessary ability for first hearing a given piece of

evidence and then evaluating it so as to determine its due weight with regard to the

circumstances in which it was obtained, its actual contents and its credibility in light of all the

evidence tendered. Secondly, the Trial Chamber could thus obtain much material of which it

might otherwise have been deprived. Lastly, the proceedings restricted the compulsory resort

to a witness serving only to present documents. In summary, this approach allowed the

proceedings to be expedited whilst respecting the fairness of the trial and contributing to the

ascertainment of the truth.

36. Nonetheless, the discussions between the parties as to how evidence was to be

administered were generally animated and acrimonious. By way of example, the Trial

Chamber notes the following submissions.

Initially, the Defence filed a standing objection to the admission of hearsay with no inquiry as

to its reliability. The Trial Chamber rejected this objection on the ground that Sub-rule 89(C)

of the Rules authorises the Trial Chamber to receive any relevant evidence which it deems has

probative value and that the indirect nature of the testimony depends on the weight which the

Judges give to it and not on its admissibility76.

75 Decision on the Prosecutor’s request for authorization to delay disclosure of Rule 70 information, Case no.IT-95-14-T, 6 May 1998, paras. 13-15.76 Decision on the standing objection of the Defence to the admission of hearsay with no inquiry as to itsreliability, Case no. IT-95-14-T, 21 January 1998.

Case no.: IT-95-14-T 14 3 March 2000

The Defence raised a similar issue regarding the authenticity of documents produced during

testimony. The Trial Chamber found that any documentary evidence produced by a party and

identified by a witness was admissible and that any dispute over its authenticity did not derive

from its admissibility but from the weight which it would be appropriate to give to it77.

Furthermore, the Trial Chamber was confronted with the problem of the admission of the

statement of a deceased witness which had been given under oath to the Prosecutor’s

investigators. The Judges considered this to be clearly one of the exceptions to the principle of

oral witness testimony, in particular for cross-examination, accepted in the different national

and international legal systems and therefore they admitted the said statement in evidence but

reserved the right to give it the appropriate weight when the time came78.

Finally, in order to assist the Judges in their search for the truth, the Trial Chamber authorised

that the statement of a witness who had already appeared before it be admitted into evidence.

In so doing, it considered that pursuant to Rule 89 of the Rules it could admit any relevant

document with probative value and reserve the right to evaluate freely the weight to be given

to it at the end of the trial79.

d) Access to the confidential documents in related La{va Valley cases

37. On 16 September 1998, Defence for the accused Dario Kordi} and Mario êrkez

(hereinafter “the Kordi}-êrkez Defence”) filed a motion for access to the non-public

materials in this case, that is, the hearing transcripts, exhibits, Orders and Decisions

concerning events, facts and witnesses at issue in their related case, with the Trial Chamber

hearing the case The Prosecutor v. Tihomir Bla{ki} (hereinafter “the Bla{ki} Trial

Chamber”)80. On 12 November 1998, the Trial Chamber hearing the case The Prosecutor v.

Dario Kordi} and Mario êrkez (hereinafter “the Kordi}-êrkez Trial Chamber”) issued, at

the same time, a Decision on the matter in which it requested the Trial Chambers concerned to

give their reasoned opinion on the review of the issues raised and to indicate whether the

77 Decision on the Defence Motion for reconsideration of the ruling to exclude from evidence authentic andexculpatory documentary evidence, Case no. IT-95-14-T, 30 January 1998.78 Decision on the Defence Motion to admit into evidence the prior statement of deceased witnessMidhat Ha{ki}, Case no. IT-95-14-T, 29 April 1998.79 Decision of Trial Chamber I on the application of the Prosecutor to admit into evidence the statement ofDefence witness Mr. Leyshon, Case no. IT-95-14-T, 16 March 1999.80 Motion of the accused Dario Kordi} and Mario êrkez for access to the non-public materials in this case,Case no. IT-95-14-T, 16 September 1998.

Case no.: IT-95-14-T 15 3 March 2000

Motion could be granted and if so under what confidentiality and protective measure

conditions81.

38. The Bla{ki} Trial Chamber rendered its Opinion on 16 December 1998 pursuant to the

Decision of the Kordi}-êrkez Trial Chamber82. Bearing in mind that the two cases had at the

outset formed part of one and the same indictment, the Trial Chamber affirmed that the

Prosecutor was compelled to disclose to the Kordi}-êrkez Defence all statements or

evidence within the meaning of Rules 66 and 68 of the Rules. Nonetheless, the Judges stated

that protective measures granted to witnesses by the Bla{ki} Trial Chamber must apply ipso

facto to the parties in the Kordi}-êrkez case and proposed a set of tightened measures in

order to offset the increased risk of breaches of confidentiality due to the greater number of

persons in possession of confidential information. These additional measures included, inter

alia, limitation on access to confidential documents to a single responsible custodian and the

use of separate pseudonyms in the two cases.

39. Subsequently, the Bla{ki} Trial Chamber rendered another Decision on the disclosure

to the Kordi}-êrkez Defence of a confidential transcript of a statement given by a witness

appearing for the Defence. The Bla{ki} Trial Chamber recalled that, although the Defence was

not subject to the same disclosure obligations as the Prosecutor, with the exception of the

materials tendered under Rule 70 of the Rules the Prosecutor remained subject to her Rule 66

and 68 obligations with no distinction being made between the public or confidential nature of

the documents concerned83.

40. On 17 January 2000, the Bla{ki} Trial Chamber authorised the Prosecutor’s use of a

confidential document belonging to the Bla{ki} Defence, subject to the appropriate protective

measures being taken by the Kordi}-êrkez Trial Chamber. The Bla{ki} Defence did not

contest the principle by which the document was disclosed to the Judges and the Defence in

the Kordi}-êrkez case84.

81 Decision on the Motion of the accused for access to non-public materials in the La{va Valley and relatedcases, Case no. IT-95-14/2-T, 12 November 1998.82 Opinion further to the Decision of the Trial Chamber seized of the case The Prosecutor v. Dario Kordi} andMario êrkez dated 12 November 1998, Case no. IT-95-14-T, 16 December 1998.83 Decision on the Prosecution and Defence Motions dated 25 January 1999 and 25 March 1999 respectively,Case no. IT-95-14-T, 22 April 1999.84 Decision on the Motion to allow non-public evidence to be revealed to the Kordi}-êrkez Trial Chamber andDefence Counsel, Case no. IT-95-14-T, 17 January 2000.

Case no.: IT-95-14-T 16 3 March 2000

e) Orders for production of documents

41. This Trial Chamber conducted several parallel proceedings relating to the forced

production of documents by certain States and entities. Beforehand, it is appropriate to point

out that both the Prosecution and the Defence resorted to these proceedings. In addition, it

must be recorded that the Trial Chamber was not necessarily informed of whether the

measures it ordered were properly executed. It is incumbent upon the requesting party to refer

any difficulties to the Trial Chamber which, however, does not intervene, or only marginally

so, in the hand-over of the documents requested.

i) Proceedings regarding the Republic of Croatia

42. The issue of a subpoena duces tecum ordering the production of documents had been

pending in the Bla{ki} case since 10 January 1997, the date on which the Prosecutor requested

a Judge to issue a subpoena duces tecum to Croatia. The Judge issued just such a subpoena

duces tecum on 15 January 1997 to Croatia and Mr. Gojko [u{ak, then Minister of Defence85.

Her Order listed the documents to be produced by 14 February 1997 at the latest. Croatia

declared in a letter dated 10 February 1997, first, that it adjudged that any request addressed

to its Minister as a government official was ungrounded as, according to the Statute and the

Rules, a request for assistance had to be addressed to a State and, second, that as a sovereign

State, it could not accept to comply with the order of the subpoena duces tecum “but

respecting its obligations under the Tribunal’s Statute reiterate[d] its readiness for full co-

operation under the terms applicable to all States”86. On 19 February 1997, Judge McDonald

held a hearing at which a representative from Croatia expressed an identical view. That same

day, the Prosecutor issued an official request for assistance to the Republic of Croatia

pursuant to Rule 39 of the Rules asking for the same categories of documents87. The

discussions continued for several months before Trial Chamber II ruled, on 18 July 1997, on

85 Subpoena duces tecum issued to the Republic of Croatia and to the Ministry of Defence Gojko [u{ak, Caseno. IT-95-14-PT, Judge McDonald, 15 January 1997. Judge MacDonald issued the Order being the Judge whoconfirmed the indictment against Tihomir Bla{ki}.86 Reply to subpoena duces tecum, government of the Republic of Croatia, Case no. IT-95-14-PT,10 February 1997.87 Request for assistance to the Republic of Croatia by the Prosecutor under Rule 39 of the Rules of Procedureand Evidence of the International Tribunal, Case no. IT-95-14-PT, 19 February 1997.

Case no.: IT-95-14-T 17 3 March 2000

the power of the Tribunal to issue subpoenae duces tecum88 and the Appeals Chamber

rendered a subsequent ruling89.

43. On 29 October 1997, the Appeals Chamber ruled pursuant to Rule 108 bis of the Rules

on the Request of the Republic of Croatia filed on 25 July which requested inter alia that the

18 July Decision of Trial Chamber II be reviewed and set aside and the subpoena duces tecum

of 15 January 1997 be quashed90. In its Judgement, the Appeals Chamber decided that neither

a State nor its ex officio official agents could be the subject of a subpoena duces tecum and

stated the conditions under which a potential binding Order to a State to produce documents

or other items could be issued and the rights and duties of the State concerned. Moreover, the

Appeals Chamber set the criteria which any motion for an Order for the production of

documents had to meet91. These criteria were: 1) an exact description of the documents

requested (as opposed to broad categories); 2) the relevance of the documents to the trial;

3) comparatively simple execution of the Order; and 4) a sufficient time-period for the State

to comply92. Furthermore, it established the “possible modalities of making allowance for

national security concerns”93.

44. On 12 January 1998, the Prosecutor, relying on Article 29 of the Statute94, filed a

motion “for the issuance of a binding Order on the Republic of Croatia for the production of

documents”. The Trial Chamber granted the Motion and issued confidentially and ex parte the

Order of 30 January 199895 in which it instructed that the documents requested be provided to

the Office of the Prosecutor in the shortest possible time and by 27 February 1998 at the

latest. On 13 February 1998, the Republic of Croatia filed a Request pursuant to Rule 108 bis

88 Decision on the objection of the Republic of Croatia to the issuance of subpoenae duces tecum, Case no. IT-95-14-PT, 18 July 1997, (hereinafter “the Decision on the subpoenae duces tecum”).89 Judgement on the Request of the Republic of Croatia for review of the Decision of Trial Chamber II of 18July 1997, Case no. IT-95-14-AR 108bis, 29 October 1997 (hereinafter “the Judgement on the Request of theRepublic of Croatia”); for a full reminder of the proceedings of the issue until the Judgement, see theJudgement, para. 2-18.90 In addition, Croatia requested that the Order of the Trial Chamber be suspended until the Appeals Judgementhad been rendered and that no new binding Order under threat of sanctions be issued to the States or theirofficial agents. The Appeals Chamber declared the Request admissible and suspended the subpoena duces tecum(Decision on the admissibility of the request for review by the Republic of Croatia of an interlocutory Decisionof a Trial: Chamber (issuance of subpoenae duces tecum) and scheduling Order, The Prosecutor v. TihomirBla{ki}, Case no. IT-95-14-AR 108bis, Appeals Chamber, 29 July 1997).91 The Judgement on the Request of the Republic of Croatia, para. 32.92 For an exact description of the four criteria see the Judgement on the Request of the Republic of Croatia,para. 32.93 The Judgement on the Request of the Republic of Croatia, paras. 67-69.94 Article 29 of the Statute entitled, “Co-operation and judicial assistance” states inter alia that “States shallcomply without undue delay with any request for assistance or an order issued by a Trial Chamber, includingbut not limited to […] the production of evidence [and] the service of documents”.

Case no.: IT-95-14-T 18 3 March 2000

of the Rules for the Order of 30 January 1998 to be reviewed and stayed96. A lengthy dispute

ensued during which the Trial Chamber strove, within the context of the Appeals Chamber

decision, to obtain production of

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