The Appeals Chamber discussed the evolution of its jurisprudence regarding what types of challenges involve subject matter jurisdiction and thus qualify for appeal as of right.

33. The Appeals Chamber recalls that Karadžić’s challenges to the Tribunal’s jurisdiction focus on the mode by which liability is attributed to him. As these challenges do not relate to persons, territories, or time periods,[1] the core issue underlying the Appeals is whether they involve subject matter jurisdiction as defined in Rule 72(D)(iv) of the Rules, and thus may be appealed as of right.[2]

34. Karadžić makes extensive reference to certain decisions, such as Rwamakuba,[3] issued by three judge panels under a previous version of Rule 72 of the Rules.[4] Many of the decisions cited by Karadžić lend some support to the view that even relatively granular issues, such as the contours and elements of mode of liability, could be jurisdictional in nature.[5] However, other decisions issued by these three judge panels advanced a narrower view of jurisdiction under Rule 72 of the Rules.[6] In 2005, a revision to the Rules eliminated Rule 72(E) of the Rules and reverted the question of whether an appeal addressed jurisdictional issues to standard panels of five Appeals Judges.[7] Since that revision of the Rules, the Appeals Chamber’s jurisprudence has gradually resolved previous uncertainty relating to the issue of which questions qualified as jurisdictional challenges.

35. The Appeals Chamber’s most recent jurisprudence on the question of jurisdiction focuses narrowly on the plain text of Rule 72 of the Rules. For example, in Gotovina, the Appeals Chamber dismissed a challenge concerning the applicable mens rea of the third category of JCE, as it determined that the claim was not related to questions of jurisdiction.[8] To the extent the appeal was challenging the definition and interpretation of a particular element of the mode of liability, the Appeals Chamber found that “[s]uch an argument goes to the pleading practice and the form of the indictment and is not a challenge to jurisdiction”.[9] The Appeals Chamber also adopted this approach in its Tolimir Decision. There, the appellant challenged the applicability of JCE to establishing responsibility for the crimes of genocide and conspiracy to commit genocide. In rejecting his appeal, the Appeals Chamber concluded that “though at first glance [the appeal seemed] somewhat related to subject-matter jurisdiction”, it involved non-jurisdictional issues that could be resolved during the course of trial.[10]

36. As Tolimir and Gotovina demonstrate, the Appeals Chamber’s approach to subject matter jurisdiction now focuses on whether the crime charged is envisioned by the statute, and whether the mode of liability upholds the principle of individual criminal responsibility; the contours and elements of modes of liability are considered an “issue[ ] of law . . . which can be properly advanced and argued during the course of trial”.[11]

37. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the Appeals Chamber’s distillation of case law on the scope of jurisdictional appeals as set out in Gotovina and Tolimir.[12] For the foregoing reasons, the Appeals Chamber finds that Karadžić fails to raise a proper jurisdictional challenge pursuant to Rule 72 of the Rules.

The Appeals Chamber also recalled the standard of appellate review of decisions concerning jurisdictional challenge (paras 9-10).

11. To the extent that the Appellant’s argument concerns not the sufficiency of the indictment but the sufficiency of the supporting evidence, the Appeals Chamber agrees with the Trial Chamber that this is an issue to be resolved at trial.  The question whether an indictment is supported by sufficient supporting material to make out a prima facie case is not a jurisdictional one within the meaning of Rule 72(B)(i), and the Appellant has no right to an interlocutory appeal of the confirming judge’s decision on this question.[1]  [….] Here […] the indictment’s allegations are legally sufficient, and the further question whether those allegations are supported by the evidence is a factual one that is inappropriate for interlocutory appeal.

15. The Appeals Chamber finds that the Appellant fails to raise a proper jurisdictional challenge pursuant to Rule 72(D)(iv) of the Rules under his first ground of appeal or to demonstrate that the Trial Chamber erred in dismissing his argument as to “occupied territory” being a necessary requirement for the crimes of deportation and forcible transfer as crimes against humanity. Here, the Appellant is not contesting that the International Tribunal has jurisdiction over these crimes under Article 5 of the Statute, which are charged in the Joint Indictment according to their definitions and elements under customary international law as set out in the jurisprudence of the International Tribunal.[1] Rather, he argues that the interpretation of the definition for the actus reus of these crimes should be narrow and limited to displacement from occupied territory. As such, the Appellant may bring these arguments before the Trial Chamber to be considered on the merits at trial; however, they do not demonstrate the Tribunal’s lack of subject-matter jurisdiction.[2]

18. The Appeals Chamber considers that the Appellant […] fails to raise a proper jurisdictional challenge under Rule 72(D)(iv) of the Rules. The Appellant does not dispute that the International Tribunal has jurisdiction over crimes charged under Articles 3 and 5 of the Statute as violations of Common Article 3 of the Geneva Conventions. Furthermore, he does not dispute that “committed against persons taking no active part in the hostilities” is a proper element of such crimes under customary international law. Rather, he contests the definition of that element and argues that the jurisprudence of the International Tribunal demonstrates that it should be interpreted narrowly to require that such persons be shown to be in the hands of a party to the conflict akin to the “protected person” element for crimes alleged to be grave breaches of the Geneva Conventions under Article 2 of the Statute.  Such arguments are properly raised on the merits at trial[3] and do not demonstrate that the International Tribunal lacks subject-matter jurisdiction over the crimes and the elements of those crimes under Counts 8 and 9 of the Joint Indictment. […]

21. The Appeals Chamber finds that the Appellant […] fails to raise a proper jurisdictional objection within the meaning of Rule 72(D)(iv) of the Rules and to demonstrate that the Trial Chamber erred in rejecting it. Clearly, the Joint Indictment provides that a state of armed conflict existed at all times with respect to the violations of international humanitarian law alleged therein. Whether an armed conflict actually existed post-Operation Storm is a factual determination to be made at trial. It was well within the discretion of the Trial Chamber to consider that determining this issue pre-trial is premature and can only be decided upon hearing and weighing all of the evidence.[4] To the extent that the Appellant claims that the provisions of the  Joint Indictment on this issue are inconsistent or do “not plead any facts supporting the existence of an armed conflict after Operation Storm”,[5] these arguments may constitute allegations of defects in the form of the indictment, which may be challenged under Rule 72(A)(ii) of the Rules.[6] […]

24. The Appeals Chamber considers that the Appellant fails to […] raise[…] a proper jurisdictional objection pursuant to Rule 72(D)(i) of the Rules. Here, the Appellant does not contest the International Tribunal’s jurisdiction over JCE as a mode of liability under Article 7(1) of the Statute, which, as the Trial Chamber noted, is clearly established in the jurisprudence of the International Tribunal.[7] In the Joint Indictment, the Prosecution alleges JCE and its elements, as they are set out in the Tribunal’s jurisprudence, and the Appellant merely challenges the definition and interpretation of a particular element as established in cases subsequent to the Tadić Appeals Judgement.[8] The Appeals Chamber agrees with the Trial Chamber that such a challenge is to be considered on the merits at trial.[9] To the extent that the Appellant submits that the Prosecution has failed to plead an element of this mode of liability properly, such an argument goes to pleading practice and the form of the indictment and is not a challenge to jurisdiction.[10] […]

See paragraph 72 of the decision.

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

1. Scope of Article 3

13. The Appellants’ challenge to the Tribunal’s jurisdiction over Counts 5, 6 and 7 of the Indictment stems from the Appellants’ interpretation of the Tadić Jurisdiction Decision regarding the scope of jurisdiction under Article 3 of the Statute. In the Tadić Jurisdiction Decision, the Appeals Chamber held that Article 3 confers jurisdiction over any serious offence against international humanitarian law committed in non-international or international armed conflict not covered by Articles 2, 4, or 5.[1] The Appeals Chamber prescribed a four-prong test to ensure that offences charged under Article 3 lie within the International Tribunal’s jurisdiction.[2] On appeal the Appellants argue that the jurisdictional grant embodied in the enumerated provisions of Article 3 only refers to the conventional law from which that text is derived. The Appellants claim that as that conventional law underpinning Articles 3(b), (d) and (e), charged in Counts 5, 6 and 7 of the Indictment respectively, relates to international armed conflicts and situations in occupied territory, the Tribunal does not have jurisdiction over these offences in non-international armed conflicts.[3]

14. The Appellants’ position is an unnecessarily narrow reading of the Appeals Chamber’s jurisprudence with respect to the scope of the enumerated provisions in Article 3. In the Tadić Jurisdiction Decision, the Appeals Chamber stated, with respect to the list of enumerated violations, that “this list may be construed to include other infringements of international humanitarian law”,[4] demonstrating that the enumerated crimes of the list itself should be considered to encompass rules in addition to the conventional law from which their text originates.[5] Accordingly, properly understood, Article 3 confers jurisdiction over violations of rules that are expressed by the provisions of the Article, but which are not limited to the conditions of the rule’s origin in conventional instruments applicable to international armed conflicts only.[6]

See also para. 45.