The Prosecutor v. Pavle Strugar et al. - Case No. IT-01-42-PT

"Decision on Defence Preliminary Motion Challenging Jurisdiction"

7 June 2002
Trial Chamber I (Judges Liu [Presiding], El Mahdi and Orie)

Procedural Background

· On 18 January 2002, the Accused Pavle Strugar filed a Preliminary Motion pursuant to Rule 72 of the Rules of Procedure and Evidence,1 challenging (a) jurisdiction of the Tribunal over the offences of attacks against civilians and unlawful attacks on civilian objects and (b) the form of the Indictment.

· On 1 February 2002, the Prosecution filed the "Prosecution's Response to Defence Preliminary Motion Challenging Jurisdiction" and the "Prosecution's Response to Defendant's Preliminary Motion Challenging Jurisdiction and Objecting to the Form of the Indictment".

· On 6 February 2002, the Prosecution supplemented its response with a "Consolidated Corrigenda and Supplemental Sourcing to Prosecution's Responses to Defence Preliminary Motions Alleging Defects in the Form of the Indictment and Challenging Jurisdiction".

· On 15 February 2002, the Defence filed the "Defence Reply to the Prosecution's Response to the Defence Preliminary Motion" and on 21 February 2002, the Prosecution filed the "Prosecution's Response to the Defence Preliminary Motion".

· On 12 March 2002, the Trial Chamber heard oral arguments by the parties.

The Decision

The Trial Chamber dismissed the Motion.

The Reasoning

Whether Articles 51 and 52 of Additional Protocol I and Article 13 of Additional Protocol II Fall Within the Scope of Article 3 of the Statute2

The Trial Chamber stated that "if a rule is customary in nature, there is no need to discuss whether the rule in question belongs to conventional law" (para. 15), and explicitly referred to the Tadic Jurisdiction Decision.3

The Trial Chamber affirmed that "Articles 51 and 52 of the Additional Protocol I and Article 13 of the Additional Protocol II do not contain new principles" (para. 17). It referred to some earlier codes4 which contained the prohibition of an attack against civilian populations and their properties. It underscored that "[t]he prohibition of attacks on civilian populations was qualified as a rule of international customary law in 1938, by former British Prime Minister A.N. Chamberlain" (para. 17). The Trial Chamber also listed the resolution of the League of Nations of 1938 and United Nations General Assembly resolution 24445 as the kind of statement that the International Court of Justice6 considered to represent the opinio juris of States. It held that these reflect elementary considerations of humanity applicable under customary law to any armed conflict whether internal or international.

Furthermore the Trial Chamber pointed out that "[a]t the time of the adoption of the Additional Protocols, the overwhelming majority of States regarded the principles enunciated in Articles 51 and 52 of Additional Protocol I and in Article 13 of Additional Protocol II as general humanitarian principles" (para. 18).7

The Trial Chamber stated that it had "no doubt that Articles 51 and 52 of Additional Protocol I and Article 13 of Additional Protocol II constitute a reaffirmation and reformulation, not long before the Indictment Period, of the existing norms of customary international law, which prohibit attack on civilians and civilian objects" (para. 21).8

The Trial Chamber rejected the Defence objection to the use of the reference to instruments, not listed as a source of customary law by the Report of the Secretary General.9 It pointed out that the use in the Indictment of the words "as recognised by" is to be understood as "a reference to a clear and relatively recent legal instrument in which the relevant prohibitions under customary international law is reaffirmed" (para. 22).
The Trial Chamber stated that "[t]he requirement for the application of Article 3 of the Statute that the violations of the laws and customs of war with which the Accused is charged, constitute violations of a rule of international humanitarian law" (para. 23) was fulfilled.10

The Trial Chamber concluded that the norms in question fell within the scope of Article 3 of the Statute and added that it was not necessary "to consider whether these norms apply as a matter of conventional law between the conflicting parties" (para. 24).

Improper Charging in the Indictment

The Trial Chamber stated that the cumulative charging of both Protocols "is not designed to result in the simultaneous application of both Protocols to the same conduct but instead to ensure that unlawful attack charges may be brought irrespective of whether the conflict is determined to be of an international or non-international character" (para. 28).

It stressed that "cumulative charging constitutes the accepted practice of this Tribunal" (para. 28)11 and that the Prosecutor has the "liberty to choose charges to be brought against an accused" since it exercises its "discretion when preparing indictments" (para. 29).

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1. Rule 72 (Preliminary Motions) in the version in force before the Amendment of 1st May 2002 provided that:
"(A) Preliminary motions, being motions which
(i) challenge jurisdiction;
(ii) allege defects in the form of the indictment;
(iii) seek the severance of counts joined in one indictment under Rule 49 or seek separate trials under Rule 82 (B); or
(iv) raise objections based on the refusal of a request for assignment of counsel made under Rule 45 (C) shall be in writing and be brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66 (A)(i) and shall be disposed of not later than sixty days after they were filed and before the commencement of the opening statements provided for in Rule 84.
(B) Decisions on preliminary motions are without interlocutory appeal save
(i) in the case of motions challenging jurisdiction, where an appeal by either party lies as of right;
(ii) in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber.
(C) Appeals under paragraph (B)(i) shall be filed within fifteen days and applications for leave to appeal under paragraph (B)(ii) shall be filed within seven days of filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless
(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision.
(D) For the purpose of paragraphs (A)(i) and (B)(i), a motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to:
(i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute;
(ii) the territories indicated in Articles 1, 8 and 9 of the Statute;
(iii) the period indicated in Articles 1, 8 and 9 of the Statute;
(iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute.
(E) An appeal brought under paragraph (B)(i) may not be proceeded with if a bench of three Judges, assigned by the President, decides that the appeal is not capable of satisfying the requirement of paragraph (D), in which case the appeal shall be dismissed."
2. Article 3 of the Statute of the Tribunal (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 limited to:
employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; wanton destruction of cities, town or villages, or devastation not justified by military necessity; attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; 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; plunder of public or private property.
3. See The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (hereinafter "Tadic Jurisdiction Decision").
4. The Lieber Code, the Brussels Declaration of 1874 and The Hague Convention No. II of 1899 and No. IV of 1907.
5. G.A. res. 2444, UN GAOR, 23rd Session, Sup. No. 18, UN Doc. A/7218 (1969).
6. Case Concerning Military and Paramilitary Activities in and Against Nicaragua, International Court of Justice, 1986, Rep. 14, paras. 218 and 219.
7. See The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-PT, Trial Chamber III, 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, 02 March 1999, in which the Trial Chamber deemed that the provisions contained in the Additional Protocols I and II concerning "unlawful attacks on civilians or civilian objects are based on Hague law relating to the conduct of warfare, which is considered as part of customary law" (para. 31), (summarised in Judicial Supplement No. 3).
8. See "Tadic Jurisdiction Decision" in which the Appeals Chamber stated that "the Additional Protocol II […] can now be regarded as declaratory of existing rules or as having crystallised emerging rules of customary law" (para. 117).
9. Report of the Secretary-General (S/25704 and Add.1) pursuant to paragraph 2 of resolution 808 (1993).
10. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000, in which the Trial Chamber stated that "the specific provisions of Article 3 of the Statute satisfactorily cover the provision of the said Protocol relating to unlawful attacks upon civilian targets. The specific provisions of Common Article 3 also satisfactorily cover the prohibition on attacks against civilians as provided for by Protocols I and II" (para. 170). Summarised in Judicial Supplement No. 13.
11. See The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001, in which the Appeals Chamber stated that "cumulative charging is […] allowed in light of the fact that, prior to the presentation of fall of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven. The Tribunal Chamber is better poised, after the parties' presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence" (para. 400). Summarised in Judicial Supplement No. 23.