IN THE TRIAL CHAMBER
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Dorothee de Sampayo Garrido-Nijgh
22 September 2000
SEPARATE OPINION OF JUDGE BENNOUNA
The Office of the Prosecutor:
Ms. Carla del Ponte
Mr. Nicola Piacente
Ms. Brenda J. Hollis
Counsel for the Accused:
Mr. Goran Neskovic and Mr. Svetislav Stanojevic for Momcilo Krajisnik
I concur in the Trial Chambers Decision on Motion Challenging Jurisdiction1, which rejects the Motion challenging the jurisdiction of the Tribunal filed by the Accused Momcilo Krajisnik, and its Decision on Motion Challenging Jurisdiction With Reasons. In this Opinion, I am setting out some differences which I have concerning certain aspects of the Trial Chambers reasoning in relation to the "[s]pecific challenge to jurisdiction in relation to Article 7, paragraph 3, of the Statute" (section B of the Discussion, Decision on Motion Challenging Jurisdiction With Reasons, paragraphs 19 to 24).
First of all, I would like to make a comment on the jurisprudence of the ad hoc tribunals referred to in the Decision. The ICTY Judgements cited by the Chamber at paragraph 24 (Celebici and Blaskic Judgements), as well as the Decision in the Kordic case, and the ICTRs Judgement in the Kambanda case were all rendered by Chambers of first instance. Therefore, they do not carry the binding force of an appeal judgement which would pronounce on the nature and scope of Article 7 of the Statute.
In relation to a challenge to jurisdiction based on Rule 72(A)(i) of the Rules of Procedure and Evidence, however, it may be useful to recall the comment made by the UN Secretary General in his Report on Article 1 of the Statute which concerns the competence of the Tribunal. The Secretary General indeed noted that the "fundamental elements" of the Tribunals competence were the competence ratione materiae, the competence ratione personae, the competence ratione loci, and the competence ratione temporis.2 He added that although the competence ratione personae is governed by Article 6 of the Statute, the principle of individual criminal responsibility set forth in Article 7 should be considered as "[ a] n important element in relation to the competence ratione personae (personal jurisdiction)".3 This in my opinion supports the view that Article 7 is not stricto sensu concerned with the Tribunals competence but sets out a general principle of criminal law in relation to it.4 What is at issue here is the attribution of a crime to an individual, and it may be noted in this regard that the rules governing it are different in international and national law.5
Evidently, the question of the attribution of a crime is not only the very subject of the trial, but is also decisive for its outcome. It may be possible to consider, prima facie, that the principle of the responsibility of the superior was part of customary international law before the crimes alleged in the indictment were committed. But from there to simply conclude that the whole of Article 7 codified customary law is a step that one should not make without an in depth discussion and consideration.
I cannot thus share the peremptory statement 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." (para. 24 of the Decision)
In my opinion, the question of the nature and scope of Article 7 still needs to be addressed, as argued by the Defence for Krajisnik: "Several Judgments and Decisions referred to by the Prosecution do not establish the existence of the command responsibility as provided for in Article 7(3) of the Statute of this Tribunal. ( ) No reference has been made to any judgment dealing with the application of command responsibility in case of genocide. Moreover, the cases referred to in the Prosecutions Response are quite different with regard to the existence of direct and effective control, that being a requirement for responsibility. So in the Hostage trial, the United States Court Martial speaks of the "corps commander" which presupposes direct and effective command and control." (Defendants Reply to Prosecutors Response to the "Preliminary Motion of the Defendant as regards the Jurisdiction of the ICTY", para. 22)
I am of the view that in its reasoning the Trial Chamber should have addressed this argument, which is far from being futile, and it goes along the lines of some concerns expressed by commentators in relation to Article 28 of the ICC Statute which provides for the "Responsibility of commanders and other superiors". Kai Ambos for instance observed: "Certainly, the superior is only responsible in case of direct an effective authority and control - this is especially so in the case of the civilian superior".6 Of course the issue here is not that the Chamber should have responded to the argument raised by the Defence at this stage of the proceedings and in abstract. However, the issue raised could have been defined and then postponed until trial when it would be addressed in light of the facts of the case itself. This was what the Trial Chamber in the Blaskic case decided on a similar question concerning the scope of Article 7(3).7
In its reasoning, this 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 the Defence for Momcilo Krajisnik that they would retain the right to discuss the issue of the nature and scope of Article 7(3) at trial. In my view, the Decision on jurisdiction 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 the conformity of Article 7(3) of the Statute with customary law.
Done in both English and French, the English text being authoritative.
Judge Mohamed Bennouna
Dated this twenty-second day of September 2000
At The Hague
[Seal of the Tribunal]