In this May 16 ruling, The International War Crimes Tribunal for the Former Yugoslavia grants a prosecution request to ask the Republic of Bosnia and Herzegovina to defer the trial of three highly-placed Bosnian Serb officials to the tribunal.

UNITED NATIONS

International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations
of International Humanitarian Law
Committed in the Territory of
Former Yugoslavia since 1991

IN THE TRIAL CHAMBER

Case No. IT-95-5-D

Date: 16 May 1995

Original: English and French


Before:     

Judge Karibi-Whyte, Presiding
Judge Odio Benito
Judge Jorda

Registrar:  Mrs. Dorthee de Sampayo Garrido-Nijgh


Decision of: 16 May 1995


IN THE MATTER OF A PROPOSAL FOR
A FORMAL REQUEST FOR DEFERRAL
TO THE COMPETENCE OF THE TRIBUNAL
ADDRESSED TO THE REPUBLIC OF BOSNIA
AND HERZEGOVINA IN RESPECT OF
RADOVAN KARADZIC, RATKO MLADIC
AND MICO STANISIC


DECISION


The Office of the Prosecutor:

Mr. Richard J. Goldstone
Mr. Graham Blewitt
Mr. Grant Niemann

Amicus Curiae: Ms. Vasvija Vidovic - Republic of Bosnia and
Herzegovina


THE TRIAL CHAMBER


Considering the Application dated 21 April 1995 ("the
Application"), filed by the Prosecutor of the International
Criminal Tribunal for the Former Yugoslavia ("the
International Tribunal"),

Noting that the Trial Chamber has been designated by the
President of the International Tribunal pursuant to Rule 9
of the Rules of Procedure and Evidence ("the Rules") of the
International Tribunal to determine the Application,

Having read and considered the Application and the Schedule
("the Schedule") annexed thereto,

Having granted leave to the representative of the Government
of the Republic of Bosnia and Herzegovina to appear as
amicus curiae, and having read and considered the submission
of such representative,

Having heard both the Prosecutor and the representative of
the Government of the Republic of Bosnia and Herzegovina at
a public sitting held at The Hague on 15 May 1995,

HEREBY ISSUES ITS DECISION.

I - The Application


1. This is an application by Richard J. Goldstone,
Prosecutor of the International Tribunal, made pursuant to
Article 9(2) of the Statute of the International Tribunal in
accordance with Rule 9 (iii) of the Rules. The Application
is for the issue of a formal request from this Trial Chamber
to the Government of the Republic of Bosnia and Herzegovina
for the deferral to the competence of the International
Tribunal of all investigations and criminal proceedings
involving Radovan Karadzic, Ratko Mladic and Mico Stanisic
being conducted by the Government of the Republic of Bosnia
and Herzegovina in the territory of the former Yugoslavia
since 1991, pursuant to Rule 10 of the Rules.

      2. The Prosecutor states, and the Government of the
Republic of Bosnia and Herzegovina has confirmed in both its
written and oral submissions, that it is currently
conducting investigations into war crimes and violations of
the criminal laws of the Republic of Bosnia and Herzegovina.
Criminal proceedings have been instituted by the Government
of the Republic of Bosnia and Herzegovina against Radovan
Karadzic, the Bosnian Serb leader; Ratko Mladic, the
military commander of the Bosnian Serb armed forces; and
Mico Stanisic, in charge of Bosnian Serb internal affairs,
in respect of alleged war crimes and violations of Articles
141, 142 and 151 of the Criminal Law of the Socialist
Federal Republic of Yugoslavia as recognised by the Republic
of Bosnia and Herzegovina, which include genocide, war
crimes against the civilian population, and destruction of
cultural and historic monuments.

      3. Various documents cited in the Prosecutor's
Application and mentioned at the hearing (documents dated 12
June 1992, 17 August 1992, 26 December 1992 and 20 September
1993) indicate that, one, the Higher Public Prosecutor's
Office in Sarajevo submitted a request to the Higher Court
in Sarajevo for the opening of an investigation in respect
of these suspects, and secondly, the District Military
Prosecutor's Office also lodged a request for an
investigation involving the same individuals to a District
Military Court relating to alleged offences which are within
the jurisdiction of the Tribunal. The Prosecutor furthermore
stated that contacts between the Ministry of Justice of the
Republic of Bosnia and Herzegovina and the Prosecutor of the
International Tribunal have enabled the investigative steps
regarding the suspects to be outlined. It was confirmed at
the hearing that national arrest warrants have been issued
by the Government of the Republic of Bosnia and Herzegovina.

      4. The Prosecutor states in the Schedule, and it was
confirmed at the hearing, that he is conducting
investigations into a wide range of violations which are
within the jurisdiction of the Tribunal, in particular
genocide, crimes against civilians, and the destruction of
cultural and historical monuments. It was also confirmed at
the hearing that those violations are identical to those in
respect of which investigations are being carried out on
Bosnian territory. A significant focus of these
investigations relates to persons in positions of authority
who are or were responsible for serious violations of
international humanitarian law in the former Yugoslavia. The
Prosecutor's view is that the matter of the individual
criminal responsibility of the three persons in political,
military or police leadership positions must be examined.

       5. The Prosecutor has also initiated an investigation
into the criminal responsibility of Radovan Karadzic, Ratko
Mladic and Mico Stanisic arising out of indictments already
issued by the International Tribunal against various named
individuals for genocide, murder, rape, mistreatment of
civilians, torture, and other offences allegedly committed
in the running of detention camps.

      6. Finally, the Prosecutor mentioned a significant
investigation concerning the prolonged siege of Sarajevo
(including attacks, considered unlawful, against civilian
members of humanitarian organizations, United Nations
peace-keeping forces and humanitarian-aid convoys).

      7. The Prosecutor's investigations place the main
focus on the positions of authority held by the three
suspects who are allegedly guilty of serious violations of
international humanitarian law in the territory of the
former Yugoslavia. In the Schedule the involvement of
Radovan Karadzic, Ratko Mladic and Mico Stanisic is
described, as was confirmed by the representative of the
Government of the Republic of Bosnia and Herzegovina at the
hearing, as follows:

';Radovan Karadzic is one of the main architects of the
[Serbian Democratic Party] 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.

Ratko Mladic . . . is a career military officer . . . 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.

Mico Stanisic . . . 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."

      8. The legal basis for these investigations by the
Prosecutor is Article 7 of the Statute of the International
Tribunal concerning individual criminal responsibility, a
concept discussed in paragraphs 55 and 56 of the Report of
the Secretary-General of the United Nations dated 3 May 1993

      9. Notwithstanding that national courts are vested
with concurrent jurisdiction by Article 9 of the Statute of
the International Tribunal, the Prosecutor, relying on Rule
9, is proposing that a formal request be issued to the
Republic of Bosnia and Herzegovina, pursuant to Rule 10 of
the Rules, to defer its investigations and criminal
proceedings in respect of Radovan Karadzic, Ratko Mladic and
Mico Stanisic, to the competence of the International
Tribunal, and to provide the Prosecutor with all information
concerning its investigations.

     10. The Prosecutor states that the continuation by the
Government of the Republic of Bosnia and Herzegovina of
investigations similar to those being conducted by the
Prosecutor could have significant implications for those
investigations, as set out in the Schedule.

     11. In particular, the Prosecutor refers to a number of
matters which may have implications for his investigations
or any subsequent prosecutions. Matters involving
significant factual questions include:

(i) witnesses may be exposed to greater risks as their
identities and evidence will already have been made public;

(ii) witnesses may be unwilling or unable to testify for a
second time;

(iii) critical evidence stored in war zones in the Republic
of Bosnia and Herzegovina could be damaged or lost before
use by the International Tribunal;   

(iv) witnesses may become confused as to the scope and
authority of the two investigations;   

(v) the International Tribunal is not a party to the
conflict in the Republic of Bosnia and Herzegovina and has a
better ability to obtain evidence worldwide;   

(vi) deferral of these investigations may encourage
Governments and other sources to furnish additional
information to the International Tribunal that has thus far
not been provided.

Those involving significant legal issues include:

(vii) issues relating to the principle of non-bis-in-idem;

(viii) there is the potential inadvertently to create
inconsistent sworn evidence;

(ix) issues relating to possible trials in absentia which
may be held in the Republic of Bosnia and Herzegovina;   

(x) it would be undesirable and not in the interest of
justice if the decisions of a national court and of the
International Tribunal were to conflict.

12. The Government of the Republic of Bosnia and
Herzegovina, appearing as amicus curiae, has indicated in
both its written and oral submissions that it 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.


II - Discussion                                            
              

13. Article 8 of the Statute of the International Tribunal
extends its territorial jurisdiction to the territory of the
former Socialist Republic of Yugoslavia, including its land
surface, airspace and territorial waters, beginning on 1
January 1991. Article 9 of the Statute provides as

follows:

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

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

However, the right to primacy can only be exercised on a
formal request to the national court to defer to the
competence of the International Tribunal. The Rules provide
the modus for the exercise of the right.

14. Rule 9 of the Rules provides as follows:

Where it appears to the Prosecutor that in any such
investigations or criminal proceedings instituted in the
courts of any State:

  (i) . . .

  (ii) . . .

  (iii) what is in issue is closely related to, or otherwise
involves, significant factual or legal questions which may
have implications for investigations or prosecutions before
the Tribunal, the Prosecutor may propose to the Trial
Chamber designated by the President that a formal request be
made that such court defer to the competence of the
Tribunal.

15. To comply with the enabling provisions for grant of the
Application, the Prosecutor must therefore establish that:

     (a) national investigations or criminal proceedings
have been instigated by the Republic of Bosnia and
Herzegovina in respect of suspects including Radovan
Karadzic, Ratko Mladic and Mico Stanisic;      (b)
investigations are currently being conducted by the
Prosecutor into crimes within the jurisdiction of the
International Tribunal, including the individual criminal
responsibilities of persons in political, military and
police leadership positions, including Radovan Karadzic,
Ratko Mladic and Mico Stanisic;      (c) what is in issue in
the national investigations or criminal proceedings is
closely related to, or otherwise involves, significant
factual or legal questions which may have implications for
the investigations of the Prosecutor and any subsequent
proceedings before the International Tribunal.

16. The Trial Chamber notes that Radovan Karadzic, Ratko
Mladic and Mico       Stanisic are the subject of
investigations instituted by the Government of       the
Republic of Bosnia and Herzegovina into the same alleged
offences being investigated by the Prosecutor and that the
investigations and any criminal proceedings that may be
instituted by the national courts of the Republic of Bosnia
and Herzegovina in respect of the matters listed in
paragraphs 2 and 3 hereof, relate to the same issues. The
Government of the Republic of Bosnia and Herzegovina does
not contest these points.

     17. The Trial Chamber further notes that 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 and that he is examining
the individual criminal responsibilities of persons in
political, military and police leadership positions,
including Radovan Karadzic, Ratko Mladic and Mico Stanisic.
It does indeed appear from the Application that the three
named persons hold such positions of authority.

     18. A reading of the Schedule clearly supports the
claim that the investigations and proceedings instituted by
the Government of the Republic of Bosnia and Herzegovina in
respect of Radovan Karadzic, Ratko Mladic and Mico Stanisic
involve significant factual or legal questions which have an
impact on the investigations instituted by the Prosecutor in
respect of serious violations of international humanitarian
law in the territory of the former Yugoslavia. The Trial
Chamber refers in particular to paragraphs 3 . I and 3.2 of
the Schedule.

     19. These issues are not disputed by the Government of
the Republic of Bosnia and Herzegovina.

     20. Consequently, the Trial Chamber is satisfied that
the Prosecutor has shown that the investigations being
carried out by the Prosecutor and by the Government of the
Republic of Bosnia and Herzegovina in respect of Radovan
Karadzic, Ratko Mladic and Mico Stanisic involve the same
alleged crimes, in particular, genocide, offences against
civilians and destruction of cultural and historical
monuments and that the issues in any criminal proceedings
that may be instituted by the Government of the Republic of
Bosnia and Herzegovina in respect of such crimes would
involve significant factual or legal questions which may
have implications for investigation or prosecutions before
the International Tribunal .

     21. The Government of the Republic of Bosnia and
Herzegovina has also made clear its intent to pursue its
investigations of Radovan Karadzic, Ratko Mladic and Mico
Stanisic and to proceed to trial in the absence of a formal
request for deferral.

     22. Proceedings in respect of persons in positions of
authority before the International Tribunal derive expressly
from Article 7 of the Statute of the International Tribunal
and more particularly, from paragraphs 1, 2 and 3 thereof.

     23. The punishment for the crimes allegedly committed
by such individuals is also based on the general principles
of international humanitarian law, and derives in particular
from the precedents laid down by Nuremberg and Tokyo;
furthermore, the principle of individual criminal
responsibility of persons in positions of authority has been
reaffirmed in a number of decisions taken by national
courts, and adopted in various national and international
legal instruments.

     24. It follows from the above principle that the
official capacity of an individual even de facto in a
position of authority - whether as military commander,
leader, or as one in government - does not exempt him from
criminal responsibility and would tend to aggravate it; and,
moreover, it is that position of authority which would have
enabled the suspects to plan, instigate, or order the crimes
in respect of which the above-mentioned investigations have
been conducted, or given them the means to prevent the said
crimes, or at the least to punish their perpetrators.

     25. Accordingly, more so than those just carrying out
orders, they would thus undermine international public
order; and therefore the International Tribunal established
by the international community to restore that order is
particularly well-founded to invoke its primacy over
national courts, as acknowledged in Article 9 (2) of the
Statute of the International Tribunal.

     26. The Trial Chamber has already concluded in
paragraph 20 that the Prosecutor has established the grounds
laid down in Rule 9(iii). In addition, the Trial Chamber
notes that the International Tribunal is the appropriate
forum to try the persons responsible for the kinds of crimes
covered by the investigations currently being conducted by
the Government of the Republic of Bosnia and Herzegovina in
respect of Radovan Karadzic, Ratko Mladic and Mico Stanisic
and to examine the individual criminal responsibilities of
persons in political, military and police leadership
positions. Indeed, it could be stated that it is one of the
fundamental purposes of the International Tribunal to
exercise its primacy in such cases.

     27. The Trial Chamber is satisfied that deferral of the
investigations and proceedings which are the subject of this
Application is appropriate and, pursuant to Article 9 of the
Statute and Rules 9 and 10, issues a formal request for
deferral to the Government of the Republic of Bosnia and
Herzegovina as hereinafter set forth.


III - Decision

THE TRIAL CHAMBER BASED ON THE FOREGOING DETERMINES AS
FOLLOWS:                                                   
  

considering all the matters before it and addressed in the
public hearing, and considering the requirements contained
in Rule 9(iii) of the Rules,

the Trial Chamber consisting of Judge Karibi-Whyte, as
Presiding Judge, Judge Odio Benito and Judge Jorda, being
seized of the Application made by the Prosecutor,

HEREBY GRANTS the said Application,

FORMALLY REQUESTS the Government of the Republic of Bosnia
and Herzegovina, in respect of serious violations of
international humanitarian law over which the International
Tribunal has jurisdiction, as specified in Articles 2 to 5
of the Statute of the International Tribunal, that the
courts of the Republic of Bosnia and Herzegovina defer to
the competence of the International Tribunal in regard to
their investigations and criminal proceedings involving
Radovan Karadzic, Ratko Mladic and Mico Stanisic,

INVITES the Government of the Republic of Bosnia and
Herzegovina to take all necessary steps, both legislative
and administrative, to comply with this Formal Request and
to notify the Registrar of the International Tribunal of the
steps taken to comply with this Formal Request, and

REQUESTS that the Government of the Republic of Bosnia and
Herzegovina forward to the International Tribunal the
results of its investigations and a copy of the records and
judgment, if any, of its national courts.

The Trial Chamber requests the Registrar of the
International Tribunal to notify the Government of the
Republic of Bosnia and Herzegovina of this its Decision and
Formal Request.


Dated this sixteenth day of May 1995
The Hague
The Netherlands

/s/Adolphus G. Karibi-Whyte
Presiding Judge

[Seal of the Tribunal]