THE INTERNATIONAL CRIMINAL TRIBUNAL
Case No. IT- 99-37-I
BEFORE A JUDGE OF THE TRIBUNAL
Before: Judge David Hunt
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Date filed: 23 May 1999
PRESENTATION OF AN INDICTMENT FOR REVIEW
The Office of the Prosecutor
Louise Arbour, Prosecutor
THE INTERNATIONAL CRIMINAL TRIBUNAL
Case No. IT-99-37-I
I, Louise Arbour, Prosecutor, pursuant to my authority under Rule 47 of the Rules of Procedure and Evidence, having determined that there is sufficient evidence to provide reasonable grounds for believing that the abovenamed persons have committed crimes within the jurisdiction of the Tribunal, forward herewith an indictment against them, together with the attached supporting material, for confirmation by a Judge of the Tribunal.
This indictment is the first in the history of this Tribunal to charge a Head of State during an on-going armed conflict with the commission of serious violations of international humanitarian law. Bringing the accused to trial will therefore raise enforcement issues not hitherto encountered by this institution. Accordingly, I request that, upon confirmation, a number of specific orders be made concerning arrest warrants, the delayed public disclosure of the indictment, and the seizure of assets.
1. First, I ask that, pursuant to Rule 55, an order be made that a certified copy of the warrant of arrest for each of the accused be transmitted by the Registrar to the authorities of the Federal Republic of Yugoslavia, addressed to Mr. Zoran Knezevic, Federal Minister of Justice, Belgrade. In the situation where the President of the Federal Republic of Yugoslavia and senior government and military officials stand accused of crimes requiring that they be taken into custody and transferred to the International Tribunal for trial, I consider that the most appropriate course of action is to address the certified copies of the warrants to the Federal Minister of Justice.
2. Second, although each of the accused resides in the Federal Republic of Yugoslavia, and that is where they were last known to be and are likely to be found, I also request that an order be made, pursuant to Rule 55(D), that certified copies of each of the said warrants be transmitted by the Registrar to all States. I consider this necessary because it is reasonable to believe that, upon indictment, some or all of the accused may attempt to seek refuge outside the territory of the Federal Republic of Yugoslavia. These accused should be subject to immediate arrest and transfer to the Tribunal, regardless of where they may try to go. The same order should instruct the Registrar also to transmit certified copies of each of the said warrants to the International Criminal Police Organisation (INTERPOL).
3. Third, I request that an order be made pursuant to Rules 53(A), 53(C), 54 and 55(D), that (a) there be no public disclosure of the indictment and arrest warrants until 12 noon (The Hague time) on Thursday, 27 May 1999, subject to the notification by the Prosecutor to appropriate authorities as discussed below; (b) that the transmission by the Registrar of certified copies of the said warrants also be delayed until 12 noon (The Hague time) on Thursday, 27 May 1999; and (c) that there be no public disclosure of the supporting materials, the Review of the Indictment or the present Application until the arrest of the accused.
4. Finally, I request that an order be made under Rule 54, that each State make enquiries to discover whether any of the accused have assets located in their territory, and that any State finding such assets adopt provisional measures to freeze such assets, without prejudice to the rights of third parties, until the accused are taken into custody.
5. In relation to my third request listed above, the accused in this indictment are leaders occupying some of the highest positions in the Federal Republic of Yugoslavia and the Republic of Serbia. Together and individually they have enormous power over the territory and resources and have all the apparatus of State control at their disposal. They may have power and influence beyond the borders of the Federal Republic of Yugoslavia. Their reaction to the publication of this indictment is unpredictable. A number of my staff are active in the region. They and others are currently exposed to the risk of intimidation or reprisals. In particular, a United Nations Mission, which includes a member of my staff known to the Yugoslav authorities, is presently in the Federal Republic of Yugoslavia on a fact-finding mission. This mission is scheduled to depart the Federal Republic of Yugoslavia at 08:00 hours on Thursday, 27 May 1999. Other United Nations agencies, governments, and humanitarian agencies from the international community have many staff dealing with refugees and displaced persons at or near the borders of the Federal Republic of Yugoslavia. The publication of this indictment may have security implications for them. A delay in publication until 12 noon on that date, however, will allow my Office, and others, to take steps to minimise these risks.
6. In relation to my final request listed above, the indictment alleges that, on a large scale, property was unlawfully taken from homes of the victims, and that many victims were robbed of money and other valuables. The destination of this property is presently unknown, but my investigations will continue in order to attempt to establish whether the accused obtained such property or proceeds.
7. Rule 98 ter provides that if a Trial Chamber finds the accused guilty of a crime and concludes from the evidence that unlawful taking of property was associated with it, a Trial Chamber shall make a specific finding to that effect in its judgement. Rule 105 makes provision for the restitution of the property or the proceeds thereof, and allows a Trial Chamber to order provisional measures for the preservation and protection of the property or proceeds, including property or proceeds in the hands of third parties not otherwise connected with the crime of which the convicted person has been found guilty. At an earlier stage of proceedings, Rule 61(D) makes similar provision for a Trial Chamber to order States to take provisional measures to freeze the assets of the accused, without prejudice to the rights of third parties.
8. Moreover, Rules 39 and 54, which deal with the making of orders by a Judge of the Tribunal, are worded in general terms, and place no limit on the types of order that may be made. Provisional measures are designed to protect the ability of the Tribunal ultimately to do justice in the case. They are by their nature temporary, and do not permanently divest accused persons of their assets. It therefore appears appropriate for provisional measures to freeze assets to be available to a single Judge of the Tribunal. Further, it may be thought logical for such measures to be available to the Tribunal at an early stage in proceedings, when the accused are still at large, and when, in the full knowledge that they are indicted, they are in a position both to use their assets to escape being arrested and brought to justice, and to take steps to disperse or otherwise dispose of their assets in an attempt to disguise them or place them beyond the reach of the Tribunal. Although no express provision is made in the Rules for such an order by a single Judge of the Tribunal, the principle of the freezing of assets of an accused is an accepted part of the procedure of the Tribunal, a step regarded as necessary to preserve the Tribunals ability to impose the penalties set out in Article 24 of the Statute. In all the circumstances, I therefore consider it appropriate to request an order locating and freezing any assets of the accused in this case.
9. In accordance with existing practice, I attach proposed drafts of the orders sought.
Dated this twenty second day of May 1999
At The Hague
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