IN THE TRIAL CHAMBER

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

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
1 April 1999

PROSECUTOR

v.

MIROSLAV KVOCKA
MILOJICA KOS
MLADO RADIC
ZORAN ZIGIC

___________________________________________________________

DECISION ON PRELIMINARY MOTIONS
FILED BY MLA\O RADIC AND MIROSLAV KVOCKA
CHALLENGING JURISDICTION

____________________________________________________________

The Office of the Prosecutor:

Mr. Grant Niemann
Mr. Michael J. Keegan
Mr. Kapila Waidyaratne

Counsel for the Accused:

Mr. Krstan Simic, for Miroslav Kvocka
Mr. Zarko Nikolic, for Milojica Kos
Mr. Toma Fila, for Mlado Radic
Mr. Simo Tosic, for Zoran Zigic

 

I. INTRODUCTION

1. Pending before 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 ("the International Tribunal"), is a "Defence Preliminary Motion" filed by counsel for the accused, Mlado Radic, ("the Radic Defence") on 15 January 1999 ("the Radic Motion"), together with the "Prosecutor’s Reply to the Defence’s Preliminary Motion" ("the Reply"), filed by the Office of the Prosecutor ("Prosecution") on 28 January 1999. On 5 February 1999 the Defence filed a "Request for Leave to File a Reply to the Prosecutor’s Reply to Defence Preliminary Motion", which was granted in an Order filed 10 February 1999. The Defence filed its "Defence Response to Prosecutor’s Reply to Defence Preliminary Motion" on 19 February 1999.

2. Also pending before this Trial Chamber is "A Preliminary Appeal to the Amended Indictment Against Miroslav Kvocka” filed by counsel for the accused, Miroslav Kvocka, ("the Kvocka Defence") on 25 January 1999 ("the Kvocka Motion"), together with the "Prosecutor’s Reply to the Defence’s Preliminary Appeal to the Amended Indictment Against Miroslav Kvocka", filed by the Prosecution on 8 February 1999.

3. Both Motions are filed pursuant to Rule 72 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") and both also allege defects in the form of the indictment. The allegations concerning the form of the indictment are addressed in a separate Decision of this Trial Chamber.

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the parties and their oral arguments heard on 9 March 1999,

HEREBY ISSUES ITS WRITTEN DECISION on the challenges to jurisdiction.

 

II. ARTICLE 1 OF THE STATUTE OF THE INTERNATIONAL TRIBUNAL

A. Arguments of the Parties

1. Preliminary Motion filed by Mlado Radic

4. Counsel for the accused, Mlado Radic, argues that one of the offences with which the accused is charged in Counts 14 to 17 of the Amended Indictment, namely the sexual assault of witness F, does not constitute a serious violation of international law. The Radic Defence relies on Article 1 of the Statute of the International Tribunal ("Statute") and on a variety of authorities to conclude that the International Tribunal should only exercise its jurisdiction in cases concerning "exceptionally serious" violations of international humanitarian law. The Radic Defence therefore challenges the jurisdiction of the International Tribunal under Article 1 of the Statute to try the accused, Mlado Radic, for the sexual assault of witness F.

5. The Prosecution Reply is silent on this point but, during the hearing on 9 March 1999, the Prosecution argued that the alleged sexual assault must not be seen in isolation but rather "in the framework of a course of criminal conduct"1 and that the alleged sexual assault could be relevant to establishing persecution.

2. Preliminary Appeal filed by Miroslav Kvocka

6. Counsel for the accused, Miroslav Kvocka, contends on the basis of various authorities that the International Tribunal should only exercise its jurisdiction in cases concerning "extremely serious" violations of international humanitarian law, as provided in Article 1 of the Statute. According to the Kvocka Defence, the accused, Miroslav Kvocka, is charged with "a small number of incidents" which do not constitute serious violations of international humanitarian law. The International Tribunal therefore lacks jurisdiction under Article 1 of the Statute to try the accused for the crimes alleged in the Amended Indictment.

7. The Prosecution submits that the accused, Miroslav Kvocka, is charged with "direct and superior responsibility for crimes against humanity and violations of the laws or customs of war, specifically for multiple murders, rapes, acts of torture, persecution, and the continuous unlawful confinement of innocent civilians under horrific conditions"2. To argue that these offences do not constitute serious violations of international humanitarian law is inconsistent with the existing jurisprudence of the International Tribunal. The Appeals Chamber and various Trial Chambers have concluded that the same kinds of offences as alleged against the accused constitute serious violations of international humanitarian law. The allegations against the accused therefore fall within the parameters of Article 1.

    B. Applicable Law

8. Article 1 of the Statute of the International Tribunal states:

Article 1

Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.

     

    C. Analysis

9. Article 1 of the Statute gives the International Tribunal jurisdiction over "serious violations of international humanitarian law". The Appeals Chamber of the International Tribunal, in its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in Prosecutor v. Tadic ("Appeals Chamber Decision on Jurisdiction"), has stated that a serious violation must "constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a ‘serious violation of international humanitarian law’"3.

10. With regard to the Radic Motion, the Trial Chamber notes that, in Prosecutor v. Furundzija, Trial Chamber II of the International Tribunal held that serious forms of sexual assault are international crimes that fall within the jurisdiction of the International Tribunal. These crimes are aggravated by the fact that they are often "committed in time of armed conflict on defenceless civilians; hence it is not simple sexual assault but sexual assault as a war crime or crime against humanity"4. The Amended Indictment in this case charges the accused with sexual assault as torture and rape under Article 5 (crimes against humanity) of the Statute, and also as torture and outrages upon personal dignity under Article 3 (violations of the laws or customs of war); these constitute serious offences. The Trial Chamber further notes that the allegations of sexual assault in Counts 14-17 only form a part of the full allegations against the accused; the full allegations include persecution as a crime against humanity, and murder, torture, and rape as crimes against humanity and violations of the laws or customs of war. In relation to many of these alleged crimes the accused, Mlado Radic, is also charged with superior responsibility under Article 7, paragraph 3, of the Statute. The Trial Chamber therefore finds that the alleged crimes, including the alleged sexual assault, fall within the ambit of Article 1 of the Statute.

11. With regard to the Kvocka Motion, the Trial Chamber notes that a review of the previous findings of various Trial Chambers of the International Tribunal5 reveals that offences similar to those alleged in this case have been held to constitute "serious violations of international humanitarian law". The Amended Indictment in this case charges the accused inter alia with persecution as a crime against humanity, and murder and torture as crimes against humanity and violations of the laws or customs of war. Moreover, the accused is charged not only with individual responsibility under Article 7, paragraph 1, of the Statute, but also with superior responsibility under Article 7, paragraph 3. Consequently, the Trial Chamber finds that the alleged crimes fall within the ambit of Article 1 of the Statute.

 

III. ARTICLE 3 OF THE STATUTE OF THE INTERNATIONAL TRIBUNAL

A. Submissions of the parties

1. Preliminary Motion filed by Mlado Radic

12. Counsel for the accused, Mlado Radic, challenges those Counts of the Amended Indictment6 which are brought under Article 3 of the Statute and based on common article 3 of the 1949 Geneva Conventions7 ("common article 3"). The arguments of the Radic Defence are twofold. Firstly, the Radic Defence argues that common article 3 is not included in the scope of Article 3 of the Statute, as this was not the intention of the United Nations Security Council. In support of this submission, the Radic Defence relies on the following sources and arguments8:

  1. the Report of the Secretary-General9, which does not mention common article 3, and which, according to the Defence, implies that if common article 3 had been retained, it would have been included within the scope of Article 2 of the Statute which concerns grave breaches of the Geneva Conventions;
  2. common article 3, which belongs to "Geneva-type of law" dealing "with victims", cannot be included in the scope of Article 3 of the Statute as that provision is based on "Hague law" which "concern behaviour in war"; furthermore, "a residual clause may in no way cover any type of act, and/or the offence differing from those which are concretely enumerated";
  3. the expression "but not limited to" contained in Article 3 of the Statute can only be interpreted as referring to violations related to the conduct of warfare; furthermore the Security Council would have stated explicitly any intention to include common article 3 in Article 3 of the Statute;
  4. "prosecution for a more serious and in quality different offence" violates the principle of nullum crimen sine lege;
  5. the Statute of the International Criminal Tribunal for Rwanda ("ICTR") explicitly includes common article 3, as does the Report of the Secretary-General on the establishment of the ICTR10, whereas the Statute of this International Tribunal does not.

10. Secondly, the Radic Defence argues that common article 3 is not part of customary international law and that it does not entail individual criminal responsibility. As to the customary status of common article 3, the Radic Defence relies on the following sources and arguments11:

  1. the Report of the Secretary-General on the establishment of the ICTR which states that Additional Protocol II to the Geneva Conventions, based on common article 3, is "not accepted in full as part of customary international law";
  2. the Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992) stating that "there is no customary international law applicable to internal armed conflicts";
  3. the practice of the International Committee of the Red Cross which relies on agreements between the parties in internal conflict, whereas, in the view of the Radic Defence, if common article 3 were part of customary law there would be no need for such agreements.

11. While acknowledging the Appeals Chamber Decision on Jurisdiction12, the Radic Defence contends that this Decision has the "characteristics of law making rather than of its interpretation"13. The Radic Defence refers to the conclusion of the Appeals Chamber as to Article 3 of the Statute (in paragraphs 89, 92 and 93), that Article 3 is a residual clause that covers offences not otherwise covered by Articles 2, 4, and 5. The Radic Defence infers from this conclusion that, as "murder" and "torture" are mentioned in Article 5 of the Statute, they cannot be covered by Article 3 of the Statute, and thus: "All accusations contained in the amended indictment referring to the murder and torture are contrary to the view taken by the Appeals Chamber"14. The Radic Defence also asserts that the Trial Chamber is not bound by the Appeals Chamber Decision on Jurisdiction.

12. The Radic Defence submits that the inclusion of common article 3 within the ambit of the Statute would constitute "new international law" that would only be applicable in the future. The Radic Defence asserts that the International Tribunal has no competence for making law and thus to prosecute persons for offences not included in Article 2 to 5 of the Statute.

13. In its Reply to the Radic Motion, the Prosecutor essentially argues that the Trial Chamber is bound by the Appeals Chamber Decision on Jurisdiction and should not re-open and re-examine the issues raised by the Radic Defence since those issues have already been decided on appeal. Furthermore, the Prosecution contends that "there is nothing new or substantial" in the Defence arguments and that their arguments "were sufficiently answered and fully rejected by the Appeals Chamber Decision [on Jurisdiction]"15. The Prosecution points out that the Amended Indictment no longer contains charges brought under Article 2 of the Statute and submits that "the Trial Chamber should not be drawn into a dispute regarding the characterisation of the armed conflict. … Common Article 3 of the Geneva Conventions applies to all armed conflicts"16. The Prosecution attaches to its Reply the relevant portions of the Appeals Chamber Decision on Jurisdiction and sections from other cases before the International Tribunal.

2. Preliminary Appeal filed by Miroslav Kvocka

13. Counsel for the accused, Miroslav Kvocka, largely relies on the same arguments as those presented by the Radic Defence17. As to the first argument concerning the scope of Article 3 of the Statute, the Kvocka Defence also bases its reasoning on a comparative analysis of Article 2 of the Statute and common article 3. According to the Kvocka Defence, these provisions "provide almost identical serious violations of international humanitarian law and, in fact, are almost identical"18. In its view, it follows that it was the intention of the Security Council to include violations of the Geneva Conventions in general within the scope of Article 2 of the Statute.

14. The Kvocka Defence does not address the customary status of common article 3 and whether it entails individual criminal responsibility.

16. In its Reply to the Kvocka Motion, the Prosecution restates verbatim the same arguments as in its Reply to the Radic Motion.

B. Applicable law

17. Article 3 of the Statute of the International Tribunal provides as follows:

Article 3

Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;

(e) plunder of public or private property.

18. Common article 3 of the Geneva Conventions provides:

Article 3 common to the Geneva Conventions

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

    (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.

2. The wounded and the sick shall be collected and cared for.

. . .

C. Analysis

19. The Trial Chamber notes that similar arguments on the scope of Article 3 of the Statute were raised by the Defence in the case of Prosecutor v. Kordic et al.19. After carefully considering the arguments put forward by the Defence in the present case, the Trial Chamber reaches the same conclusions as it did in its Decision on the Defence Preliminary Motion in that case ("Kordic Jurisdiction Decision")20.

20. The Trial Chamber may not disregard a ruling of the Appeals Chamber21 which discussed in depth most of the arguments now submitted by the Defence.

20. The Trial Chamber finds that the relevant issue regarding the scope of Article 3 at this stage is, as stated by the Appeals Chamber in the Tadic case, whether the relevant norms are customary in its nature, and whether they entail individual criminal responsibility22.

21. The Appeals Chamber held that Article 3 "is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5"23 and that it "functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable"24. The Appeals Chamber then went on to spell out four requirements that must be met in order for a violation of international humanitarian law to be subject to Article 3 of the Statute25.

22. The Trial Chamber recognises that the principle of legality is the underlying principle that should be relied on to assess the subject-matter jurisdiction of the International Tribunal, and that the International Tribunal only has jurisdiction over offences that constituted crimes under customary international law at the time the alleged offences were committed. Thus the arguments of the parties were examined in the light of this principle.

23. As stated in the Appeals Chamber Decision on Jurisdiction, Article 3 of the Statute has a "residual character"26. It means, practically, that Article 3 covers the list of offences enumerated in the provision as well as some other serious violations of international humanitarian law, provided they are customary in nature and entail individual criminal responsibility. Thus Article 3 is not only based on conventional rules, such as the Hague Conventions, which are part of customary law, but also "refers" to customary international law.

24. The Trial Chamber has reasoned fully in the Kordic Jurisdiction Decision27 that this interpretation of the scope of Article 3 concerned with "violations of the laws or customs of war" is consistent with contemporary customary law as it stood at the time the alleged offences were committed.

25. As pointed out by the jurisprudence of the International Tribunal, the customary status of common article 3 of the Geneva Conventions, which requires that parties abide by certain minimum fundamental humanitarian standards, has been confirmed by the International Court of Justice.

26. The Trial Chamber also points to the jurisprudence of the International Tribunal on the scope of Article 3 of the Statute, and the customary status of certain provisions of humanitarian law as referred to in paragraph 28 of the Kordic Jurisdiction Decision28.

27. As held in the Decisions mentioned above, there can be no doubt that common article 3 constitutes an appropriate basis upon which to prosecute individuals. As already discussed in the jurisprudence of the International Tribunal, from which this Trial Chamber sees no reason to depart, common article 3 is considered as entailing individual criminal responsibility.

28. In conclusion, this Trial Chamber is in no doubt that common article 3, to which Counts 3, 5, 9, 10, 16 and 17 refer, is covered by Article 3 of the Statute. Thus the principle of legality which is relied upon by the Defence is respected, and the above-mentioned counts are legally founded. The Trial Chamber has jurisdiction to try the accused Mlado Radic and Miroslav Kvocka for alleged violations under Article 3 of the Statute.

 

IV. DISPOSITION

For the foregoing reasons

PURSUANT TO Rule 72 of the Rules of Procedure and Evidence,

THE TRIAL CHAMBER DISMISSES the "Defence Preliminary Motion" filed on behalf of Mlado Radic and the "Preliminary Appeal to the Amended Indictment Against Miroslav Kvocka" insofar as they challenge the jurisdiction of the International Tribunal.

 

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


Richard May
Presiding

Dated this first day of April 1999
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Unofficial Transcript, Prosecutor v. Kvocka et al., Case No. IT-98-30-PT, T. Ch. III, 9 Mar. 1999, p. 29.
2. Prosecutor’s Reply to the Defence’s Preliminary Appeal to the Amended Indictment against Miroslav Kvocka, Prosecutor v. Kvocka et al., Case No. IT-98-30-PT, T. Ch. III, 8 Feb. 1999 at para. 33.
3. Tadic (1995) I ICTY JR 353 at para. 94(iii).
4. Judgement, Prosecutor v. Anto Furundzija, Case No. IT-95-17/1, T.Ch. II, 10 Dec. 1998, para. 184 ("Furundzija Judgement").
5. See, e.g., Opinion and Judgment, Prosecutor v. Du{ko Tadic, Case No. IT-94-1, T. Ch. II, 7 May 1997; Judgement, Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21, T. Ch. II, 16 Nov. 1998; Furundzija Judgement, supra n. 4.
6. Counts 3, 5, 9, 10, 16 and 17. All Counts of the indictment brought under Article 3 of the Statute specifically refer to common article 3.
7. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, 75 U.N.T.S. 970 ("Geneva Convention I"); the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. 12 Aug. 1949, 75 U.N.T.S. 971 ("Geneva Convention II"); the Geneva Convention relative to the Treatment of Prisoners of War, 12 Aug. 1949, 75 U.N.T.S. 972 ("Geneva Convention III"); the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, 75 U.N.T.S. 973, ("Geneva Convention IV"), (together "Geneva Conventions").
8. Defence Preliminary Motion, Prosecutor v. Kvocka et al., Case No. IT-98-30-PT, T. Ch. III, 15 Jan. 1999, p. 5 ("Radic Motion").
9. Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993) and Annex thereto, U.N. Doc. S/25704 ("Report of the Secretary-General").
10. Report of the Secretary-General pursuant to paragraph 5 of Security Council resolution 955 (1994), U.N. Doc. S/1995/134.
11. Radic Motion, supra n. 8, pp. 6-7.
12. Tadic, supra n. 3.
13. Radic Motion, supra n. 8, p. 8.
14. Ibid., p. 9.
15. Prosecutor’s Reply to the Defence Preliminary Motion, Prosecutor v. Kvocka et al., Case No. IT-98-30-PT, T. Ch. III, 28 Jan. 1999, pp. 14-15.
16. Ibid. The Radic Defence does not explicitly discuss Article 2 as asserted by the Prosecution.
17. The Kvocka Defence refers to common article 3 of the 1949 Geneva Conventions as "joint Article 3" in the Preliminary Appeal.
18. A Preliminary Appeal to the Amended Indictment against Miroslav Kvocka, Prosecutor v. Kvocka et al., Case No. IT-98-30-PT, T. Ch. III, 25 Jan. 1999, p. 4.
19. Jurisdictional Motion #2- Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-PT, T. Ch. III, 22 Jan. 1999.
20. Decision on the Joint Defence Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-PT, T. Ch. III, 2 Mar. 1999 ("Kordic Jurisdiction Decision").
21. Tadic, supra n. 3.
22. It is not appropriate to discuss the other criteria set out by the Appeals Chamber in paragraph 24 of the Appeals Chamber Decision on Jurisdiction at this pre-trial stage, as these criteria involve questions of fact.
23. Tadic, supra n. 3., para. 89.
24. Ibid., para. 91.
25. Ibid., para. 94.
26. "caractère supplétif" in French.
27. See Kordic Jurisdiction Decision, supra n. 20, paras 22-25.
28. Case Concerning Military and Paramilitary Activities in and against Nicaragua, (Nicar. v U.S.) (Merits), 1986 I.C.J. Reports, 14; Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, 8 July 1996; see also Kordic Jurisdiction Decision ,supra, n. 20, paras 26 and 27.