Before:
Judge David Hunt, Presiding
Judge Mehmet Güney
Judge Fausto Pocar

Registrar:
Mr Hans Holthuis

Decision of:
21 February 2003

Counsel for the Prosecutor

Mr Ekkehard Withopf

Counsel for the Defence

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Ms Vasvija Vidovic and Mr John Jones for Mehmed Alagic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

1. The Amended Indictment¹ alleges that, at the relevant times:

(i) Enver Hadzihasanovic (“Hadzihasanovic”) was the commander of all units within the 3rd Corps of the Army of Bosnia and Herzegovina (“ABiH”);²

(ii) Mehmed Alagic (“Alagic”) was the commander of all units within the ABiH 3rd Corps Operational Group “Bosannska Krajina”, and later of all units operating within the ABiH 3rd Corps area;³ and

(iii) Amir Kubura (“Kubura”) was the commander of all units within the ABiH 3rd Corps 7th Muslim Mountain Brigade.

2. The original indictment had charged the three accused with grave breaches of the Geneva Conventions (pursuant to Article 2 of the Tribunal’s Statute) and with violations of the laws or customs of war (pursuant to Article 3) in relation to events which are alleged to have taken place between January 1993 and January 1994, when the ABiH 3rd Corps is alleged to have carried out a number of attacks on towns and villages inhabited mainly by Bosnian Croats, in the course of which at least 200 Bosnian Croats and Bosnian Serbs were killed and many more were wounded.⁴ The indictment also charged that many Bosnian Croats and Bosnian Serbs were unlawfully imprisoned, beaten or otherwise mistreated, and that ABiH forces plundered and destroyed Bosnian Croat and Bosnian Serb properties without military justification.⁵ That indictment pleaded the existence of a “state of international armed conflict and partial occupation”.⁶

3. The Amended Indictment omits the Article 2 charges, and pleads only the violations of the laws or customs of war (Article 3). The references to an international armed conflict and the “partial occupation” have also been omitted. Paragraph 11 pleads merely:

At all times relevant to this indictment, an armed conflict existed on the territory of Bosnia and Herzegovina.

The two omissions are related, in that Article 2 offences require proof of an international armed conflict, whereas Article 3 offences do not. The prosecution has since sought to reinterpret its pleading by claiming that it has pleaded the existence of an “unclassified” armed conflict in Bosnia and Herzegovina.⁷

4. Both the original indictment and the Amended Indictment have charged the three accused with superior responsibility only, and not with any responsibility as having personally committed any of the crimes charged or as having aided and abetted in the commission of those crimes. Article 7.3 of the Tribunal’s Statute provides that a superior will be responsible for the acts of his subordinate –

[…] if he knew or had reason to know that the subordinate was about to commit such acts or had sone so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

5. All three accused challenged the jurisdiction of the Tribunal to hold a commander responsible as a superior for the acts of his subordinates in the course of an armed conflict which was not international in character.⁸ The accused have not challenged the principle of superior responsibility as being part of customary international law where the armed conflict is international in character.⁹ Their complaint is that the principle has not been recognised under customary international law where the armed conflict is not international in character.

6. The second challenge to the Tribunal’s jurisdiction is made by Kubura only. He is charged with superior responsibility for acts which were committed before he became the commander of the persons who are alleged to have committed them. He is alleged in the Amended Indictment to have been assigned to the ABiH 3rd Corps 7th Muslim Mountain Brigade on 1 April 1993, whereas many of the events for which the prosecution charges him with superior responsibility are alleged to have taken place in January 1993 and at other times before that date.¹⁰ His argument is that the superior-subordinate relationship must exist at the time when the relevant acts by the subordinate were done before a superior responsibility can arise.¹¹

7. The third challenge to the Tribunal’s jurisdiction is made by all three accused. Both par 61 and par 66 of the Amended Indictment plead that the accused:

[…] knew or had reason to know that the […] ABiH forces under their command and control were about to plan, prepare or execute […]

particular acts of subordinates which would constitute crimes within the jurisdiction of the Tribunal, “or [that the subordinates] had done so”.¹² The accused argue that superior responsibility can relate only to the commission of an offence by a subordinate, and that it cannot apply to the planning or preparation by the subordinates for the commission of an offence.¹³ The prosecution denied that it had pleaded such a case, and claimed that the references to planning and preparation by the subordinates were intended only to indicate an ingredient of its case that the accused “knew or had reason to know” that the subordinates were “about to commit such acts or had done so”.¹⁴

8. All three challenges were dismissed by the Trial Chamber,¹⁵ and the accused have now appealed, claiming the right to do so pursuant to Rule  72 of the Rules of Procedure and Evidence (“Rules”). In their Interlocutory Appeal,¹⁶ the accused have sought an oral hearing before the Appeals Chamber. The present bench of the Appeals Chamber does not interpret that request as applying to the determination pursuant to Rule 72( E) as to the validity of the appeal.

9. Appeals from decisions by Trial Chambers on preliminary motions challenging the jurisdiction of the Tribunal proceed directly to the Appeals Chamber,¹⁷ subject only to a ruling by a bench of three judges of the Appeals Chamber as to its validity.¹⁸ If the bench of three judges decides that the appeal is not capable of constituting a jurisdictional challenge, the appeal is dismissed.¹⁹ Decisions by Trial Chambers on a motion alleging defects in the form of an indictment are without interlocutory appeal unless the Trial Chamber has certified that the decision involves an issue which would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.²⁰

10. Rule 72(D) provides that a motion challenging jurisdiction refers exclusively to:

[…] a motion which challenges an indictment on the ground that it does not relate to:

(i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute;
(ii) the territories indicated in Articles 1, 8 and 9 of the Statute;
(iii) the period indicated in Articles 1, 8 and 9 of the Statute;
(iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute.

11. The prosecution concedes that the first challenge made by the accused validly constitutes a challenge to the Tribunal’s jurisdiction. The challenge relates to a person indicated in Article 7.3 of the Statute and to a violation indicated in the same Article, based upon superior responsibility. This is so despite the attempt by the prosecution to equivocate as to the character of the armed conflict.²¹ The issue as to whether an international armed conflict existed at a particular time or place is a matter for each Trial Chamber to determine based upon the evidence before it in the particular case.²² If the prosecution wishes to rely upon an international armed conflict, even if only in the alternative, it must plead as a material fact that the armed conflict was international in character and state the basis upon which such an assertion is made.²³ In the circumstances of the present case, the prosecution would be obliged to identify the foreign entity under whose overall control one of the parties to that conflict is alleged to have been acting.²⁴

12. Following the withdrawal of both the Article 2 charges and the express allegation in the original indictment that the armed conflict was international in character, the prosecution should not be permitted to rely upon the imprecision of its current pleading in order to put forward a case that the armed conflict was international in character without a further amendment to its indictment to make this expressly clear.²⁵ But it is sufficient for present purposes to treat the Amended Indictment as pleading that the armed conflict was internal in character, or in the alternative that it was international in character. The first challenge by the accused still amounts to a challenge to the jurisdiction of the Tribunal to hold a commander responsible as a superior for the acts of his subordinates in the course of an armed conflict which was not international in character. The prosecution’s concession is therefore correct.

13. The prosecution also concedes that the second challenge (made by Kubura alone ) – that the superior-subordinate relationship must exist at the time when the relevant acts by the subordinate were committed before a superior responsibility can arise  – constitutes a valid challenge to the Tribunal’s jurisdiction.²⁶ It submits, however, that Kubura has failed to demonstrate that the ruling by the Trial Chamber to the contrary was erroneous, and that this challenge is unsustainable.²⁷ That submission is irrelevant at this stage. The only issue to be determined pursuant to Rule 72(E) is whether the challenge goes to the jurisdiction of the Tribunal. There is no question of leave being granted. Whether Kubura’s arguments are capable of being sustained is an issue for the full bench of the Appeals Chamber.

14. Kubura argues that superior responsibility cannot exist unless it is established that he had effective control over the subordinates at the time they committed the acts which are alleged to constitute the crimes charged, and therefore that, as a matter of law, he cannot be a person to whom Article 7.3 applies. The only issue is one of law, as the prosecution has pleaded the very facts upon which Kubura relies as raising this issue.²⁸ The prosecution argues that it is sufficient that the accused had effective control over the subordinates at the time he is shown to have known or had reason to know that the acts had been committed, so as to be able to punish them. This legal issue which Kubura raises involves a determination as to what customary international law requires. If Kubura is correct in his argument, then there is no legal basis upon the accepted facts for holding him responsible as a superior for the crimes charged. The prosecution’s concession is therefore again correct.

15. The prosecution does not concede that the third challenge made by the three accused constitutes a challenge to the Tribunal’s jurisdiction. The problem involved in relation to this challenge arises solely because of the way in which the prosecution has pleaded the Amended Indictment. The accused argued that the two relevant paragraphs identify the acts of the subordinates as constituting the crimes of planning, preparing or executing various acts which themselves constitute crimes. This Tribunal does not have jurisdiction to try any crime of planning or preparing to commit a war crime;²⁹ its jurisdiction is limited to the commission of those crimes listed in its Statute, but it can try individuals who have planned or prepared them as accessories to those crimes. It is, however, essential that the indictment alleges that one of the listed crimes was in fact committed before this Tribunal has jurisdiction to try any individuals as an accessory to that crime.

16. Although it is not expressed in this way in the Trial Chamber Decision, that appears to be the point which the accused were seeking to make. It was a good point, provided that the Amended Indictment is interpreted in the way the accused contended. On the face of the Amended Indictment, that is precisely what it does say. The prosecution, however, sought to explain that what was intended by the allegation that the accused knew or had reason to know of the planning and preparation of the subordinates for acts which would constitute crimes within the jurisdiction of the Tribunal was only to indicate the basis for another allegation (which is inextricably rolled up in the same allegation) that the accused knew or had reason to know that the subordinates were about to commit such acts or had done so. The Amended Indictment does not expressly alleged that such acts were committed by the subordinates, but this may be thought to be necessarily implicit in the alternative allegation that the accused knew or had reason to know that the subordinates “had done so”.

17. However, the issue having been raised by the accused, the Trial Chamber concluded that the two paragraphs of the Amended Indictment should be interpreted in the way the prosecution had contended. That decision of the Trial Chamber as to the form of the indictment is without interlocutory appeal without a certificate from the Trial Chamber in accordance with Rule 72(B)(ii), and no such certificate has been given. Once the indictment has been interpreted in that way, this third challenge is not capable of satisfying the requirement of Rule 72(D) as a challenge to the Tribunal’s jurisdiction. In any event, the clarification now effected by the Trial Chamber Decision ensures that the accused can no longer be in doubt as to the nature of the prosecution case,³⁰ although the prosecution would be well advised to replead these two paragraphs to make expressly clear what it had intended.

18. Accordingly, the Bench of the Appeals Chamber:

(1) DECLARES that the appeal filed by the three accused is valid insofar as it challenges:

(a) the responsibility of a superior for the acts of his subordinates in the course of an armed conflict which was not international in character; and

(b) the responsibility of a superior for acts which were committed before he became the superior of the persons who committed them.

(2) DETERMINES that the challenge to the inclusion of the words “were about to”, “plan” and “prepare” before “execute” in pars 61 and 66 of the Amended Indictment is not capable of satisfying the requirements of Rule 72(D).

(3) DISMISSES the appeal in part, insofar as it challenges the inclusion of those words.

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

Dated this 21st day of February 2003,
At The Hague,
The Netherlands.

___________________
Judge David Hunt
Presiding Judge

[Seal of the Tribunal]