Case No. IT-05-87-PT


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

Mr. Hans Holthuis

Decision of:
18 October 2005







The Office of the Prosecutor:

Mr. Thomas Hannis
Ms. Christina Moeller
Ms. Carolyn Edgerton

Counsel for the Accused:

Mr. Eugine O’Sullivan and Mr. Slobodan Zecevic for Milan Milutinovic
Mr. Tomislav Visnjic and Mr. Peter Robinson for Dragoljub Ojdanic
Mr. Toma Fila and Mr. Vladimir Petrovic for Nikola Sainovic
Mr. John Ackerman and Mr. Aleksander Aleksic for Mr. Nebojsa Pavkovic
Mr. Mihaljo Bakrac for Mr. Vladimir Lazarevic
Mr. Theodore Scudder for Mr. Sreten Lukic


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 ("the International Tribunal"),

BEING SEIZED of the “Urgent Prosecution Motion to Adjourn General Ojdanic’s Preliminary Motion Challenging Jurisdiction/ Indirect Co-Perpetration or Alternatively for an Extension of Time in Which to File a Response” filed on 13 October 2005 (“Prosecution’s Urgent Motion”), by which the Prosecution requests the Trial Chamber to order an adjournment of Ojdanic’s Motion Challenging Jurisdiction until the Appeals Chamber has rendered its Judgement in the case of the Prosecutor v. Milomir Stakic, No. IT-97-24-A ("Stakic case") or1, alternatively, to grant the Prosecution three days in which to file its response to that motion from the date of the Trial Chamber’s decision on the Prosecution’s Urgent Motion,

NOTING the "Prosecution’s Notice of Filing Amended Joinder Indictment and Motion to Amend the Indictment With Annexes" (respectively "Proposed Amended Indictment" and "Motion to Amend the Indictment"), filed by the Prosecution on 16 August 2005, by which the Prosecution seeks, inter alia seeks, leave to amend the indictments filed under Cases Nos. IT-99-37 and IT-03-70, as in the Proposed Amended Indictment,

NOTING “General Ojdanic’s Preliminary Motion Challenging Jurisdiction: Indirect Co-Perpetration” (“Ojdanic’s Motion Challenging Jurisdiction”), filed on 7 October 2005, by which Dragoljub Odjanic (“Accused”) challenges the Tribunal’s jurisdiction to prosecute him under the “indirect co-perpetration” form of liability charged in the Proposed Amended Indictment on the ground that this form of liability, inserted by the Prosecution “to conform with the emerging jurisprudence in the Stakic case”, is neither included in Article 7(1) of the Statute,2 nor recognized in customary international law,3

NOTING the Accused “Milutinovic’s submission joining General Ojdanic’s Preliminary Motion Challenging Jurisdiction: On Direct Co-perpetration Filed on 7 October 2005”, filed on 10 October 2005 (“Milutinovic’s Joined Motion”),

NOTING further that the pre-trial Judge ordered the Defence to file responses to the Prosecution’s Motion to Amend the Indictment, including any challenges to the form of the indictment, within 15 days of receipt of the B/C/S/ version of the Proposed Amended Indictment4 and that the Defence for Milutinovic and Ojdanic have filed their respective responses challenging jurisdiction within this timeframe,

CONSIDERING that the new form of liability challenged by Ojdanic’s Motion Challenging Jurisdiction was alleged for the first time in this case by the Prosecution in the Proposed Amended Indictment and that this circumstance constitutes good cause to consider Ojdanic’s Motion Challenging Jurisdiction and Milutinovic’s Joined Motion as being preliminary motions pursuant to Rule 72,

NOTING the Prosecution’s arguments, in the Prosecution’s Urgent Motion, that the adjournment sought would be in the interest of judicial economy because,5 1) the Appeals Chamber in the Stakic case will possibly provide substantial guidance on the issues raised in Ojdanic’s Motion Challenging Jurisdiction;6 2) it is likely that a judgement in that appeal which was heard in the first week of October 2005 will be rendered in that case well before the commencement of the trial in this case;7 and 3) it would avoid wasting judicial resources in this case at this stage, as well as, at the stage of a potential interlocutory appeal,8

NOTING "General Ojdanic’s Response to Prosecution Motion to Adjourn General Ojdanic’s Preliminary Motion", filed by the Defence for Ojdanic on 17 October 2005, opposing the Prosecution’s Urgent Motion to adjourn Ojdanic’s Motion Challenging Jurisdiction, but not objecting to an extension of time for the filing of a response by the Prosecution to Ojdanic’s Motion Challenging Jurisdiction,

CONSIDERING that the Trial Chamber is not satisfied that adjourning the disposal of Ojdanic’s Motion Challenging Jurisdiction would necessarily be in the interests of judicial economy for the following reasons:

1) the Prosecution acknowledges that the issues as to whether "indirect co-perpetration" applied as a form of commission by the Trial Chamber in Stakic falls within Article 7(1) of the Statute and was recognized in customary international law have not been raised before the Appeals Chamber by the parties in the Stakic case,

2) the Prosecution’s assumption that the Appeals Chamber will possibly provide substantial guidance on these issues is merely based on the fact that it has heard related oral arguments in response to its question as to whether "the elements of JCE would be fulfilled based on the findings of the Trial Chamber if the appellants responsibility were analysed in terms of JCE",9

3) even if such guidance were indeed to be provided to this Trial Chamber by the Appeals Chamber Judgement in the Stakic case, it cannot be assumed that all of the arguments raised by Ojdanic’s Motion Challenging Jurisdiction, or by the Prosecution in its response thereto, will have been considered by the Appeals Chamber and, as a result, that a new interlocutory appeal will not be filed, thus impairing the possibility to start this trial as planned, and

4) were the Appeals Chamber to be seized of the issue of jurisdiction in question in the context of a fully briefed interlocutory appeal this would not amount to a waste of judicial resources,

CONSIDERING that, there is therefore no need to further determine the merits of the Prosecution’s submission that an adjournment would not cause any prejudice to the accused,10

CONSIDERING that the Prosecution’s argument in support of its alternative request for an extension of time, that it has suspended the “final adaptation” of its response to Ojdanic’s Motion Challenging Jurisdiction due to having to respond to five other motions on the form of the Proposed Amended Indictment, constitutes good cause to grant the short extension of time sought,

PURSUANT TO Rules 65 ter (E), 72, 73, 127 for the foregoing reasons,

HEREBY PARTIALLY GRANTS the Motion and ORDERS the Prosecution to file its response to Ojdanic’s Motion Challenging Jurisdiction within three days following the filing of the present decision.

The remainder of the Motion is DENIED.


Done both in English and French, the English version being authoritative.

Judge Patrick Robinson

Dated this eighteenth day of October 2005,
At The Hague,
The Netherlands

[Seal of the Tribunal]

1. Prosecution’s Urgent Motion, paras. 3 and 13.
2. Ojdanic’s Motion Challenging Jurisdiction, paras. 10-12. See also ibid, para. 13, where Ojdanic notes that the Prosecution in the Amended Joinder Indictment has not charged “co-perpetration” as an alternative to the joint criminal enterprise form of liability, as the Stakic Trial Chamber applied it, but has charged the accused with “indirect co-perpetration” of a joint criminal enterprise, stretching Article 7(1) of the Statute to its braking point.
3. Ojdanic’s Motion Challenging Jurisdiction, paras. 16-23 (alleged lack of opinion juris) and paras. 24-31.
4. "Order of Pre-Trial Judge Arising from Status Conference", 1 September 2005.
5. Prosecution’s Urgent Motion, para. 6.
6. Prosecution’s Urgent Motion, paras. 6-10.
7. Prosecution’s Urgent Motion, paras. 2 and 11.
8. Prosecution’s Urgent Motion, para. 12.
9. Prosecution’s Urgent Motion, para. 2 and footnote 3.
10. Prosecution’s Urgent Motion, paras 14 and 18.