“Decision on Motion Challenging Jurisdiction”
6 May 2003
· On 29 November 2002, the Defence of General Dragoljub Ojdanic filed “General Ojdanic’s Preliminary Motion to Dismiss for Lack of Jurisdiction/Kosovo” (“Defence Motion”).
· On 13 December 2002, the Prosecution filed the “Prosecution’s Response to General Ojdanic’s Preliminary Motion to Dismiss for Lack of Jurisdiction: Kosovo” (“Prosecution’s Response”).
· On 6 January 2003, the Defence filed the “Reply Brief: Preliminary Motion to Dismiss for Lack of Jurisdiction: Kosovo” (“Defence Reply Brief”).
· On 9 January 2003, the Prosecution filed the “Prosecution’s Notification in relation to Ojdanic’s Reply Briefs to his Preliminary Motions to Dismiss for Lack of Jurisdiction : Kosovo and Joint Criminal Enterprise” (“Prosecution Notification”) and observed that both Defence Reply Briefs had been filed out of time.
· On 16 January 2003, the Defence filed “General Ojdanic Motion for Leave for Late Filing of the Reply Briefs” (“Defence Leave Request”).
The Trial Chamber dismissed the Defence Motion.1
The Arguments of the Parties
The Defence argued that the Tribunal does not have jurisdiction over crimes committed in the territory of Kosovo, a constituent part of the Federal Republic of Yugoslavia (“FRY”). Its submission contained two arguments:
At the time of adoption of the Statute of the Tribunal in 19932 and at the time of the events charged in the Third Amended Indictment in 19993, the FRY was not a member of the United Nations. The Organisation in general and the Security Council in particular did not have the power to impose Chapter VII measures on a non-member State such as the RFY.
The “universal jurisdiction” principle is not part of customary international law and in any case “universal jurisdiction” cannot justify the jurisdiction of an international criminal court.
The Prosecution submitted that the Defence Motion should be dismissed for the following reasons:
The Tribunal’s territorial and personal jurisdiction is set forth in Articles 6 and 8 of the Statute4, the scope and nature of which was already conclusively decided by the Appeals Chamber in the Tadic Jurisdiction Decision5, and therefore notions of statehood and United Nations membership and citizenship are irrelevant.
On 27 April 1992, the two remaining Socialist Federal Republic of Yugoslavia (“SFRY ”) republics, Serbia and Montenegro, declared that they were legal successors to the SFRY and that the FRY’s membership of the United Nations was a continuation of the SFRY’s membership.
The Security Council itself has issued a number of resolutions under Chapter VII of the United Nations Charter in response to the situation in Kosovo, several of which make express reference to the work of the Tribunal with regard to the FRY; since June 1999 Kosovo has been governed under a United Nations interim administration established under a Chapter VII resolution which demonstrated the scope of the Security Council’s Chapter VII powers.
The ability of the Security Council to respond expeditiously and effectively to Chapter VII threats is dependent upon its having universal – or as near-universal as possible – reach and cannot be dependent upon conflicting claims of statehood or United Nations membership of newly created States or entities.
In order to have a clear understanding of certain events and decisions in the period between 1992 and 2000, the Trial Chamber conducted an analysis of the historical background starting from the break-up of the SFRY to its admission to membership in the United Nations on 1 November 2000.6
The break-up of the former SFRY
Prior to its fragmentation, the SFRY consisted of six republics: Serbia, Croatia , Bosnia-Herzegovina, Macedonia, Slovenia, and Montenegro. On 25 June 1991, Croatia and Slovenia both declared independence, followed by the former Yugoslav Republic of Macedonia on 17 September 1991, and Bosnia and Herzegovina on 6 March 1992. On 22 May 1992, Croatia, Slovenia and Bosnia-Herzegovina were admitted as members of the United Nations.7 The “Former Yugoslav Republic of Macedonia” was admitted to membership in the United Nations on 8 April 1993.8 The Trial Chamber thus held that “at the time of the adoption of the Statute of the International Tribunal on 25 May 1993, all the republics that formerly constituted the SFRY, with the exception of Serbia and Montenegro, had been admitted as members of the United Nations”.9
The FRY (Serbia and Montenegro) came into being on 27 April 1992. On that date, a joint session of the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro proclaimed a new constitution for the “Federal Republic of Yugoslavia” and also adopted a Declaration.10 The preamble of the Declaration reflects the common will of the citizens of Serbia and Montenegro “to stay in the common state of Yugoslavia”, and also provides that the RFY “shall abide by all the commitments that the [SFRY] assumed internationally ”11 and remains bound by “all obligations to international organisations and institutions whose member it is […] particularly the United Nations and its specialised agencies”.12
The Declaration was brought to the attention of the United Nations by a Note of the same date informing the Secretary-General that the FRY was strictly respecting the continuity of the international personality of Yugoslavia and that the Federal Republic of Yugoslavia shall continue to fulfil all rights conferred to, and obligations assumed by, the Socialist Federal Republic of Yugoslavia in international relations , including its membership in all international organisations and participation in international treaties ratified or acceded to by Yugoslavia”.13
United Nations resolutions and treaty practice
The Trial Chamber reviewed a number of resolutions adopted by the Security Council under Chapter VII prior to the establishment of the Tribunal. It referred inter alia to resolution 777 (1992) of 19 September 1992 which considered that the SFRY had ceased to exist and recommended to the General Assembly that it decide that the FRY should apply for membership in the United Nations and not participate in the work of the General Assembly.14 On 22 September 1992, pursuant to the recommendation of the Security Council, the General Assembly adopted resolution 47/1 whereby it confirmed that the FRY should apply for membership.15 On 25 September 1992, Croatia and Bosnia-Herzegovina requested the Secretary General to provide a legal opinion of the FRY’s status in the United Nations.16 On 29 September 1992, the United Nations Under-Secretary-General for Legal Affairs addressed a letter to the Permanent Representatives of Croatia and Bosnia-Herzegovina , in which he exposed the “considered view of the United Nations Secretariat regarding the practical consequences of the adoption by the General Assembly of resolution 47/1”. According to this legal opinion “the only practical consequence that the resolution draws is that the Federal Republic of Yugoslavia (Serbia and Montenegro ) shall not participate in the work of the General Assembly [and that] the resolution neither terminates nor suspends Yugoslav’s membership in the Organisation”.17
The Trial Chamber referred to the resolutions surrounding the establishment of the Tribunal, starting with resolution 808 of 22 February 1993 in which the Security Council determined that the events occurring in the territory of the former Yugoslavia constituted a threat to international peace and security and that “an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”.18 The Trial Chamber referred to a number of subsequent General Assembly resolutions reaffirming resolution 47/1 of 22 September 199219 and to other United Nations documents listing Yugoslavia as a member of the United Nations after September 1992. It found that “Yugoslavia” had maintained other attributes of membership in the Organisation including its flag, seat and nameplate in the General Assembly.
On 27 October 2000, newly elected President Kostunica addressed a letter to the Secretary-General requesting admission of the FRY to membership in the United Nations.20 On 31 October 2000, the Security Council, “having examined the application of the Federal Republic of Yugoslavia for admission to the United Nations”, recommended admission.21 The following day, the General Assembly admitted the FRY to membership.22
Judgements of the International Court of Justice
NATO Bombing Cases: Legality of Use of Force23
On 29 April 1999 the Federal Republic of Yugoslavia instituted proceedings before the International Court of Justice (“ICJ”) against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States of America, accusing those States of bombing Yugoslav territory in violation of their obligation not to use force against another State. On the same day, the FRY submitted a request for the indication of provisional measures asking the Court to order defendant States to “cease immediately its acts of use of force” and to “refrain from any act of threat or use of force” against the FRY.
Belgium argued inter alia that the Court’s jurisdiction could not be based on Article 36, paragraph 2, of the ICJ Statute since under this provision only “ States parties to the [...] Statute” may subscribe to the optional clause for compulsory jurisdiction contained therein. Belgium referred inter alia to United Nations Security Council resolution 777 (1992) of 19 September 1992 and to United Nations General Assembly resolutions 47/1 of 22 September 1992 to contend that “the Federal Republic of Yugoslavia is not the continuator State of the former Socialist Federal Republic of Yugoslavia as regards membership of the United Nations” and that, not having duly acceded to the Organisation, it was in consequence not a party to the Statute of the Court and could not appear before the latter.
Referring to the position of the Secretariat expressed in a letter dated 29 September 1992 from the Legal Counsel of the Organisation and to the latter’s subsequent practice, Yugoslavia contended that General Assembly resolution 47/1 “neither terminate[d] nor suspend[ed] Yugoslavia's membership in the Organisation” and that the said resolution did not take away from Yugoslavia “its right to participate in the work of organs other than Assembly bodies”.
The Court found that it had “no prima facie jurisdiction to entertain Yugoslavia’s Application”, on the basis of Article 36, paragraph 2 but did not address the question of the Yugoslav membership in the United Nations.24
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide25
On 20 March 1993, the Government of Bosnia and Herzegovina instituted proceedings against the FRY in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide. By an Order of 8 April 1993, the Court indicated certain provisional measures following the request of the Applicant. The Court refrained from deciding the issue of the FRY membership in the United Nations:
“Whereas, while the solution adopted (by the United Nations Legal Affairs Office( is not free from legal difficulties, the question whether or not Yugoslavia is a member of the United Nations and as such a party to the Statute of the Court is one which the Court does not need to determine definitively at the present stage of the proceedings”.26
In its Judgement of 11 July 1996 on Preliminary Objections, the Court dealt incidentally with the question of jurisdiction ratione personae although the parties had not raised the matter. Referring to the Declaration of 27 April 1992, the Court observed:
“The intention thus expressed by Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party was confirmed in an official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary–General. The Court observes, furthermore, that it has not been contested that Yugoslavia was a party to the Genocide Convention. Thus , Yugoslavia was bound by the provisions of the Convention on the date of the filing of the Application in the present case, on 20 March 1993”.27
On 24 April 2001, the FRY filed an application for revision of the Judgement delivered by the ICJ on 11 July 1996.28 Yugoslavia based its application for revision of 24 April 2001 on Article 61 of the Statute of the Court.29 In its application , the FRY contended that a revision of the 11 July 1996 Judgement was necessary since it was clear that it had never continued the legal personality of the SFRY . The FRY submitted that at the time of the reading of the Judgement (1996), it was not a member of the United Nations, an Organisation it joined on 1 November 2000. The FRY was therefore not a State party to the Statute of the Court and was also not a State party to the Genocide Convention. Yugoslavia requested the Court to declare that “there (was( a new fact of such a character as to lay the case open to revision under Article 61 of the Statute of the Court”.
The Court rendered its Judgement on the application for revision on 3 February 2003 .30 After recalling the background to the application, the Court noted that between the adoption of General Assembly resolution 47/1 of 22 September 1992 and the admission of the FRY to the United Nations on 1 November 2000, the legal position of the FRY remained complex.31 With regard to the FRY membership in the United Nations, the Court stated, inter alia, the following:
“ […] the difficulties which arose regarding the FRY’s status between the adoption of that resolution and its admission to the United Nations on 1 November 2000 resulted from the fact that, although the FRY’s claim to continue the international legal personality of the Former Yugoslavia was not “generally accepted” (see Security Council resolution 777 of 19 September 1992), the precise consequences of this situation were determined on a case-by-case basis (for example, non-participation in the work of the General Assembly and ECOSOC). Resolution 47/1 did not inter alia affect the FRY’s right to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute. Nor did it affect the position of the FRY in relation to the Genocide Convention”.32
In the Court’s view, the admission of the FRY in the United Nations on 1 November 2000 “cannot have changed retroactively the sui generis position which the FRY found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court and the Genocide Convention ”.33
Applicability of the Tadic Jurisdiction Decision
In the Tadic Jurisdiction Decision, the authority of the Security Council to establish the Tribunal under Chapter VII was at issue. The Appeals Chamber dismissed the Motion holding that although the power of the Security Council to establish a judicial body was not expressly provided for in Chapter VII of the Charter, the Council had wide discretionary powers34 under Articles 39 and 41 of the Charter to adopt measures in the exercise of its responsibility for the maintenance of international peace and security.35 These powers included the establishment of an international criminal tribunal “as a measure contributing to the restoration and maintenance of peace in former Yugoslavia ”.36 The Decision did not cover the issue of the authority of the Security Council to establish a Tribunal which would have jurisdiction in respect of a crime committed by a national of a country not a member of the United Nations either at the adoption of the Statute or at the time of the commission of the alleged crime. The Trial Chamber held that “although the decision in Tadic is relevant to some of the jurisdictional issues raised in this Motion, it is distinguishable from this case”.37 It found that the ratio decidendi of the Decision was “simply that the Security Council had the power, under Chapter VIII of the United Nations Charter, to establish a judicial body in the exercise of its responsibility for the maintenance of international peace and security” and that the Trial Chamber did not take into account the nationality of Tadic or the United Nations membership of Bosnia and Herzegovina, the country in which the crimes were committed.38
FRY membership in the United Nations between 1992 and 2000
The Trial Chamber agreed with the analysis of the Legal Counsel that resolution 47/1 did not deprive the FRY of all attributes of United Nations membership and that the only practical consequence was its inability to participate in the work of the General Assembly, its subsidiary organs, conferences or meetings convened by it.39 It held that “the resolution left untouched the relationship of the FRY to the Security Council, and consequently , the application of the regime of Security Council resolutions to it”.40 The Trial Chamber then turned to the facts supporting its finding that the FRY was treated as a United Nations member for certain purposes, such as the fact that the seat and nameplate under the name “Yugoslavia” remained at the General Assembly, the fact that the Yugoslav missions at the United Nations Headquarters continued to function and could receive and circulate documents, the fact that Yugoslavia retained the right to participate in the work of organs other than the General Assembly and its bodies, etc.41 Turning to the issue of the jurisdiction of the Tribunal over the crimes alleged in the Indictment of the Accused Dragoljub Ojdanic, the Trial Chamber held that “the FRY retained sufficient indicia of United Nations membership to make it amenable to the regime of the Chapter VII Security Council resolutions adopted for the maintenance of peace and security”. It concluded that “in relation to the application of the Security Council resolution establishing the Statute of the International Tribunal, the FRY was in fact a member of the United Nations both at the time of the adoption of the Statute in 1993 and at the time of the commission of the alleged offences in 1999”.42
The Trial Chamber turned to the possible impact of the formal admission of the FRY to membership in the United Nations in 2000 and considered the decision of the International Court of Justice in the Genocide case. It its view, the formal admission of the RFY to membership in the United Nations did not invalidate its conclusion that the RFY retained sufficient indicia of membership in the period between 1992 and 2000 to render Security Council resolution 827 (1993) establishing the Statute of the Tribunal applicable to it. In the Genocide case, the FRY was seeking a revision of the ICJ 1996 Judgement on the basis that since its delivery a new fact had occurred, namely its accession to United Nations membership in 2000.43 The Court rejected the FRY’s application on the ground that the FRY was not relying on facts that existed in 1996, but was seeking revision on the basis of the legal consequences that it sought to draw from facts subsequent to the Judgement of 1996. The Court therefore did not deal with the issue of whether the FRY was a member of the United Nations between 1996 and 2000. However, in the present case, the Trial Chamber adopted the approach of the Court that the precise consequences for FRY’s United Nations membership arising from General Assembly resolution 47/1 had to be determined on a case-by-case basis since there can be no a priori determination of this complex issue which requires a empirical, function-by-function determination. The ICJ in the Genocide case also held that resolution 47/1 did not affect the FRY’s right to appear before the Court or to be a party before the Court, which in the view of the Trial Chamber are two rights indicative of United Nations membership.
The authority of the Security Council under Chapter VII of the United Nations Charter
The Trial Chamber considered whether or not Chapter VII of the United Nations Charter is open to the interpretation that the Security Council had authority over the FRY, even if the FRY was not a member of the United Nations at the relevant time.
In its view, Security Council resolutions 808 (1993) of 22 February 199344 and 827 (1993) of 25 May 199345 establishing the Tribunal were “a response to a conflict that took place in the territory of the former SFRY, and it is with that conflict which was essentially related to that territory that it sought to deal, and not with a conflict in the respective Republics. In doing so resolution 827 (1993) was both retrospective and prospective in that it related to crimes committed after 1991, and thus covered the period before and after the adoption in 1993 of the Statute establishing the Tribunal”.46 The Trial Chamber noted the significance of Article 1 of the Statute (“Competence of the International Tribunal”) which vests the Tribunal power to prosecute persons responsible for serious violations of international humanitarian law committed “ not in Bosnia and Herzegovina, Slovenia, Croatia, Macedonia or Serbia and Montenegro , but rather in the territory of the former Yugoslavia”.47 It also noted the more specific wording of Article 8 of the Statute (“Territorial and Temporal Jurisdiction”) which provides that the territorial jurisdiction of the Tribunal extends to the territory of the former SFRY. It held that “[i]t is inarguable that the Security Council, in the exercise of its responsibility for the maintenance of international peace and security, had the power in 1993 to deal with a conflict that started in the territory of the former Yugoslavia in 1991, in relation to which it had already taken a number of measures between 1991 and 1993, which was taking place in that territory at the time of the adoption of the Statute, and showed all likelihood of continuing thereafter” and that “[i]f it were otherwise, the Security Council would have been frustrated in the discharge of its responsibility under Chapter VII in relation to a situation that it had already determined to be a threat to international peace and security”.48
More specifically the Trial Chamber held that “Chapter VII of the Charter may be interpreted purposively as empowering the Security Council to continue to deal with a situation which it has determined to be a threat to international peace and security even if the country concerned ceases to be a member of the United Nations”.49 To support its finding, the Trial Chamber relied on the principle of institutional effectiveness elaborated by the ICJ in the Reparation case50 and the case of Certain Expenses.51 The Trial Chamber concluded that “[t]he constitutional character of the Charter, its near universal membership, the critical importance to the international community of the goal of the maintenance of international peace and security, are all factors that combine to render the Chapter VII resolution establishing the Tribunal applicable to any country that was a part of the former SFRY, irrespective of its United Nations membership at the time of the adoption of that resolution, or at the time of the commission of the offences”.52
Although the Trial Chamber considered that the questions may be relevant to the issues raised in the Motion, in light of its conclusions with regard to the FRY membership in the United Nations between 1992 and 2000 and the authority of the Security Council under Chapter VII of the United Nations Charter, the Trial Chamber did not consider it necessary to make a determination of the question of the exercise of universal jurisdiction in respect of the crimes with which the Accused is charged and the issue of the FRY’s right and obligations as a predecessor or successor State in the period 1992 to 2000.
Separate opinion of Judge Patrick Robinson
Judge Robinson considered whether the Tribunal would have had jurisdiction on the basis that the crimes with which the Accused is charged –crimes against humanity and war crimes- attract universal jurisdiction, if the FRY had not been a member of the United Nations either at the time of the adoption of the Statute or at the time of the commission of the offences in Kosovo. He examined the concept of the universal jurisdiction principle, notably in light of the Judgement of the ICJ in the Case Concerning the Arrest Warrant of 11 April 2001 (Democratic Republic of Congo v. Belgium), 14 February 2002. His opinion also analysed the crimes that attract universal jurisdiction and the applicability of the principle to international criminal courts. He concluded that the jurisdiction of the Tribunal is territorial and not universal, although it may be said that there is a universal element in ICTY’s jurisdiction to the extent that it has the power to prosecute any person, irrespective of its nationality, for crimes committed in the territory of the former Yugoslavia and questioned the relevance and applicability of universal jurisdiction to the issues raised in the Motion.