Case No: IT-01-47-PT
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Mr Hans Holthuis
7 December 2001
The Office of the Prosecutor:
Ms Jocelyne Bodson
Mr Ekkehard Withopf
Counsel for the Accused:
Ms Edina Residovic for Enver Hadzihasanovic
Mr Vasvija Vidovic and Mr John Jones for Mehmed Alagic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura
The Trial Chamber is seized of a joint Defence Motion on the form of the indictment in the present case,1 and the subsequent related filings.2 A part of the Motion may be considered as a challenge to the Tribunal’s jurisdiction, for the reason set out below.3 Since issues on the form of the indictment are substantially different from jurisdictional issues, the Trial Chamber considers them in separate decisions.4 What may be considered as a challenge to the Tribunal’s jurisdiction, is the subject of this decision.
The three accused, Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, are charged with a number of crimes alleged to have been committed between 1 January 1993 and 31 January 1994 against Bosnian Croats and Bosnian Serbs in various municipalities in central Bosnia and Herzegovina.5 All the charges are based on command responsibility provided for in Article 7(3) of the Tribunal’s Statute. At the relevant time, Enver Hadzihasanovic is alleged to have been the commander of the 3rd Corps of the Army of Bosnia and Herzegovina (“ABiH”), the Chief of the Supreme Command Staff of the ABiH and Brigadier General of the ABiH.6 Mehmed Alagic is alleged to have been was the commander of the ABiH 3rd Corps Operational Group Bosanska Krajina” and the commander of the ABiH 3rd Corps.7 Amir Kubura is alleged to have been the Assistant Chief of Staff for Operations and Instruction Matters of the ABiH 3rd Corps 7th Muslim Mountain Brigade and the Chief of Staff of that Brigade and to have acted as the substitute for the commander of that Brigade before being appointed its commander.8 None of the accused is charged with having personally committed any of the alleged crimes under Article 7(1) of the Statute.
The charges against the accused are based on Article 2 (grave breaches of the Geneva Conventions of 1949) and Article 3 (violations of the laws or customs of war) of the Statute. Specifically, all three the accused are charged with:
(a) Count 1, murder, a violation of Article 3 of the Statute, based on Article 3 (1)(a) common to the Geneva Conventions of 1949 (“common Article 3”).
(b) Count 2, wilful killing, a violation of Article 2(a) of the Statute.
(c) Count 3, violence to life and person, a violation of Article 3 of the Statute , based on common Article 3(1)(a).
(d) Count 4, wilfully causing great suffering or serious injury to body or health , a violation of Article 2(c) of the Statute.
(e) Count 5, inhuman treatment, a violation of Article 2(b) of the Statute.
(f) Count 6, unlawful confinement of civilians, a violation of Article 2(g) of the Statute.
(g) Count 7, murder, a violation of Article 3 of the Statute, based on common Article 3(1)(a).
(h) Count 8, wilful killing, a violation of Article 2(a) of the Statute.
(i) Count 9, cruel treatment, a violation of Article 3 of the Statute, based on common Article 3(1)(a).
(j) Count 10, inhuman treatment, a violation of Article 2(b) of the Statute.
(k) Count 16, wanton destruction of cities, towns or villages, not justified by military necessity, a violation of Article 3(b) of the Statute.
(l) Count 17, plunder of public or private property, a violation of Article 3(e) of the Statute.
(m) Count 18, extensive destruction of property, not justified by military necessity , a violation of Article 2(d) of the Statute.
Enver Hadzihasanovic is additionally charged with:
(a) Count 11, unlawful labour, a violation of Article 3 of the Statute, based on customary international law, Articles 40 and 51 of Geneva Convention IV and Articles 49, 50 and 52 of Geneva Convention III.
(b) Count 12, taking of hostages, a violation of Article 3 of the Statute, based on common Article 3(1)(b).
(c) Count 13, taking of civilians as hostages, a violation of Article 2(h) of the Statute.
Enver Hadzihasanovic and Amir Kubura are further together charged with:
(a) Count 14, cruel treatment, a violation of Article 3 of the Statute, based on common Article 3(1)(a).
(b) Count 15, inhuman treatment, a violation of Article 2(b) of the Statute.
Finally, Enver Hadzihasanovic and Mehmed Alagic are together charged under count 19 with destruction or wilful damage done to institutions dedicated to religion, a violation of Article 3(d) of the Statute.
The Defence asserts that command responsibility for crimes committed in the course of an internal armed conflict did not exist in international humanitarian law in 1993, the law which the Tribunal has to apply.9 It consequently seeks to have the charges under Article 3 of the Statute based on common Article 310 struck from the indictment,11 because, it is submitted , those charges relate only to an internal armed conflict.12 The Prosecutor submits that this objection has no foundation in law.13
Whether or not international humanitarian law in 1993 included command responsibility for crimes committed in internal armed conflicts may, as suggested by the Defence ,14 be considered as a challenge to the jurisdiction of the Tribunal. A motion challenging jurisdiction is one “which challenges an indictment on the ground that it does not relate to S…C any of the violations indicated in Articles 2, 3 4, 5 and 7 of the Statute.”15 The present objection appears to fall within that definition.
The principle that at the relevant time superiors may be held criminally responsible for the acts of their subordinates is well established in law, as found by the Tribunal ,16 but the relevant decisions did not purport to specifically consider its existence in relation to an internal armed conflict where common Article 3 is the basis of the charges. Common Article 3 is also well established in the jurisprudence of the Tribunal as reflecting customary international law.17 The issue taken is whether command responsibility existed at the relevant time in relation to internal armed conflicts which, it is asserted by the Defence, is charged in relation to the common Article 3 charges. Far more detailed submissions than those made by the parties would be required for that issue to be resolved.
There is no prejudice to the accused in the circumstances of this case if this issue is left for determination at the trial. The accused would not be released were the common Article 3 charges at this point to be struck from the indictment, because they would in any event have to face trial on the remaining Articles 2 and 318 charges. The evidence necessary for proof of an international armed conflict also largely, if not totally, encompasses the evidence necessary for proof of an internal armed conflict. The trial would not therefore be expedited by striking the relevant common Article 3 charges at this point.
The parties will be instructed to make much more detailed submissions on this matter in their pre-trial briefs. The Trial Chamber may also exercise its power under Rule 74 to request amicus curiae submissions on this matter. Accordingly , the decision of this issue raised by the Motion is deferred until the trial. This part of the Motion is therefore at present rejected.
Pursuant to Rule 72, the Trial Chamber decides to defer the determination of this challenge to the Tribunal’s jurisdiction until the trial. This part of the Motion is therefore at present rejected.
The parties are to address the following question in their pre-trial briefs. Did international law at the time relevant to the present indictment provide for the criminal responsibility of superiors who knew or had reason to know that their subordinates were about to commit violations of international humanitarian law, or had done so , and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof in the context of non-international armed conflicts?
Done in both English and French, the English version being authoritative.
Done the seventh day of December 2001
At The Hague
[Seal of the Tribunal]