Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
1 July 2005

The Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused

Mr. Slobodan Milosevic

Court Assigned Counsel

Mr. Steven Kay, QC
Ms. Gillian Higgins

Amicus Curiae

Prof. Timothy L.H. McCormack

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”, “Tribunal”);

BEING SEISED OF “Amicus Curiae Observations Proprio Motu on the Desirability of Submissions on the Alternative Bases of Individual Criminal Responsibility Alleged in the Case and on the Issue of Trials In Absentia ”, filed on 25 April 2005 (“Observations”), in which Professor McCormack (“Amicus Curiae”, “Amicus”), requests permission to make written submissions on the following specific legal issues related to the Accused’s alleged individual criminal responsibility:

(1) The legal test to be applied for criminal responsibility under Article 7(1) of the Statute in respect of joint criminal enterprise (“JCE”); and

(2) The legal test to be applied for superior criminal responsibility under Article 7(3) of the Statute in respect of the application of that form of responsibility for a civilian commander as a head of State (or analogous position);

and to make submissions on the international and comparative law jurisprudence related to trials in absentia,

NOTING the submissions set forth in the Observations that, although there is Tribunal jurisprudence at the trial and appellate levels with respect to the issues related to criminal responsibility:

(1) in respect of the alleged criminal responsibility of the Accused as a participant in a joint criminal enterprise, there is a need to supplement the existing jurisprudence with a more systematic and comprehensive analysis of the post-World War II jurisprudence and a review of domestic national criminal law approaches (not previously dealt with in any detail in the Tribunal jurisprudence) to joint criminal enterprise as a basis for criminal responsibility; and

(2) in respect of the alleged criminal responsibility of the Accused as a civilian commander under Article 7(3) of the Statute, there is a need to research historical and contemporary international and domestic jurisprudence, including comments offered obiter dicta or analogies that could be usefully drawn, with respect to the adjudicative determination for the first time of the criminal responsibility of a head of State,¹

NOTING the “Preliminary Order on Amicus Curiae Observations Proprio Motu on the Desirability of Submissions on the Alternative Bases of Individual Criminal Responsibility Alleged in the Case and on the Issue of Trials In Absentia ”, issued on 31 May 2005 (“Preliminary Order”), in which this Trial Chamber ordered that the Prosecution, Accused, and Assigned Counsel may make submissions on the appropriateness and content of the Observations relating to criminal responsibility, within seven days of the date of the order,

NOTING the “Assigned Counsel Submission Pursuant to the Trial Chamber’s Preliminary Order on Amicus Curiae Observations Proprio Motu on the Desirability of Submissions on the Alternative Bases of Individual Criminal Responsibility Alleged in the Case”, filed on 7 June 2005 (“Assigned Counsel Submission”), in which Assigned Counsel, while noting that prepared submissions by the Amicus would not bind any party or the Trial Chamber, offer the following reasons in support of submissions by the Amicus:²

(1) The definition of a joint criminal enterprise and its application to these proceedings is of prime importance to the parties, who would benefit from guidance from an authoritative source before the filing of final briefs on the matter;

(2) Submissions by an international law expert of Professor McCormack’s calibre may be of assistance to the Trial Chamber in this complex and factually complicated case;

(3) The Tribunal’s jurisprudence, which is relatively recent and based on a limited number of trials, could be usefully supplemented with an authoritative analysis to assist in defining the issues in this trial;

(4) Customary international law is not yet exhaustively developed on the issue of joint criminal enterprise, so regard to national concepts on this form of criminal liability is likely inevitable. In order to avoid duplication of effort by the parties and the Chamber, it would be more efficient to request that the Amicus undertake the primary research on the matter, which would help to focus the issues for argument by the parties; and

(5) The significance of the Trial Chamber’s judgement on the criminal responsibility of the Accused under Article 7(3) is such that extensive research upon existing international jurisprudence as well as commentaries on the same would be of great assistance,

NOTING the “Prosecution Submission in Response to Trial Chamber ‘Preliminary Order on Amicus Curiae Observations Proprio Motu on the Desirability of Submissions on the Alternative Bases of Individual Criminal Responsibility Alleged in the Case and on the Issue of Trials In Absentia’”, filed on 7 June 2005 (“Prosecution Submission”),³ in which the Prosecution submitted that it “is not opposed to assistance being provided by the Amicus Curiae where there is an identifiable gap in the law that arises on the facts of this case”,⁴ but that :

(1) Given the broad scope of the analysis proposed, the Observations could be interpreted as a request to make submissions which will challenge or suggest significant revision to the present law on JCE as a mode of liability, and that since the existence, elements, and scope of this mode of liability are largely settled in the Appeals Chamber’s jurisprudence, the Prosecution would strongly oppose this request;⁵ and

(2) The elements of superior responsibility are well established in international jurisprudence, and many issues relating to this mode of liability have been resolved; thus, although the Accused’s unique position may raise factual issues, an Amicus brief will not assist the resolution of such questions;⁶ so that

(3) Consequently, the Prosecution argues that, since the Observations “do not address identifiable gaps in the law that arise on the facts of this case … the Amicus Curiae should further refine the specific legal issues on which submissions are proposed or Salternatively,C the Trial Chamber should define specific issues on which it seeks assistance”,⁷

NOTING the “Amicus Curiae’s Reply to Prosecution Submission in Response to Trial Chamber ‘Preliminary Order on Amicus Curiae Observations Proprio Motu on the Desirability of Submissions on the Alternative Bases of Individual Criminal Responsibility Alleged in the Case and on the Issue of Trials In Absentia ”, filed on 14 June 2005 (“Amicus Reply”), in which the Amicus :

(1) Requests permission to file a reply,⁸

(2) Disagrees with the Prosecution’s “narrow interpretation of the scope of role of the amicus curiae”, and rejects the notion that the role assigned him by the Chamber includes an “additional qualification that relevant issues of international law are only those for which there is an identifiable gap in the law”;⁹ and

(3) Assures the parties and the Chamber that his Observations were not intended to challenge or suggest significant revision to the present law on JCE as a mode of liability, and clarifies that he “is in no position to assess whether or not exiting Tribunal jurisprudence is in complete accordance with international criminal law on either JCE or Superior Responsibility until he completes the comprehensive analysis of international criminal law that he has invited the Chamber to order him to undertake ”,¹⁰

NOTING the Trial Chamber’s “Order Appointing Amicus Curiae”, issued on 22 November 2002, in which the Chamber noted that “it would be in the interests of securing a fair trial for a third amicus curiae with expertise in international law to be appointed”, and designated Professor McCormack as an Amicus Curiae for the purposes of (1) making written submissions on and appearing before the Trial Chamber to address questions of international law when requested, and (2) drawing the Trial Chamber’s attention to relevant issues of international law,

NOTING that when the other Amici, initially chosen for their expertise in criminal defence, were designated as Assigned Counsel,¹¹ the Chamber retained Professor McCormack as an Amicus Curiae expert in international law,¹²

NOTING FURTHER that, although the circumstances regarding Assigned Counsel have changed since their initial appointment, nothing in the decisions of the Appeals Chamber or of this Chamber has affected Professor McCormack’s role as an Amicus Curiae, specifically engaged for his expertise and tasked with assisting the Chamber on issues of international law; and that no member of the Defence or other person designated to represent the interests of the Accused has the Amicus’ expertise in international law,

CONSIDERING the “Order of Further Instructions to the Amici Curiae” issued on 6 October 2003, in which the Trial Chamber authorised the Amici Curiae “to receive such communications as the Accused may make to them and to act in any way to protect and further the interests of his Defence”,

CONSIDERING that, as the Chamber’s previous requests to the Amicus with regard to self-defence demonstrate, the “Order Appointing Amicus Curiae ” of 22 November 2002 imposed no requirement that the only relevant issues of international law on which the Amicus could prepare written submissions were those with identifiable gaps in international law, nor any prerequisite that the Amicus identify such a gap in his proprio motu observations before suggesting topics for research or written submissions,

CONSIDERING that, although issues relating to superior responsibility and joint criminal enterprise have been considered in the Tribunal’s jurisprudence, the Chamber is of the view that it would be aided by a comprehensive review and analysis of international jurisprudence—including decisions of this Tribunal—on the question of superior responsibility, undertaken specifically with regard to the unique leadership position of the Accused during the period with which the Indictments are concerned; and that an equally comprehensive analysis of joint criminal enterprise and its domestic analogues may aid the Chamber’s understanding of the scope of this complicated legal concept,

CONSIDERING IN PARTICULAR the complexity related to consideration of these issues that arises from the fact that this is the first trial dealing with these matters in respect of criminal responsibility of a head of State,

CONSIDERING that, in the absence of counsel actually instructed by the Accused to present his case, it is necessary to take appropriate steps to ensure that the Trial Chamber is fully briefed on certain aspects of international law which arise here in a unique context,

CONSIDERING that, although submissions by the Amicus Curiae in no way bind the Parties or the Trial Chamber, they would serve to focus the issues which arise for determination by the Trial Chamber in relation to these aspects of international law,

CONSIDERING, however, that the Chamber has already received extensive written submissions from Assigned Counsel and the Prosecution on the issue of trial in absentia, and that, at this time, it does not see a further need for additional submissions from the Amicus on this issue,

PURSUANT TO Rules 54, 74, and 126 bis of the Rules;

HEREBY ORDERS AS FOLLOWS:

1. The Amicus Curiae is granted leave to file his Reply;

2. The Amicus Curiae is ordered to undertake such work as is necessary to put him in a position to be able to file written submissions on the issues of joint criminal enterprise and superior responsibility, as described in his Observations, with specific reference to the unique position of the Accused, at dates to be determined by the Trial Chamber in subsequent orders;

3. In light of the Amicus Curiae’s duty to protect and further the interests of the Accused’s defence,¹³ the Amicus Curiae is also ordered to prepare written submissions identifying any arguments that could be advanced on behalf of the Accused in response to the Indictments’ allegations about his criminal responsibility; and

4. In addition to preparing these briefs, the Amicus Curiae should make preparations to enable him to appear before the Trial Chamber to answer questions arising from his written submissions on these and other legal issues.

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

________________
Judge Robinson Presiding

Dated this first day of July 2005
At The Hague
The Netherlands

[Seal of the Tribunal]