Case No. IT-99-36-A


Judge Theodor Meron, President
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Amin El Mahdi
Judge Inés Mónica Weinberg de Roca

Mr. Hans Holthuis

5 May 2005







Counsel for the Prosecutor:

Mr. Mark J. McKeon  

Counsel for the Accused:

Mr. John Ackerman


THE APPEALS 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");

NOTING the Judgement rendered in this case by Trial Chamber II on 1 September 2004 ("Trial Judgement");

NOTING the "Prosecutionís Notice of Appeal" filed by the Prosecution on 30 September 2004;

NOTING the "Notice of Appeal" filed by Radoslav Brdjanin ("Appellant") on 1 October 2004;

NOTING the "Prosecutionís Brief on Appeal" filed by the Prosecution on 28 January 2005 ("Brief on Appeal"), which contends as its Ground 1 that the Trial Chamber erred by holding that a joint criminal enterprise (JCE) must include the actual physical perpetrators of an offence among its members, but which accepts that there should be no alteration of the Judgement on this ground, acknowledging the fact that the Prosecution had, when arguing before the Trial Chamber, agreed with the position it now criticizes;

BEING SEISED of the "Motion to Dismiss Ground 1 of the Prosecutorís Appeal," filed by the Appellant on 15 February 2005 ("Motion to Dismiss"), in which the Appellant argues that (1) the Prosecution should not be permitted to reverse its own position, (2) the importance of the alleged error to the jurisprudence of the Tribunal is purely speculative, (3) the Defence has no significant interest in contesting the issue since the Prosecution does not argue that the Trial Chamberís Judgement should be altered, depriving this Chamber of the benefit of the adversarial process, (4) rendering a decision on this issue would amount to an advisory opinion, and (5) this portion of the appeal should therefore be dismissed, leaving the issue to be resolved in a subsequent case in which it is truly contested;

NOTING the "Decision on Prosecutionís Request for an Extension of Time to Respond to Brdjaninís Motion to Dismiss Ground 1 of the Prosecutionís Appeal", rendered by the Appeals Chamber on 11 March 2005 ("Decision on Prosecutionís Request"), in which the Appeals Chamber, inter alia, granted the requested extension of time and ordered the Registry to file the "Prosecution Response to Motion to Dismiss Ground 1 of the Prosecutorís Appeal" ("Prosecutionís Response") and serve it on the Appellant;

NOTING the Prosecutionís Response, filed by the Registry in accordance with the Decision on Prosecutionís Request on 18 March 2005, in which the Prosecution argues that its first ground of appeal, although it would not affect the verdict, raises an important legal issue of general importance to the jurisprudence of the International Tribunal that has a nexus to the case at hand,1 and suggests that if this Chamber "finds it necessary to hear legal submissions from the perspective of the defence," it could invite an amicus brief from the Association of Defence Counsel of the International Tribunal;2

NOTING the absence of a reply from the Appellant;

CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamberís Judgement or factual errors occasioning a miscarriage of justice,3 it has repeatedly held that it may also consider legal issues that are "of general significance to the Tribunalís jurisprudence,"4 even if they do not affect the verdict, so long as they have a "nexus with the case at hand,"5 and that such determinations do not constitute impermissible "advisory opinions,"6 but are instead necessary means of moving forward this ad hoc International Tribunalís jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;7

CONSIDERING that the legal issue presented by Ground 1 of the Prosecutionís Appealówhether liability for commission of a crime under a JCE theory requires the Prosecution to prove that the physical perpetrators of the crime were members of the JCEóis of considerable significance to the International Tribunalís jurisprudence, as it affects every case employing a JCE theory;

CONSIDERING that permitting the Trial Chamberís holding to stand while the Appeals Chamber waits for another case to present the same issue risks effectively requiring, in all JCE cases arising in the meantime, that the Prosecutor develop evidence and prove cases against particular physical perpetrators of offences even when those physical perpetrators have not been charged, a practice that would prove to be a waste of the International Tribunalís resources if this Appeals Chamber eventually finds such a requirement to be unnecessary;

CONSIDERING that the Trial Chamberís holding on this issue was critical to its rejection of the JCE theory,8 and thus its finding that the Appellant was not guilty of "committing" any of the crimes with which he was charged, but instead of instigating, ordering, aiding, and abetting them;

CONSIDERING that the issue thus plainly has a "nexus" with this case, and that the only reason the Prosecution is not seeking alteration of the verdict on this ground is that it failed to argue its current position before the Trial Chamber, instead conceding, upon questioning by the Bench, that a JCE must amount to an agreement between the defendant and the physical perpetrators of the crime;

CONSIDERING that the Prosecutionís concession before the Trial Chamber and its current reversal of position, although unfortunate, do not prejudice the Appellant because the Prosecution does not seek to change the verdict;

CONSIDERING that, therefore, although the Prosecution would ordinarily be estopped from changing its position on appeal, this equitable doctrine of estoppel has no application where a change in position does not prejudice the opposing party, which is not obligated even to contest the issue;

CONSIDERING that, however, because the parties agreed on the issue before the Trial Chamber and because the Defence no longer has an incentive to contest the matter, no full adversarial argumentation on this issue will have taken place at any stage of the proceedings in this case unless the possible point of view of future defendants before the International Tribunal is otherwise represented during these appeal proceedings; and

CONSIDERING the Chamberís power to invite amicus curiae submissions under Rule 74 of the Rules of Procedure and Evidence;

HEREBY DENIES the Defence Motion to Dismiss Ground 1 of the Prosecutorís Appeal; and

INVITES the Association for Defence Counsel of the International Tribunal to submit an amicus curiae brief addressing the question whether the membership of a JCE must include the physical perpetrators of the crime, to be submitted within 30 days and to be no more than 15 pages in length.


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

Theodor Meron
Presiding Judge

Dated 5 May 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutionís Response, paras 19-25.
2. Prosecutionís Response, para. 17.
3. Statute of the International Tribunal, Art. 25.
4. Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 247 and 281; Prosecutor v. Jean-Paul Akeyesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 ("Akayesu Appeal Judgement), para. 19; Prosecutor v. Delalic, Mucic, Delic, and Land`o et al., Case No. IT-96-21-A, Judgement, 20 February 2001, paras. 218 and 221.
5. Akayesu Appeal Judgement, para. 24.
6. Id. para 23.
7. Id. paras. 21-22.
8. Trial Chamber Judgement, paras. 355-56.