The Prosecutor v. Milutinovic et al. - Case No. IT-99-37-AR72

“Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise”

21 May 2003
Appeals Chamber (Judges Shahabudden [Presiding], Pocar, Jorda, Hunt and Gunawardana)

Procedural Background

· On 29 November 2002, Ojdanic¹ filed a Preliminary Motion before Trial Chamber III to dismiss the indictment for lack of jurisdiction in relation to charges based on his liability as a participant in a joint criminal enterprise.² On 13 December 2002³, the Prosecution responded to his Motion. On 6 January 2003, Ojdanic replied.⁴

· On 13 February 2003, Trial Chamber III rendered its Decision dismissing Ojdanic’s Motion.⁵ The Trial Chamber held that the Appeals Chamber had found that participation in a joint criminal enterprise was a mode of liability which applied to any crime within the Tribunal’s jurisdiction.⁶ In accordance with the nullum crimen sine lege principle, the Trial Chamber further stated that the Appeals Chamber had defined the constitutive elements of such a form of liability and said that the Appeals Chamber had clearly distinguished that form of liability from other forms of liability such as conspiracy and membership of a criminal organisation.⁷

· On 28 February 2003, Ojdanic appealed against the Impugned Decision.⁸ On 10 March 2003⁹, the Prosecution responded. On 13 March 2003, Ojdanic replied.¹⁰

· On 25 March 2003, pursuant to Rule 72(B)(i) and 72(E), a Bench of the Appeals Chamber assigned by the President¹¹ declared that Ojdanic’s Appeal had been validly filed insofar as it challenges the jurisdiction of the Tribunal in relation to his individual criminal responsibility for his alleged participation in a joint criminal enterprise charged pursuant to Article 7(1) of the Statute.¹²

The Decision

The Appeals Chamber dismissed the appeal.

The Reasoning

Joint criminal enterprise and the Tribunal’s jurisdiction ratione personae
As regards the jurisdiction ratione materiae of the Tribunal (crimes falling within the jurisdiction of the Tribunal), the Appeals Chamber recalled that the Tribunal only has jurisdiction over a crime listed in the Statute if that crime was recognised as such under customary international law at the time it was allegedly committed.¹³ Turning to its jurisdiction ratione personae (forms of liability falling within the jurisdiction of the Tribunal), it held that “in order to come within the Tribunal’s jurisdiction ratione personae, any form of liability must satisfy four pre-conditions: (i ) it must be provided for in the Statute, explicitly or implicitly; (ii) it must have existed under customary international law at the relevant time; (iii) the law providing for that form of liability must have been sufficiently foreseeable at the relevant time to anyone who acted in such a way; and (iv) such person must have been able to foresee that he could be held criminally liable for his actions if apprehended”.¹⁴

Joint criminal enterprise and the Tribunal’s Statute

The Defence contended that Article 7(1), pursuant to which joint criminal enterprise is charged, does not provide for such form of liability.¹⁵ The Appeals Chamber recognised that this provision does not contain an explicit reference to “joint criminal enterprise” but recalled that the Appeals Chamber already dealt with this matter in other cases.¹⁶ Indeed in the Tadic case it found that such form of liability is provided for in the Statute and existed under customary international law at the relevant time.¹⁷ It held that the Appellant had advanced no cogent reason as to why the Appeals Chamber should come to a different conclusion than the one reached in Tadic. The fact that such form of liability is not expressly mentioned as such in the Statute does not mean that it is not included: “”[t]he reference to that crime or to that form of liability does not need […] to be explicit to come within the purview of the Tribunal’s jurisdiction”.¹⁸ The Appeals Chamber found that “[t]he Statute of the ICTY is not and does not purport to be, unlike the Rome Statute of the International Criminal Court, a meticulously detailed code providing for every possible scenario and every solution thereto. It sets out in somewhat general terms the jurisdictional framework within which the Tribunal has been mandated to operate”.¹⁹ It held that “the list in Article 7(1) appears to be non-exhaustive in nature as the use of the phrase ‘or otherwise aided and abetted’ suggests”.²⁰

The nature of joint criminal enterprise
The Prosecution submitted in the Indictment that by using the word “committed” it did not intend to suggest that any of the Accused physically perpetrated any of the crimes charged and that the word referred solely to their participation in a joint criminal enterprise. The Prosecution charges co-perpetration in a joint criminal enterprise as a form of “commission” pursuant to Article 7(1) rather than as a form of accomplice liability. The Appeals Chamber found the Prosecution’s approach correct to the extent that “insofar as a participant shares the purpose of the joint criminal enterprise (as he or she must do) as opposed to merely knowing about it , he or she cannot be regarded as a mere aider and abettor to the crime which is contemplated”.²¹ It held that “the Appeals Chamber therefore regards joint criminal enterprise as a form of ‘commission’ pursuant to Article 7(1) of the Statute”.²² Since the Defence argued that joint criminal enterprise was not clearly defined and could be assimilated to conspiracy or membership in a criminal organisation, the Appeals Chamber clarified those issues.

Joint criminal enterprise and conspiracy

The Appeals Chamber held that joint criminal enterprise and “conspiracy” are two different forms of liability and explained that “[w]hilst conspiracy requires a showing that several individuals have agreed to commit a certain crime or set of crimes, a joint criminal enterprise requires, in addition to such a showing, that the parties to that agreement took action in furtherance of that agreement”.²³ It further clarified that “while mere agreement is sufficient in the case of conspiracy , the liability of a member of a joint criminal enterprise will depend on the commission of criminal acts in furtherance of that enterprise”.²⁴

Joint criminal enterprise and membership in a criminal organisation

The Appeals Chamber noted that “[j]oint criminal enterprise is different from membership of a criminal enterprise which was criminalised as a separate criminal offence in Nuremberg and in subsequent trials held under Control Council Law No. 10”. It further noted that “the Secretary-General made it clear that only natural persons (as opposed to juridical entities) were liable under the Tribunal’s Statute, and that mere membership in a given criminal organisation would not be sufficient to establish individual criminal responsibility”.²⁵ It held that “[c]riminal liability pursuant to joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter”.²⁶

Separate Opinion of Judge Shahabuddeen

Judge Shahabuddeen agreed with the Appeals Chamber’s decision which in his view unanimously and correctly follows its previous ruling in Tadic that joint criminal enterprise forms a part of customary international law. However since he found that the reasoning could bear improvement, he expressed his view about the terms used in Tadic to refer to joint criminal enterprise. He also considered whether the Appeals Chamber in Tadic is to be understood as describing a participant in a joint criminal enterprise as one who merely aids and abets and whether the finding of the Appeals Chamber in Tadic that joint criminal enterprise exists in customary international law was obiter dictum²⁷ or ratio decidendi.²⁸

Separate Opinion of Judge David Hunt

Judge Hunt was satisfied that individual criminal responsibility for participation in a joint criminal enterprise to commit a crime clearly existed as part of customary international law at the relevant time and that the challenge to the jurisdiction of the Tribunal to find such an individual criminal responsibility in relation to crimes within its jurisdiction must fail. He analysed the Tadic Appeal Judgement to determine whether its ruling and the definition of the elements and application of a joint criminal enterprise as a mode of individual criminal responsibility were correct and expressed his view on the notion of judicial precedent with regard to the concept of what is obiter and what is ratio.

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1. Dragoljub Ojdanic is charged, pursuant to the Third Amended Indictment of 5 September 2002 (IT-99-37-I), with deportation, other inhuman acts, persecutions and murder. He is charged both as a superior pursuant to Article 7(3) of the Statute and for planning, instigating, ordering, committing and otherwise aiding and abetting in the planning, preparation or execution of those crimes, pursuant to Article 7(1).
2. General Dragoljub Ojdanic’s Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise.
3. Prosecution’s Response to “Dragoljub Ojdanic’s Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise” of 29 November 2002.
4. Reply Brief: Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise. On 9 January, 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”.
5. Decision on Dragoljub Ojdanic’s Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise (“Impugned Decision”).
6. Ibid., page 6. The Trial Chamber referred to the following decisions of the Appeals Chamber: Tadic, IT-94-1-A, , Judgement (“Tadic Appeals Judgement”), 15 July 1999, paras. 185 ff., Judicial Supplement No. 6; Furundzija, IT-95-17/1, Judgement, 21 July 2000, paras. 118-120, Judicial Supplement No. 18; Delalic et al., IT-96-21-A, Judgement, 20 February 2001, paras. 365-366, Judicial Supplement No. 23.
7. Impugned Decision, pp. 6-7.
8. General Ojdanic’s Appeal from Denial of Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise (“Ojdanic’s Appeal”).
9. Prosecution’s Response to “General Ojdanic’s Appeal from Denial of Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise”.
10. Reply Brief: “General Ojdanic’s Appeal from Denial of Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise”.
11. Order of the President Assigning Judges to the Appeals Chamber, 6 March 2003.
12. Decision Pursuant to Rule 72(E) as to Validity of Appeal.
13. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (“Secretary-General’s Report”), para. 34. See also Vasiljevic, IT-98-32-T, Judgement, 29 November 2002, paras. 193 ff., Judicial Supplement No. 38.
14. Para. 21.
15. Ojdanic’s Appeal, paras. 12-17.
16. See supra note 6.
17. Tadic Appeal Judgement, para. 220: “In sum, the Appeals Chamber holds the view that the notion of common design as a form of accomplice liability is firmly established in customary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal”.
18. Para. 18.
19. Ibid.
20. Ibid.
21. Para. 20.
22. Ibid.
23. Para. 23. The Appeals Chamber referred to XV Law Report of Trials of War Criminals in which the United Nations War Crimes Commission stated that “the difference between a charge of conspiracy and one of acting in pursuance of a common design is that the first would claim that an agreement to commit offences had been made while the second would allege not only the making of an agreement but the performance of acts pursuant to it” (paras. 97-98).
24. Para. 23.
25. Para. 25. The Appeals Chamber referred to paras. 50 and 51 of the Secretary-General’s Report.
26. Para. 26.
27. Obiter dictum: [Latin: a remark in passing] Something said by a Judge while giving judgement that was not essential to the decision in the case. It does not form part of the ratio decidendi of the case and therefore creates no binding precedent, but may be cited as persuasive authority in later cases (Oxford Dictionary of Law).
28. Ratio decidendi: [Latin: reason for deciding] The principle or principles of law on which the court reaches its decision. The ratio of the case has to be deduced from its facts, the reasons the court gave for reaching its decision, and the decision itself. Only the ratio of a case is binding on inferior courts, by reason of the doctrine of precedent (Oxford Dictionary of Law).