The Prosecutor v. Milan Milutinovic - Case No. IT-99-37-AR72.2

“Reasons for Decisions Dismissing Interlocutory Appeal Concerning Jurisdiction over the Territory of Kosovo”

8 June 2004
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Mumba and Güney)

Procedural Background

· On 6 May 2003, Trial Chamber III rendered its “Decision on Motion Challenging Jurisdiction ” (“Impugned Decision”)¹ whereby it dismissed “General Dragoljub Ojdanic’s Preliminary Motion to Dismiss Lack of Jurisdiction: Kosovo”, filed on 29 November 2002.

· On 13 May 2003, General Ojdanic (“Appellant”) filed his Appeal from the Impugned Decision.²

· On 30 January 2004, the Appellant filed its Opening Brief.³

· On 9 February 2004, the Prosecution filed its “Prosecution’s Response to Admissibility of ‘General Ojdanic’s Opening Brief’”.

· On 27 February 2004, a Bench of three Judges from the Appeals Chamber rendered its “Decision” whereby it declared that the Appeal “may be proceeded” with regard to the following grounds: 1. The Trial Chamber erred in its conclusion that the FRY was a member of the United Nations for the purposes of the jurisdiction of the Tribunal over crimes committed on its territory; 2. The Trial Chamber erred in its conclusion that the Security Council’s Chapter VII powers could be exercised to confer on the Tribunal jurisdiction over crimes committed on the territory of the FRY even if it was not a member of the United Nations at the relevant time; and 3. The Trial Chamber erred in failing to determine that the Tribunal’s jurisdiction over crimes committed on the territory of the FRY could not be based upon the principle of universal jurisdiction.

· On 12 March 2004, the Prosecution filed its Response to General Ojdanic’s Appeal from the Impugned Decision.⁴

Decision

On 12 May 2004, the Appeals Chamber rendered its “Decision on Interlocutory Appeal ” whereby it dismissed the Appeal and indicated that the reasons for its Decision were to be given in due course. The reasons were issued on 8 June 2004.

Reasoning

The Appeals Chamber recalled its previous finding in the Tadic Jurisdiction Decision whereby it held that “[t]he establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41 [of the United Nations Charter]” and that “the International Tribunal has been lawfully established as a measure under Chapter VII of the Charter”.⁵

In respect of the three issues raised by the Appellant, the Appeals Chamber considered that the “only question which the Tribunal has to consider is whether the terms in which [the Tribunal] has been given jurisdiction embrace the particular territory in question”. It referred to Article 1 of the Statute of the Tribunal (Competence of the International Tribunal ) which reads:

“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.”

It noted that “Kosovo is, and was, at the relevant time, a part of the territory of the former Yugoslavia” and found that “pursuant to Article 1 of the Statute, the International Tribunal has jurisdiction over General Ojdanic for crimes allegedly committed in the territory of Kosovo”.

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1. The Impugned Decision has been summarised in Judicial Supplement No. 41. It inter alia addressed the membership of the Federal Republic of Yugoslavia (“FRY”) in the United Nations between 1992 and 2000, and the authority of the Security Council under Chapter VII of the United Nations Charter.
2. Milutinovic et al., IT-99-37-AR72.2, General Ojdanic’s Appeal from Decision on Motion Challenging Jurisdiction and Motion for an Extension of Time to File Opening Brief (“Appeal”), 13 May 2003.
3. Milutinovic et al., IT-99-37-AR72.2, General Ojdanic’s Opening Brief (“Opening Brief”), 30 January 2004.
4. Milutinovic et al., IT-99-37-AR72.2, Prosecution’s Response to Defence Interlocutory Appeal on Jurisdiction (Kosovo), 12 March 2004.
5. Tadic, IT-94-1-AR72, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, paras. 36 and 40.