"Decision on 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
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson)

Introduction

On 22 January 1999, Counsel for both accused jointly filed a Motion challenging parts of the subject-matter jurisdiction of the Tribunal and requesting that the Trial Chamber amend the indictment accordingly by dismissing the relevant counts. The Prosecution opposed the Motion.

According to the first argument set forth in the Motion, Article 3 of the Statute is limited to "Hague law" and does not cover Article 3 common to the 1949 Geneva Conventions (Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; Geneva Convention III Relative to the Treatment of Prisoners of War; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War) and their Additional Protocols of 1977 (Geneva Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of International Armed Conflicts (Protocol I) (hereinafter "Additional Protocol I"), and Geneva Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of Non-International Armed Conflicts (Protocol II) (hereinafter "Additional Protocol II")). The Defence further argued that Common Article 3 does not form part of customary international law and does not entail individual criminal responsibility. The Defence also argued that since Article 2 relates only to the grave breaches provisions of the Geneva Conventions and Article 3 covers only "Hague law", these provisions are applicable only to international armed conflicts.

The principle of legality underlies all arguments in the Motion. Accordingly, the Defence submitted that the Tribunal is empowered to prosecute only the serious violations of international humanitarian law which are covered by the language of the Statute and which undeniably form part of customary international law.

Challenging the Appeals Chamber’s Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in the Tadic case (IT-94-1-AR72) (hereinafter "the Tadic Jurisdiction Decision"), the Defence submitted a wide range of arguments in support of its submissions.

The Decision

Having considered the applicable law, the Trial Chamber commenced its analysis by stating that it "... may not disregard a previous ruling of the Appeals Chamber that has already discussed in depth most of the arguments presently put forward by the Defence". In this regard it noted the Tadic Jurisdiction Decision.

Article 2 of the Statute

The Trial Chamber found that, according to Tribunal jurisprudence, the grave breaches system enshrined in Article 2 of the Statute is applicable to international armed conflicts. It noted, however, that the Tadic Jurisdiction Decision and the Judgement of 16 November 1998 in the Delalic et al. case (IT-96-21-T) (hereinafter "the Celebici Judgement")1 suggest that customary law may be evolving so as to extend the system to internal armed conflicts. As to the applicability of Article 2 of the Statute, however, the Trial Chamber held that at this stage it was not in a position to respond to the Defence claim that there was no international armed conflict and that this is a matter for trial. The Trial Chamber also declined to determine at this stage the applicability of any standard to assess the existence of an international armed conflict, such as the one in the Nicaragua case (1986 ICJ Reports, 14) before the International Court of Justice (hereinafter "the ICJ") suggested by the Defence.

Following the Tadic Jurisdiction Decision, the Trial Chamber limited its discussion of the scope of Article 3 of the Statute to the question of whether the relevant norms form part of customary international law and whether they entail individual criminal responsibility. According to the Tadic Jurisdiction Decision, Article 3 of the Statute is a residual clause whose purpose is to ensure that the Tribunal’s jurisdiction over serious violations of international humanitarian law is "watertight and inescapable".

Relying on the application of the principle of legality as laid down in paragraph 34 of the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (U.N. Doc. S/25704 (1993)), the Defence had submitted that the Tadic Jurisdiction Decision was incorrect. The Trial Chamber reiterated the importance of the principle and explained that the residual character of Article 3 of the Statute should be understood as covering serious violations of international humanitarian law which at the time of their alleged commission were customary in nature and entailed individual criminal responsibility.

The Trial Chamber held that this interpretation of Article 3 of the Statute is in line with international customary law in force at the time of the alleged offences. According to contemporary customary law, violations of the laws or customs of war encompass "war crimes". This term covers not only violations of "Hague law", but all violations of "customary norms of humanitarian law entailing individual criminal responsibility". The Trial Chamber found support for this conclusion in the commentary of the International Law Commission (hereinafter "the ILC") to Article 20 of its 1994 Draft Statute of an International Criminal Court (U.N. Doc. A/49/10) (hereinafter "Draft ICC Statute"), Article 85(5) of Additional Protocol I, Article 20 of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind (U.N. Doc. A/51/10), and finally in Article 8 of the Statute of the International Criminal Court (U.N. Doc. A/CONF.183/9 (1998)). The Trial Chamber further noted that, in the latter instrument, Common Article 3 entails individual criminal responsibility.

The Trial Chamber recalled that the customary law status of Common Article 3 was confirmed by the ICJ in the Nicaragua case and in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of 8 July 1996. The Trial Chamber also found explicit support in the Celebici Judgement and in the Judgement of 10 December 1998 in the Furundzija case (IT-95-17/1)2. Contrary to the Defence argument, the Trial Chamber further held that statements by members of the Security Council after the vote on the establishment of the Tribunal are important for assessing the scope of Article 3 of the Statute.

As to the Additional Protocols, contrary to the Defence submission, the Trial Chamber held that "it is not controversial that major parts of both Protocols reflect customary law." According to the Trial Chamber, there is "no possible doubt" that the provisions enshrined in Articles 15(1) and 15(2) of Additional Protocol I and Article 13(2) of Additional Protocol II form part of customary international law in both international and internal conflicts.

The Trial Chamber then turned to the requirement of individual criminal responsibility in order for a rule of customary international law to be included under Article 3 of the Statute. It first referred to national implementing legislation in respect of serious violations of both the Geneva Conventions and Hague law. In this respect, the Trial Chamber further noted the ILC’s commentary to Article 20 of the Draft ICC Statute and, in conclusion, found that "it is generally accepted that serious violations of both Geneva and Hague law entail individual criminal responsibility."

The Trial Chamber found no reason to deviate from Tribunal jurisprudence upholding individual criminal responsibility for violations of Common Article 3. It further noted that the provisions of the Additional Protocols relevant to the indictment are based on Hague law. Charter of International Military Tribunal as Nuremberg accepted individual criminal responsibility for violations of the latter category. This was subsequently reaffirmed in the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal adopted by the ILC in 1950 (Ybk I.L.C., 1950, Vols I and II).

In conclusion, holding that the provisions of Common Article 3 and the relevant provisions of the Additional Protocols I and II are covered by Article 3 of the Statute, the Trial Chamber dismissed the Motion.

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1.See  Bulletin Judicial Supplement No. 1: "Judgement", 16 November 1998.
2.See Bulletin Judicial Supplement No. 1: "Judgement", 10 December 1998.

2 March 1999
Trial Chamber III (Judges May (Presiding), Bennouna and Robinson)

Introduction

On 22 January 1999, Counsel for the two accused jointly filed a preliminary Motion pursuant to Rule 72 of the Rules of Procedure and Evidence. The Motion requested that the Trial Chamber remove from the indictment all references to alleged superior criminal responsibility for "failure to punish subordinates" within the meaning of Article 7(3) of the Statute, particularly in the absence of evidence that this resulted in the failure to deter subsequent violations. Alternatively, for the sake of fairness, the Defence asked for advice on the role of "failure to punish" liability and the relevant core legal principles on which the Trial Chamber will rely.

The Defence Case

In support of its principle request, the Defence asserted that, in the absence of individual guilt, neither civil law nor common law traditions recognise criminal liability for "failure to punish". The Defence further argued that this alleged ground of criminal responsibility has no basis in either customary international law or international conventions. According to the Defence, the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts Protocol I (hereinafter "Additional Protocol I") was not included in paragraph 35 of the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (U.N. Doc. S/25704 (1993)) (hereinafter "the Report of the Secretary-General") as falling within the subject matter jurisdiction of the Tribunal.

Whatever the case, the Defence asserted that there is no independent basis for criminal liability for "failure to punish" distinct from "failure to prevent". It found support for this view in Article 86 of Additional Protocol I and the Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging "Failure to Punish" Liability of 4 April 1997 in the Blaskic case (IT-95-14-PT) and the Judgement of 16 November 1998 in the Delalic et al. case (IT-96-21-T).

Finally, the Defence argued that a civilian commander may only be held accountable for "failure to punish" if his disciplinary power is equivalent to that of "an effective" military commander.

The Trial Chamber first recalled Article 7(3) of the Statute, paragraph 56 of the Report of the Secretary-General commenting on that Article, and the relevant paragraphs of the Indictment. The Trial Chamber then considered that both the Judgement in the Delalic et al. case and the above mentioned Decision in the Blaskic case acknowledged as part of customary international law individual criminal responsibility for "failure to prevent" and "failure to punish". In this respect, the Trial Chamber also referred to jurisprudence of the International Military Tribunal for the Far East and the Nuremberg Military Tribunals under Control Council Law No. 10.

In conclusion, pursuant to Rule 72, the Trial Chamber dismissed the Defence Motion.