Judicial Supplement 19 - The Prosecutor v. Momcilo Krajisnik

The Prosecutor v. Momcilo Krajisnik - Case No. IT-00-39-PT

"Decision on Motion challenging Jurisdiction - with Reasons"

22 September 2000
Trial Chamber II (Judges May [Presiding], Bennouna and Robinson)

Jurisdiction of the Tribunal - Establishment of the Tribunal - Binding force of precedent - Principle of sovereign equality of States - Principle of universality - Principle of non-intervention - Article 2(7) of the United Nations Charter - Chapter VII of the United Nations Charter - Doctrine of command responsibility - Customary international law.

(1) Although the UN Charter enshrines the principle of sovereignty and non-intervention by the United Nations, Article 2(7) of the Charter establishes an exception in the provision that that principle shall not prejudice the application of enforcement measures under Chapter VII;
(2) The UN Charter makes clear that when the Security Council acts pursuant to its powers under Chapter VII of the UN Charter, it does so on behalf of all member States of the United Nations;
(3) The doctrine of command responsibility formed part of customary international law at the time of the commission of the offences charged in the indictment against the accused;
(4) The questions as to whether the armed conflict in Bosnia and Herzegovina was international or internal and when that armed conflict commenced are matters to be determined at trial, and not by preliminary motion;
(5) Trial Chambers shall not be called upon to adjudicate on arguments in motions that have already been definitively determined by the Appeals Chamber.

Procedural Background

On 8 June 2000, Momcilo Krajisnik filed the Defendant's Preliminary Motion as regards the Jurisdiction of the ICTY.

The Prosecution responded and the Defendant replied on 4 July 2000.

On 4 August 2000, Trial Chamber III dismissed the Motion stating that its written reasons would be given subsequently.

The Reasoning

The Judges considered that the Motion raised four issues:

A. General challenges to the jurisdiction of the Tribunal;

B. Specific challenge to jurisdiction in relation to Article 7(3) of the Statute1;

C. Specific challenge to jurisdiction in relation to Articles 22 and 33 of the Statute;

D. Specific challenge to jurisdiction in relation to acts charged in the Indictment alleged to have been committed prior to the commencement of the armed conflict in Bosnia and Herzegovina.

A. General challenges to the jurisdiction of the Tribunal

Trial Chamber III noted that "[m]ost of these arguments have been raised before in one form or another, and have been fully answered by the Appeals Chamber in the Tadic Jurisdiction Decision"4, in which the Judges "in dismissing that appeal, held that:

(i) the establishment of the International Tribunal by the Security Council was a measure 'not involving the use of force' within the meaning of Article 41 of the UN Charter5, and was in the exercise of its powers under Chapter VII of the UN Charter6 in respect of the maintenance of international peace and security of the former Yugoslavia. (para. 34)

(ii) the International Tribunal was established by law since it was set up by a competent organ in accordance with the relevant legal principles, and meets the requirements for procedural fairness; in particular, it affords the accused the full guarantees of a fair trial set out in Article 14 of the ICCPR7." (para. 47)

The Judges considered "that those findings of the Appeals Chamber provide a complete answer to the arguments set forth [...]. On the basis of the Appeals Chamber's Judgement in the Aleksovski case, decisions of the Appeals Chamber are binding upon Trial Chambers."8
Trial Chamber III then addressed the argument that the establishment of the Tribunal "violates the principle of the sovereign equality of States, or that of universality." The Judges considered these two submissions in turn and noted that "[a]lthough the UN Charter enshrines the principle of sovereignty and non-intervention by the United Nations in 'matters which are essentially within the domestic jurisdiction of any State', the Charter itself, in Article 2(7)9 establishes an exception in the provision that that 'principle shall not prejudice the application of enforcement measures under Chapter VII.' In respect of the claim of breach of the principle of universality, the UN Charter makes it clear that when the Security Council acts pursuant to its powers under Chapter VII of the UN Charter, it acts on behalf of all member States of the United Nations."

B. Specific challenge to jurisdiction in relation to Article 7(3) of the Statute

The Trial Chamber ruled that "the doctrine of command responsibility, as set forth in Article 7, paragraph 3, of the Statute, formed part of customary international law at the time of the commission of the offences charged in the indictment against the accused." The Judges based this finding:

(1) on articles 86 and 87 of the Additional Protocol I to the Geneva Conventions of 194910,

(2) on the Judgements of Trial Chamber II quater of 16 November 1998 and of Trial Chamber I of 3 March 2000 in the cases The Prosecutor v. Zejnil Delalic et al.11 and Tihomir Blaskic12 respectively,

(3) on their own Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction Portions of the Amended Indictment alleging "Failure to Punish" Liability of 2 March 1999 in the case The Prosecutor v. Dario Kordic and Mario Cerkez13.

(4) and on the Judgement and Sentence of Trial Chamber I of the International Criminal Tribunal for Rwanda of 4 September 1998 in the case The Prosecutor v. Jean Kambanda14.

C. Specific challenge to jurisdiction in relation to Articles 2 and 3 of the Statute

Trial Chamber III held that whether the armed conflict in Bosnia and Herzegovina "was international or internal is a question of fact to be determined at trial, and not by way of preliminary motion." The Judges moreover noted "the finding of the Appeals Chamber in the Tadic Jurisdiction Decision that Article 3 applies, regardless of whether the acts alleged in the indictment occurred within an internal or an international armed conflict."15

D. Specific challenge to jurisdiction in relation to acts charged in the Indictment alleged to have been committed prior to the commencement of the armed conflict in Bosnia and Herzegovina

The Trial Chamber held again that "[t]he question as to when that armed conflict commenced is a matter to be determined at trial, and not by way of preliminary motion."

Finally, the Judges emphasised that the Tribunal "as a whole is overburdened with work. This Chamber is itself seized of many cases and judicial economy is, therefore, of the utmost importance to its work. Trial Chambers shall not be called upon to adjudicate on arguments in motions that have already been definitively determined by the Appeals Chamber. All counsel should bear this in mind in filing future motions."

Separate Opinion of Judge Bennouna

Judge Mohamed Bennouna pointed out that he could not share the "peremptory statement" that the doctrine of command responsibility formed part of customary international law when the offences of which the accused was indicted were committed.

Judge Bennouna stated that Trial Chamber III should have addressed the argument of Defence Counsel for Momcilo Krajisnik on "the question of the nature and scope of Article 7" of the Statute.

Judge Bennouna added that, in its reasoning, the Trial Chamber "should have made a distinction between the aspects of the question which go to the preliminary motion challenging jurisdiction (the principle in itself and its customary status), and the other aspects (the nature and scope of Article 7(3)) which should be addressed at trial." This would have indicated to Defence Counsel for Momcilo Krajisnik that they would retain the right to discuss the issue of the nature and scope of Article 7(3) of the Statute at trial. The Judge stated that the instant Decision "is only addressing the existence of a general principle in relation to the responsibility of a superior, which forms part of customary law", but it does not pronounce on whether Article 7(3) of the Statute is consistent with customary law.

______________________________________
1. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."
2. "The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages."

3. "The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."

4. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
5. "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."
6. "Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression".
7. Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) provides in relevant part: "In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."
8. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13), para. 113.
On the binding force of precedent, see also The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge, 18 May 2000 (summarised and analysed in Judicial Supplement No. 15), in which Judge David Hunt ruled that Trial Chambers were bound by Appeals Chamber Decisions rendered in other cases on issues of law (ratio decidendi) but not on issues of fact.
9. "The Organization and its Members, in pursuit of the Purposes sated in Article 1, shall act in accordance with the following Principles:
(…)
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."
10. Article 86 of Protocol I, which provides for the individual criminal responsibility of superiors for the crimes of a subordinate, reads as follows: "The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach." Article 87 of Protocol I delineates the duty of commanders to control the acts of their subordinates and to prevent or repress violations of the Geneva Conventions or the Protocol.
11. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (summarised in Judicial Supplement No. 1), para. 383.
12. The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13), para. 290.
13. The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-PT, Trial Chamber III, Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction Portions of the Amended Indictment alleging "Failure to Punish" Liability, 2 March 1999 (summarised in Judicial Supplement No. 3).
14. The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Trial Chamber I, Judgement and Sentence, 4 September 1998.
15. See also The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Decision rejecting a Motion of the Defence to dismiss counts 4, 7, 10, 14, 16 and 18 based on the failure to adequately plead the existence of an international armed conflict, 4 April 1997, in which the Judges followed the Tadic Jurisdiction Decision and held that proof of the internationality of the armed conflict in question was a matter for trial: the Appeals Chamber "considered that the Trial Chamber should settle this issue involving factual and legal questions only on the merits.
For the same reasons, the Trial Chamber is of the opinion that it is premature to rule on this point since it can be considered properly only on the merits." (para. 7)
See also The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-PT, Trial Chamber III, Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction based on the limited jurisdictional reach of Articles 2 and 3, 2 March 1999 (summarised in Judicial Supplement No. 3), in which the Judges noted that the Tadic Jurisdiction Decision and the Celebici Judgement suggest that customary law may be evolving so as to extend the system to internal armed conflicts. In respect of the applicability of Article 2 of the Statute, the Trial Chamber however held that at this stage it was not in a position to respond to the Defence submission that there was no international armed conflict and that this is a matter for trial.
See also The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13), in which the Judges ruled that for the grave breaches contained in Article 2 of the Statute to apply, the conflict must be international in nature.