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IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Dorothee de Sampayo Garrido-Nijgh

Decision of:
22 September 2000

PROSECUTOR

v.

MOMCILO KRAJISNIK

____________________________________________________

DECISION ON MOTION CHALLENGING
JURISDICTION – WITH REASONS

____________________________________________________

The Office of the Prosecutor:

Ms. Carla del Ponte
Mr. Nicola Piacente
Ms. Brenda J. Hollis

Counsel for the Accused:

Mr. Goran Neskovic and for Momcilo Krajisnic
Mr. Svetislav Stanojevic

INTRODUCTION

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 (“International Tribunal”), having issued a decision on 4 August 2000¹ dismissing the motion filed on behalf of Momcilo Krajisnik (“the accused”) challenging the jurisdiction of the International Tribunal (“the Motion”),² with written reasons to follow,

HEREBY GIVES ITS REASONS.

ARGUMENTS OF THE PARTIES

The Accused

1. The accused submits that the Security Council of the United Nations has no authority under the United Nations Charter to establish a judicial body, such as the International Tribunal, and that such a body may only be established by treaty . It is the contention of the accused that the establishment of the International Tribunal violates the principles of the sovereign equality of States and that of universality. In relation to the Statute of the International Tribunal (“Statute ”), the accused contends that it is contrary to the fundamental principles of international criminal law and further, that it violates rights guaranteed under the International Covenant on Civil and Political Rights (“ICCPR”).³

2. The accused argues that the International Tribunal is neither impartial, nor independent, since it is financed by certain States and several investigators working for the Office of the Prosecutor are paid directly by the governments of the countries of which they are nationals.

3. It is submitted that Article 7, paragraph 3, of the Statute violates the principle nullem crimen sine lege, since the individual criminal responsibility set forth in that provision, where superiors incur liability for acts perpetrated by their subordinates, did not form a part of customary international law at the time the crimes charged in the indictment against the accused were committed. The accused further submits that the case-law demonstrates that command responsibility only gives rise to disciplinary measures.

4. The accused contends that Articles 2 and 3 of the Statute violate the principle nullem crimen sine lege, since under customary international law the crimes set forth in those Articles only apply in international armed conflicts, and the conflict in Bosnia and Herzegovina was internal.

5. It is further argued that the International Tribunal’s subject matter jurisdiction extends only to crimes committed in armed conflicts. The crimes charged in the indictment are alleged to have been committed between 1 July 1991 and 30 December 1992. As the armed conflict in Bosnia and Herzegovina did not commence until April 1992, the jurisdiction of the International Tribunal does not extend to crimes committed before this date.

The Prosecution Response

6. The Prosecution submits that the accused’s arguments challenging the competence of the Security Council to establish the International Tribunal have been met by the Appeals Chamber decision in the Tadic case,⁴ (hereafter the “Tadic Jurisdiction Decision”), which is binding on this Trial Chamber.⁵

7. In relation to the argument of the accused that the International Tribunal is neither impartial, nor independent, the Prosecution contends that the submissions of the accused fail to demonstrate how the alleged deficiencies have influenced the Office of the Prosecutor.

8. The Prosecution contends that the doctrine of command responsibility enshrined in Article 7, paragraph 3, of the Statute does not violate the principle nullum crimen sine lege since it forms a part of customary international law.

9. It is submitted that the subject matter jurisdiction of the International Tribunal under Article 3 of its Statute includes crimes committed in both international and internal armed conflicts. While Article 2 applies primarily in the context of international armed conflicts, the Prosecution notes that the jurisprudence of the International Tribunal has not excluded the possibility that customary law may be evolving to apply the system of grave breaches of the Geneva Conventions to internal armed conflicts . In any event, the question of the nature of the conflict in Bosnia and Herzegovina during the time the crimes are alleged to have been committed, is a matter for trial and may not be decided by way of preliminary motion. Similarly, the accused’s contention regarding the date of the commencement of the armed conflict is a matter to be determined at trial.

The Accused in Reply

10. In reply, the accused contends that the establishment of the International Tribunal by the Security Council does not constitute a “measure envisaged by Article 41 of the U.N. Charter.”

11. The accused argues that the International Tribunal is not independent because it receives targeted financial contributions from States. He contends that the strategy of the Office of the Prosecutor is influenced by States and is biased against Bosnian Serbs.

12. The accused refutes the Prosecution’s argument that the doctrine of command responsibility set forth in Article 7, paragraph 3, of the Statute forms part of customary international law. It is argued that a superior will attract disciplinary , rather than criminal sanctions, for the acts of his subordinates. He argues that all the cases to date have dealt with command responsibility in relation to war crimes, and that no precedent exists for applying command responsibility in respect of genocide.

DISCUSSION

13. The issues raised by the Motion will be considered in four parts:

A. General challenges to the jurisdiction of the International Tribunal;

B. Specific challenge to jurisdiction in relation to Article 7, paragraph 3, of the Statute;

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

D. Specific challenge to jurisdiction in relation to acts alleged in the Indictment 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

14. The accused argues that:

a) the Security Council of the United Nations had no authority to establish the International Tribunal;

b) the Security Council has neither judicial nor legislative authority to establish the International Tribunal;

c) the establishment of the International Tribunal is inconsistent with the functions of the Security Council;

d) the Security Council cannot establish subsidiary bodies;

e) the Statute violates a whole range of human rights determined by the ICCPR, whose provisions constitute jus cogens;

f) the International Tribunal is neither impartial nor independent; this is established by the fact that it is financed by certain States and that in the Office of the Prosecutor, several officers are paid directly by the States of which they are nationals ;

g) the Statute violates principles of international criminal law - this aspect of the Motion appears to relate to the nullum crimen sine lege principle, which is raised by the accused in relation to Articles 2, 3 and 7 of the Statute, and will be addressed in the relevant section;

h) the establishment of the International Tribunal violates the principles of sovereign equality of States and universality, in that its work is confined to the former Yugoslavia (and Rwanda).

15. Most 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. The Appeals Chamber, 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 Charter, and was in the exercise of its powers under Chapter VII of the UN Charter in respect of the maintenance of international peace and security in the former Yugoslavia.

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 ICCPR.⁶

16. The Trial Chamber considers that those findings of the Appeals Chamber provide a complete answer to the arguments set forth in paragraph 14 (a) through (e) above . On the basis of the Appeals Chamber’s Judgement in the Aleksovski case , decisions of the Appeals Chamber are binding upon Trial Chambers.⁷

17. As to the argument set forth in paragraph 14(f) above, the Trial Chamber observes that the International Tribunal is funded through the general budget of the United Nations, and that the fact that individual countries make voluntary contributions to the International Tribunal in no way derogates from its independence. With regard to the allegation of selective prosecutions at the International Tribunal, the Trial Chamber can find nothing in the arguments of the defence to indicate any breach by the Prosecutor of her duties under the Statute and the Rules of Procedure and Evidence of the International Tribunal (“Rules”). Moreover, it has to be observed that, although the International Tribunal has primacy over national courts, its jurisdiction is not exclusive, but rather concurrent with national courts, and that , therefore, persons not indicted by the Prosecution may nonetheless be tried in domestic courts.⁸ The Trial Chamber has examined carefully the arguments advanced by the accused, including those in his reply, and can find nothing that would substantiate the claim that the independence of the Prosecutor, required by Article 16 of the Statute, has been breached.

18. As to the argument set forth in paragraph (h) above, nothing in either the Motion or the reply substantiates the claim that the establishment of the International Tribunal violates either the principle of the sovereign equality of States, or that of universality. Although 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) 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, paragraph 3, of the Statute

19. The argument in relation to Article 7, paragraph 3, of the Statute runs as follows. The acts and omissions that give rise to individual criminal liability under Article 7, paragraph 3, of the Statute, did not attract criminal liability prior to the establishment of the International Tribunal and the adoption of its Statute. Since the acts charged in the Indictment are alleged to have occurred prior to the establishment of the International Tribunal, Article 7, paragraph 3 , of the Statute violates the nullum crimen sine lege principle.

20. In oral submissions, the accused further argues that under customary international law a superior does not incur individual criminal liability for the acts of his subordinates; rather, the case-law demonstrates that command responsibility attracts only disciplinary measures.⁹

21. In that regard, the majority of the cases to which the Chamber has been referred by the accused establish individual criminal responsibility for superiors who fail to prevent or punish crimes committed by their subordinates; those individuals were tried, convicted and sentenced. For example, in the case of Wilhelm List and Others, the International Military Tribunal at Nuernberg held that Field Marshall Wilhelm List’s “failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal liability”.¹⁰ The cases cited by the accused in respect of which disciplinary measures were the sanction do not contradict the clear development of individual criminal responsibility over the past fifty years in relation to the liability of a superior for the acts of his subordinates. In particular, they are not authority for the proposition that individual criminal liability does not attach to a superior in respect of the acts of his subordinates. The fact that the sanction imposed was disciplinary in no way precludes the conclusion that criminal responsibility, in the form of a trial and punishment, was also a possibility.

22. For example, Major General Koster of the United States Army, to whom the accused made reference in oral submissions, was initially indicted and charged with failure to obey lawful regulations and dereliction of duty for his role as a commanding officer in connection with the My Lai massacre in Vietnam; the charges against him were dismissed.¹¹ The fact that administrative sanctions were imposed following the dismissal in no way derogates from the characterisation of this case, which in fact was a trial by court martial, as an illustration of command responsibility.

23. Similarly, the Kahan Commission, cited by the accused in support of his argument that superiors do not incur criminal liability for the acts of their subordinates , was a national body, established by the Government of Israel “to investigate all the facts and factors connected with the atrocity which was carried out by a unit of the Lebanese Forces against the civilian population of the Shatilla and Sabra camps”.¹² The Commission recommended disciplinary sanctions, including dismissal, for certain senior government and military officials, whose failure to take action to prevent or punish the commission of crimes by their subordinates was found to constitute a breach or dereliction of duty. Nothing in the Report indicates that those recommendations proceeded on the basis that disciplinary measures were the only sanctions open to the Commission, and that criminal trials were precluded by law.

24. In the view of the Trial Chamber, 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. In this regard, the Chamber notes that the doctrine of command responsibility is included in Additional Protocol 1 to the Geneva Conventions of 1949¹³ at articles 86 and 87,¹⁴ and is persuaded by the Celebici Judgement,¹⁵ the Blaskic Judgement¹⁶ as well as by this Chamber’s decision in response to a preliminary motion alleging lack of jurisdiction in relation to Article 7, paragraph 3, in the Kordic case.¹⁷ The Chamber further observes that at least one Trial Chamber of the International Criminal Tribunal for Rwanda has found an accused guilty under the doctrine of command responsibility for complicity in genocide.¹⁸

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

25. The accused argues that Articles 2 and 3 violate the principle of nullum crimen sine lege, since they apply only to international armed conflicts, and the conflict in Bosnia and Herzegovina was internal. Whether that armed conflict was international or internal is a question of fact to be determined at trial, and not by way of preliminary motion. Moreover, the Trial Chamber notes 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.¹⁹

D. Specific challenge to jurisdiction in relation to acts committed prior to the commencement of the armed conflict in Bosnia and Herzegovina

26. The contention here is that the jurisdiction of the International Tribunal is limited to crimes committed during an armed conflict and that certain of the crimes charged in the Indictment against the accused were perpetrated prior to the commencement of an armed conflict in Bosnia and Herzegovina. The question as to when that armed conflict commenced is a matter to be determined at trial, and not by way of preliminary motion.

27. Finally, the Trial Chamber would note that the International 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 should 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.

DISPOSITION

It was for the foregoing reasons that the Trial Chamber dismissed the Motion.

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

______________________
Richard May
Presiding Judge

Dated this twenty-second day of September 2000
At The Hague
The Netherlands

[Seal of the Tribunal]

1- Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-PT, Decision on Motion Challenging Jurisdiction, 4 Aug. 2000.
2- Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-PT, Defendant’s Preliminary Motion As Regards the Jurisdiction of the ICTY, 8 June 2000.
3- Adopted in a U.N. General Assembly resolution on 16 December 1966, entered into force on 23 March 1976.
4- Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995.
5- Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 Mar. 2000 (“Aleksovski Appeals Judgement”), para. 113.
6- Tadic Jurisdiction Decision, paras. 34 and 47.
7- Aleksovski Appeals Judgement, para. 113.
8- See Article 9, paragraph 1, of the Statute.
9- Transcript, Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-PT, 19 July 2000, pp. 18 – 26.
10- United States v. Wilhelm List and Others, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (U.S. Govt. Printing Office: Washington 1950), Vol. XI, p.1272.
11- See Koster v. U.S., 685 F.2d 407 (1982) (noting that court martial charges brought against the plaintiff under the Uniform Code of Military Justice - Article 92-failure to obey orders and regulations and dereliction of duty - were dismissed).
12- See Final Report of the Commission of Inquiry into Events at the Refugee Camps in Beirut, 1983, reprinted in International Legal Materials, Vol. XXII (1983) (hereafter “the Kahan Report”), p. 473 et seq, at 474.
13- Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (Protocol I). This is referred to in Prosecutor v. Blaskic, Case No. IT-95-14-PT, Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging “Failure to Punish” Liability, 4 Apr. 1997, para. 12.
14- Article 86 of Protocol I provides for the individual criminal responsibility of superiors for the crimes of a subordinate in the following terms: “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 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.
15- Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement, 16 Nov. 1998, para. 343.
16- Prosecutor v Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 Mar. 2000, para. 290. That the doctrine of command responsibility forms part of customary international law was also confirmed by a Trial Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) in The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, 21 May 1999, para. 209.
17- Prosecutor v. Dario Kordic et al., Case No. IT-95-14/2-PT, Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction Portions of the Amended Indictment Alleging “Failure to Punish” Liability, 2 Mar. 1999.
18- The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence, 4 Sept. 1998. The Trial Chamber found Jean Kambanda guilty of complicity in genocide under Article 6, paragraph 3, of the Statute of the ICTR, which is identical to Article 7, paragraph 3, of the Statute of the International Tribunal.
19- Tadic Jurisdiction Decision, para. 137.

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