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Prosecutor v. Rajić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence

Published online by Cambridge University Press:  27 February 2017

Olivia Swaak-Goldman
Olivia Swaak-Goldman*
Affiliation:
Leiden University
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 91 , Issue 3 , July 1997 , pp. 523 - 532
Copyright
Copyright © American Society of International Law 1997

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References

1 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 [Tribunal], Statute, UN Doc. S/25704, annex (1993), 32 ILM 1192 (1993).

2 Tribunal, Rules of Procedure and Evidence, Feb. 11, 1994, 33 ILM 484 (1994)Google Scholar, as amended (June 7, 1996). The Rules were again amended after the trial chamber’s decision, on December 3, 1996.

3 Judge Sidhwa, although agreeing with the decision of the trial chamber as set out in the judgment, addressed issues not discussed in the judgment, such as the relationship between confirmation of the indictment under Rule 47 and Rule 61 proceedings, and the prosecution’s position that supporting materials presented during a Rule 61 proceeding—with the exception of the oral testimony of witnesses presented by it in open court—are confidential.

4 Rule 61(C), Rules of Procedure and Evidence, supra note 2.

5 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72, at 44-46 (Oct. 2, 1995), 35 ILM 32 (1996) [hereinafter Decision on Jurisdiction].

6 Id., para. 72.

7 Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

8 No. IT–95–12–R61, para. 13 [hereinafter Decision].

9 Id., para. 21.

10 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27).

11 Id., para. 109.

12 Decision, para. 26.

13 Letter from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General (Nov. 29, 1995), in General Framework Agreement for Peace in Bosnia and Herzegovina, UN Doc. A/50/790-S/1995/999, at 126-30 (1995) [hereinafter Dayton Agreement], quoted in Decision, para. 31.

14 Decision, para. 34.

15 International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary 47 (Uhler, Oscar M. ed., 1958)Google Scholar [hereinafter Commentary].

16 Decision, para. 37.

17 Commentary, supra note 15, at 60.

18 Decision on Jurisdiction, paras. 87-89.

19 Id, para. 119.

20 Prosecutor v. Martić, Review of the Indictment Pursuant to Rule 61, No. IT-95-11-R61 (Mar. 8, 1996).

21 Decision, para. 48 (citing id., paras. 8, 10, 19, 20, in turn citing Decision on Jurisdiction).

22 Decision, para. 52.

23 Article X of Annex 1–A of the Dayton Agreement, supra note 13, provides that the Federation of Bosnia and Herzegovina undertakes to “cooperate fully with all entities involved in implementation of this peace agreement. . . including the International Tribunal for the former Yugoslavia.” On the relationship between the Agreement and the Tribunal, see Szasz, Paul C., The Protection of Human Rights Through the Dayton/Paris Peace Agreement on Bosnia, 90 AJIL 301, 313–14 (1996)Google Scholar; see also Jones, John R. W. D., The Implications of the Peace Agreement for the International Criminal Tribunal for the Former Yugoslavia, 7 Eur. J. Int’l L. 226 (1996)Google Scholar.

24 See text at note 13 supra.

25 Decision, para. 26.

26 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.).

27 Decision on Jurisdiction, para. 76.

28 Aldrich, George H., Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, 90 AJIL 64, 66–67 (1996)Google Scholar.

29 For the pertinent clauses of Articles 2 and 6, see the discussion of Article 53 of the Convention at p. 527 supra.

30 See Hans-Peter, Gasser, Protection of the Civilian Population, in The Handbook of Humanitarian Law in Armed Conflict 209, 244 (Dieter, Fleck ed., 1995)Google Scholar.