Prosecutor v. Naser Orić: The International Criminal Tribunal for the Former Yugoslavia Judgment of Srebrenica's Muslim Wartime Commander

Leiden Journal of International Law

Volumn 19, Issue 4, 2006, Pages 1077-1093

  Blumenstock, Tilman ^a   Pittman, Wayde ^a  

^a Chambers Legal Support Section   (Netherlands)

Author keywords

Article 7(3); command responsibility; disclosure; reason to know; Rule 68; superior responsibility

Indexed keywords

EID: 85010119612     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S092215650600375X     Document Type: Article

References (68)

1. Prosecutor v. Oric’, CaseNo. IT-03-68-T, Judgement, 30 June 2006 (hereafter Judgement). The trial chamberwas composed of Judges Carmel Agius (Malta), Hans Henrik Brydensholt (Denmark) and Albin Eser (Germany).
2. See generally Prosecutor v.Krstic’, CaseNo. IT-98-33-T, Judgement, 2August 2001; Prosecutor v. Blagojevic’ and Jokic’, Case No. IT-02-60-T, Judgement, 17 January 2005. The ICTY Appeals Chamber confirmed that the Bosnian Serb forces had committed genocide. See Prosecutor v. RadislavKrstic’, CaseNo. IT-98-33-A, Judgement, 19April 2004, paras. 5-38.
3. The prosecution has, among other things, appealed the ‘manifestly inadequate sentence’. See Prosecutor v. Oric’, Case No. IT-03-68-A, Prosecution's Notice of Appeal, 31 July 2006 (hereafter Prosecution Notice of Appeal), para. 29.
4. See Prosecutor v. Oric’, Case No. IT-03-68-A, Notice of Appeal on Behalf of Naser Oric’ pursuant to Rule 108, 31 July 2006.
5. Judgement, Case No. IT-03-68-A, Notice of Appeal on Behalf of Naser Oric note 1, para. 724, referring to Prosecutor v. Hadihasanovic’ and Kubura, Case No. IT-01-47-T, Judgement, 15March 2006, paras. 2075-2076. In its Notice of Appeal, the prosecution disputes that superior responsibility is of a sui generis nature. Prosecution Notice of Appeal, Case No. IT-03-68-A, Notice of Appeal on Behalf of Naser Oric note 3, para. 32.
6. Although the Bosnian Serbs claim that a great number of civilians were killed during these attacks, the prosecution did not include these allegations in the indictment.
7. For instance, the defence objected to the authenticity of 186 out of 625 prosecution exhibits. In addition, the defence objected to 177 documents obtained through the authorities of Republika Srpska, alleging that they were attempting to justify crimes committed by Bosnian Serbs by blaming BosnianMuslims for having provoked them. The trial chamber rejected most of these objections; see Judgement, Although the Bosnian Serbs claim that a great number of civilians were killed during these attacks, the prosecution did not include these allegations in the indictment. note 1, paras. 23-47.
8. Judgement, For instance, the defence objected to the authenticity of 186 out of 625 prosecution exhibits. note 1, paras. 689-716.
9. Judgement., paras. 677-688. At the end of the prosecution case, Oric’ had already been acquitted of two counts of plunder of public or private property, as the judges found that the evidence adduced by the prosecution was not capable of supporting a conviction, pursuant to Rule 98 bis of the Tribunal's Rules of Procedure and Evidence. See Prosecutor v. Oric’, Case No. IT-03-68-T, Oral Decision on DefenceMotion for Judgement of Acquittal, T. 8981-9037 (8 June 2005).
10. Judgement, Judgement. note 1, paras. 497-532.
11. Judgement., paras. 767-771.
12. Rules of Procedure and Evidence for the International Criminal Tribunal for the Former Yugoslavia,UNDoc. IT/32/Rev.36 (8 August 2005), Rule 68.
13. S. Zappala, ‘The Prosecutor's Duty to Disclose ExculpatoryMaterials and the Recent Amendment to Rule 68 ICTY RPE’, (2004) 2 Journal of International Criminal Justice 620, at 627.
14. Judgement, Judgement. note 1, paras. 72-77, 806-815.
15. See Prosecutor v. Oric’, Case No. IT-03-68-T, Oral Decision on Confidential Defence Motion to Request an Order for Measures to Ensure that the Prosecution Complies With Rule 68, 28 September 2004; Prosecutor v. Oric’, Case No. IT-03-68-T, Decision on Urgent Defence Motion Regarding Late Disclosure of Evidence and to Recall a Witness, 30 November 2004; Prosecutor v. Oric’, Case No. IT-03-68-T, Decision on Motion Regarding Authenticity of Documents and Non-ComplianceWith Rule 68, 17March 2005; Prosecutor v. Oric’, Case No. IT-03-68-T, Decision on Defence Complaints Raised Orally During the Proceedings, 29 September 2005; Prosecutor v. Oric’, Case No. IT-03-68-T, Decision on Urgent Defence Motion Regarding Prosecutorial Non-ComplianceWith Rule 68, 27 October 2005; Prosecutor v. Oric’, Case No. IT-03-68-T, Decision on Ongoing Complaints about Prosecutorial Non-compliance with Rule 68 of the Rules, 13 December 2005.
16. Judgement, Judgement note 1, para. 77. An accused's right to a fair trial, as enshrined in Articles 20 and 21 of the Statute, demands not only that the prosecution disclose to the defence in sufficient time the existence of evidence, but also that it actually provide the defence with all of the Rule 68(i)material available as soon as is practicable. Prosecutor v. Brotanin, Case No. IT-99-36-T, Decision onMotion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant to Rule 68 bis andMotion forAdjournment while Matter Affecting Justice and a Fair Trial Can Be Resolved, 30 October 2002 (hereafter Brotanin Decision), para. 23.
17. Judgement, Judgement note 1, para. 77.
18. Judgement., para. 810.
19. Judgement., para. 811.
20. Judgement., para. 812.
21. Judgement., para. 813. The trial chamber also invited the defence to recall any prosecutionwitnesses to remedy any prejudice itmay have suffered from the prosecution's non-disclosure of this material. The defence ultimately decided not to recall any witnesses, reasoning that to do so would amount to a de facto retrial.
22. This remedy had been previously applied in Prosecutor v. Krnolejac, Case No. IT-97-25-PT, Decision onMotion by Prosecution toModify Order for Compliance with Rule 68, 1 November 1999, para. 11.
23. See Prosecutor v. Oric’, Case No. IT-03-68-T, Decision on Ongoing Complaints about Prosecutorial Non-Compliance with Rule 68 of the Rules, 13 December 2005 (hereafter December 2005 Decision).
24. Judgement, Judgement… note 1, para. 815.
25. December 2005 Decision, Judgement note 25, para. 36.
26. See Judgement text accompanying notes 9-10 (explaining that Oric’ was acquitted in respect of the wanton destruction charges because the trial chamber found that he did not exercise effective control over the relevant subordinates)
27. Prosecutor v. Oric’, Case No. IT-03-68-T, Third Amended Indictment, 30 June 2005, paras. 22, 28.
28. Prosecutor v. Oric’, Case No. IT-03-68-T, Defence Closing Brief, 17March 2006, paras. 498-506.
29. Judgement, Judgement text accompanying notes 9-10 (explaining that Oric’ was acquitted in respect of the wanton destruction charges because the trial chamber found that he did not exercise effective control over the relevant subordinates) note 1, para. 299.
30. Judgement., para. 302.
31. Judgement, Judgement. note 1, paras. 302-304. Cf. section 5.3.2, infra.
32. Judgement, Judgement note 1, paras. 489-496.
33. Judgement., para. 532.
34. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43. The trial chamber emphasized that Oric’ ‘s interview'at no time could… be considered as the testimony of the Accused at trial’. Judgement., para. 56.
35. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43., para. 563.
36. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43., paras. 536-543.
37. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43., para. 780.
38. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43., para. 316.
39. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43., para. 317.
40. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43., para. 318.
41. Suspect interviewsmay be tendered into evidence at trial, provided that they comply with the requirements of Rules 42 and 43., paras. 544-549.
42. Of course, it was then also necessary to find that Oric’, with imputed knowledge, failed to prevent or punish murder and cruel treatment.
43. Of course, it was then also necessary to find that Oric’, with imputed knowledge, failed to prevent or punish murder and cruel treatment., paras. 321-324.
44. Of course, it was then also necessary to find that Oric’, with imputed knowledge, failed to prevent or punish murder and cruel treatment., para. 321.
45. Of course, it was then also necessary to find that Oric’, with imputed knowledge, failed to prevent or punish murder and cruel treatment., para. 322.
46. Judgement, Of course, it was then also necessary to find that Oric’, with imputed knowledge, failed to prevent or punish murder and cruel treatment… note 1, para. 324.
47. Judgement., para. 317 (emphasis added).
48. Judgement., para. 318 (emphasis added). Accord Judgement., para. 324.
49. Judgement., para. 317.
50. See, e.g., USManual for Courts-Martial (2005), Art. 92.
51. Judgement, USManual for Courts-Martial note 1, para. 550.
52. See, e.g., Judgement., para. 556 ('What is not understood is how he could decide to eliminate completely from his agenda matters concerning the detained Serbs').
53. Judgement., para. 552.
54. Judgement., paras. 552-558.
55. Judgement., para. 552.
56. Judgement., para. 556.
57. Judgement., para. 557.
58. Judgement., para. 558.
59. Judgement., para. 780.
60. Judgement., para. 559.
61. Judgement., para. 780.
62. Judgement., para. 764.
63. Judgement., para. 559.
64. Judgement., para. 780.
65. Judgement., para. 550.
66. Judgement., para. 771.
67. Judgement., para. 322.
68. UNWar Crimes Commission, Law Reports of Trials ofWar Criminals (1948), IV, Case No. 21, para. 30.