file://///cs/WWork/Ictysite/milosevic/trialc/judgement/040616.htm Case No. IT-02-54-T IN THE TRIAL CHAMBER Before: Judge Patrick Robinson, Presiding Judge O-Gon Kwon Judge Iain Bonomy Registrar: Mr. Hans Holthuis Decision: 16 June 2004 PROSECUTOR v. SLOBODAN MILOSEVIC __________________________________ DECISION ON MOTION FOR JUDGEMENT OF ACQUITTAL __________________________________ The Office of the Prosecutor Ms. Carla Del Ponte Mr. Geoffrey Nice Mr. Dermot Groome Ms. Hildegard Uertz-Retzlaff The Accused Mr. Slobodan Milosevic Amici Curiae Mr. Steven Kay, QC Prof. Timothy L.H. McCormack I. GLOSSARY A. Abbreviations and Acronyms B/C/S Abbreviation B/C/S English English Abbreviation BHS Bosnanski/Hrvatski Bosnian/Croatian B/C/S; BCS /Srpski /Serbian BiH Bosna i Hercegovina Bosnia and BH Herzegovina DB drzavna bezbednost state security DB 1 of 102 20/03/2009 11:54 AM file://///cs/WWork/Ictysite/milosevic/trialc/judgement/040616.htm EU Evropska unija European Union EU EZ Evropska zajednica European EC Community FBiH Federacija Bosne i Federation of Bosnia FBiH Hercegovine and Herzegovina JATD Jedinica za Anti-Terrorist JATD antiteroristicko Operations Unit dejstvo/delovanje JNA Jugoslovenska Yugoslav People’s JNA narodna armija Army JSO Jedinica za specijalne Special Operations JSO operacije Unit KMP; ILC Komisija za International Law ILC medjunarodno pravo Commission LDK; DSK Demokratski savez Democratic Alliance/ LDK Kosova Democratic League of Kosovo MKCK Medjunarodni International ICRC komitet crvenog Committee of the krsta Red Cross MKS, ICC Medjunarodni International ICC krivicni sud Criminal Court MKSR Medjunarodni International ICTR krivicni sud za Criminal Tribunal for Ruandu Rwanda MUP Ministarstvo Ministry of the MUP unutrasnjih poslova Interior MVS Medjunarodni vojni International Military IMT sud Tribunal NATO Organizacija North Atlantic Treaty NATO sjevernoatlantskog Organisation ugovora OEBS; OESS; Organizacija za Organization for OSCE OSSE evropsku bezbednost Security and i saradnju - S; Co-operation in Organizacija za Europe europsku sigurnost i suradnju - C; Organizacija za sigurnost i suradnju u Europi - C 2 of 102 20/03/2009 11:54 AM file://///cs/WWork/Ictysite/milosevic/trialc/judgement/040616.htm OUN Organizacija United Nations UN; UNO ujedinjenih Organization nacija/naroda OVK; UCK; UÇK; Oslobodilacka vojska Kosovo Liberation KLA; UCK; UCK UCK Kosova Army RS Republika Srpska Republika Srpska RS RSK (SRK) Republika Srpska Republic of Serbian RSK Krajina Krajina SAO Srpska autonomna Serbian Autonomous SAO oblast District/Region SBZS Slavonija, Baranja i Slavonia, Baranja SBWS zapadni Srem and Western Srem SDA Stranka demokratske Party for Democratic SDA akcije Action SDK Sluzba drustvenog Public Auditing SDK knjigovodstva Service SDS Srpska demokratska Serbian Democratic SDS stranka Party SFRJ Socijalisticka Socialist Federal SFRY Federativna Republic of Republika Yugoslavia Jugoslavija SMB sivo-maslinasta boja olive drab (uniform) SMB SPGS Specijalni Special SRSG predstavnik Representative of the generalnog sekretara Secretary-General SPS Socijalisticka partija Socialist Party of SPS Srbije Serbia SRJ Savezna Republika Federal Republic of FRY Jugoslavija Yugoslavia SUP Sekretarijat Secretariat of the SUP unutrasnjih poslova Interior TO teritorijalna odbrana Territorial Defence TO UNPROFOR Zastitne snage United Nations UNPROFOR Ujedinjenih Protection Force nacija/naroda UNTS Sporazumi United Nations UNTS Ujedinjenih naroda Treaty Series 3 of 102 20/03/2009 11:54 AM file://///cs/WWork/Ictysite/milosevic/trialc/judgement/040616.htm VJ Vojska Jugoslavije; Yugoslav Army; JA Vojska Savezne Army of the FRY; Republike Army of the Federal Jugoslavije Republic of Yugoslavia VRS Vojska Republike Army of Republika VRS; BSA Srpske; Vojska Srpska; Bosnian Serb bosanskih Srba Army VSO Vrhovni savet Supreme Defence SDC odbrane Council II. INTRODUCTION A. Procedural Background 1. On 7 April 2003, the Amici Curiae filed a motion seeking directions on their future role, including the question as to whether they should file a motion pursuant to Rule 98bis of the Rules of Procedure and Evidence (“Rules”) at the close of the Prosecution case.1 On 27 June 2003, the Trial Chamber issued an order stating, inter alia, that “the amici curiae may submit a Motion pursuant to Rule 98 bis within seven days of the close of the Prosecution case”.2 2. Considerably later, on 4 February 2004, the Prosecution filed an objection to the Amici Curiae filing a Rule 98 bis Motion on behalf of the Accused, relying on a Separate Opinion of Judge Shahabuddeen concerning the right of the Amici Curiae to file applications on behalf of the Accused.3 The Trial Chamber disposed of the Prosecution Motion on 5 February 2004, stating that the Appeals Chamber itself had decided to consider an appeal brought by the Amici Curiae, and in so doing proceeded on the basis they had locus standi, that the filing by the Amici Curiae of a Motion pursuant to Rule 98 bis did not in any way prejudice the Prosecution, nor infringe the interests of the Accused, and that it was in the interests of justice as a whole for such a Motion to be brought.4 3. On 25 February 2004, the Prosecution closed its case and the Trial Chamber ordered, inter alia, that any motion under Rule 98 bis should be filed by the Accused or Amici Curiae by 8 March 2004, and that any Response by the Prosecution was to be filed by 22 March 2004.5 The Accused has not filed a motion under Rule 98 bis. B. The Rule 98 bis Motion 4. On 3 March 2004, the Amici Curiae filed their “Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis”, along with two confidential Annexes and a public Annex (“Motion”). On 23 March 2004, the Prosecution filed its confidential “Prosecution Response to Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis” (“Response”). 5. The Motion may be summarised as follows: (1) The Prosecution has failed to establish the existence of an “armed conflict” in Kosovo prior to 24 March 1999, requiring parts of the Kosovo Indictment dependent on this legal precondition to be excised from that Indictment;6 (2) The failure to establish that Croatia was a state before some time between 15 January and 22 May 1992. Consequently the conflict in Croatia was not international before that time and therefore all grave breaches counts in the Croatia Indictment 4 of 102 20/03/2009 11:54 AM file://///cs/WWork/Ictysite/milosevic/trialc/judgement/040616.htm which go to alleged crimes committed before these dates must be dismissed;7 (3) There is no evidence that the Accused planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a genocide, any genocidal acts, or that he was complicit in such, and that the mens rea requirement for establishing the crime of genocide is incompatible with the mens rea requirement for the third category of a joint criminal enterprise and command responsibility, as alleged in the Bosnia Indictment;8 and (4) In relation to 185 separate allegations contained in the three Indictments, there is no or insufficient evidence.9 6. The Response may be summarised as follows: (1) In respect of the argument that the Prosecution has failed to establish there was an “armed conflict” in Kosovo prior to 24 March 1999, the evidence adduced by the Prosecution during the trial is sufficient (if accepted) to satisfy a trier of fact beyond reasonable doubt that an armed conflict existed in Kosovo at all times relevant to the Kosovo Indictment;10 (2) In respect of the argument concerning the internationality of the conflict and the date on which Croatia became a state, as of 8 October 1991, the conflict in Croatia can be said to be international in character in so far as Croatia can be said to have satisfied the criteria of statehood under general international law by this date;11 (3) In respect of the argument concerning the lack of evidence that the Accused planned, instigated, ordered, committed, or otherwise aided and abetted, or was complicit in, the planning, preparation, or execution of a genocide, there is evidence if accepted such that a trier of fact could convict. The Prosecution submits that the mens rea requirement for establishing the crime of genocide is compatible with the mens rea requirement for the third category of a joint criminal enterprise and with command responsibility, and relies on a recent Appeals Chamber Decision in support of this submission;12 and (4) In respect of some of the challenged allegations in the three Indictments, it is conceded that there is no or insufficient evidence led to meet the legal standard required under Rule 98 bis and the Prosecution does not object to a judgment of acquittal being entered in respect of these allegations. However, many of the challenges to the Indictments are not conceded by the Prosecution.13 7. The Trial Chamber will now consider the Motion by the Amici Curiae and the Prosecution Response. III. APPLICATION OF RULE 98 BIS – THE LAW 8. Rule 98bis provides as follows: Motion for Judgement of Acquittal (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii). (B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges. 9. The degree of proof necessary in a Rule 98bis Motion was settled by the Appeals Chamber in Prosecutor v. Jelisic,14 where it confirmed its holding in Prosecutor v. Delalic15 that the test for 5 of 102 20/03/2009 11:54 AM file://///cs/WWork/Ictysite/milosevic/trialc/judgement/040616.htm determining whether “the evidence is insufficient to sustain a conviction” is “whether there is evidence (if accepted) upon which a tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question..