PIL Case

Decision on Form of Indictment

Case No: IT-01-47-PT

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Registrar:
Mr Hans Holthuis
Decision of:
7 December 2001
PROSECUTOR
ENVER HADZIHASANOVIC
MEHMED ALAGIC
AMIR KUBURA
________________________________________________________________________________
DECISION ON FORM OF INDICTMENT
________________________________________________________________________________
The Office of the Prosecutor:
Ms Jocelyne Bodson
Mr Ekkehard Withopf
Counsel for the Accused:
file:///C|/Documents%20and%20Settings/burfitt/Desktop/simon/HTML/batch03/373621.HTM (1 of 25) [13/06/2008 13:25:54]

Ms Edina Residovic for Enver Hadzihasanovic

Mr Vasvija Vidovic and Mr John Jones for Mehmed Alagic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura
1. Background
1. The Trial Chamber is seized of a joint Defence Motion on the form of the indictment in the
present case,1 and the subsequent related filings.2 A part of the Motion may be considered as a
challenge to the Tribunal’s jurisdiction. Since issues on the form of the indictment are substantially
different from jurisdictional issues , the Trial Chamber considers them in separate decisions.3 The
objections on the form of the indictment are the subject of this decision.
2. The three accused, Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, are charged with
a number of crimes alleged to have been committed between 1 January 1993 and 31 January 1994
against Bosnian Croats and Bosnian Serbs in various municipalities in central Bosnia and
Herzegovina.4 All the charges are based on command responsibility provided for in Article 7(3) of
the Tribunal’s Statute. At the relevant time, Enver Hadzihasanovic is alleged to have been the
commander of the 3rd Corps of the Army of Bosnia and Herzegovina (“ABiH”), the Chief of the
Supreme Command Staff of the ABiH and Brigadier General of the ABiH.5 Mehmed Alagic is
alleged to have been the commander of the ABiH 3rd Corps Operational Group (“OG”) “Bosanska
Krajina” and the commander of the ABiH 3rd Corps.6 Amir Kubura is alleged to have been the
Assistant Chief of Staff for Operations and Instruction Matters of the ABiH 3rd Corps 7th Muslim
Mountain Brigade and the Chief of Staff of that Brigade and to have acted as the substitute for the
commander of that Brigade before being appointed its commander.7 None of the accused is
charged with having personally committed any of the alleged crimes under Article 7(1) of the
Statute.
3. The charges against the accused are based on Article 2 (grave breaches of the Geneva
Conventions of 1949) and Article 3 (violations of the laws or customs of war) of the Statute.
Specifically, all three the accused are charged with:
(a) Count 1, murder, a violation of Article 3 of the Statute, based on Article 3 (1)(a) common to the
Geneva Conventions of 1949 (“common Article 3”).
(b) Count 2, wilful killing, a violation of Article 2(a) of the Statute.
(c) Count 3, violence to life and person, a violation of Article 3 of the Statute , based on common
Article 3(1)(a).
(d) Count 4, wilfully causing great suffering or serious injury to body or health , a violation of

Article 2(c) of the Statute.
(e) Count 5, inhuman treatment, a violation of Article 2(b) of the Statute.
(f) Count 6, unlawful confinement of civilians, a violation of Article 2(g) of the Statute.
(g) Count 7, murder, a violation of Article 3 of the Statute, based on common Article 3(1)(a).
(h) Count 8, wilful killing, a violation of Article 2(a) of the Statute.
(i) Count 9, cruel treatment, a violation of Article 3 of the Statute, based on common Article 3(1)
(a).
(j) Count 10, inhuman treatment, a violation of Article 2(b) of the Statute.
(k) Count 16, wanton destruction of cities, towns or villages, not justified by military necessity, a
violation of Article 3(b) of the Statute.
(l) Count 17, plunder of public or private property, a violation of Article 3(e) of the Statute.
(m) Count 18, extensive destruction of property, not justified by military necessity , a violation of
Article 2(d) of the Statute.
Enver Hadzihasanovic is additionally charged with:
(a) Count 11, unlawful labour, a violation of Article 3 of the Statute, based on customary
international law, Articles 40 and 51 of Geneva Convention IV and Articles 49, 50 and 52 of
Geneva Convention III.
(b) Count 12, taking of hostages, a violation of Article 3 of the Statute, based on common Article 3
(1)(b).
(c) Count 13, taking of civilians as hostages, a violation of Article 2(h) of the Statute.
Enver Hadzihasanovic and Amir Kubura are further together charged with:
(a) Count 14, cruel treatment, a violation of Article 3 of the Statute, based on common Article 3(1)
(a).
(b) Count 15, inhuman treatment, a violation of Article 2(b) of the Statute.

Finally, Enver Hadzihasanovic and Mehmed Alagic are together charged under count 19 with
destruction or wilful damage done to institutions dedicated to religion, a violation of Article 3(d)
of the Statute.
4. Two preliminary matters are to be addressed before turning to the specific objections on the
form of the indictment.
2. Reply and Supplementary Response
5. The Trial Chamber’s “Order on Filing of Motions” makes no mention of the right of a party to
file a reply or to supplement a previous filing.8 Counsel for the accused Alagic faxed an
application for leave to reply to the Chamber , and leave was granted orally.9 The Prosecution has
applied for leave to file a supplement to its Response in the light of the recent Kupreskic Appeal
Judgment,10 where issues relating to the form of indictment were addressed.11 Leave is granted to
the Prosecution to file the Supplementary Response. However , the Chamber has in the meantime
issued a “Further Order on Filings of Motions”, inter alia providing that a party must seek and be
granted leave to file a reply or a supplement to a previous filing prior to the filing of such reply or
supplement.12 To ensure that both the other party and the Chamber are sufficiently put on notice as
to what is sought, such filings must in future be made by way of formal motion.
3. Length of joint motions
6. The parties have previously been instructed to familiarise themselves with the “ Practice
Direction on the Length of Briefs and Motions” (“Practice Direction”).13 In the interests of
expediting the proceedings the Trial Chamber, in the exceptional circumstances of the present
case, grants leave to file the Motion and Reply in their present form.
4. The general pleading principles
7. The general pleading principles identified in previous cases and which may be applicable to the
present are as follows.
8. Article 21(4)(a) of the Statute provides, as one of the minimum rights of an accused , that he/she
shall be entitled to be informed in detail of the nature and cause of the charge against him/her, and
this provision also applies to the form of indictments .14 This entitlement translates into an
obligation on the Prosecution to plead the material facts underpinning the charges in the
indictment.15 The pleadings in an indictment will therefore be sufficiently particular when it
concisely sets out the material facts of the Prosecution case with enough detail to inform a
defendant clearly of the nature and cause of the charges against him/her to enable him/her to
prepare a defence.16 The Prosecution is, however, not required to plead the evidence by which
such material facts are to be proven.17

9. The basis of these pleading principles are to be found in Article 14 of the International Covenant
on Civil and Political Rights (“ICCPR”) and Article 6 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (“ECHR”).18 The former, in relevant part,
reads that “SiCn the determination of any criminal charge against him, everyone shall be entitled
to the following minimum guarantees , in full equality: (a) To be informed promptly and in detail
in a language which he understands of the nature and cause of the charge against him S…C.”19
The latter essentially provides the same as the ICCPR.20
10. All legal prerequisites to the application of the offences charged constitute material facts, and
must be pleaded in the indictment. The materiality of other facts (facts not directly going to legal
prerequisites), which also have to be pleaded in the indictment, cannot be determined in the
abstract. A decisive factor in determining their materiality is the nature of the alleged criminal
conduct charged to the accused ,21 which includes the proximity of the accused to the relevant
events.22 Each of the material facts must usually be pleaded expressly, although it may be
sufficient in some circumstances if it is expressed by necessary implication.23 This fundamental
rule of pleading, however, is not complied with if the pleading merely assumes the existence of the
pre-requisite.24
11. In a case based upon superior responsibility, the following are material facts that have to be
pleaded in the indictment:
(a) The relationship between the accused and the others whose acts he is alleged to
be responsible for.25 In particular , the superior-subordinate relationship between the
accused and those others, is a material fact that must be pleaded.
(b) The accused knew or had reason to know that the crimes were about to be or had
been committed by those others,26 and the related conduct of those others for whom
he is alleged to be responsible .27 The facts relevant to the acts of those will usually
be stated with less precision,28 the reasons being that the detail of those acts (by
whom and against whom they are done) is often unknown, and, more importantly,
because the acts themselves often cannot be greatly in issue.29
(c) The accused failed to take the necessary and reasonable measures to prevent such
crimes or to punish the persons who committed them.30
12. Generally, an indictment, as the primary accusatory instrument, must plead with sufficient
particularity the material aspects of the Prosecution case, failing which it suffers from a material
defect.31 In the light of the primary importance of an indictment, the Prosecution cannot cure a
defective indictment by its supporting material and pre-trial brief.32 In the situation where an
indictment does not plead the material facts with the requisite degree of specificity because the
necessary information is not in the Prosecution’s possession, doubt must arise as to whether it is
fair to the accused for the trial to proceed.33 The Prosecution is therefore expected to inform the

accused of the nature and cause of the case, as set out above, before it goes to trial. It is
unacceptable for it to omit the material facts in the indictment with the aim of moulding the case
against the accused in the course of the trial depending on how the evidence unfolds.34 Where the
evidence at trial turns out differently than expected, the indictment may be required to be amended,
an adjournment may be granted or certain evidence may be excluded as not being within the scope
of the indictment.35
5. Objections relating to the pleading of command responsibility
13. The Defence has raised six objections relating to the pleading of command responsibility of the
three accused.36
14. The first objection is that the alleged superior-subordinate relationship between the accused
and foreign Muslim fighters or Mujahedin is insufficiently pleaded in the indictment.37
Paragraphs 11, 20, 62 and 67 of the indictment are, it is submitted, relevant to this objection . The
Defence submits that the indictment fails to properly allege that the specific foreign Muslim
individuals who committed the crimes were attached to or subordinated to the accused.38 It is
further submitted that paragraph 11 also fails to specify whether all or some foreign Muslim
fighters referred to themselves as “Mujahedin” or only those who were attached to the ABiH
3rd Corps 7th Muslim Mountain Brigade.39 The relief requested is that the Prosecution be ordered
to plead that the specific foreign Muslim fighters or individual Mujahedin who committed the
criminal acts referred to in the indictment were in a superior-subordinate relationship to each of the
accused.40 The Prosecution response is that this objection does not concern material facts, which
must be pleaded , but rather evidence by which the relevant material facts could be proved, and
that the relevant specificity requirements have been satisfied.41
15. Paragraphs 11, 20, 38, 62 and 67 are unclear as to whether all the foreign Muslim individuals
who committed acts for which the accused are alleged to be responsible were subordinate to the
accused, either individually or as members of units subordinate to their command. The rest of the
indictment also does not assist in clarifying this matter. For example, paragraphs 17 and 20(a) refer
to, inter alia, the 7th Muslim Mountain Brigade “and” Mujahedin who allegedly committed
crimes. In a case such as the present, resting on command responsibility charges, the Defence is
entitled to know whether it is alleged that the foreign Muslim fighters or Mujahedin who are
alleged to have committed crimes for which the accused are charged with being responsible, were
their subordinates. The objection is therefore upheld. The Prosecution is ordered to amend the
indictment accordingly.42
16. The second objection is that the “attached to and subordinated to” formula used in the
indictment is insufficient to plead command responsibility.43 It is submitted that based on the
Tribunal’s jurisprudence the Prosecution has to plead as an essential element of command
responsibility the exercise of “effective control” in all superior-subordinate relationships alleged in
the indictment, including the relationship between the accused and the foreign Muslim fighters or

Mujahedin .44 It is submitted that the indictment must plead that the accused exercise effective
control over those individuals carrying out crimes who are alleged to be their subordinates and
specifically plead that the accused had the material ability to prevent or punish their criminal
acts.45 The Prosecution response is the same as with the first objection.46
17. The indictment alleges in various paragraphs that the three accused are criminally responsible
for crimes committed by their “subordinates”47 or forces “under [their] command and control”.48
It also alleges that the three accused “demonstrated or exercised both, formal de iure and de facto
power” by their command and control over units and troops under their command.49 The only
instances in the indictment where what the Defence refers to as the “’attached to and subordinated
to’ formula” is used, are paragraphs 10 and 62, concerning the relationship between the Mujahedin
and the 7th Muslim Mountain Brigade. The indictment does not expressly plead effective control
of the accused over their subordinates - the requisite standard for establishing a superior-
subordinate relationship for the purpose of Article 7(3) of the Statute50 - in those terms . Neither,
in the view of the Trial Chamber, is the exercise of such control necessarily pleaded implicitly in
the indictment, mainly because the pleading of the exercise of de iure and de facto power obscures
what may, perhaps, otherwise have been a sufficiently precise pleading. For the purposes of
criminal responsibility as a superior, de iure power is not synonymous with effective control, as
the former may not in itself amount to the latter.51 The same applies with respect to de facto
power, since a de facto superior must be found to wield substantially similar powers of control as
de iure superiors who exercise effective control over subordinates to be held criminally responsible
for their acts.52 It therefore cannot be said that pleading the exercise of both de iure and de facto
amounts to pleading effective control. Thus, as a legal prerequisite , or element, of command
responsibility, the exercise of the accused over their subordinates of effective control is, in the
circumstances, a material fact which has to be pleaded in the indictment. This objection is
therefore upheld. The Prosecution is ordered to amend the indictment to plead that the accused
exercised effective control over all subordinates alleged to have committed crimes for which they
are said to be responsible.
18. The third Defence objection concerns the appearance in the indictment, in one and the same
count, of both the allegations that the accused “knew” and “had reason to know” that a subordinate
was about to commit crimes or had done so.53 It is objected that these are distinct, mutually
exclusive versions of events, that the Prosecution knows its case and should therefore be able to
state either the one or the other version.54 It is also submitted that at the very least, separate,
alternative, counts should be drawn for each version, permitting alternative verdicts; the trial, it is
asserted, will be more expeditious and fairer, enabling the accused to respond to separate counts ,
without being faced with a global and ambiguous charge.55 The Defence also submits that the
degree of culpability, and thus the basis for sentencing, will differ depending on which version of
events, if either, is proven .56 The specific relief requested is that the Prosecution must be ordered
to amend the indictment by separating the counts alleging that the accused “knew” that crimes
were committed or were about to be committed from counts alleging that the accused “should have
known” of those crimes.57 The Prosecution response is the same as with the first objection.58

19. The Prosecution is entitled to plead that the accused “knew” or “had reason to know ” that their
subordinates were about to commit a specific crime or crimes or had done so. It need not as a
matter of law – and in any event probably cannot as a matter of logic - establish both versions with
respect to any one charge or any one crime underlying a charge in order to secure a conviction.
The Prosecution cannot at this point know which version, if any, will be established on the
evidence at trial. The pleading in the indictment with respect to this objection is, however , clear -
the Defence is sufficiently apprised that it has to prepare its defence in relation to both versions.
Furthermore, it is the Chamber’s duty to finding, at trial, whether the accused either knew, or, had
reason to know that their subordinates were about to or did commit the alleged crimes. This
objection is therefore rejected .
20. The fourth Defence objection is that the Prosecution, in relation to the “reason to know”
charges, has to specifically plead that information was available to the accused that put them on
notice of offences committed or about to be committed by subordinates.59 It is submitted that this
is essential in order to place the burden on the Prosecution of adducing evidence of this element at
trial and proving its existence beyond a reasonable doubt.60 The relief requested is that in relation
to those counts alleging that the accused “should have known”, the Prosecution must be ordered to
specifically plead that there was information available to the accused which would have put them
on notice of offences committed by their subordinates.61 The Prosecution response is the same as
with the first objection.62
21. The Defence objection is not that the availability of the relevant information is a material fact,
which for that reason, has to be pleaded in the indictment. Pleading the availability to the accused
of the relevant information, or not, would not affect the burden upon the Prosecution to prove its
case. In any event, what the Defence is requesting to be pleaded is evidence in relation to an
element of an offence. This objection is therefore rejected.
22. The fifth Defence objection is that the Prosecution has failed to specify in the indictment, with
respect to each incident and with respect to each accused, whether its case is that the accused failed
to prevent the crimes or that the accused failed to punish the perpetrators, or both.63 It is submitted
that the disjunctive formulation in the indictment is ambiguous, and that since the Prosecution
knows what its case is, it should accordingly indicate precisely what it intends to prove at trial.64
The relief requested is that the Prosecution specifically plead, for each count, whether the accused
failed to prevent the criminal acts of their subordinates or whether they failed to punish them, or
both, but not to maintain the alternative formula in relation to any one count.65 The Prosecution
response is the same as with the first objection.66
23. There is no ambiguity in the use of the disjunctive formulation - the Prosecution is entitled to
plead both versions and the Defence is sufficiently and clearly put on notice that it has to prepare
its case to answer both versions. This objection is rejected.
24. The sixth Defence objection concerns the manner in which the Prosecution pleaded “necessary

and reasonable measures”.67 It is submitted, that in order to avoid the imposition of strict liability,
the phrase “necessary and reasonable measures” must have some meaningful content.68 It is
specifically submitted that the Prosecution must aver that there were necessary and reasonable
measures that the accused could have taken, what these measures were and that they were
necessary and reasonable.69 It is asserted that the burden of proof remains throughout on the
Prosecution to prove each of these elements; the burden is not on the Defence, for example, to
prove that the accused did take the necessary and reasonable measures.70 It is further submitted
that the necessity of such a pleading is particularly acute when the matter concerns the acts of
foreign Muslim fighters or Mujahedin,71 apparently since they may have been irregular forces,
with the accused lacking the ability to exercise control over them. It is asserted that the accused
have a right to know at least the nature of the necessary and reasonable measures they are alleged
to have taken and failed to take.72 The Defence has made the general observation that merely
reproducing the words of Article 7(3) of the Statute, as the Prosecution has done in the indictment,
is insufficient ,73 apparently to bolster the objection in issue, and to reinforce their point that
Article 7(3) of the Statute does not create strict liability.74 The relief requested is that in relation to
counts alleging that the accused failed to take the necessary and reasonable measures to prevent
such acts or to punish the perpetrators thereof, it be pleaded what specific measures the accused
should have taken and failed to take.75 The Prosecution response is the same as with the first
objection.76
25. It is unclear what exactly the Defence objection is. It seems to be a concern that , as it is, the
indictment may leave the door open to the Prosecution to lead a case of strict liability against the
accused. The indictment and the jurisprudence of the Tribunal leave no room for the Prosecution to
lead and establish such a case . The Celebici Appeals Chamber has rejected any notion of
command responsibility being a form of strict liability,77 as pointed out by the Defence.78 The
Defence submission mainly aims at pleading the evidence by which the material facts are to be
proven by the Prosecution. This objection is therefore rejected .
6. Objections related to nature of armed conflict and partial occupation
26. The indictment alleges that at all relevant times, “a state of international armed conflict and
partial occupation existed in Bosnia and Herzegovina.”79 The Defence has raised a number of
objections regarding this allegation.
27. The first objection is that the allegation fails properly and specifically to aver between which
states the alleged international armed conflict existed.80 The Prosecution has failed to respond to
this specific objection, apparently misinterpreting the Defence submission as stating that it is
necessary to plead or prove at trial that an international armed conflict occurred in the same
location where the accused committed the alleged offences.81
28. The indictment alleges that the ABiH participated in an armed conflict with the Croatian
Defence Council (“HVO”)82 and the Army of the Republic of Croatia (“HV”) until at least the end

of January 1994.83 It also alleges that the participation in that conflict took place subsequent to the
Vance-Owen peace talks , which ended on 30 January 1993.84 However, the indictment also
contains allegations as to the transformation in 1992 of the Yugoslav People’s Army (“JNA”) units
in Bosnia and Herzegovina into the Army of the Serbian Republic of Bosnia and Herzegovina
(“VRS”), and on the strong links that continued to exist between the Yugoslav Army (the renamed
JNA) and the VRS.85
29. The Prosecution is correct in submitting that it does not have to plead or prove at trial that an
international armed conflict existed in the same location where an accused is alleged to have
committed the charged offences. The Prosecution has pleaded the existence of an international
armed conflict, as it was obliged to do for charges under Article 2 of the Statute. It has, however,
failed to plead clearly between whom the alleged international armed conflict existed. This
objection is therefore upheld. The Prosecution is accordingly ordered to amend the indictment to
clearly state between which states it is alleging an international armed conflict existed.
30. The second Defence objection relates to the identity of the forces that allegedly partially
occupied Bosnia and Herzegovina. The first issue taken is that the Prosecution has failed to specify
which forces allegedly partially occupied Bosnia and Herzegovina .86 It is submitted that it should
be clearly stated which states were the occupying forces, and which zones, towns or villages were
occupied by the neighbouring states on which dates.87 The Prosecution has in the Trial Chamber’s
opinion responded that it is not required to plead or prove that the geographic areas in the
indictment were partially occupied .88 The second issue taken is that , if the allegation is that the
ABiH occupied parts of Bosnia and Herzegovina, it is an error on the face of the indictment, as it is
clearly established under international law that a state cannot occupy itself.89 It is therefore
requested that, in the event that by “partial occupation” was intended reference to Bosnia and
Herzegovina or to forces of the ABiH, the words “partial occupation” be struck out.90 The
Prosecution Response appears to be that it views occupation as an act by a foreign state where it is
asserted, in relation to another objection, that the Motion confuses the difference between “a
partial occupation by an international force” and an area (or zone) of responsibility with respect to
a military formation.91
31. It has already been stated that the pleadings in an indictment will be sufficiently particular
when it concisely sets out the material facts of the Prosecution case with enough detail to inform
the Defence clearly of the nature and cause of the charges against him/her to enable him/her to
prepare a defence.92 The pleading of “partial occupation” in this indictment manifestly fails to
meet the said standard. Pleading “partial occupation” does not clearly, either expressly or by
necessary implication, inform the Defence of the nature and cause of the charges against
specifically these three accused in relation to that particular pleading. The point is not what the
Trial Chamber or the Defence should understand the nature and cause of the case against the
accused in relation to the pleading of partial occupation is.
32. The indictment fails to identify the forces that partially occupied Bosnia and Herzegovina ,

which means that the forces of Bosnia and Herzegovina itself may have been the occupiers that the
Prosecution has in mind. This possibility is borne out by count 11. It charges Enver
Hadzihasanovic with unlawful labour under Article 3 of the Statute, recognised by customary law
and “Articles 40 and 51 of the Geneva Conventions IV and Articles 49, 50 and 52 of the Geneva
Conventions III.” Geneva Convention IV93 applies, inter alia, to all cases of partial or total
occupation of the territory of a party to that Convention , even if the said occupation meets with no
armed resistance.94 Article 51 of that Convention falls under the section specifically relating to
occupied territories, and deals with work done by protected persons in such territories.95 Geneva
Convention III96 applies, inter alia, to all cases of partial or total occupation of the territory of a
party to that Convention, even if the said occupation meets with no armed resistance .97
Articles 49, 50 and 52 of that Convention fall under the section dealing with labour of prisoners of
war. The indictment also pleads that the victims of grave breaches of the Geneva Conventions
were persons protected under the relevant provisions and that all acts and omissions charged as
grave breaches of the Geneva Conventions occurred during the partial occupation of Bosnia and
Herzegovina.98 This particular basis of the charge in count 11 would appear to imply that these
provisions applied to the three accused, who are alleged to have been commanders at the time of
forces of Bosnia and Herzegovina. If it is not the Prosecution’s case that the forces of Bosnia and
Herzegovina occupied its own territory, the question arises as to the relevance of the said
provisions of the Geneva Conventions for the criminal responsibility of these three accused, since
those provisions on their face address the occupying forces, not the forces resisting such
occupation.
33. The Defence did not complain about the indictment for all the reasons raised by the Trial
Chamber in the two preceding paragraphs. However, since these issues are inseparably linked, the
Trial Chamber considers it appropriate to raise these deficiencies in the indictment ex officio. The
Prosecution is accordingly ordered to either strike out the pleading of partial occupation and the
allegations and the charges or parts of charges based thereon, or to amend the indictment to clearly
plead what its case against the accused is in relation to the pleading of partial occupation.
34. Should the Prosecution in amending the indictment as ordered elect to plead the partial
occupation of Bosnia and Herzegovina, the identity of the occupying forces , the area or areas
occupied, and the date or dates when that occupied is alleged to have existed, would, depending on
the nature of the case against the accused in relation to the pleading of partial occupation, be
material facts that have to be pleaded in the amended indictment.
35. Whether or not as a matter of law a state, by its forces, can occupy its own territory , is a matter
of substantive law which is inappropriate to be resolved in a decision on the form of the
indictment. Should the Prosecution in amending the indictment as ordered elect to plead that the
forces of Bosnia and Herzegovina occupied its own territory, this question would be determined at
trial. This would put the Defence on sufficient notice of the nature and cause of the case against the
accused in relation to that pleading to prepare its case, both with respect to the substantive legal
issue raised and the evidentiary case to be answered.

36. Related to the second issue just dealt with, the third Defence objection is that the Prosecution
appears to equivocate in the indictment between the notion of occupation and that of zones “listed
under the ABiH 3rd Corps area of responsibility”.99 It is asserted that the purpose of this
equivocation is to argue that the ABiH 3rd Corps and its commanders were responsible for the
“areas of responsibility” in the same way that an occupying force would be responsible for
occupied territory.100 It is submitted that the relevant consideration is whether a foreign army
occupied a territory, or whether an army was engaged in combat activities in a territory.101 It is not
pertinent, and it can only engender dangerous ambiguity, by suggesting that being “responsible”,
that is, tasked with an area, equates to criminal responsibility for all crimes committed within that
area, to refer to the internal allocation of tasks or “responsibilities” within the ABiH.102 It is
requested that paragraph 58 be struck out from the indictment as being excessively vague and
dangerously ambiguous.103 The Defence also takes issue with the Prosecution being permitted to
put forward in the Kordic case104 that the HVO occupied some of the municipalities it pleads in
this case as having been occupied by the ABiH.105 The Prosecution has submitted in response that
there is no such equivocation, that paragraphs 57 and 58, when read together, specify the division
of Bosnia and Herzegovina into five geographical areas of responsibility by corps, including the
geographical area of responsibility of the ABiH 3rd Corps.106 It is submitted that the Motion
confuses the difference between a partial occupation by an international force and an area (or zone)
of responsibility with respect to a military formation.107
37. International humanitarian law distinguishes between the duties of a commander for occupied
territory and commanders in general.108 The authority of the former is to a large extent territorial,
and the duties applying in occupied territory are more onerous and far-reaching than those
applying to commanders generally.109 It is unsettled whether this distinction has any bearing, as a
matter of international criminal law , on the nature of the criminal responsibility of superiors for
the acts of subordinates.110
38. The Trial Chamber considers that when, read as a whole, the indictment is not equivocal in the
way submitted by the Defence. It is only when read in isolation that paragraph 58 may perhaps be
interpreted as being equivocal. Paragraphs 57 and 58 refer to the geographical areas into which
Bosnia and Herzegovina was divided for military purposes. Even assuming that the distinction
between the responsibility of commanders of occupied territories and commanders in general has a
bearing on the criminal responsibility of such commanders, the indictment does not charge or
purport to charge the three accused in that broader sense. The objection in relation to this issue is
therefore rejected. On the issue taken with the Prosecutor being permitted to put forward opposing
versions of events in different case, the Trial Chamber considers that the Kordic Judgment cannot
be read to have found that the HVO occupied the said municipalities, or even that the Prosecution
put forward such a case. In any event, it is for the Prosecution to put forward whatever version of
events it wants to, within the confines of the Statute and the Rules, even if that version is
diametrically opposed to versions it put forward in other cases. The objection in relation to this
issue is therefore rejected.

7. Cumulative charging
39. The Defence submits that the case law of the Tribunal clearly establishes that charges under
Articles 2 and 3 of the Statute in relation to the same conduct are alternatives .111 The indictment,
it is submitted , should be amended to plead such charges in the alternative.112 The Prosecution
submits, inter alia, that the overwhelming practice of both ad hoc Tribunals, and in particular the
practice of the Appeals Chamber, recognises the Prosecution’s discretion to charge cumulatively or
in the alternative based upon the same facts.113 It is submitted that any perceived judicial duplicity
incurred by cumulative charging or conviction may be addressed at the sentencing stage of the
proceedings.114
40. Both the majority and minority in the Celebici Appeals Chamber expressly held that
cumulative charging is to be allowed in light of the fact that, prior to the presentation of all the
evidence, it is impossible for the Prosecution to determine to a certainty which of the charges
brought against an accused will be proven.115 There is, however, nothing in the Celebici Appeals
Judgment, including the minority opinion, which suggests that Articles 2 and 3 charges based on
the same conduct must be pleaded in the alternative . Following that Judgment, the Trial Chamber
considers that this matter has been settled, at least insofar as Articles 2 and 3 of the Statute, the
bases for the charges in the present case, are concerned.116 This objection is therefore rejected.
8. Complaints relating to alleged imprecisions in indictment
41. The Defence has raised a number of objections relating to alleged imprecisions in the
indictment.
42. The Defence objects to the use of the phrases “but are not limited to” and “on or about” in
paragraphs 21 and 26.117 It is submitted that the Prosecution should not be permitted to reserve for
itself the possibility of introducing, at trial, evidence of other towns and villages that were attacked
or the killing of other victims, since counsel would not have prepared the Defence case on that
expanded basis.118 It is also submitted that the Prosecution should be ordered to add specific
dates , rather than merely months, to paragraph 26 of the indictment.119 The Prosecution response
is that when read as a whole, the indictment is sufficiently precise in relation to the locations, time
periods and the identity of victims of the alleged crimes to put the accused on notice of the charges
against which they must defend.120
43. The Prosecution is not required to provide exhaustive lists in the relevant paragraphs of the
indictment of all the towns and villages attacked or victims killed. Where the Prosecution seeks to
lead evidence of an incident which supports the general offences charged (the attacks and killings),
but that particular incident has not been pleaded in the indictment in relation to those offences, the
admissibility of the evidence depends upon the sufficiency of the notice which the accused has

been given that such evidence is to be led in relation to that offence.121 Until such notice is given,
the accused are entitled to proceed upon the basis that the details pleaded are the only case which
they have to meet in relation to the offences charged.122 Accordingly , at this stage and until given
sufficient notice that evidence will be led of additional villages or towns or victims in relation to a
particular offence charged, the accused are entitled to proceed upon the basis that the lists provided
are exhaustive in nature. This fully addresses the submitted concern of the Defence. The particular
objection is therefore rejected. With respect to the request that the Prosecution plead more specific
dates in paragraph 26, the Trial Chamber considers that the indictment informs the accused in
sufficient detail of the case they have to meet . The particulars sought are not required to be
pleaded in the indictment; the particulars should be provided for in materials disclosed to the
Defence. This objection is therefore rejected.
44. The second Defence objection relates to paragraph 65 of the indictment.123 It is submitted that
the term “initially” in the said paragraph is too vague, since the dates, including those on which the
accused assumed various commands, are crucial .124 The Prosecution’s response to this objection
is the same as the its response to the first objection.125
45. It is alleged that one of the operational groups created on 8 March 1993 within the ABiH
3rd Corps by Enver Hadzihasanovic, the commander of that Corps,126 was OG “Bosanska
Krajina”,127 with Mehmed Alagic appointed as that group’s commander.128 It is also alleged that
on or around 15 April 1993, elements of the 7th Muslim Mountain Brigade were transferred and
put under the direct command of the ABiH 3rd Corps.129 It is further alleged that at the relevant
dates Amir Kubura was the 7th Muslim Mountain Brigade Chief of Staff130 and that he acted from
1 April 1993 to 20 July 1993 as the substitute for the absent assigned 7th Muslim Mountain
Brigade commander.131 Since the accused are charged with superior responsibility, the date or
dates on which they are alleged to have become commanders of specific units is of considerable
importance. Paragraph 65 is too imprecise as to the date or dates on which the 7th Muslim
Mountain Brigade, the 17th Krajina Mountain Brigade, the 305th Mountain Brigade Jajce, the
27th Motorised Brigade and the Municipal Defence Headquarter Jajce with its units were placed
under the command of OG “Bosanska Krajina”. This objection is therefore upheld. The
Prosecution is ordered to replace the word “ initially” with a specific date or dates, or if that be
impossible, an indication of the relevant time which is much less vague than the word “initially”.
46. The third Defence objection relates to paragraph 66.132 It is submitted that the term “elements”
in the said paragraph to describe persons who may be alleged to be the accused’s subordinates is
too imprecise as a matter of pleading, in particular in the case of the accused Mehmed Alagic.133 It
is requested that the Prosecution be ordered to specify which individuals or units were transferred
and put under the direct command of the ABiH 3rd Corps and whether any of these individuals or
units was involved in the crimes referred to in the indictment.134 The Prosecution’s response to
this objection is the same as the its response to the first objection .135
47. In the light of the alleged responsibility of the three accused in relation to the 7th Muslim

Mountain Brigade and the ABiH 3rd Corps, the identity of the units, and if possible, individuals, at
least by reference as an identifiable category, from the 7th Muslim Mountain Brigade that were
transferred and put under the direct command of the ABiH 3rd Corps is a material fact. It is,
however, unnecessary for the Prosecution to also plead that these transferred individuals or units
were involved in the crimes alleged in the indictment, because the other allegations made or
ordered to be made sufficiently plead that fact. This objection is therefore upheld in part. The
Prosecution is ordered to specify which individuals or units were transferred and put under the
direct command of the ABiH 3rd Corps. Where individuals, rather than units, were transferred, the
Prosecution need not identify each by name. It can refer to them by a clearly identifiable category
in order to sufficiently put the Defence on notice as to their identity to properly prepare its case.
48. The fourth Defence objection concerns counts 1 to 5 of the indictment, which charges the
accused with various alleged killings of and injuries inflicted on surrendered HVO soldiers and/or
Bosnian Croat and Bosnian Serb civilians.136 It is submitted that with the exception of
paragraph 17(ab), paragraph 17 only states which units attacked the relevant villages, and does not
state which individuals or units committed the killings and injuries, rendering the indictment
defective .137 It is requested that the Prosecution be ordered to specify in paragraphs 17(aa),
(b) and (c), which troops, units or individuals committed the killings or inflicted the injuries for
which the accused are charged by virtue of command responsibility.138 The Prosecution’s response
to this objection is the same as the its response to the first objection.139
49. Paragraph 17 should not be read in isolation. When read together, the only reasonable
interpretation of paragraphs 17 and 18, relevant to counts 1 to 5, is that the forces that attacked the
relevant villages committed the alleged crimes. This objection is therefore rejected.
50. The fifth Defence objection concerns counts 1 to 5, 6 to 10, and 16 to 18.140 It is submitted that
the current form of these counts creates a real risk, if not an impossibility, of returning coherent
verdicts, in that the various incidents referred to are lumped together without distinction as to the
accused or as to place .141 It is requested that that the counts be struck, or amended so as to permit
a verdict to be returned with respect to each accused and in respect of each place.142 The
Prosecution’s response to this objection is the same as its response to the first objection.143
51. Although it may have been clearer to both the Defence and the Trial Chamber had the
Prosecution formulated the relevant charges differently, the current form is not defective for that.
This objection is therefore rejected.
52. The sixth Defence objection concerns various asserted deficiencies in the pleading of counts 6
to 10.144
53. In relation to paragraph 19, it is submitted that it is unspecific as to which ABiH forces carried
out the unlawful imprisonment and unlawful confinement of civilians in the relevant
municipalities.145 The Prosecution’s response to this objection is the same as the its response to

the first objection.146
54. Paragraph 19, even when read with paragraph 20, does not clearly identify which ABiH forces
carried out the alleged unlawful imprisonment and unlawful confinement 147 of civilians in the
relevant municipalities. It cannot safely be reasonably assumed that the forces that allegedly
committed the other crimes to these counts, which are sufficiently identified, were also responsible
for the unlawful confinement. This objection is therefore upheld. The Prosecution is ordered to
amend the indictment to plead which particular ABiH forces allegedly carried out the said
unlawful confinement.
55. In relation to paragraph 20, it is submitted that no dates are provided, as should be done, since
these are material averments.148 The Prosecution’s response to this objection is the same as the its
response to the first objection.149
56. Paragraph 20 has to be read together with paragraph 19. The latter paragraph provides the dates
accompanying the allegations made in the former.150 This objection is therefore rejected.
57. In relation to counts 6 to 10 in general, it is submitted that the specific charges set out against
Enver Hadzihasanovic in paragraph 19 go beyond 31 October 1993,151 whilst the opening sentence
of that paragraph alleges that he is responsible for crimes committed from about January 1993 to
only 31 October 1993.152 The Prosecution’s response to this objection is the same as the its
response to the first objection.153
58. The current pleading is obviously ambiguous in relation to this important matter . The
objection is therefore upheld. The Prosecution is accordingly ordered to amend the indictment to
clearly plead the period during which Enver Hadzihasanovic is alleged to have been responsible
for crimes committed by his subordinates.
59. It is submitted that paragraph 21 does not state who carried out the killings of imprisoned and
otherwise detained Bosnian Croats and Bosnian Serbs, a material averment which should have
been pleaded.154 The Prosecution’s response to this objection is the same as the its response to the
first objection.155
60. Reading paragraphs 19 and 20 together with paragraph 21 does not assist in providing the
identity of the alleged killers of the relevant victims, which is a material fact. This objection is
therefore upheld. The Prosecution is ordered to amend the indictment to identify the alleged
killers, at least by category, to enable the Defence to prepare its case.
61. The seventh Defence objection concerns count 13, which charges Enver Hadzihasanovic with
taking civilians as hostages.156 It is submitted that the related paragraph 24, in referring to alleged
Bosnian Croat hostages, does not aver, as it should, that these Croats were civilians.157 The
Prosecution’s response to this objection is the same as the its response to the first objection.158

62. When charging an accused with the crime of taking civilians as hostages, it clearly is a material
fact whether the alleged hostages were civilians or not. The related paragraph 24 does not plead
this fact. The objection is therefore upheld, and the Prosecution is ordered to amend the indictment
accordingly.
63. The eighth Defence objection concerns a number of asserted deficiencies in relation to
allegations against the accused Amir Kubura.159 The Prosecution’s response to this objection is the
same as the its response to the first objection.160
64. It is submitted that since the indictment charges that Amir Kubura fulfilled a command role
only after 1 April 1993161 and that none of the counts allege that he failed to prevent or punish
crimes until after the beginning of April 1993,162 those counts alleging that he is responsible as a
commander for crimes committed before 1 April 1993 should be struck.163
65. The submission that the indictment charges that Amir Kubura fulfilled a command role only
after 1 April 1993 rests on its assertion that under international law “a Chief of Staff does not
necessarily occupy a position of command and cannot be held criminally responsible as a
commander.”164 The indictment alleges that Amir Kubura was the Chief of Staff of the
7th Muslim Mountain Brigade from 1 January 1993 till 1 April 1993.165 The indictment very
confusingly, where it sets out the specific counts against Amir Kubura, charges him with criminal
responsibility for crimes committed both from “about April 1993”,166 and prior to that period (but
after 1 January 1993).167 The current pleading is obviously ambiguous in relation to this important
matter . The objection is therefore upheld. The Prosecution is accordingly ordered to amend the
indictment to clearly plead the period during which Amir Kubura is alleged to have been
responsible for crimes committed by his subordinates.
66. It is also submitted that counts concerning Amir Kubura allege that troops from brigades other
than the 7th Muslim Mountain Brigade - the only Brigade he is alleged to have commanded from
21 July 1993 to 15 March 1994 - were involved in the incidents that led to the commission of the
offences.168 The examples provided relate to counts 1 to 5 of the indictment, in particular the
attack launched on Dusina, and the massacre in Bikosi.169 It is asserted that it is not alleged that
the accused had any command over the other brigades, nor is it alleged from which brigade the
troops originated who perpetrated the alleged killings and injuries.170 It is also complained that
counts 6 to 10 suffer form the same defect, the example given relating to the activities at the
Mehurici Elementary School, which does not mention the 7th Muslim Mountain Brigade.171 It is
further submitted that some of the counts do not specify which brigades were involved in the
commission of crimes, the example given being counts 16 to 18 wherein it is simply alleged that
the ABiH 3rd Corps forces committed certain offences, with no mention made of the 7th Muslim
Mountain Brigade or any other brigade.172 It is submitted that as a matter of law, a commander of
one brigade cannot per se be held responsible for violations committed by troops of another
brigade if the brigades were involved in joint operations; the indictment does not allege that Amir

Kubura was in command of all of the brigades in joint operations.173
67. With respect to the issue taken with referring in the paragraphs relevant to the specific charges
against Amir Kubura to brigades or units which are not alleged to have been commanded by him,
the Trial Chamber considers that such pleading is not defective when read against the indictment
as a whole. The indictment clearly charges Amir Kubura as having been the ABiH 3rd Corps
7th Muslim Mountain Brigade Chief of Staff from 1 January 1993 to 20 July 1993; as having acted
from 1 April 1993 to 20 July 1993 as the substitute for Asim Koricic, the then assigned ABiH
3rd Corps 7th Muslim Mountain Brigade Commander who was absent during this period ; and as
the ABiH 3rd Corps 7th Muslim Mountain Brigade Commander from 21 July 1993 to 15 March
1994.174 This particular objection is therefore rejected.
68. With respect to the issue taken with the 7th Muslim Mountain Brigade not being mentioned at
all in counts 6 to 10 insofar as they relate to Amir Kubura, the following finding is made.
Paragraph 20(c) relates to crimes allegedly committed in the Mehurici Elementary School, for
which Amir Kubura is charged in paragraph 19(ba). The former paragraph makes no explicit
reference to that brigade, but mentions the Mujahedin that were allegedly involved. Paragraph 62,
to be amended, alleges that the “Mujahedin ” were attached to and subordinated to the 7th Muslim
Mountain Brigade and were heavily involved in combat activities with that brigade. It would
therefore appear that Amir Kubura is charged for the said alleged crimes on the basis of the
involvement of the Mujahedin. However, this is not sufficiently clear, and the objection in relation
to this issue is upheld. The Prosecution is ordered to amend the indictment accordingly.
Paragraph 20(d) relates to crimes allegedly committed in the Blacksmith Shop Mehurici, for which
Amir Kubura is charged in paragraph 19(bb). The former paragraph, however, makes no mention
of either the 7th Muslim Mountain Brigade or the Mujahedin. The indictment is defective in this
regard, as the Defence is entitled to know on what basis the accused is said to be responsible for
these acts. This specific objection is therefore upheld, and the Prosecution is ordered to either
strike paragraph 19(bb), or to amend the indictment to make clear on what basis it is alleging that
Amir Kubura is responsible for the acts committed in the Blacksmith Shop Mehurici.
69. With respect to the issue taken that counts 16 to 18 do not mention any specific brigade,
including the 7th Muslim Mountain Brigade, the Trial Chamber finds that the indictment is not
defective for that. Although paragraph 26 refers to the ABiH 3rd Corps forces in general,
paragraph 27 refers to ABiH forces under the command and control of the three accused as having
been responsible for the relevant crimes . This pleading is sufficient to put the Defence on notice
as to the nature and cause of the relevant charges against them. This specific objection is therefore
rejected.
9 Pre-trial brief and materials disclosed to Defence
70. The Prosecution has submitted that the supporting material accompanying the indictment and
other materials disclosed to the Defence pursuant to the Rules, as well as the pre-trial brief, will
provide the Defence with facts, details of the offences allegedly committed, and the nature of the

alleged criminal responsibility of the accused.175 The Defence objected to this submission.176 The
Trial Chamber rejects the Prosecution submission, for the reasons set out above .177
10. Request for oral hearing
71. The Defence has requested an oral hearing on the Motion at the earliest opportunity in view of
the complexity and importance of the issues raised.178
72. The general practice of the Tribunal is not to hear oral argument on motions prior to the trial
unless good reason is shown for its need in the particular case.179 A general assertion that the
issues are complex and important is not, in the circumstances , such a reason. The Defence has not
suggested that it could for some reason not fully address the issues in the written filings. The Trial
Chamber also sees no need for oral argument upon this Motion. This request is therefore refused.
11. Reorganisation of indictment
73. The placing of the sections on the “Individual criminal responsibility” of the three accused,
“General allegations”, and “Additional facts” at the back of the indictment , following the specific
counts, does not make for an easy understanding and use of the indictment. The indictment is also
unnecessarily repetitive in certain instances . Although not defective for that, the Trial Chamber
considers that the Prosecution be directed to reorganise the indictment and to redraft it to minimise
the repetition of information and material facts. With respect to reorganising the indictment, the
“General allegations” and “Additional facts” sections are to be moved to the front of the
indictment to follow directly on the section on “The accused”. The section on “Individual criminal
responsibility” is also to be moved to the front of the indictment to directly follow the “Charges”
section, but preceding the specific counts. Where necessary, the cross-references to other sections
and paragraphs of the indictment must accordingly be changed.
12. Disposition
74. Pursuant to Rule 72, the Motion is hereby:
(a) Denied in part.
(b) Granted in part.
(c) The Prosecution is ordered to amend the indictment in the terms set out in this decision, and to
reorganise and redraft the indictment in accordance with paragraph 73 of this decision.
(d) The amended and reorganised indictment is to be filed no later than 12:00 on 11 January 2002.
A table indicating all the amendments and changes made to the indictment shall be filed by the
same time (reorganisation table).

(e) The Defence is to file any complaints resulting from the amendments ordered to be made
within fourteen days of the filing of the amended and reorganised indictment .
Done in both English and French, the English version being authoritative.
Done the seventh day of December 2001
At The Hague
The Netherlands
________________________________
Wolfgang Schomburg
Presiding Judge
[Seal of the Tribunal]
1 - “Joint Preliminary Motion Alleging Defects in the Form of the Indictment”, 8 Oct 2001.
2 - “Prosecution’s Response to the Joint Preliminary Motion Alleging Defects in the Form of the
Indictment”, 22 Oct 2001 (“Response”); “Reply to Prosecution Response to Preliminary Motion Alleging
Defects in the Form of the Indictment”, 29 Oct 2001 (“Reply”) (the Reply was filed by counsel for
Mehmed Alagic, but counsel for the other accused on 5 Nov 2001 joined that Reply by filing the “Joint
Reply to Prosecution Response to Preliminary Motion Alleging Defects in the Form of the Indictment”);
“Request for Leave to File Supplement to Prosecution’s Response to the Joint Preliminary Motion Alleging
Defects in the Form of the Indictment”, 30 Oct 2001 (“Supplementary Response”).
3 - See Decision on Challenge to Jurisdiction, 7 Dec 2001.
4 - Indictment, par 45 (“All acts and omissions alleged in this indictment occurred between 1 January 1993
and 31 January 1994 on the territory of Bosnia and Herzegovina.”).
5 - Ibid, pars 3, 29.
6 - Ibid, pars 6, 34, 35.
7 - Ibid, pars 9, 40, 41.
8 - Of 11 Sept 2001.
9 - Fax dated 26 Oct 2001 (filed with the Registry on 7 Dec 2001).
10 - Prosecutor v Kupreskic and Others, Case IT-95-16-A, Appeal Judgement, 23 October 2001.
11 - Supplementary Response, pars 1 and 13.
12 - Of 9 Nov 2001.
13 - The Practice Direction, IT/184 of 19 Jan 2001.
14 - Kupreskic Appeal Judgment, par 88.

15 - Ibid (with reference to Arts 18(4), 21(2) and 21(4)(a) and (b) of the Statute and Rule 47(C)).
16 - See Ibid; Arts 18(4), 21(2) and 21(4)(a) and (b) of the Statute; and Rule 47(C), which essentially
restates Art 18(4).
17 - Kupreskic Appeal Judgment, par 88. It can be left open whether the view expressed by the Appeals
Chamber is an obiter dictum only, and whether there may not be exceptional cases in which the
Prosecution may be required to plead the evidence in an indictment. If the evidentiary material provided by
the Prosecution during the pre-trial discovery process does not sufficiently identify the evidence upon
which the prosecution relies to establish those material facts (see Rule 66), then – and only then – is it
appropriate for an application to be made to the Trial Chamber for an order that the Prosecution supply
particulars (and even then only if a request to the Prosecution for such particulars has not been
satisfactorily answered) (Prosecutor v Brdjanin & Talic, Case IT-99-36-PT, Decision on Form of Third
Amended Indictment, 21 Sept 2001, par 8; Prosecutor v Brdjanin & Talic, Case IT-99-36-PT, Decision on
Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001 (“Third
Brdjanin & Talic Decision”), par 19; Prosecutor v Brdjanin & Talic, Case IT-99-36-PT, Decision on
Objections by Momir Talic to the Form of the Amended Indictment, 20 Feb 2001 (“First Brdjanin & Talic
Decision”), par 27).
18 - See also Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (1993), p 255; and
Frowein und Peukert, Europäische MenschenRechtsKonvention: EMRK-Kommentar (1996), p 295.
19 - Article 14(3)(a) of the ICCPR.
20 - Article 6(3)(a) of the ECHR provides in relevant part: “Everyone charged with a criminal offence has
the following minimum rights: (a) to be informed promptly, in a language which he understands and in
detail, of the nature and cause of the accusation against him […].”
22 - First Brdjanin & Talic Decision, par 18. It is essential for the accused to know from the indictment just
what that alleged proximity is: Prosecutor v Brdjanin & Talic, Case IT-99-36-PT, Decision on Objections
by Radoslav Brdjanin to the Form of the Amended Indictment, 23 Feb 2001 (“Second Brdjanin & Talic
Decision”), par 13.
23 - Prosecutor v Brdjanin & Talic, Case IT-99-36-PT, Decision on Form of Fourth Amended Indictment,
23 Nov 2001, par 12; First Brdjanin & Talic Decision, par 48.
24 - First Brdjanin & Talic Decision, par 48.
25 - Statute, Art 7(3); see First Brdjanin & Talic Decision, par 19; Prosecutor v Krajisnik, Case IT-00-39-
PT, Decision Concerning Preliminary Motion on the Form of the Indictment, 1 Aug 2000 (“Krajisnik
Decision”), par 9; Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on Preliminary Motion on Form of
Amended Indictment, 11 Feb 2000, par 9.
26 - Statute, Art 7(3); see First Brdjanin & Talic Decision, par 19; Krajisnik Decision, par 9.
27 - Statute, Art 21(4)(a) of the Statute; Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on the
Defence Preliminary Motion on the Form of the Indictment, 24 Feb 1999, par 38.
28 - First Brdjanin & Talic Decision, par 19.
29 - See Ibid; Prosecutor v Kvocka, Case IT-99-30-PT, Decision on Defence Preliminary Motions on the
Form of the Indictment, 12 Apr 1999, par 17; Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on
Preliminary Motion on Form of Amended Indictment, 11 Feb 2000, par 18(A); Krajisnik Decision, par 9.
30 - Statute, Art 7(3); see First Brdjanin & Talic Decision, par 19 (rolling facts (b) and (c) together);
Krajisnik Decision, par 9.
32 - If the Defence is denied the material facts as to the nature of the nature of the accused’s responsibility
for the events pleaded until the pre-trial brief is filed, it is almost entirely incapacitated from conducting
any meaningful investigation for trial until then (see Second Brdjanin & Talic Decision, pars 11-13).


34 - Ibid.
35 - Ibid.
36 - Motion, pars 3-30.
37 - Ibid, pars 10-16; Reply, pars 7-10.
38 - Motion, pars 10, 12-15, 75(1).
39 - Ibid, par 14, fn 5.
40 - Ibid, par 75(1).
41 - Response, pars 7, 11 and 14.
42 - This amendment will make amending par 11 to specify whether all or some foreign Muslim fighters
referred to themselves as “Mujahedin” or only those who were attached to the ABiH 3rd Corps Muslim
Mountain Brigade unnecessary.
43 - Motion, pars 17-19; Reply, pars 11-14.
45 - Ibid, par 75(2).
46 - Response, pars 7 and 11.
47 - Indictment, par 50.
48 - Ibid, pars 18, 19, 22, 24, 25, 27, 28, 49.
49 - Indictment, pars 32, 38.
50 - Celebici Appeal Judgment, par 256 (see also pars 196-198 and 266).
51 - Ibid, par 197.
52 - Ibid.
53 - Motion, pars 20-21; Reply, par 14.
54 - Motion, par 20.
55 - Ibid.
56 - Ibid.
57 - Ibid, par 75(3).
59 - Motion, pars 22-23; Reply, pars 15-16.
61 - Ibid, par 75(4).
63 - Motion, par 25; Reply, par 17. Although not referred to by the Defence, pars 18, 19, 22, 24, 25, 27
and 28 of the indictment appear to be relevant to this objection.
65 - Ibid, par 75(5).
67 - Motion, pars 26-30; Reply, par 18. Although not referred to by the Defence, pars 18, 19, 22, 24, 25, 27
and 28 of the indictment appear to be relevant to this objection.
69 - Ibid.
70 - Ibid.
71 - Ibid, par 27 (reference is made to the acts of “extremist” foreign Muslim fighters or Mujahedin. The
Trial Chamber has nothing before it that would suggest that these fighters were “extremist”. The use of
discriminatory language is counter-productive to the maintenance of the decorum required for judicial
proceedings).
72 - Ibid.

73 - Motion, pars 28-30 (with reference to indictment, par 19, as an example).

74 - Motion, par 30, fn 15.
75 - Ibid, par 75(6).
77 - Celebici Appeal Judgment, pars 239 and 313.
78 - Motion, par 26, fn 12.
80 - Motion, par 44 (see also Reply, pars 25-26).
81 - Response, par 18.
82 - The army of the Bosnian Croat community in Bosnia and Herzegovina.
84 - Ibid, par 73. Paragraphs 73 and 74 have to be read in conjunction with par 68 of the indictment.
85 - Ibid, par 72.
87 - Ibid, pars 44; 45 and 75(8).
90 - Ibid.
91 - Response, par 19 (emphasis added).
92 - See par 8 of this decision.
93 - Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949.
94 - Geneva Convention IV, Art 2.
95 - Article 40 of Geneva Convention IV falls under the section concerned with aliens in the territory of a
party to the conflict and it deals with work done by protected persons.
96 - Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949.
97 - Geneva Convention III, Art 2.
98 - Indictment, pars 47 and 48.
99 - Motion, par 47 (quoting from indictment, par 58).
101 - Ibid, par 50.
102 - Ibid.
103 - Ibid.
104 - Case IT-95-14/2-T, Judgement, 26 Feb 2001 (“Kordic Judgment”).
107 - Ibid.
108 - Celebici Appeal Judgment, par 258.
109 - Ibid.
110 - Ibid.
111 - Motion, par 51; Reply, pars 28-30.
112 - Motion, pars 52 and 75(9).
114 - Ibid, par 23.
115 - Celebici Appeal Judgment, par 400; Prosecution v Delalic and Others, Case IT-96-21-A, Separate
and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, 20 Feb 2001, par 12. The
Kupreskic Appeals Chamber recently confirmed this ruling (Kupreskic Appeal Judgment, pars 385 and
386).

116 - See also First Brdjanin & Talic Decision, pars 31-43.
118 - Ibid, pars 54 and 55.
119 - Ibid, par 53.
120 - Response, pars 24-28.
121 - Third Brdjanin & Talic Decision, par 62.
122 - Ibid.
123 - Ibid, par 57.
124 - Ibid.
126 - From 14 Nov 1992 to 31 Oct 1993: indictment, par 29.
128 - Ibid, par 64.
129 - Ibid, par 66.
130 - From 1 Jan 1993 to 20 July 1993; indictment, par 40.
133 - Ibid.
134 - Ibid.
136 - Motion, pars 59-62. See par 3 of this decision for exact charges.
137 - Ibid, pars 59 and 60.
138 - Ibid, par 61.
141 - Ibid.
142 - Ibid.
145 - Ibid, par 63.
147 - The specific relevant charge is count 6 (unlawful confinement of civilians, punishable under Arts 2
(g) and 7(3) of the Statute. The other charges do not specifically relate to what the Defence refers to as
“unlawful imprisonment”, although “imprisonment” is referred to, inter alia, in the first sentence of par 19
of the indictment.
150 - Paragraph 21 provides very precise dates on which it is alleged that certain victims were killed (on
18 June 1993; 5 Aug 1993; and 20 Oct 1993 in relation to pars 21(b), (c) and (e), respectively), bar two
allegations, namely, pars 21(a) and (d) (in May 1993; and in the beginning of Aug 1993, respectively).
151 - Paragraphs 19(a) (to at least Jan 1994); (ba) (to at least 23 Dec 1993); (bc) (to at least Dec 1993);
(dd) (to at least 19 Mar 1994)

157 - Ibid, par 67.

162 - Ibid.
163 - Ibid, pars 68 and 69 (reference is made to counts 1 to 6 (it appears to be an error, since count 6 does
not include Dusina; it probably should have read as counts 1 to 5), which include Dusina, 26 Jan 1993;
counts 6 to 10, which include Zenica Music School from 26 Jan 1993; counts 14 to 15, which include
Zenica, Jan 1993; and counts 16 to 18, which include Dusina, Jan 1993.
166 - Ibid, pars 18 (counts 1 to 5), 19 (counts 6 to 10), 25 (counts 14 and 15), 27 (counts 16 to 18).
167 - Ibid, pars 18 (counts 1 to 5), which include a charge in relation to crimes allegedly committed in
Dusina (Zenica municipality) on 26 Jan 1993; 19 (counts 6 to 10), which include a charge in relation to
crimes allegedly committed in Zenica Music School from 26 Jan 1993; 25 (counts 14 to 15), which include
a charge in relation to crimes allegedly committed in Zenica, Jan 1993; and 27 (counts 16 to 18), which
include a charge in relation to crimes allegedly committed in Dusina, Jan 1993.
169 - Ibid.
170 - Ibid.
171 - Ibid, par 71.
172 - Ibid, par 73.
173 - Ibid, par 72.
175 - Response, pars 28-29.
176 - Reply, par 33.
179 - Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on Form of Second Amended Indictment, 11
May 2000, par 31.

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Decision on Form of Indictment

Case No: IT-01-47-PT

Judge Florence Ndepele Mwachande Mumba

Judge Carmel Agius

DECISION ON FORM OF INDICTMENT

The Office of the Prosecutor:

Counsel for the Accused:

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Ms Edina Residovic for Enver Hadzihasanovic

Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

(b) Count 2, wilful killing, a violation of Article 2(a) of the Statute.

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Article 2(c) of the Statute.

(e) Count 5, inhuman treatment, a violation of Article 2(b) of the Statute.

(h) Count 8, wilful killing, a violation of Article 2(a) of the Statute.

Enver Hadzihasanovic is additionally charged with:

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2. Reply and Supplementary Response

3. Length of joint motions

4. The general pleading principles

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5. Objections relating to the pleading of command responsibility

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6. Objections related to nature of armed conflict and partial occupation

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8. Complaints relating to alleged imprecisions in indictment

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the first objection.146

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Kubura was in command of all of the brigades in joint operations.173

9 Pre-trial brief and materials disclosed to Defence

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10. Request for oral hearing

11. Reorganisation of indictment

74. Pursuant to Rule 72, the Motion is hereby:

(a) Denied in part.

(b) Granted in part.

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Done the seventh day of December 2001

[Seal of the Tribunal]

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33 - Kupreskic Appeal Judgment, par 92.

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73 - Motion, pars 28-30 (with reference to indictment, par 19, as an example).

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157 - Ibid, par 67.

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