Case No.: IT-04-74-PT


Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Mr. Hans Holthuis

26th September 2005







The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Bozidar Kovacic for Slobodan Praljak
Mr. Camil Salahovic for Jadranko Prlic
Ms. Vesna Alaburic for Milivoj Petkovic

1. TRIAL CHAMBER I (“the Chamber”) of the 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 (“the Tribunal”) is seized with three preliminary motions challenging the Tribunal’s jurisdiction pursuant to Rule 72(A)(i) of the Tribunal’s Rules of Procedure and Evidence (“the Rules”). The three preliminary motions were filed on 14th and 15th December 2004 by the Accused Slobodan Praljak, Milivoj Petkovic and Jadranko Prlic (“the three Accused”).

2. According to the Indictment of 3rd March 2004, the three Accused are charged jointly with Berislav Pusic, Bruno Stojic and Valentin Coric, with 26 counts, including 8 counts of crimes against humanity (persecution, murder, rape, deportation, inhumane acts and imprisonment), 9 counts of grave breaches of the Geneva Conventions of 1949 (willful killing, inhuman treatment, unlawful deportation, transfer and confinement of civilians and unjustified and wanton destruction and appropriation of property), and 9 counts of violations of the laws and customs of war ( cruel treatment, unlawful labour, wanton and unjustified destruction of cities, towns or villages, destruction or willful damage to institutions dedicated to religion or education, plunder of public or private property, unlawful attack on civilians and cruel treatment).

3. All six Accused are prosecuted for their participation in a joint criminal enterprise, lasting from 18th November 1991 to about April 1994, with the purpose of subjugating militarily and politically, permanently removing and ethnically cleansing Bosnian Muslims and other non-Croats from those areas of Bosnia and Herzegovina which were claimed to be a part of the Croatian community (and later Republic) of Herceg-Bosna, and of joining these areas to the Republic of Croatia as part of a “Greater Croatia ”.

4. The six Accused allegedly all held important and leading positions in the Croatian community at the time covered by the Indictment as, respectively:

- Prime Minister and Head of Department of Finance of Herceg-Bosna: (Prlic),

- Assistant Minister of Interior in BiH and Head of Department of Defence in Croatia : (Stojic),

- Assistant Minister of Defence in Croatia: (Praljak),

- Chief of the HVO Main Staff of Herceg-Bosna: (Petkovic),

- Minister of Interior of Herceg-Bosna, Chief Commander of the HVO Military Police : (Coric),

- President of the Commission for Exchange of Prisoners (Pusic).

They are held criminally responsible directly and individually under Article 7, paragraph 1, of the Tribunal’s Statute, and also indirectly as responsible superiors for acts committed by their subordinates pursuant to Article 7, paragraph 3, of the Statute of the Tribunal.

I. Procedural History

5. Slobodan Praljak filed his preliminary motion challenging the Tribunal’s jurisdiction on 14th December 2004. Milivoj Petkovic and Jadranko Prlic both filed their preliminary motions on 15th December 2004.

6. The Prosecutor filed her Response to all three preliminary motions in one single submission on 28th January 2005.

7. On 4th February 2005, Milivoj Petkovic and Jadranko Prlic each filed a Reply to the Prosecutor’s Response. Milivoj Petkovic subsequently filed a Corrigendum to his Reply on 8th February 2005. Slobodan Praljak did not reply to the Prosecutor’s Response.

II. The Challenges against the Tribunal’s Jurisdiction

8. In their Preliminary Motions, the three Accused raise a number of challenges against the Tribunal’s jurisdiction. Some of the arguments brought up in these Motions, however, address other issues unrelated to the Tribunal’s jurisdiction, such as the vagueness of the Indictment’s description of the crimes and the co-perpetrators, or the Indictments’ alleged prejudicial characterization of the three Accused, which are matters rather pertaining to evidence and/or the form of the Indictment ; they are dealt with in the Trial Chamber’s Decision of 22nd July 2005 on the Defence motions on the form of the Indictment. In the Chamber’s reading, the arguments relevant to the Tribunal’s jurisdiction may be summarized as follows:

a. The Tribunal does not possess the authority to invent new crimes under its Statute;

All three Accused argue, in essence, that by charging them for the crimes allegedly committed in Bosnia and Herzegovina merely by virtue of their presumed membership of a so-called joint criminal enterprise, be it the political or military leadership in Croatia at the time, the Prosecutor is really introducing a new crime of membership of illegal organizations, which is in violation of the principle of nullum crimen sine lege and falls beyond the Tribunal’s jurisdiction both ratione materiae and ratione personae. In the view of the three Accused, neither customary international law nor international treaty law offers any support for the proposition that membership of an illegal or criminal organisation is in itself a crime.1

b. The Tribunal does not possess the authority to invent new modes of individual criminal liability under its Statute;

The three Accused also argue that introducing joint criminal enterprise (JCE) as a new and special form of criminal liability is also an unlawful expansion of Article 7 of the Statute, which only establishes direct individual liability for the commission, ordering, planning, etc. of a crime, or indirect liability for persons with superior authority for crimes committed by their subordinates if the superior knew or had reason to know about the acts of the subordinates and failed to take the necessary measures to prevent the crime or punish the perpetrator, but not the form of criminal liability included in the concept of JCE. In the Accused Prlic’s submission, this type of criminal liability is not even contemplated in the legislative foundation of the Tribunal.2 The Tribunal, in other words, does not possess the power to amend the Statute by its own judicial interpretation.3 In his reply to the Prosecutor’s Response, Petkovic further submits that the difficulty in accepting the concept of JCE as a form of criminal liability as applied in the present Indictment lies in the fact that the concept has lost any resemblance with the recognized form of liability known as “the common purpose doctrine”, because it has been extended much too far ratione personae. In this sense, Petkovic asserts, the JCE applied in the present Indictment is a novel concept without any basis in the Statute.4

c. The Tribunal does not possess the authority to abandon the element of causality from the institute of individual criminal responsibility;

Slobodan Praljak and Jadranko Prlic contend that the Tribunal cannot on its own change the elements of criminal responsibility to the detriment of the accused by removing essential parts of the actus reus required for command responsibility. By charging the three Accused merely by virtue of their participation of an alleged joint criminal enterprise without any further condition of criminal action, they assert, the Prosecutor is in essence removing the causality requirement and holding every member of the HVO responsible for the crimes, irrespective of their actions. In the view of these Accused, this would leave the notion of command responsibility without any basis or sense.5

d. The Tribunal does not possess the authority to charge civilians with command responsibility, which only applies to military persons.

Prlic argues, furthermore, that he cannot – as a civilian – come under the notion of command responsibility, which under most international legal sources applies only to persons within the military structure of command.6 Civilian superiors, in his submission, do not have legal authority to prevent their subordinates from committing the alleged crimes, much less the capacity to subsequently prosecute them.

e. The Tribunal does not possess the authority to charge joint criminal enterprise (JCE) in respect of an internal armed conflict;

Prlic argues, finally, that JCE was not a part of customary international law for internal conflicts, as opposed to what might apply to international armed conflicts.7 Prlic submits, therefore, asserting that the alleged crimes occurred partially in the context of an internal conflict, that the Tribunal lacks jurisdiction to prosecute him for crimes through JCE liability during an internal armed conflict. He refers in this respect to the Appeals Chamber’s Decision in Ojdanic for support of the view that the JCE doctrine only applies to international armed conflicts.8

III. The Prosecutor’s Response

9. In her response to the three Preliminary Motions, the Prosecutor identified roughly the same issues as indicated by the Chamber above. She summarized the challenges raised by the three Accused as follows:

- JCE is not within the Tribunal’s jurisdiction ratione materiae;

- JCE, as applied in the present Indictment, amounts to liability for membership of or leadership in a criminal organization, which is beyond the Tribunal’s jurisdiction ratione personae;

- JCE, as applied in the present Indictment, infringes the principle of nullum crimen sine lege;

- International customary law offers no basis for holding a civilian responsible for command responsibility under Article 7(3); and

- The Indictment fails to plead that the Accused Prlic committed serious violations of international humanitarian law.

10. With regard to the first issue, the Prosecutor submits that there is a substantial body of established jurisprudence which recognizes JCE as an accepted form of liability which has existed, and continues to exist, in customary international law. The Prosecutor referred in this respect to the Appeals Chamber’s Judgement in Tadic, which reviewed the post WWII case law and concluded that the notion of a common design as a form of accomplice liability is firmly established in customary international law.9 The Prosecutor further referred to the Appeals Chamber’s Decision in Ojdanovic, which confirmed the Tadic ruling on this issue.10 In the Prosecutor’s submission, JCE is by no means in itself a separate crime.11

11. As regards the non-application of JCE to internal armed conflicts, as submitted by Prlic, the Prosecutor maintains that the JCE doctrine does indeed apply to all armed conflict and pointed to paragraph 232 of the Indictment which merely states that there existed, at all times relevant to the crimes charged, “a state of armed conflict”, without any further qualification.12 The Prosecutor adds that in the Tadic Decision on Jurisdiction, the Appeals Chamber clearly concluded that under Article 3 of the Statute, the Tribunal holds jurisdiction over the relevant crimes regardless of whether they occurred within an international or an internal armed conflict.

12. In relation to the second Defence argument, the Prosecutor submits that the three Accused have misinterpreted the concept of JCE liability. Referring again to the Ojdanovic jurisdiction Decision, the Prosecutor avers that criminal liability pursuant to JCE is not a liability for mere membership of an organization or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of what the concept denotes: a joint criminal enterprise.13 The mens rea requirement in JCE has not just, as contended by Petkovic, been lowered from knowledge to the mere membership of a criminal organization, but still requires intent as well as activity according to the intent to have the crimes committed. Whether this was in fact the case in relation to the three Accused is a completely different matter which remains subject to proof at trial.14 Nor has, in the Prosecutor’s submission, the actus reus requirement of JCE been reduced to just membership of a criminal organization. The Indictment clearly lists a number of ways in which each of the Accused participated in the JCE and thereby contributed to the commission of the crimes charged in the Indictment.

13. As far as the third Defence challenge is concerned, that the JCE doctrine as applied in the Indictment was inaccessible and unforeseeable at the time, the Prosecutor submits that various factors, including Article 26 of the Criminal Code of the Socialist Federal Republic of Yugoslavia, did indeed provide the necessary and sufficient notice to the Accused that their common design and joint actions for the purpose of committing criminal acts was unlawful and could entail criminal responsibility. This is clearly established in the Ojdanovic Decision, which added that the immorality and appalling character of an act is a factor which may also be taken into consideration insofar as it refutes any claim by the Defence that the Accused did not know of the criminal nature of their acts.15

14. The Prosecutor then addressed the fourth challenge raised by the Accused, namely that civilians cannot be held liable for command responsibility under Article 7( 3) of the Statute. In her response to this challenge, the Prosecutor submits that the doctrine of superior responsibility – without any distinction between military and civilian superiors – is well recognized both in customary and treaty law since at least WWII. The doctrine, furthermore, is clearly affirmed in the Tribunal’s rulings in the Celebici and the Brdjanin cases and in the Commentary to Article 86(2) of Additional Protocol I to the Geneva Conventions.16 To hold, as does Prlic, that the civilian functions attributed to him did not carry any criminal responsibility simply defies the de jure and the de facto control which this Accused actually had over his subordinates; this will be proven at trial.

15. In response to the fifth challenge raised by Prlic, finally, the Prosecutor submits that all six Accused are charged jointly under both Articles 7(1) and 7(3) of the Statute with the most serious crimes against humanity, egregious violations of the laws and customs of war and grave breaches of the Geneva Conventions. Prlic cannot thus, in the Prosecutor’s submission, assert that the Indictment fails to plead serious violations pursuant to Articles 2, 3, 4 or 5 of the Statute to him, or fails to plead the elements of these crimes.

IV. Discussion

16. In respect of the first challenge posed by the three Accused, the Chamber adheres to the position expressed by the Appeals Chamber in Tadic and Ojdanovic and the Trial Chamber judgement in Krstic, namely that JCE is but a mode of incurring criminal responsibility and not a crime in itself; this is abundantly clear not only from the Tribunal’s practice, but also from the jurisprudence and national legislation invoked in Tadic.17 JCE is a form of commission of the alleged crimes, and responsibility under JCE is always subject to the requirement that the members had the necessary mens rea to have the alleged, or other foreseeable crimes committed and acted in furtherance of the crime (actus reus). When superior military or political leaders jointly agree or accept to have crimes under the Statute committed and the necessary steps are taken by some or all of them in furtherance thereof, then they must jointly incur responsibility for these crimes, irrespectively of whether each of them had direct de jure or de facto control or command over the subordinates who physically perpetrated the crimes. The core of JCE, in other words, is the conscious and informed acceptance by each member of the JCE, through explicit or tacit agreement, that (a) the joint purpose is to be pursued by having the Statute crimes committed, and (b) these crimes are eventually committed accordingly. This is how commission of the crime materializes under Article 7(1) of the Statute. Failure to prevent or subsequently punish the crimes is a different mode of responsibility which comes to bear under Article 7(3) on superiors, who fail to prevent or punish crimes committed by their subordinates.

17. Much the same line of argument applies to the second challenge raised by the three Accused that the Tribunal cannot introduce completely new modes of criminal liability in the Statute. The answer here is, again, that nothing has been introduced in the Statute that was not already there. JCE is a special form of commission of the crimes covered by the Statute, and JCE is a way of incurring criminal liability which is safely rooted in customary international law as demonstrated in the Tadic Appeals Chamber judgement. The argument raised by Petkovic in his Reply to the Prosecutor’s Response, namely that JCE – because of its vast extension ratione personae to include literally tens of thousands of persons – has lost any resemblance to what was originally conceived as “the common purpose doctrine”. The Chamber recalls that although the circle of persons encompassed by the JCE as alleged in the Indictment appears to be open-ended, it is still only the Accused who is on trial here, not the entire criminal enterprise, and each of the Accused are sufficiently identified as co-perpetrators of the crimes alleged in the Indictment. There is no basis for assuming that the Tribunal is acting outside its jurisdiction (ultra vires ) on this point. In relation to the question of the unlimited number of persons covered by the JCE, this is rather a matter relating to the form of the Indictment, which the Chamber already addressed in its Decision of 22nd July 2005 with regard to the preliminary motions by the six Accused on the form of the Indictment.

18. The third challenge against the Tribunal’s jurisdiction raised by Prlic and Praljak, namely that the Indictment has removed the element of causality by holding the Accused directly responsible for the crimes merely by virtue of their membership of the JCE, is in essence an extension of the first challenge raised by the Accused : that JCE is really a new crime, and one with absolute or objective liability. As pointed out above, however, this is not so. The Indictment does include specific reference to a number of activities taken by each of the Accused in furtherance of the JCE. The Chamber, thus, is unable to detect the view that no causal relation appears to exist between the actions of the Accused and the crimes perpetrated on the ground. Whether or not this holds true or not is a matter for proof at trial and thus irrelevant in the context of a preliminary challenge against the Jurisdiction of the Tribunal.

19. Prlic submits, fourthly, that the concept of command responsibility cannot be attributed to him as a civilian, since this concept only applies to persons within the military hierarchy. As pointed out by the Appeals Chamber and other Trial Chambers in both this Tribunal and the International Criminal Tribunal for Rwanda, command responsibility applies equally to military commanders and civilian superiors.18 The Chamber is satisfied that this question has been dealt with conclusively in the judicial practice of both Tribunals

20. Prlic finally submits that JCE does not apply to internal armed conflicts and that this concept is therefore inapplicable to the present case which is brought in the context of such conflict. His argument is that the Appeals Chamber in the Ojdanic jurisdiction Decision, as referred to above, did not specifically say that JCE applies to both international and internal armed conflicts. That case, indeed, related to an international armed conflict and the Appeals Chamber dealt with the case as such, so the issue of JCE applicability in internal armed conflicts did not arise. Prlic does not provide any further argument in support of his view that JCE only applies to international armed conflicts. In the Chamber’s view, the determination of ways in which a perpetrator may incur criminal legal responsibility is an issue of general criminal law which applies indifferently to each specific crime contained in the substantive criminal law; the conditions for assuming criminal responsibility, obviously, is different from the elements of the crimes, and Article 7 of the Statute – to which JCE belongs – applies equally to Articles 2-5 of the Statute. The Chamber is therefore unable to accept that JCE, as a mode of individual criminal legal responsibility, only applies to international but not to internal armed conflicts; there is nothing to explain why a JCE could not be established in an internal armed conflict to the effect that its members be held individually responsible. JCE, again, is not a crime in itself but a mode of incurring criminal liability – by commission – which applies irrespectively of the nature of the armed conflict. The conditions for incurring individual criminal responsibility, in other words, are systematically different from and independent of the substance ratione materiae of the crimes in the Statute and the two elements must not be confused. The Chamber therefore rejects this challenge.

For the foregoing reasons, and pursuant to Rule 72 of the Rules,

THE CHAMBER DISMISSES the preliminary motions raised by the Accused Slobodan Praljak, Milivoj Petkovic and Jadranko Prlic, challenging the jurisdiction of this Tribunal.

Done in English and French, the English text being authoritative.

Dated this twenty sixth day of September 2005
At The Hague, The Netherlands

Judge Liu Daqun
Presiding Judge, Trial Chamber 1

[Seal of the Tribunal]

1 - See Petkovic’s Motion paragraphs 6-8 and 40-44; Praljak’s Motion paragraphs 4-5; Prlic’s Motion paragraphs 2-3.
2 - See Prlic’s Reply to the Prosecutor’s Response, paragraph 6.
3 - See Petkovic’s Motion paragraphs 29-34; Praljak’s Motion paragraph 6; and Prlic’s Motion paragraph 4.
4 - See Petkovic’s Reply to the Prosecutor’s Response, paragraphs 12-13.
5 - See Praljak’s motion, paragraphs 11-13; and Prlic’s motion, paragraph 13.
6 - Se Prlic’s motion, paragraphs 10-12.
7 - See Prlic’s motion, paragraph 5.
8 - See The Appeals Chamber’s “Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction” of 21st May 2003 in The Prosecutor v. Milutinovic, Sainovic & Ojdanic (IT-99-37-AR72).
9 - See the Prosecutor’s Response at paragraph 4, referring to the Tadic Appeals Chamber Judgement of 15th July 1999, (IT-94-1-A) paragraphs 197-229.
10 - See the Prosecutor’s Response at paragraph 5-6, referring to the Ojdanovic Appeals Chamber Decision of 21st May 2003 (IT-99-37-AR72) paragraph 29.
11 - See the Prosecutor’s Response at paragraph 16.
12 - See the Prosecutor’s Response at paragraph 8.
13 - See the Prosecutor’s Response at paragraph 11.
14 - See the Prosecutor’s Response at paragraph 13, referring to Petkovic’s motion paragraph 36.
15 - See the Prosecutor’s Response at paragraph 21.
16 - See the Prosecutor’s Response at paragraphs 27-31.
17 - See the Appeals Chamber Judgement of 15th July 1999 in the Prosecutor v Dusko Tadic, (IT-94-1-A); the Appeals Chamber Decision of 21st May 2003 in The Prosecutor v. Milutinovic, Sainovic & Ojdanic (IT-99-37-AR72); and the Trial Chamber’s judgement of [date] in the Prosecutor v. Krstic (IT-xx-yy-T).
18 - See, e.g., the Appeals Chamber judgement of 20th February 2001 in the Celibici case, the Prosecutor v. Delalic et al. (IT-96-21-A); the trial judgement of 1st September 2004 in the Prosecutor v. Brdjanin, (IT-99-36-T); and the ICTR Appeals Chamber judgement of [date] in the Prosecutor v. Jean Paul Akayesu (IT-xx-yy-A).