¹ 9th May 1995

(10.00)

JUDGE MCDONALD: Good morning. May I have the appearances, please?

MR GOLDSTONE: Your Honour, I appear, together with the Deputy Prosecutor, Mr Blewitt, and the senior prosecuting trial attorney, Mr Ostberg.

JUDGE MCDONALD: Thank you. Are there any other appearances this morning?

JUDGE VIDOVIC: (original in Bosnian): I am Vasvija Vidovic. I represent the interests of the Government of the Republic of Bosnia-Herzegovina.

JUDGE MCDONALD: And Ms Vidovic, I understand that you wish to appear this morning as amicus curiae for the purpose of this deferral hearing; is that correct?

JUDGE VIDOVIC: (original in Bosnian): Yes, that is correct.

JUDGE MCDONALD: Fine. That request will be granted. Welcome. I am certain that you will be able to provide the Chamber with much needed information. Thank you. Mr Prosecutor, would you like to proceed?

MR GOLDSTONE: Thank you, your Honour. This is the second hearing by a Trial Chamber of the Tribunal on an application by the Prosecutor pursuant to Article 9(2) of the Statute, read with Rules 8-10. The first application resulted in a request from the Tribunal to ² the German authorities for the deferral of their investigation and proceedings against Mr Dusko Tadic. That request was complied with by the authorities of the Federal Republic of Germany, and Mr Tadic was surrendered to the Tribunal on 24th April of this year. Formal proceedings against Mr Tadic began before this Trial Chamber on 27th April.

Your Honour, the present application also relates to the deferral of an investigation -- this time by the authorities in the Republic of Bosnia and Herzegovina. However, it covers not an investigation into a particular individual, as in the Tadic case, but rather into crimes committed upon the civilian population of an area, the Lasva River Valley, in central Bosnia and Herzegovina during the period from October 1992 to May 1993. Those crimes, according to the evidence collected by my Office, were committed by members of the forces of the Bosnian Croats acting under orders of their military and political leaders. The investigations of my Office are not yet complete, and are not at the stage where a decision can be taken on the persons to be indicted or the precise nature of the charges.

As appears from the schedule attached to the application for deferral, the investigation into these crimes began in my Office in July 1994, and they have ³ continued since that time.

As appears also from the schedule, a decision was taken on 1st September 1993 by the Higher Court in Zenica in Bosnia and Herzegovina, and that Court found that there was reasonable suspicion that, between the dates I have mentioned, October 1992 and May 1993, certain identified persons, being Bosnian Croat military and political leaders, had a goal of ethnically cleansing and destroying the Muslim population in the village of Ahmici and other locations in the Lasva River Valley area of central Bosnia and Herzegovina. The Court in Zenica found further that such persons ordered an attack upon the village of Ahmici, and that all Muslim nationals, children, old people, males and females, be murdered with no one to remain alive, and that all the houses be destroyed and burned. The Court further found that there was reasonable suspicion that 22 of the 27 identified Bosnian Croat individuals had a goal of ethnically destroying the Muslim population of Ahmici by attacking and murdering 114 of its inhabitants of Muslim ethnicity on 16th April 1993 and destroying and burning 176 Muslim buildings, including two mosques. The Court in Zenica found also that there was a reasonable suspicion that the remaining Muslim population, not killed, were led away to a detention ⁴ camp in the Lasva Valley. They were there mistreated and tortured. Two women were raped. Those who survived were expelled to the area of the Zenica municipality. Out of the 114 killed or slaughtered Muslims, the majority of the bodies were burned completely, or were so charred that only a small number could be identified. The Higher Court further concluded that the accused had therefore committed the criminal offence of genocide pursuant to Article 141 as recognised by the Criminal Law of the Former Social Federal Republic of Yugoslavia. However, the Higher Court noted on the same day, 1st September 1993, that none of the individuals was accessible to the authorities of the Republic of Bosnia and Herzegovina.

On the same date, the Higher Court in Zenica decided that an investigation into the events in the Lasva River Valley be conducted and on the same day ordered custody and issued warrants of arrest in respect of 27 known Bosnian Croat individuals. I would emphasise, your Honours, that the warrants were for the purpose of investigation, and not in consequence of a decision to indict.

The investigations in my Office include numerous interviews, I might say well over 100 interviews, of witnesses, and the collection of numerous documents in ⁵ order to support the allegations that the attacks in the Lasva River Valley area were planned, and resulted in the deliberate murder of a large number of defenceless people protected under international law. I will emphasise, too, that it is a wider investigation, but it includes the whole of the investigation that was conducted and is still being conducted by the authorities in Bosnia and Herzegovina. The evidence in my Office indicates that the events culminated in the mass killing of one ethnic group and the unlawful destruction of its real and personal property. I am in possession of evidence which identifies a number of the Bosnian Croat perpetrators of the aforementioned defences. However, in order to complete the pending investigation, it is essential that I collect further important evidence, and obtain full access, to the extent that we have not already, to the statements, documents and other findings of the investigation conducted pursuant to the decision of the Higher Court in Zenica, dated 1st September 1993. That is an aspect dealt with in the submission made by the Bosnian Government, and no doubt Ms Vidovic will be able to provide further elucidation in that regard, if requested.

Your Honours, in my submission, if the Government ⁶ of the Republic of Bosnia and Herzegovina continues investigations, which are similar to those being conducted by my Office, there will be significant risks having implications for our investigations and any subsequent proceedings before this Tribunal. I refer firstly to the confusion that may result amongst witnesses, and co-operating organisations or governments, concerning the scope and authority of the parallel investigations and the different rules and confidentiality protections which govern the two investigations. I might say that our investigations have already, and will continue to be, conducted in a number of countries outside the former Yugoslavia. It will also create an undue burden on those witnesses who are interviewed on multiple occasions. A number of witness who have already been interviewed by the Bosnian authorities are witnesses who have been or will be interviewed by members of the investigation section of my Office. There would also be the unnecessary compromising of the credibility of witnesses due to the inadvertent creation of multiple statements and the evidentiary problems that may result from different procedures such as those concerning the collection and preservation of evidence, the taking of statements and the questioning of suspects. In this regard too, your ⁷ Honour, as I have emphasised, the interviews, without exception, have to be conducted through interpreters. This adds to the possible inadvertent confusion which would result from multiple statements being taken in two parallel investigations.

I submit that the deferral of the investigation of the Lasva River Valley case is likely to encourage or enable governments, non-governmental agencies, and other sources to furnish information to the Tribunal that thus far has not been provided. I might mention that, since the public announcement of the two deferral applications, the one being heard today and the one which will be heard by the second Trial Chamber next week, has resulted in a more positive attitude being exhibited to our Office by governments and by non-governmental organisations, who are now more aware of the urgency in providing information to this Tribunal.

If the Government of the Republic of Bosnia and Herzegovina proceeds to trial before our investigations are completed, many significant factual and legal issues may have implications -- and that is the test under Rule 9 -- for investigations and prosecutions before the Tribunal.

Firstly, your Honour, pursuant to Article 10(2) ⁸ of the Statute of the Tribunal, the principle of non-bis-in-idem may prevent the tribunal from prosecuting persons responsible for acts constituting serious violations of international humanitarian law, if the Courts of the Republic of Bosnia and Herzegovina have already tried them for the same acts, and here I refer to the situation which would arise if any of the potential accused, the suspects, were, in fact, arrested and put on trial in a Court in the Republic of Bosnia and Herzegovina.

As we have been informed, if they are not arrested and brought physically to court, and if they do not appear in person, in terms of the law of Bosnia and Herzegovina, trials in absentia are permissible, and we have been informed by the Bosnian Government that they intend, if there is no deferral, and if there is not a continuation of the appropriate proceedings of the Tribunal, that they will in all probability commence in absentia proceedings.

In that event, a number of prejudicial consequentials would follow for my Office, and with respect for the Tribunal. In the first place: Critical witnesses, who have testified in a public national trial in Bosnia, and who will be needed for a trial before this Tribunal, will be exposed to greater ⁹ risks, as their identities in evidence will have already been made public.

Secondly, witnesses may be reluctant, or at the least significantly inconvenienced, if required to testify in the second trial before the Tribunal. Thirdly, there may also be a risk that critical evidence, stored and preserved for trial in war zones, in the Republic of Bosnia and Herzegovina, could be damaged, or lost for use before the Tribunal; and Fourthly, 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. The Government of the Republic of Bosnia and Herzegovina, as confirmed by documents which were filed with the Registrar yesterday, has proposed that their investigations of the war crimes committed in the Lasva River Valley be deferred to the Tribunal. It considers it more reasonable that the Prosecutor of this Tribunal take over the investigations, because he 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. As I have mentioned, that is very much the position and has been ¹⁰ for previous months.

Given that many of the witnesses critical to our investigation are outside the Republic of Bosnia and Herzegovina and may be reluctant to return or travel to Bosnia and Herzegovina to testify in a national trial, my office is better able to collect evidence during investigations and to present that evidence before the Tribunal.

If, however, the deferral request is not granted, the Government of Bosnia and Herzegovina will continue its investigations, and will in all probability commence in absentia trial proceedings, as I have mentioned. That, in my opinion, would be undesirable and not in the interests of justice and particularly international justice.

In any event, it is our submission that this Tribunal is the proper forum to try the persons responsible for the kind of crimes covered by this investigation.

Your Honours, in the decision of the Trial Chamber in the Tadic application, the learned judges stated in their decision the following, and I quote: "To comply with the enabling provisions for grant of the Application, the Prosecutor must therefore establish that...", and follows (a), (b) and (c). ¹¹ "(a) there is an investigation currently being conducted by the Prosecutor into crimes within the jurisdiction of the International Tribunal alleged to have taken place...", in that case, "...in the Prijedor region of Bosnia and Herzegovina.

"(b) a national investigation or criminal proceedings has been instigated against the said Dusko Tadic by the Government of the Federal Republic of Germany in respect of crimes alleged to have taken place in the said Prijedor region.

"(c) the issue in the national investigation or criminal proceedings is closely related to, or may have implications and common significant factual or legal questions, for the Prosecutor."

Here I might say it is stronger. They are not closely related. They include the same proceedings in the much wider investigation by my Office, but I submit, having regard to the decision of the Trial Chamber in the Tadic case, that in this application there is full compliance with the enabling provisions.

Your Honours, I accordingly move for an Order in terms of paragraph IIA and B of the Notice of Application, that is:

(A) That all investigations and criminal proceedings in respect of the above mentioned matters be ¹² deferred to the competence of the Tribunal; and (B) That the results of all investigations and a copy of the Court record and judgements (if any) be forwarded to the Tribunal.

Thank you.

JUDGE MCDONALD: Thank you, Mr Prosecutor.

JUDGE DESCHENES: Mr Prosecutor, just on your very last words, namely the Order that you would expect and hope this Tribunal to render, you have quoted from your application the two sub-paragraphs, (A) and (B), and I do not think that we could specifically, word for word, render such an order as you say, I quote, "That all investigations in criminal proceedings in respect of the above mentioned matters be deferred to the competence of the Tribunal". I would suppose that you will agree that, assuming that we are in agreement with your request, we would have to specify what are the matters in connection with which the deferral should be ordered. Are you in a position to tell us now what it is exactly that you would wish that we say in our Order? I am sure that the Chamber would wish to render an Order that would answer your request, assuming, again, that we would be prepared to grant the Application, and would you be in a position then to let us know exactly what is the wording that you would like to see inserted in your ¹³ paragraph (A)?

MR GOLDSTONE: Certainly, your Honour. I would suggest that we could use the wording that appears in the formal heading on page 1 of the Application, and that is the deferral by the Government of the Republic of Bosnia and Herzegovina of its investigations in criminal proceedings, respecting, I would say, crimes against humanitarian law, against the population of the Lasva River Valley, or words to that effect, but may we submit something in writing? I think that would be appropriate.

JUDGE MCDONALD: I have a more specific question, though, that relates to that very same point. Are you asking that the Tribunal issue a formal request for deferral of anything other than the decision that was rendered by the Higher Court in Zenica on September 1st, 1993? It seems to me, from reading your Application, that that is the only investigation, in criminal proceedings, that is going on at the present time in Bosnia-Herzegovina, yet your request, in paragraph 1 of your Application, would include a broader investigation. So I guess my question -- and it relates to Judge Deschenes' question, except it is a little more specific -- is are you asking for anything other than the investigation in criminal proceedings that resulted in the decision of the Higher ¹⁴ Court in Zenica?

MR GOLDSTONE: As a cautionary measure, your Honour, I would submit that it would be a proper request and a proper order to request a deferral of all -- we are concerned here with crimes committed during a specific period, in the Lasva River Valley. Our understanding is the investigations by the Bosnian authorities have continued, since and pursuant to the Order of the Higher Court in Zenica. So it is not only the matter that had been investigated up to that date, but subsequent investigations. It would be appropriate that they be limited to a specific time period, and to a specific area.

JUDGE MCDONALD: Before we follow that up, let me just ask a question of you, Ms Vidovic. Can you tell me whether or not there are other investigations and criminal proceedings that are being conducted by the National Courts in Bosnia-Herzegovina at the present time, other than the investigation and criminal proceedings that resulted in the decision of September 1st, 1993? Are there other investigations and criminal proceedings being conducted in the Lasva River Valley?

JUDGE VIDOVIC: (original in Bosnian): Your Honour, there are single proceedings for the Lasva River Valley. There are other criminal proceedings which refer to the ¹⁵ broader area of central Bosnia, though. So there are criminal proceedings against several persons for the events that took place in the Lasva River Valley, as explained by Prosecutor Goldstone.

JUDGE MCDONALD: In addition to the one that resulted in the decision by the Higher Court in Zenica; is that correct?

JUDGE VIDOVIC: (original in Bosnian): Yes. In addition to that, there are several investigations that are being conducted in terms of the Lasva River Valley, and central Bosnia, because they are interrelated.

JUDGE MCDONALD: What is the status of the criminal proceeding that resulted in the decision of the Higher Court? Are there additional investigations that are being made, or is it complete and now all that is left is for whatever the charging paper is against the accused?

JUDGE VIDOVIC: (original in Bosnian): Yes. There are certain results of the investigation which followed the request for proceedings after the decision was made by the Court. Further investigations continue. There are certain results, and the facts that relate to the investigation will be continued in the future. So, if you, the Tribunal, decides to submit a formal request for a deferral to the Government of the Republic of ¹⁶ Bosnia-Herzegovina, we are going to transfer this to your Office.

JUDGE MCDONALD: Mr Goldstone, from what Ms Vidovic has now told us, it appears that there are other investigations, other than the one that resulted in the decision of the Higher Court, that are being conducted regarding violation of international humanitarian law in the Lasva River Valley between October 1992 and May 1993, and those are the investigations and criminal proceedings for which you would want this Court to request deferral, and they include, of course, the one that resulted in the decision, but they go beyond those.

MR GOLDSTONE: Yes.

JUDGE MCDONALD: I gather, then, from your submission, Ms Vidovic, that you have no objection and indeed are requesting that this Court issue a formal request of deferral regarding all of those investigations; is that correct?

JUDGE VIDOVIC: (original in Bosnian): It is true, we are not opposed to this, and we propose that the Chamber reach such a decision.

JUDGE MCDONALD: So, then, Mr Goldstone, in terms of the drafting of a decision, should we determine to grant your application and issue a request for deferral, we would then simply incorporate the language that you have ¹⁷ set forth in paragraph 1 of your application; is that correct?

MR GOLDSTONE: Yes, your Honour.

JUDGE MCDONALD: There are no additional questions from our fellow judges. Do you have anything else to say, Ms Vidovic? We have your application. We have read it.

JUDGE VIDOVIC: (original in Bosnian): Yes, if necessary, because their submission is perhaps broader than the issue we have already discussed. I would like to read the full text of the Consent of the Republic of Bosnia-Herzegovina, in connection with this request of the Court with your permission.

Your Honour, National investigations and criminal proceedings have been instituted by the Government of the Republic of Bosnia-Herzegovina in respect of war crimes and violations of the Criminal Law of the Republic regarding the crimes committed in the Lasva River Valley in central parts of the Republic including genocide (Article 141) and war crimes against the civilian population (Article 142).

The Republic is aware of the fact that the Prosecutor of the International Tribunal is currently conducting investigations into crimes within the jurisdiction of the Tribunal that have taken place in ¹⁸ the Lasva River Valley in central parts of the Republic of Bosnia-Herzegovina.

Furthermore, the Republic is aware of the fact that national investigations and criminal proceedings involve issues closely related to, other otherwise involve, significant factual or legal questions which may have implications for investigations or prosecution before the Tribunal.

The Republic proposes that its investigations of the crimes committed in the Lasva River Valley in central parts of the Republic be deferred to the Tribunal.

The Republic is fully conversant with the application being brought by the Prosecutor of the Tribunal for deferral of the Government's investigations and criminal proceedings in respect of the crimes committed in the Lasva River Valley in central parts of the Republic, Bosnia-Herzegovina.

The Republic particularly corroborates the fact that the contents of the said application and attached schedule dated April 21st, 1995 are true. The Republic does not oppose the issue of formal request by the Trial Chamber for the deferral of all investigations and criminal proceedings in respect of the crimes committed in the Lasva River Valley. ¹⁹ The Republic will lend its full support to the work of the Tribunal, and to the extent that this is legally possible, to a maximum comply with requests made by the Tribunal and its prosecution authority within their competence.

If the Tribunal addresses to the Republic a formal request for "deferral" of the criminal proceedings presently underway for the crimes committed in the Lasva River Valley, in central parts of the Republic, in respect of war crimes and violations of the criminal law of the Republic, including genocide, war crimes against the civilian population 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.

The Republic, in the absence of a formal request for deferral issued by the Tribunal, intends to pursue its investigations in regard to the crimes in the Lasva Valley in central parts of the Republic and will proceed to trial. Thank you.

JUDGE MCDONALD: Is there anything else, Ms Vidovic?

JUDGE VIDOVIC: (original in Bosnian): No. No, I have no ²⁰ questions.

JUDGE DESCHENES: (original in French): Ms Vidovic, thank you for your presentation. You made a reference in what you said. I read here a reference to Article 141 and to Article 142. Would you be so kind as to tell me which Legislation or Code you are referring to when naming these two Articles?

JUDGE VIDOVIC: (original in Bosnian): They pertain to the law which was taken over from the former SFRY. These are Articles 141 and 142 of the law that was taken over from the former SFRY, the Penal Code of the Former Social Federal Republic of Yugoslavia.

JUDGE DESCHENES: (original in French): Should I infer from that that Article 141 is an Article which prohibits genocide?

JUDGE VIDOVIC: (original in Bosnian): Certainly.

JUDGE DESCHENES: (original in French): And Article 142 is an Article which prohibits war crimes against civilian population?

JUDGE VIDOVIC: (original in Bosnian): Yes, your Honour.

JUDGE MCDONALD: Are there additional matters, either from the Prosecutor or Ms Vidovic?

MR GOLDSTONE: Your Honour, no additional matters from this side.

JUDGE MCDONALD: Very good. The Chamber will stand ²¹ adjourned until Thursday, May 11th, at 2.30. At that time, the Chamber will render its decision here in this room.

Mr Goldstone, either you will be present or someone from the prosecution office?

MR GOLDSTONE: Certainly.

JUDGE MCDONALD: Nothing else? The Court is then adjourned until May 11th. Thank you.

(10.30) (Tribunal adjourned until 2.30 pm on Thursday, May 11th 1995)