⁴⁴ CASE NO. IT-96-19-MISC-1 Friday, 1st March 1996

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

IN THE TRIAL CHAMBER MOTION ON BEHALF OF GENERAL DJORDJE DJUKIC Before: Judge Jorda (Presiding) Judge Odio-Benito Judge Riad The Office of the Prosecutor Mr. Richard Goldstone, Prosecutor Mr. Graham Blewitt Mr. Grant Niemann Counsel of the Applicant MR. Milan Vujin MR. Toma Fila Amicus Curiae 1st March 1996

(10.00) JUDGE JORDA (original in French): We are resuming our hearing in accordance with what was decided the day before yesterday. We must hear the Prosecutor, who will make a statement. I would like first of all to ensure that General Djukic is present, that his defence counsel is here, that Mrs Vidovic as Amicus Curiae is here, and, of course, the presence of the Prosecutor himself. Mr Goldstone, you have the floor.

MR GOLDSTONE: Thank you, your Honour. The proceedings on Wednesday related to the challenge by General Djukic to the legality of his detention in Sarajevo and his subsequent detention and transfer to The Hague. On those challenges, this honourable Trial Chamber has not pronounced. Argument on all sides, however, was completed on Wednesday, and we have no further submissions to make in that regard. During the proceedings, however, there was a change of focus and attention was directed at the question of the basis for any further detention of General Djukic when the present order expires on Monday, 4th March ⁴⁵ 1996. For that purpose, the parties were given the opportunity of considering their position. Your Honours, I indicated on Wednesday that it was my intention to request an extension of the detention order under Rule 90 bis. However, on further consideration, we have reached the conclusion that that would not be proper or appropriate in the face of the unequivocal statement on Wednesday by General Djukic, to the effect that he is not prepared to provide any information to the Office of the Prosecutor with regard to any of its investigations. It would not be proper or permissible to continue, in our submission, to regard General Djukic as a witness merely on the hope that he might yet change his mind and co-operate with the Prosecutor. I am therefore no longer requesting an extension of the order under Rule 90 bis. We would request, however, that a formal ruling be given on the application of General Djukic regarding the lawfulness of his transfer to the Tribunal and his detention here. In other words, the lawfulness of the order which was made by his Honour Judge Sir Ninian Stephen. Your Honours, may I make public a further important development which may already have come to the attention of this Trial Chamber. We learnt of the arrest in Bosnia and Herzegovina of General Djukic on 6th February 1996. Since then, we have been investigating the possible commission by him of serious violations of international humanitarian law. During that time, and until his statement on Wednesday, we regarded General Djukic as a potential witness. That, notwithstanding the investigations, continued. Being unable to continue to regard General Djukic as a witness, we have had the opportunity of considering ⁴⁶ evidence we have against him in respect of offences falling within the jurisdiction of this Tribunal. Whilst our investigations in respect of those offences are not yet complete, we considered that, in respect of two counts, there is sufficient evidence to justify indicting General Djukic. That indictment was submitted yesterday to his Honour Judge Karibi-Whyte. It was confirmed yesterday afternoon and has been served on General Djukic this morning. In particular, the indictment charges General Djukic, who at material times was the assistant for logistics to General Ratko Mladic, the Commander of the Bosnian Serb Army, with a crime against humanity and a violation of the laws and customs of war. The indictment is based on the accused's role in aiding, as the head of logistics, the Bosnian Serb Army in its operations which included the shelling of civilian targets during the Bosnian Serb siege of Sarajevo between May 1992 and December 1995. Judge Karibi-Whyte has also issued a warrant and in terms, thereof, General Djukic will be brought before a Trial Chamber in order to plead to the indictment. He will be detained in terms of that order to ensure that he attends his trial. It follows that whatever order this Trial Chamber decides to issue, account should be taken of the fact that General Djukic will not be released or returned to Bosnia-Herzegovina. May I thank your Honours for the opportunity to make this statement.

JUDGE JORDA (original in French): Thank you, Mr Prosecutor. In fact, you are contributing a completely new and significant element which does affect the situation from a legal point of view, having to do with the International Criminal Tribunal and General Djukic. I would, first ⁴⁷ of all, like to ask our Registrar to please confirm what the Prosecutor has just said for the Registry, for the authentication of what the Prosecutor has just announced to the Tribunal. The floor is yours. THE REGISTRAR (original in French): Thank you, your Honour. I can confirm that General Djukic this morning was notified of the indictment, and the confirmation, which was made by Judge Karibi-Whyte yesterday, he was informed of his rights, which were read to him in a language which he understands, as was the indictment. In addition, there is a detention order which has also been signed yesterday afternoon by Judge Karibi-Whyte.

JUDGE JORDA (original in French): I turn to General Djukic. General, you may stand. What the Prosecutor has just announced and what was confirmed by the Registrar, is it correct, that you have been informed of your rights.

GENERAL DJUKIC (original in Serbian): Your Honour, this statement of the Registrar that the documents have been handed to me is accurate, and the statement by the Prosecutor - as to the statement of the Prosecutor, I do not agree with it.

JUDGE JORDA (original in French): Sit down, please. The decision of the Tribunal must now have a different scope. We must therefore adjourn this session, but before doing so, I would like each of the individuals here to make any comments that he wants to make having to do with the change in status of the General, to explain what it means to them under conditions that appear desirable. First of all I will give the floor, again, to General Djukic. I am now giving the floor to the defence. Mr ^{48BLANK PAGE 49} Vujin, would you like to speak on behalf of the defence, or Mr Fila, or both of you? Mr Vujin, you have the floor. You also have a collaborator with you. Would you like to introduce her to us?

MR VUJIN: Yes, we are assisted today by Miss Jelena Lopicic. She is a lawyer in practice.

JUDGE JORDA (original in French): You have the floor. MR VUJIN (original in Serbian): After the Prosecutor has made his statement public and brought new information in relation to General Djorde Djukic, as legal advisers, the statutes that we so far had for General Djukic, since he was a witness for this Tribunal, we must say that this development of the situation did not surprise us, because yesterday we said that General Djukic had not been brought as witness since the Prosecution, in its notification to the Government of Bosnia and Herzegovina, treated General Djukic as a suspect. Therefore, we have a very clear situation today, considering the service of this document to General Djukic, who informed us before this hearing that he has indeed received this document. Due to the change in his status, we will, in the course of today, make our statement on this. As for the decision of the Prosecutor to have this Trial Chamber decide on the legality of the transfer of General Djukic from Sarajevo to the Tribunal, and the order on detention, we leave this to the Tribunal. We maintain our position that the procedure, the transfer and detention was not legal due to the rapidity, and because those documents could not have been made in the course of five or six hours. Thank you. And General Djukic received those documents only on 22nd. ⁵⁰ JUDGE JORDA (original in French): Mr Fila, would you like to say something? General Djukic, the floor is yours, if you wish to make an intervention. Please come close to the microphone.

GENERAL DJUKIC (original in Serbian): Your Honour, I gave my statement, and I do not wish to speak any further.

JUDGE JORDA (original in French): Mrs Vidovic, as Amicus Curiae, do you have a statement you would like to make?

MADAM VIDOVIC: (original in Bosnian): Yes, I would like to give a statement, and a further clarification. The Government of Bosnia and Herzegovina is prepared to co-operate with the Tribunal, fully, and respects the decision of the Prosecutor, Mr Goldstone, to issue the indictment. However, I believe that there is one very important detail here, which will determine the position of the Trial Chamber. Proceedings are being conducted against Mr Djukic on charges described in Article 141 for genocide and the criminal offence from Article 142 of the same law, which carries, according to the law of Bosnia- Herzegovina, death penalty. This means detention, and it also means that any appeal against the decision on the detention cannot influence to that effect the decision of the Tribunal. I believe that this is a very important detail. Otherwise, I agree on behalf of the Government of Bosnia and Herzegovina that the accused be under the jurisdiction of this Tribunal until it is deemed necessary. MR VUJIN (original in Serbian): I would like to say that, because of this change in status of General Djukic, these allegations given by Mrs Vidovic are irrelevant. I would also like to say that the decision to have General Djukic ⁵¹ placed under the jurisdiction of this Tribunal, or jurisdiction of the Bosnia-Herzegovina court has ceased to exist.

JUDGE JORDA (original in French): I have noted this. There are a certain number of consequences that are implied by this change in status. The Tribunal has just deliberated. Given the notification of the status of the witness who has now become an accused, the Tribunal has noted that the detention period was set until Sunday at midnight. From this point on things have changed; General Djukic now has the status of an accused person and the Tribunal considers that as a question which must be answered, the question which was asked by the defence having to do with the legality of the transfer and the legality of the detention during almost 30 days now. For that reason, the Tribunal will deliberate, will suspend its work right now, and the hearing will be resumed at noon. The session is over. (10.20 am) (A short break) (12.15 pm) RULING JUDGE JORDA (original in French): Reading of the decision. The Trial Chamber, made up of Judge Jorda, Judge Odio-Benito and Judge Riad, assisted by Mr Dominic Marro, on 1st March, has looked at the case of General Djukic and have come to the following decision. Having regard to the request presented by Mr Vujin on 26th February 1996 in respect of the illegality of the transfer and detention of General Djukic; Having heard the Prosecutor, General Djukic and his counsel at the hearings of 28th February and 1st March 1996; Having heard the Prosecutor, in his introductory statement at the hearing of 1st March and the confirmation of the Registry, stating that an indictment against General Djukic was confirmed on 29th February by ⁵² Judge Karibi-Whyte and served on General Djukic with the order of detention; Pursuant to Rule 90 bis of the Rules and Procedure and Evidence; Considering that by the order of the 28th February 1996 this Chamber set the date of expiration of the detention of General Djukic at 4th March 1996 at 0000 hours; Considering that by the decision of 12th February 1996, Judge Stephen, pursuant to Rules 55, 56 and 90 bis of the Rules, ordered the transfer of General Djukic; Considering that by the orders of the 12th and 24th February 1996, Judge Stephen, pursuant to Rules 54 and 90 bis of the Rules, ordered the temporary detention of General Djukic at the United Nations Detention Unit in The Hague, The Netherlands; Considering that according to Rule 90 bis of the Rules this Chamber does not now have the powers of review for the above orders; Considering that during the hearings the counsel of General Djukic argued that the decisions of the High Court in Sarajevo, dated 7th and 27th February 1996, authorising the detention of General Djukic until 4th March 1996, were both illegal and misfounded; Considering that pursuant to its Statute and Rules it should be recalled that the Tribunal has no competence to rule on the legality of a decision taken by a national court; Considering that the proceedings have demonstrated that General Djukic was informed in Sarajevo about his status as a witness; Considering that the Registry, at the formal requests of the Chamber, also specified that upon his arrival at the United Nations Detention Unit in The Hague, on 12th February 1996, General Djukic was informed that he had been detained as a witness according to Rule 90 bis of the Rules; Considering that this Chamber ⁵³ had not received any information which might permit it to conclude that the status of witness of General Djukic changed at some point during his detention at the United Nations detention unit in The Hague; Considering, furthermore, that upon his arrival at the United Nations Detention Unit in The Hague, General Djukic was informed that whatever his status he might avail himself of counsel and the fact that he availed himself of that right on 13th February 1996 is not disputed; That consequently, from 14th February 1996, his counsel was able to ensure the protection of his rights throughout the period of his detention, including a possible challenge to his status of witness; For these reasons Rejects the request of General Djukic, Takes note of the decision of Judge Karibi-Whyte which, on 29th February 1996, confirmed the indictment against General Djukic, Takes note of the order of detention issued by Judge Karibi-Whyte on 29th February 1996 about which General Djukic was notified on 1st March, States that it has no reason to rule on the extension of the detention of General Djukic as a witness. This is done in The Hague on 1st March 1996. The session is now closed. (12.20 pm) (Tribunal adjourned)