IN THE TRIAL CHAMBER
Before: Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 2 March 1999
PROSECUTOR
v.
DARIO KORDIC
MARIO CERKEZ
________________________________________________
DECISION ON THE JOINT DEFENCE MOTION TO STRIKE PARAGRAPHS 20 AND 22 AND
ALL REFERENCES TO ARTICLE 7(3) AS PROVIDING A SEPARATE OR AN ALTERNATIVE BASIS FOR
IMPUTING CRIMINAL RESPONSIBILITY
________________________________________________
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
I. INTRODUCTION
Pending before this Trial Chamber of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Law Committed
in the Territory of the Former Yugoslavia since 1991 ("International Tribunal")
is the motion, "Joint Defense Motion to Strike Paragraphs 20 and 22 and All
References to Article 7(3) as Providing a Separate or an Alternative Basis for Imputing
Criminal Responsibility" ("the Motion") filed by counsel for the two
accused, Dario Kordic and Mario Cerkez (together "the Defence") on 22 January
1999, together with the "Prosecutors Response to Joint Defence Motion to Strike
Paragraphs 20 and 22 and All References to Article 7(3) as Providing a Separate or an
Alternative Basis for Imputing Criminal Responsibility" filed by the Office of the
Prosecutor ("Prosecution") on 5 February 1999.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of
the parties heard on 16 February 1999,
HEREBY ISSUES ITS WRITTEN DECISION.
II. DISCUSSION
A. Arguments of the Parties
- This Motion rests on the Defence submission that Article 7, paragraph 3, of the Statute
of the International Tribunal ("Statute") does not itself provide an independent
basis for imposing "imputed" or "command" criminal liability. Instead,
the Defence contends that any individual criminal liability of the accused must be
predicated on Article 7, paragraph 1. The Defence argues that the language and overall
structure of Article 7, in particular paragraphs 2, 3 and 4, which utilise language to the
effect that an accused person is not relieved of criminal responsibility in certain
circumstances, support this interpretation. The Defence submits that further support for
this interpretation comes from a reading of Article 28(2) of the Rome Statute of the
International Criminal Court ("ICC Statute") which provides for command
responsibility in the following provision: "a superior shall be responsible for
crimes within the jurisdiction of the Court committed by subordinates under his or her
effective control
".
- The Defence further contends that, even if Article 7, paragraph 3, could be construed as
providing for "imputed" or "command" responsibility, the Prosecution
should not be allowed to plead liability under Article 7, paragraph 1, and Article 7,
paragraph 3, in the alternative with respect to a single offence. The Defence argues that
to allow the Prosecutor to proceed in such a manner would deprive the accused of their
fundamental right to be informed with specificity of the "nature and cause" of
the charges against them.
- The Prosecutor rebuts the Defence submission, arguing that the doctrine of superior
responsibility, as enshrined in Article 7, paragraph 3, of the Statute, is a distinct form
of criminal liability that is well-established under international humanitarian law. The
Prosecution further argues that the jurisprudence of the International Tribunal
demonstrates that Article 7, paragraph 1, and paragraph 3, may be pleaded either in the
alternative or cumulatively.
B. Analysis
- The Trial Chamber finds that the doctrine of command responsibility as a distinct form
of criminal liability is well-established under international humanitarian law. Indeed,
the recent Judgement rendered by Trial Chamber II of the International Tribunal in Prosecutor
v. Delalic et al., ("Celebici Judgement") re-affirmed the legal
principle of command responsibility as a separate and individual form of criminal
liability, concluding that "the principle of individual criminal responsibility of
superiors for failure to prevent or repress the crimes committed by subordinates forms
part of customary international law."
- The Trial Chamber acknowledges that, when contrasted with Article 28(2) of the ICC
Statute, the language and overall structure of Article 7 may appear to provide a less
robust basis for imposing command responsibility as an independent ground for criminal
responsibility arising under Article 7, paragraph 3. However, the construction that
Article 7, paragraph 3, provides for a form of criminal liability that is separate and
distinct from Article 7, paragraph 1, is supported by the following paragraph of the
Report of the Secretary-General pursuant to paragraph 2 of the Security Council resolution
808:
A person in a position of superior authority should, therefore, be held
individually responsible for giving the unlawful order to commit a crime under the present
statute. But he should also be held responsible for failure to prevent a crime or to deter
the unlawful behaviour of his subordinates.
This comment, from an important part of the legislative history
of the Statute of the International Tribunal, shows, in the second sentence, that the
intention of the drafters was to establish command responsibility as a separate form of
criminal liability.
- As to the contention by the Defence that even if Article 7, paragraph 3, provides for
command responsibility, it cannot be pleaded in the alternative to a charge under Article
7, paragraph 1, the Trial Chamber notes that the jurisprudence of both the International
Tribunal and the International Criminal Tribunal for Rwanda permits an accused to be
charged either alternatively or cumulatively under Article 7, paragraph 1, and paragraph
3. For example, in the Celebici Judgement, the Trial Chamber held that "an
accused may be charged for the commission of an offence in his individual and personal
capacity as one of the actual perpetrators of the offence in accordance with Article 7(1)
of the Statute, and/or in his capacity as a superior authority with respect to the
commission of the offence in accordance with Article 7(3)." In the Amended
Indictment, the accused is charged in the alternative in respect of Article 7, paragraph
1, and Article 7, paragraph 3, and it will be left to the Trial Chamber to determine on
the basis of the evidence presented at trial whether the charges are substantiated.
III. DISCUSSION
For the foregoing reasons
PURSUANT TO Rule 72 of the Rules of Procedure and Evidence of
the International Tribunal,
THE TRIAL CHAMBER DISMISSES the Joint Defense Motion to Strike
Paragraphs 20 and 22 and All References to Article 7(3) as Providing a Separate or an
Alternative Basis for Imputing Criminal Responsibility.
Done in both English and French, the English text being authoritative.
_______________________________
Richard May
Presiding
Dated this second day of March 1999
At The Hague
The Netherlands
[Seal of the Tribunal]