IN THE TRIAL CHAMBER

Before: Judge Richard May, Presiding

Judge Mohamed Bennouna

Judge Patrick Robinson

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 1 March 1999

 

PROSECUTOR

v.

DARIO KORDIC
MARIO CERKEZ

______________________________________________

DECISION ON JOINT DEFENCE MOTION TO DISMISS ALL ALLEGATIONS OF PLANNING AND PREPARATION UNDER ARTICLE 7(1) AS OUTSIDE THE JURISDICTION OF THE TRIBUNAL OR AS UNENFORCEABLE

______________________________________________

The Office of the Prosecutor

Mr. Geoffrey Nice
Mr. Rodney Dixon

Counsel for the accused

Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr., and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic
, for Mario Cerkez

 

THIS TRIAL 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 International Tribunal"),

BEING SEISED OF the "Joint Defense Motion to Dismiss all Allegations of Planning and Preparation Under Article 7(1) As Outside the Jurisdiction of the Tribunal or As Unenforceable" filed by counsel for the two accused, Dario Kordic and Mario Cerkez, (together "the Defence"), on 22 January 1999 ("the Motion"), seeking to strike the words "preparation", "planned", "planning" and other like terms from all Counts and their associated charging paragraphs in the Amended Indictment,

NOTING the Prosecutor’s Response to the Motion filed by the Office of the Prosecutor ("Prosecution") on 5 February 1999 ("the Response"),

HAVING HEARD the oral arguments of the Defence and Prosecution presented on 16 February 1999,

NOTING in particular the arguments of the Defence that there is no basis in customary international law for the incrimination of preparation and planning provided for by Article 7, paragraph 1, of the Statute of the International Tribunal; that neither the Nürnberg Charter Control Council Law No. 10, nor the jurisprudence of the International Military Tribunal for the Trial of the Major War Criminals at Nürnberg supports the incrimination of such offences; and, that criminal liability for mere planning and preparation of offences is, bar exceptional circumstances, prohibited,

NOTING FURTHER the arguments of the Prosecution that the international military tribunals at Nürnberg and Tokyo did in fact hold persons responsible for the planning and preparation of offences, and that Control Council Law No. 10 and the Charter of the United States Military Tribunals provided explicitly for planning and preparation offences; that the Defence is confusing the planning and preparation for offences not completed with those which were in fact completed; that it is well established in international law that the planning and preparation of offences in violation of international humanitarian law are punishable; and that the jurisprudence of the International Tribunal and the International Criminal Tribunal for Rwanda confirms this,

CONSIDERING that the planning and preparation offences alleged in the Amended Indictment pursuant to Article 7, paragraph 1,of the Statute are linked with serious violations of international humanitarian law which are alleged by the Prosecution to have been completed,

CONSIDERING that it is established in customary international law that the planning and preparation of violations of international humanitarian law are punishable, and that the principle of legality (nullum crimen sine lege) is not violated by the prosecution of or conviction for planning and preparation of completed offences,

CONSIDERING FURTHER that the plain language of Article 7, paragraph 1, of the Statute, as well as the jurisprudence of the International Tribunal in Prosecutor v. Tadic, and of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu, confirm that criminal responsibility may flow from the planning and preparation of offences under the Statutes of the International Tribunals, where the offences were completed,

PURSUANT TO Rule 72 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY DISMISSES THE MOTION.

 

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

_____________________________

Richard May

Presiding

Dated this first day of March 1999

At The Hague

The Netherlands

[Seal of the Tribunal]