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In this April 21, 1995 application for deferral, the prosecutor asks the International war crimes tribunal to make a formal request to the Bosnian government to defer to the tribunal the criminal investigation of Radovan Karadzic, Ratko Mladic, and Mico Stanisic. The prosecutor is investigating the individual responsibility of the three Bosnian leaders for alleged acts of genocide, violations of the customs of war, and crimes against humanity perpetrated during the conflict in the former Yugoslavia.
UNITED NATIONS
INTERNATIONAL CRIMINAL TRIBUNAL
FOR THE FORMER YUGOSLAVIA
IN THE TRIAL CHAMBER
OF THE INTERNATIONAL CRIMINAL
TRIBUNAL FOR THE FORMER
YUGOSLAVIA
APPLICATION BY THE PROSECUTOR
FOR A FORMAL REQUEST FOR DEFERRAL
BY THE GOVERNMENT OF THE REPUBLIC OF
BOSNIA AND HERZEGOVINA OF ITS
INVESTIGATIONS AND CRIMINAL PROCEEDINGS
IN RESPECT OF RADOVAN KARADZIC
RATKO MLADIC AND MICO STANISIC
I. I, Richard J. Goldstone, Prosecutor, pursuant to Article 9(2) of
the Statute of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1 January 1991 (referred to respectively as "Statute" and
"Tribunal") and in accordance with Rule 9(iii) of the Rules of
Procedure and Evidence ("Rules") propose to the Trial Chamber, in
relation to investigations and criminal proceedings involving Radovan
Karadzic, Ratko Mladic and Mico Stanisic being conducted by the
Government of the Republic of Bosnia and Herzegovina, that a formal
request be made to the Government of the Republic of Bosnia and
Herzegovina that its courts defer to the competence of the Tribunal.
II. Pursuant to Rule 10 of the Rules, I propose that the Trial Chamber
issue a formal request to the Government of the Republic of Bosnia and
Herzegovina in the following terms:
A) The courts of the Republic of Bosnia and Herzegovina defer to the
competence of the Tribunal in regard to all investigations and
criminal proceedings in respect of Radovan Karadzic, Ratko Mladic and
Mico Stanisic.
B) In regard to all such investigations of Radovan Karadzic, Ratko
Mladic and Mico Stanisic, the Tribunal requests that the Government of
the Republic of Bosnia and Herzegovina forward to the Tribunal the
results of said investigations and copies of the court's records and
judgments, if any.
III. I make this proposal for the following reasons:
A) National investigations and criminal proceedings have been
instituted against Radovan Karadzic, Ratko Mladic and Mico Stanisic by
the Government of the Republic of Bosnia and Herzegovina for crimes
alleged to have taken place in its territory.
B) I am currently conducting investigations into crimes within the
jurisdiction of the Tribunal that have taken place within the
territory of the Republic of Bosnia and Herzegovina in which Radovan
Karadzic, Ratko Mladic and Mico Stanisic are suspects.
C) The national investigations and criminal proceedings involve issues
closely related to, or otherwise involve, significant factual or legal
questions which may have implications for investigations or
prosecutions before the Tribunal
IV. The basis of my proposal appears in the attached schedule.
Dated this 21st day of April 1995
The Hague
The Netherlands
/s/Richard J. Goldstone
Prosecutor
SCHEDULE
1. INVESTIGATIONS BEING CONDUCTED BY THE GOVERNMENT OF THE REPUBLIC OF
BOSNIA AND HERZEGOVINA
1.1. The Government of the Republic of Bosnia and Herzegovina has been
conducting investigations into war crimes and violations of the
Criminal Law of the Republic, including genocide, war crimes against
the civilian population and destruction of cultural and historical
monuments. A number of persons are named in these investigations,
including Radovan Karadzic, the president of the Bosnian Serb
administration in Pale; Ratko Mladic, the military commander of the
Bosnian Serb armed forces; and Mico Stanisic, the former minister of
internal affairs of that administration.
1.2. By a document dated 12 June 1992, the Higher Public Prosecutor's
Office in Sarajevo submitted a request to the Investigating Judge of
the Higher Court in Sarajevo for the opening of an investigation in
respect of a number of named suspects including Radovan Karadzic,
Ratko Mladic and Mico Stanisic. In a decision dated 16 June 1992, the
Investigating Judge of the Higher Court in Sarajevo granted the Higher
Public Prosecutor's request.
1.3. By a document dated 17 August 1992, the Higher Public
Prosecutor's Office in Sarajevo applied to the Investigating Judge of
the Higher Court in Sarajevo to widen the investigation in regard to
certain named suspects including Radovan Karadzic. In a decision dated
3 September 1992, the Investigating Judge of the Higher Court granted
the Higher Public Prosecutor's request.
1.4. A further document, entitled "Request for Investigation" and
dated 26 December 1992, was lodged by the District Military Prosecutor
in Sarajevo with the District Military Court in Sarajevo. Both Radovan
Karadzic and Ratko Mladic are named in this document. Allegations set
out in the request for investigation relate to offences which are
within the jurisdiction of the Tribunal. In a decision dated 18
January 1993, the District Military Court granted the District
Military Prosecutor's request.
1.5. By a document dated 20 September 1993, a formal request to widen
the investigation against Ratko Mladic was made to the District
Military Court by the District Military Prosecutor in Sarajevo. In a
decision dated 3 September 1994, the District Military Court granted
the District Military Prosecutor's request.
1.6. By letter dated 12 December 1994, the Minister of Justice of the
Republic of Bosnia and Herzegovina in Sarajevo wrote to the Prosecutor
of the Tribunal ("Prosecutor") outlining the investigative steps taken
with regard to the suspects, alleging genocide and enumerating
supporting documentation for criminal cases against both Radovan
Karadzic and Ratko Mladic. The Minister of Justice stated therein that
national warrants of arrest had been issued for Radovan Karadzic and
Ratko Mladic for the purposes of investigation. A similar warrant has
been issued for Mico Stanisic.
2. INVESTIGATIONS BY THE PROSECUTOR
2.1. The Prosecutor is investigating allegations of serious violations
of international humanitarian law that occurred in the territory of
the former Yugoslavia as set forth in Articles 2 to 5 of the Statute.
2.2. A significant focus of the investigations of the Prosecutor
relates to persons in positions of authority who are or were
responsible for serious violations of international humanitarian law
in the former Yugoslavia.
2.3 . Paragraphs 55 and 56 of the Report of the Secretary General of
the United Nations pursuant to paragraph 2 of Security Council
Resolution 808 ( 1993) refer to the issue of criminal responsibility
of persons in positions of superior authority. Paragraphs 55 and 56
state:
"55. Virtually all of the written comments received by the
Secretary-General have suggested that the statute of the International
Tribunal should contain provisions with regard to the individual
criminal responsibility of heads of State, government officials and
persons acting in an official capacity. These suggestions draw upon
the precedents following the Second World War. The Statute should,
therefore, contain provisions which specify that a plea of head of
State immunity or that an act was committed in the official capacity
of the accused will not constitute a defence, nor will it mitigate
punishment.
"56. A person in a position of superior authority should, therefore,
be held individually responsible for giving the unlawful order to
commit a crime under the present statute. But he should also be held
responsible for failure to prevent a crime or to deter the unlawful
behavior of his subordinates. This imputed responsibility or criminal
negligence is engaged if the person in superior authority knew or had
reason to know that his subordinates were about to commit or had
committed crimes and yet failed to take the necessary and reasonable
steps to prevent or repress the commission of such crimes or to punish
those who had committed them."
2.4. Article 7 of the Statute provides:
"7.1 A person who planned, instigated, ordered, committed or otherwise
aided and abetted in the planning, preparation or execution of a crime
referred to in articles 2 to 5 of the present Statute, shall be
individually responsible for the crime.
"7.2 The official position of any accused person, whether as Head of
State or Government or as a responsible Government official, shall not
relieve such person of criminal responsibility nor mitigate
punishment.
"7.3 The fact that any of the acts referred to in articles 2 to 5 of
the present Statute was committed by a subordinate does not relieve
his superior of criminal responsibility if he knew or had reason to
know that the subordinate was about to commit such acts or had done so
and the superior failed to take the necessary and reasonable measures
to prevent such acts or to punish the perpetrators thereof.
"7.4 The fact that an accused person acted pursuant to an order of a
Government or of a superior shall not relieve him of criminal
responsibility, but may be considered in mitigation of punishment if
the International Tribunal determines that justice so requires."
2.5. Insofar as investigations referred to in paragraph 2.2 relate to
the leadership of the Bosnian Serb administration in Pale, the alleged
criminal responsibility of Radovan Karadzic, Ratko Mladic and Mico
Stanisic are central.
2.5.1. Radovan Karadzic was born on 19 June 1945 in the Municipality
of Savnik of the Republic of Montenegro. He is by profession a
psychiatrist who worked in the Neuro-psychiatric Clinic of the
University Medical Centre in Sarajevo. He was a founding member and
president of the Serbian Democratic Party of what was then the
Socialist Republic of Bosnia and Herzegovina. After the first multi-
party elections in the Republic, Radovan Karadzic emerged as the
leader of the dominant political party among the Bosnian Serbs and
played an active part in the national political life of the country,
emphasising Serbian nationalist sentiments. Radovan Karadzic is one of
the main architects of that party's political programme involving
extreme nationalist and ethnic policies and objectives. Radovan
Karadzic became the first president of the Bosnian Serb administration
in Pale. The constitution of this administration provides that the
president commands its armed forces. Radovan Karadzic exercises his
power and control from Pale, a town near Sarajevo. Radovan Karadzic
has acted as and been dealt with internationally as the president of
the Bosnian Serb administration in Pale. In that capacity, Radovan
Karadzic has, inter alia, participated in international negotiations
and has personally made agreements on such matters as cease-fires and
humanitarian relief that have been implemented.
2.5.2. Ratko Mladic was born in 1943 in the Kalinovik Municipality of
the Republic of Bosnia and Herzegovina. He is a career military
officer and gained his first command in 1965. In the summer of 1991,
he was appointed to command the 9th Corps of the Yugoslav People's
Army (JNA) in Knin in the Republic of Croatia. Subsequently, he
assumed command of the forces of the Second Military District of the
JNA which effectively became the Bosnian Serb army. In that capacity
he has negotiated, inter alia, cease-fire and prisoner exchange
agreements that have been implemented.
2.5.3. Through, inter alia, international media reports, reports of
governments and non-governmental organizations and through reports and
resolutions of the United Nations and other international
organizations, Radovan Karadzic and Ratko Mladic have been repeatedly
apprised of violations of international humanitarian law allegedly
committed by forces under their control.
2.5.4 Mico Stanisic was born on 30 June 1954 near Pale in the Republic
of Bosnia and Herzegovina. He was the first minister of internal
affairs of the Bosnian Serb administration in Pale. In that capacity,
he was, inter alia, responsible for the regular and special police
forces at the regional and local level in the territory under Bosnian
Serb control. It is alleged that those forces were actively involved
in organising a campaign of terror against the non- Serbian population
of Bosnia and Herzegovina.
2.6. The Prosecutor is investigating a wide range of allegations
covering offences within the competence of the Tribunal including
genocide, offences against civilians and destruction of cultural and
historical monuments, that is, the same offences being investigated by
the authorities of the Government of the Republic of Bosnia and
Herzegovina. In all of these investigations, the Prosecutor is
examining the individual criminal responsibilities of persons in
political, military and police leadership positions, including Radovan
Karadzic, Ratko Mladic and Mico Stanisic.
2.7. The Prosecutor has issued indictments against other individuals
for genocide, murder, rape, mistreatment of civilians, torture, and
other offences arising from the operation of detention camps and from
attacks on unarmed civilians. Arising out of these indictments, the
Prosecutor is further examining the individual criminal
responsibilities for those crimes of persons in leadership positions,
including Radovan Karadzic, Ratko Mladic and Mico Stanisic.
2.8. One significant investigation being undertaken by the Prosecutor
relates to the protracted siege of Sarajevo where allegations include
past and continuing unlawful shelling and sniping of civilians. As a
result, many thousands of civilians have been killed and injured.
Non-military buildings such as hospitals and cultural structures have
also been unlawfully targeted. In particular, the Prosecutor is
investigating the alleged systematic sniping campaign against innocent
civilians, including the elderly and young children, the commission of
sexual assaults, as well as other attacks on civilians (e.g. whilst
travelling in trams, standing in bread lines and attending funerals).
Other offences alleged relate to unlawful attacks upon civilian
members of humanitarian agencies and the United Nations peacekeeping
forces, humanitarian aid convoys and aircraft at Sarajevo airport. In
the Sarajevo investigation, the Prosecutor is also examining the
individual responsibilities of persons in leadership positions, in
particular Radovan Karadzic and Ratko Mladic.
3. SIGNIFICANT FACTUAL AND LEGAL QUESTIONS
3.1. If the Government of the Republic of Bosnia and Herzegovina
continues investigations which are similar to those being conducted by
the Prosecutor, significant risks are created which may have
implications for investigations before the Tribunal, including, but
not limited to:
3.1.1 Confusion amongst witnesses and cooperating organizations or
governments concerning the scope and authority of the different
investigations and the different rules and confidentiality protections
which govern the two investigations;
3.1.2. Creation of an undue burden on witnesses who are interviewed on
multiple occasions; some witnesses, especially those who have suffered
trauma and those who are at physical risk as a result of their
cooperation, may be unwilling or unable to cooperate fully and
effectively with multiple investigations;
3.1.3. Unnecessarily compromising the credibility of witnesses due to
the inadvertent creation of multiple statements where the statements
were taken under different conditions, in different languages and for
different purposes;
3.1.4. Potential evidentiary problems resulting from different
procedures such as those concerning evidence collection and
preservation, the taking of statements and the questioning of
suspects;
3.1.5. The Tribunal is neither a party to the armed conflict nor is it
constrained by national boundaries and therefore is better able to
obtain witness assistance and evidence worldwide;
3.1.6. A deferral of the investigations of Radovan Karadzic, Ratko
Mladic and Mico Stanisic is likely to encourage governments,
non-govermnental organizations and other sources to furnish to the
Tribunal additional information.
3.2. If the Government of the Republic of Bosnia and Herzegovina
proceeds to trial before the Prosecutor completes his investigation,
the following significant factual and legal issues may have
implications for investigations and prosecutions before the Tribunal-
3.2.1. If Radovan Karadzic, Ratko Mladic and Mico Stanisic stand trial
in the Republic of Bosnia and Herzegovina issues relating to the
principle of non-bis-in-idem, pursuant to Article 10(2) of the
Statute, may arise.
3.2.2. Critical witnesses who have testified in a public national
trial and who will be needed for a trial before the Tribunal will be
exposed to greater risk as their identities and evidence have been
made public;
3.2.3. Witnesses may be reluctant or unwilling to testify, or at the
least significantly inconvenienced, if required to testify in a second
trial;
3.2.4. There is a potential of inadvertently creating inconsistent
sworn evidence;
3.2.S. Critical evidence stored and preserved for trial in war zones
in the Republic of Bosnia and Herzegovina, including Sarajevo, could
be damaged or lost for use before the Tribunal;
3.2.6. International publicity which would result from a trial in
absentia or otherwise in a national court may create a perception of
prejudice in the minds of the accused or the public and may have
implications for a fur trial before the Tribunal;
3.2.7. The legal precedents created and the findings of fact made by a
national court and the Tribunal in regard to Radovan Karadzic, Ratko
Mladic and Mico Stanisic, if in conflict, will be undesirable and not
in the interest of justice.
4. OTHER RELEVANT CONSIDERATIONS
4.1. The Government of the Republic of Bosnia and Herzegovina has
proposed that its investigations of Radovan Karadzic, Ratko Mladic and
Mico Stanisic be deferred to the Tribunal;
4.2. The Government of the Republic of Bosnia and Herzegovina
considers it more reasonable that the Prosecutor take over the
investigations because it is in a better position to approach
witnesses living in other countries and to conduct interviews outside
the borders of the Republic of Bosnia and Herzegovina;
4.3 Given that many witnesses critical to the Prosecutor's
investigation are outside of the Republic of Bosnia and Herzegovina
and may be reluctant to return/travel to a war zone to testify in a
national trial, the Prosecutor is better able to collect evidence
during investigations and present it in trials before the Tribunal;
4.4 If the deferral request is not granted, the Government of the
Republic of Bosnia and Herzegovina will continue its investigations
and will commence a trial in absentia or otherwise, in accordance with
its laws, against Radovan Karadzic, Ratko Mladic and Mico Stanisic.
/s/Richard J. Goldstone
Prosecutor
Dated this 21st day of April 1995
The Hague,
The Netherlands
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APPLICATION BY THE PROSECUTOR FOR A FORMAL REQUEST FOR DEFERRAL BY THE
GOVERNMENT OF THE REPUBLIC OF BOSNIA AND HERZEGOVINA OF ITS
INVESTIGATIONS AND CRIMINAL PROCEEDINGS IN THE MATTERS OF RADOVAN
KARADZIC, RATKO MLADIC AND MICO STANISIC.
SUBMISSIONS BY THE PROSECUTION
INTRODUCTION
1. Last week this Tribunal's other Trial Chamber granted an
application by the Prosecutor relating to the deferral by the
Government of the Republic of Bosnia and Herzegovina of its
investigations and prosecutions into alleged crimes committed by
Bosnian Croat forces against the civilian population of the Lasva
River Valley in Central Bosnia.
2. The present application before this Trial Chamber is a proposal by
the Prosecutor of this Tribunal for the Government of the Republic of
Bosnia and Herzegovina to defer other investigations and prosecutions
to the Tribunal. On this occasion the Prosecutor is seeking to have
the Bosnian Government's investigations into the alleged criminal
activities of Radovan Karadzic, Ratko Mladic and Mico Stanisic
transferred to the Tribunal.
3. This particular deferral application is in conformity with the
Prosecutor's policy to investigate the individual criminal
responsibility of persons in positions of superior authority and
control. This policy includes the investigation of individuals who
gave the unlawful orders to commit crimes over which this Tribunal has
jurisdiction. The policy also includes the investigation of
criminality based on doctrine of command responsibility, which in the
context of this case, refers to the investigation of persons in
positions of superior authority who fail or failed to prevent the
criminal behaviour or to deter the unlawful behaviour of their
subordinates. This imputed responsibility applies if the person in
superior authority knew or had reason to know that his subordinates
were about to commit or had committed crimes and yet failed to take
the necessary and reasonable steps to prevent the commission of such
crimes or to punish those who had committed them.
THE PROSECUTOR'S INVESTIGATION
4. When the Office of the Prosecutor became operational in mid-1994, a
significant focus of the initial investigations involved persons in
positions of authority who were responsible for serious violations of
international humanitarian law in the former Yugoslavia. This is still
the current situation and will continue to be the case.
5. In relation to allegations that such serious violations have been
committed by Bosnian Serbs in Bosnia and Herzegovina, the
investigations by the Office of the Prosecutor have concentrated on
the individual criminal responsibility of the leadership of the
Bosnian Serb administration in Pale.
6. In relation to these investigations the Prosecutor is investigating
a wide range of allegations covering offences within the competence of
the Tribunal including genocide, serious offences against civilians
such as murder, rape, torture and other acts of cruelty as well as the
destruction of cultural and historical property and monuments. These
same offences are also being investigated by the authorities of the
Government of the Republic of Bosnia and Herzegovina, but I will deal
with that issue later in these submissions. In all of the Tribunal's
investigations involving allegations against Bosnian Serbs, the
alleged criminal responsibility of Radovan Karadzic and Ratko Mladic
has been a central focus from the outset and in more recent times the
investigations have included Mico Stanisic.
7. The Prosecutor has already issued indictments against other
individuals for genocide, murder, rape, mistreatment of civilians,
torture, and other offences arising from the operation of detention
camps and from attacks on unnamed civilians. In relation to these
indictments, the Prosecutor is further examining the individual
criminal responsibilities for those crimes of persons in leadership
positions, including Radovan Karadzic, Ratko Mladic and Mico Stanisic.
8. One significant investigation being undertaken by the Prosecutor,
but which at this stage has not resulted in the issue of indictments,
relates to the protracted siege of Sarajevo where allegations include
past and continuing unlawful shelling and sniping incidents. As a
result of such incidents, many thousands of civilians have been killed
and injured. Non-military buildings such as hospitals and cultural
structures have also been unlawfully targeted. In particular, the
Prosecutor is investigating the alleged deliberate and systematic
sniping campaign directed against the civilian population, including
the elderly and young children, as well as the commission of sexual
assaults, other attacks on civilians (e.g. whilst travelling in trams,
standing in bread lines and attending funerals). Other alleged
offences being investigated by the Prosecutor relate to unlawful
attacks upon members of humanitarian agencies, the United Nations
peacekeeping forces, humanitarian aid convoys and manned aircraft at
Sarajevo airport. In the Sarajevo investigation, the Prosecutor is
examining the individual responsibility of persons in leadership
positions, in particular Radovan Karadzic and Ratko Mladic.
THE CASE INVOLVING RADOVAN KARADZIC
9. It is stated in the schedule attached to the Prosecutor's
application that ' Radovan Karadzic was born on 19 June 1945 in the
Municipality of Savnik of the Republic of Montenegro. He is by
profession a psychiatrist who worked in the Neuro-psychiatric Clinic
of the University Medical Centre in Sarajevo. He was a founding
member, and president, of the Serbian Democratic Party of what was
then the Socialist Republic of Bosnia and Herzegovina. After the first
multi-party elections in the Republic, Radovan Karadzic emerged as the
leader of the dominant political party among the Bosnian Serbs and
played an active part in the national political life of the country,
emphasising Serbian nationalist sentiments. Radovan Karadzic is one of
the main architects of that party's political programme involving
extreme nationalist and ethnic policies and objectives. Radovan
Karadzic became the first president of the Bosnian Serb administration
in Pale. The constitution of this administration provides that the
president commands its armed forces. Radovan Karadzic exercises his
power and control from Pale, a town near Sarajevo. Radovan Karadzic
has acted as, and has been dealt with internationally as, the
president of the Bosnian Serb administration in Pale. In that
capacity, Radovan Karadzic has, amongst other things, participated in
international negotiations and has personally made agreements on such
matters as cease-fires and humanitarian relief that have been
implemented."
THE CASE INVOLVING RATKO MLADIC
10. In relation to the suspect Ratko Mladic, he was born in 1943 in
the Kalinovik Municipality of the Republic of Bosnia and Herzegovina.
He is a career military officer and gained his first command in 1965.
In the summer of 1991, he was appointed to command the 9th Corps of
the Yugoslav People's Army (JNA) in Knin in the Republic of Croatia.
Subsequently, he assumed command of the forces of the Second Military
District of the JNA which effectively became the Bosnian Serb army. In
that capacity he has negotiated, among other things, cease-fire and
prisoner exchange agreements that have in fact been implemented.
11. Both Radovan Karadzic and Ratko Mladic have been apprised
repeatedly, through international media reports, reports of
governments and non-governmental organizations and through reports and
resolutions of the United Nations and other international
organizations, of criminal acts amounting to violations of
international humanitarian law allegedly committed by forces under
their control. Part of the Prosecutor's investigations involves the
apparent failure of these two suspects to take the necessary and
reasonable steps to prevent or repress the commission of such crimes
or to punish those who have committed them.
THE CASE INVOLVING MICO STANISIC
12. The third suspect named in the Prosecutor's application, Mico
Stanisic, was born on 30 June 1954 near Pale in the Republic of Bosnia
and Herzegovina,. He was the first minister of internal affairs of the
Bosnian Serb administration in Pale and in that capacity, he was
responsible for the regular and special police forces at both the
regional and local level in the territory which was under Bosnian Serb
control. The Prosecutor's investigations involve allegations that
those police forces were actively involved in organising a campaign of
terror against the non- Serbian population of Bosnia and Herzegovina.
THE INVESTIGATIONS BEING CONDUCTED BY THE BOSNIAN GOVERNMENT
13. The schedule attached to the Prosecutor's application in this
matter sets out the nature of the investigations being conducted by
the Government of the Republic of Bosnia and Herzegovina which
involves investigations into war crimes and violations of the Criminal
Law of the Republic, including genocide, war crimes against the
civilian population and the destruction of cultural and historical
monuments. A number of persons are named in these investigations,
including Radovan Karadzic, the president of the Bosnian Serb
administration in Pale; Ratko Mladic, the military commander of the
Bosnian Serb armed forces; and Mico Stanisic, the former minister of
internal affairs of that administration. National warrants of arrest
have been issued in respect of these named suspects, which authorise
the detention of the suspects in custody for a period of one month to
enable the Bosnian government's investigations to continue.
REASONS IN SUPPORT OF THE APPLICATION:
14. I would now like to address the Trial Chamber in relation to the
reasons for the present application. National investigations and
criminal proceedings have been instituted against Radovan Karadzic,
Ratko Mladic and Mico Stanisic by the Government of the Republic of
Bosnia and Herzegovina for crimes alleged to have taken place in its
territory. These national investigations and criminal proceedings
involve issues closely related to, or otherwise involve, significant
factual or legal questions which may have implications for
investigations or prosecutions before the Tribunal.
15. The Prosecutor of this Tribunal is currently conducting
investigations into crimes within the jurisdiction of the Tribunal
that have taken place within the territory of the Republic of Bosnia
and Herzegovina in which Radovan Karadzic, Ratko Mladic and Mico
Stanisic are suspects.
16. The Minister of Justice of the Bosnian Government has proposed, in
a letter dated 12 December 1994, that the Tribunal take over the
investigation of Radovan Karadzic and Ratko Mladic. Further, in their
written submissions, which were filed with the Registrar of this
Tribunal on Monday 8 May 1995, the Bosnian Government has again
proposed that its investigations be deferred to the Tribunal. stating
that it does not oppose the issue of a formal request for the deferral
of all investigations and criminal proceedings in respect of Radovan
Karadzic, Ratko Mladic and Mico Stanisic.
17. It is stated in paragraph 11 of those written submission of the
Government of the Republic of Bosnia and Herzegovina that in the
absence of a formal request for deferral that Government intends to
pursue its investigations of Radovan Karadzic, Ratko Mladic and Mico
Stanisic and will proceed to trial. It is submitted that from the
Tribunal's point of view this would be undesirable and not in the
interest of justice.
18. In any event, it is submitted that this Tribunal is the proper
forum to try the suspects nominated in the present application,
particularly having regard to the gravity of the crimes under
investigation by the Prosecutor.
19. The Prosecutor of this Tribunal is in a better position to
approach witnesses living in other countries and to conduct
interviews outside the borders of the Republic of Bosnia and
Herzegovina and this is an additional reason for a deferral in this
case.
20. It is submitted that a related reason for granting the present
application is that many of the important witnesses who are located
outside the Republic of Bosnia and Herzegovina may be reluctant to
return or travel to Bosnia and Herzegovina to testify in a national
trial, and accordingly the Office of the Prosecutor is in a better
position to collect evidence and to complete the investigations and to
present that evidence before the Tribunal.
21. Further, it is submitted that the deferral of the Bosnian
Government's - investigation in respect of Radovan Karadzic, Ratko
Mladic and Mico Stanisic is likely to encourage or enable
governments, non-governmental agencies, and other sources to furnish
evidence and information to the Tribunal that thus far has not been
provided. Following the announcement of the two deferral applications
the attitude of some governments and non-governmental organisations
have become more positive towards the Tribunal.
IMPLICATIONS FOR THE TRIBUNAL IF THE BOSNIAN GOVERNMENT'S
INVESTIGATIONS AND PROSECUTIONS PROCEED:
22. There are several significant implications for the
investigations being undertaken by the Office of the Prosecutor and
any subsequent proceedings before the Tribunal if the Government of
the Republic of Bosnia and Herzegovina continues investigations which
are similar to those being conducted by the Office of the Prosecutor.
In this regard it is submitted that the Prosecutor's investigations
which have not been completed could be severely and significantly
prejudiced if the investigations and prosecutions being undertaken by
the Bosnian Government continue.
23. First, it is likely that considerable confusion may result amongst
witnesses and cooperating organisations or governments concerning the
scope and authority of parallel investigations being undertaken by
the Tribunal and the Bosnian Government. In this regard there are
different rules and confidentiality protections which govern the two
investigations. Of greater concern, however, is the undue burden which
is placed on witnesses who are interviewed by different investigating
bodies, on different occasions, and the resulting possibility of
compromising the credibility of witnesses due to the inadvertent
creation of multiple statements. It is relevant to mention in this
regard that almost all of the statements taken by the Office of the
Prosecutor require the services of interpreters, and this is an added
circumstance which could bring about apparent inconsistencies between
statements taken by the Prosecutor's investigators on the one hand
and by the Bosnian investigators on the other. This burden on
witnesses who are interviewed on multiple occasions is particularly
relevant to witnesses who have suffered trauma and who may be at
physical risk as a result of their cooperation. Witnesses faced with
these burdens could in fact refuse to cooperate with any investigating
body.
24. Secondly, separate investigations are likely to lead to
evidentiary problems which may result from different investigative
procedures such as those concerning the collection and preservation of
evidence, the taking of statements and the questioning of suspects.
25. Thirdly, if the Government of the Republic of Bosnia and
Herzegovina proceeds to trial before our investigations are completed
it is likely that there may be a number of legal issues which could
have implications for our investigations and any prosecutions before
the Tribunal. These legal implications were also raised in last week's
deferral application by the Prosecutor and they include the principle
of non-bis-in-idem, which may arise, pursuant to Article 10(2) of the
Statute of the Tribunal, if Radovan Karadzic, Ratko Mladic and Mico
Stanisic stand trial in the Republic of Bosnia and Herzegovina.
26. Fourth, if the persons nominated as suspects in this application
are tried in absentia, in the courts of Bosnia and Herzegovina, there
may be legal implications for the Tribunal by reasons of the fact
that crucial witnesses, who will be required to testify before the
Tribunal, will be exposed to greater risks if their identities and
the evidence they can give has already been made public in a public
national trial.
27. Fifthly, witnesses may be reluctant, or at least significantly
inconvenienced, if required to testify in a subsequent trial before
this Tribunal after they have already given evidence before a
national court.
28. Further there may also be a risk that important evidence, which is
being retained for use in a trial in a national court in a war zone
within the Republic of Bosnia and Herzegovina, could be damaged or
destroyed before it can be secured for use before the Tribunal.
29. Finally, international publicity which would result from a trial
in absentia or otherwise in a national court may create a perception
of prejudice in the minds of the accused or the public and may have
implications for a fair trial before the Tribunal.
CLOSING SUBMISSIONS AND FORM OF ORDER SOUGHT:
30. I submit, on behalf of the Prosecutor, that the present
application is in full compliance with the provisions of the
Tribunal's Statute and Rules and that the national investigations and
criminal proceedings in question involve issues closely related to, or
otherwise involve, significant factual or legal questions which may
have implications for investigations or prosecutions before the
Tribunal.
31. If your Honours are satisfied that a deferral in relation to this
present application is appropriate, having regard to the matters that
have been submitted on behalf of the Prosecutor, then pursuant to Rule
10 of the Tribunal's Rules of Procedure and Evidence, we propose that
the Trial Chamber issue a formal request to the Government of the
Republic of Bosnia and Herzegovina in the following terms namely:
(A) In respect of serious violations of international humanitarian law
over which this Tribunal has jurisdiction, as specified in Articles 2,
3, 4 and 5 of the Tribunal's Statute, that the courts of the Republic
of Bosnia and Herzegovina defer to the competence of the Tribunal in
regard to their investigations and criminal proceedings involving
Radovan Karadzic, Ratko Mladic and Mico Stanisic; and
(B) In regard to all such investigations of Radovan Karadzic, Ratko
Mladic and Mico Stanisic, the Tribunal requests that the Government of
the Republic of Bosnia and Herzegovina forward to the Tribunal the
results of the said investigations and copies of the court's records
and judgments, if any.
-------------------------------------------------
INTERNATIONAL CRIMINAL COURT
FOR THE FORMER YUGOSLAVIA
IN THE TRIAL CHAMBER
OF THE INTENTIONAL CRIMINAL
TRIBUNAL FOR THE FORMER
YUGOSLAVIA
CASE NO: IT-95-5-D
APPLICATION BY THE PROSECUTION
FOR A FORMAL REQUEST FOR DEFERRAL
BY THE GOVERNMENT OF THE REPUBLIC
BOSNIA AND HERZEGOVINA OF ITS
INVESTIGATIONS AND CRIMINAL
PROCEEDINGS IN RESPECT OF RADOVAN
KARADZIC. RATKO MLADIC AND MICO
STANISIC
SUBMISSION BY THE GOVERNMENT OF
THE REPUBLIC OF BOSNIA AND HERZEGOVINA
1. National investigations and criminal proceedings have been
instituted against Radovan Karadzic, Ratko Mladic and Mico Stanisic by
the Government of the Republic of Bosnia and Herzegovina (the
"Republic") in respect of war crimes and violations of the Criminal
Law of the Republic, including genocide (Article 141), war crimes
against the civilian population (Article 142) and destruction of
cultural and historical monuments (Article 151), alleged to have taken
place in its territory.
2. The Republic is aware that the Prosecutor of the International
Criminal Tribunal is currently conducting investigations into crimes
within the jurisdiction of the Tribunal that have taken place within
the territory of the Republic of Bosnia and Herzegovina in which
Radovan Karadzic, Ratko Mladic and Mico Stanisic are suspects.
3. Further, the Republic is aware that national investigations and
criminal proceedings involve issues closely related to, or otherwise
involve, significant factual or legal questions which may have
implications for investigations or prosecutions before the Tribunal.
4. The Republic proposes that its investigations of Radovan Karadzic,
Ratko Mladic and Mico Stanisic be deferred to the Tribunal.
5. The Republic is fully conversant of the application being brought
by the Prosecutor of the Tribunal for deferral of the Government's
investigations and criminal proceedings in respect of Radovan
Karadzic, Ratko Mladic and Mico Stanisic
6. The Republic believes that the contents of the said application and
attached schedule dated the 21st of April 1995 are true.
7. The Republic does not oppose the issue of a formal request by the
Trial Chamber for the deferral of all investigations and criminal
proceedings in respect of Radovan Karadzic, Ratko Mladic and Mico
Stanisic.
8. The Republic will lend its full support to the work of the
Tribunal, and to the extent that this is legally possible, comply with
requests made by the Tribunal and its prosecution authority within
their competence.
9. If the Tribunal addresses to the Republic a formal request for
"deferral" of the criminal proceedings presently underway against
Radovan Karadzic, Ratko Mladic and Mico Stanisic in respect of war
crimes and violations of the Criminal Law of the Republic, including
genocide, war crimes against the civilian population and destruction
of cultural and historical monuments, which are currently being
conducted by the Government, the competent Republic authorities will
make available to the Tribunal all knowledge which has been gathered
in investigations which have been carried out, as well as any which
may be gathered in the future, together with copies of the court's
records and judgements, if any.
10. The Ministry of the Interior of the Republic has issued national
warrants of arrest for Radovan Karadzic, Ratko Mladic and Mico
Stanisic for the purposes of investigation.
11. The Republic, in the absence of a formal request for deferral
issued by the Tribunal, intends to pursue its investigation of Radovan
Karadzic, Ratko Mladic and Mico Stanisic and will proceed to trial.
Mrs Vasvija Vidovic
Representative of the Government
of the Republic of Bosnia and
Herzegovina
Dated the 15th May 1995
Brussels
Belgium
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