Jurisdictional conditions

Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško

94. […] The following requirements must be met for an offence to be subject to prosecution before the International Tribunal under Article 3 [of the ICTY Statute]:

(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met (see below, para. 143);

(iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious violation of international humanitarian law" although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby "private property must be respected" by any army occupying an enemy territory;

(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.

It follows that it does not matter whether the "serious violation" has occurred within the context of an international or an internal armed conflict, as long as the requirements set out above are met.

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ICTY Statute Article 3
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Jurisdiction Decision - 09.01.2007 BOŠKOSKI & TARČULOVSKI

The Appeals Chamber dismissed Boškoski’s Appeal on Jurisdiction on procedural grounds, giving the following reasoning:

3. The Appeals Chamber does not consider that Boškoski’s Appeal is admissible as there is no basis upon which he could have properly filed his jurisdictional challenge before the Trial Chamber. The Appeals Chamber recalls that Rule 72(A)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) requires that challenges to jurisdiction must be “brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66(A)(i)”. Since disclosure for this case was completed in 2005, this Rule did not apply in this instance. Similarly, Rule 50(C) of the rules, which accords the accused “a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of new charges” did not apply since the amended indictment did not add new charges. Accordingly, Boškoski cannot be considered as now having the right to file an appeal under Rule 72(B)(i) of the Rules. Furthermore, the Appeals Chamber questions the Trial chamber’s decision to recognize this motion under Rule 54 of the Rules, which effectually allowed for the circumvention of the clear provisions of Rule 72 and the time limits therein. Seeing, however, that the Impugned Decision was considered on the basis of Rule 54, only Rule 73 of the rules would have been applicable, necessitating certification.[1]

In his Partially Dissenting Opinion, Judge Pocar was of the view that it was within the Trial Chamber’s discretion to allow Boškoski’s motion under Rule 54. He continues:

In my opinion, as a challenge to jurisdiction under rule 72(B) gives rise to an appeal as of right, when such a challenge arises under any other rule from a Trial Chamber, it should also be treated as allowing a right of appeal. Any other interpretation would create the possibility of an accused standing trial on charges that are not properly brought before this Tribunal. As was stated by the Appeals Chamber in Prosecutor v. Tadić, in its decision on jurisdiction, “[s]uch a fundamental matter as the jurisdiction of the International Tribunal should not be kept for decision at the end of a potentially lengthy, emotional and expensive trial”.[2] While that statement was made in relation to whether the International Tribunal had any jurisdiction at all, it is equally applicable to whether the Tribunal’s jurisdiction pursuant to Article 7(3) extends to all types of criminal activity of subordinates.[3]  […] I do not consider that the accused’s challenge to the issue as constituting a defect in the form of the indictment should preclude his challenge of the same issue as on of jurisdiction.[4]

[1] Decision, para. 3

[2] Prosecutor v Duško Tadić, Case No. IT-94-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 6

[3] Decision, Partially Dissenting Opinion of Judge Pocar, para. 2

[4] Ibid., para. 3

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ICTR Rule Rule 54;
Rule 72
ICTY Rule Rule 54;
Rule 72
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JCE Decision - 21.05.2003 MILUTINOVIĆ et al.

21.     […] In order to come within the Tribunal’s jurisdiction ratione personae, any form of liability must satisfy three pre-conditions: (i) it must be provided for in the Statute, explicitly or implicitly; (ii) it must have existing under customary international law at the relevant time; (iii) the law providing for that form of liability must have been sufficiently accessible 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.

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Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA

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.

[1]           Tadić Jurisdiction Decision [Prosecutor v. Dusko Tadić., Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras. 89-91 (and noting the Secretary-General’s Report, which stated that “Article 3 is taken to cover all violations of international humanitarian law other than [those covered by other provisions of the Statute]”).

[2]           See supra, para. 5 [apparently intending to refer to supra, para. 6:

“i) the violation must constitute an infringement of a rule of international law;

ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;

iii) the violation must be serious; and

iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.” (footnote omitted)].

[3] Defence Appeal [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Joint Defence Interlocutory Appeal of Trial Chamber Decision on Enver Hadžihasanović and Amir Kubura’s Rule 98bis Motions for Acquittal, 2 November 2004], paras. 25-29.

[4]           Tadić Jurisdiction Decision, para. 87 (emphasis added).

[5]           Regulations annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 […].

[6]           Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex containing the Charter of the International Military Tribunal, art. 6, Aug. 8, 1945, 59 Stat. 154, 82 U.N.T.S. 279 […].

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ICTY Statute Article 3