Nullum crimen sine lege

Notion(s) Filing Case
Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.
(IT-01-47-AR72)

51.     […] [T]he Appeals Chamber holds the view that this Tribunal can impose criminal responsibility only if the crime charged was clearly established under customary law at the time the events in issue occurred.[1] […]

[…]

55.     […] [A]n expansive reading of criminal texts violates the principle of legality, widely recognized as a peremptory norm of international law, and thus of the human rights of the accused.[2]

[1] Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Judgement (Reasons), 3 July 2003, para 34.

[2] Cf. Rome Statute, art. 22, para. 2.

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Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.
(IT-01-47-AR72)

34.     […] As to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom.[1]

[1] See “Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise”, Prosecutor v. Milan Milutinović et al, IT-99-37-AR72, 21 May 2003, paras. 37-39 (“Ojdanić Decision”).

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Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

38. The principle of nullum crimen sine lege, or of legality, requires that a person may only be found guilty of a crime in respect of acts which constituted a crime at the time of their commission.[1]  That principle does not, however, mean that decisions of this Tribunal (or of any other court) which interpret or clarify the elements of a particular crime change the law which existed at the time the offences are alleged to have been committed.[2]  The Tribunal’s inherent power to deal with contempt has necessarily existed ever since its creation, and the extent of that power has not altered by reason of the amendments made to the Tribunal’s Rules,[3] or by reason of its decisions interpreting or clarifying that power.

[1]    See, for example, the International Covenant on Civil and Political Rights, Article 15:  “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

[2]    Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgment, 24 Mar 2000 (“Aleksovski Judgment”), pars 126-127;  Prosecutor v Delalić, Case IT-96-21-A, Judgment, 20 Feb 2001 (“Čelebići Judgment”), par 173.

[3]    Vujin Judgment, par 28.

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Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

126. The Defence argument on the principle of legality or nullum crimen sine lege, is based on a misunderstanding of that principle.  The Appeals Chamber understands the Defence to be saying that reliance cannot be placed on a previous decision as a statement of the law, since that decision would necessarily have been made after the commission of the crimes, and for that reason would not meet the requirements of the principle of legality.  There is nothing in that principle that prohibits the interpretation of the law through decisions of a court and the reliance on those decisions in subsequent cases in appropriate circumstances.  The principle of legality is reflected in Article 15 of the ICCPR.[1]  What this principle requires is that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission. […]

127. There is, therefore, no breach of the principle of nullum crimen sine lege.  That principle does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime; nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a crime.

 

[1] Article 15 of the ICCPR states in relevant part: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

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Other instruments International Covenant on Civil and Political Rights: Article 15.
Notion(s) Filing Case
JCE Decision - 21.05.2003 MILUTINOVIĆ et al.
(IT-99-37-AR72)

37.     Secondly, the principle nullum crimen sine lege is, as noted by the International Military Tribunal in Nuremberg, first and foremost, a “principle of justice”.[1]  It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is charged were committed.  The Tribunal must further be satisfied that the criminal liability in question was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the head of responsibility selected by the Prosecution. 

38.     This fundamental principle “does not prevent a court from interpreting and clarifying the elements of a particular crime”.[2]  Nor does it preclude the progressive development of the law by the court.[3]  But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.  This Tribunal must therefore be satisfied that the crime or the form of liability with which an accused is charged was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time, taking into account the specificity of international law when making that assessment. 

39.     The meaning and scope of the concepts of “foreseeability” and “accessibility” of a norm will, as noted by the European Court of Human Rights,[4] depend a great deal on “the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed”.[5]  The specificity of international criminal law in that respect has been eloquently noted by one American Military Tribunal in Nuremberg in the Justice case:

Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field.  […] International law is not the product of statute for the simple reason that there is yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence.  It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the events. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth.[6]

40.     […] This Tribunal does not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction.  It does, as pointed out above, apply customary international law in relation to its jurisdiction ratione materiae.  It may, however, have recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the indictment was prohibited and punishable.  […]

41.     Although domestic law (in particular the law of the country of the accused) may provide some notice to the effect that a given act is regarded as criminal under international law, it may not necessarily provide sufficient notice of that fact.  Customary law is not always represented by written law and its accessibility may not be as straightforward as would be the case had there been an international criminal code.  But rules of customary law may provide sufficient guidance as to the standard the violation of which could entail criminal liability.[7]  […]

42.     […] Although the immorality or appalling character of an act is not a sufficient factor to warrant its criminalisation under customary international law, it may in fact play a role in that respect, insofar as it may refute any claim by the Defence that it did not know of the criminal nature of the acts.[8] 

See also para. 10.

[1]    IMT Judgment [Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, Vol 1, p 226], p 219.

[2]    Aleksovski Appeal Judgment, pars 126-127;  Delalić Appeal Judgment, par 173.

[3]    See, inter alia, Kokkinakis v Greece, Judgment, 25 May 1993, Ser A 260-A (1993), pars 36 and 40 (ECHR);  EV v Turkey, Judgment, 7 Feb 2002, par 52;  SW v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-B (1995), pars 35-36 (ECHR).  See also C.R  v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-C (1995), par 34 (ECHR): “However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation.  There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.”

[4]    See references in previous footnote, including, Kokkinakis v Greece, Judgment, 25 May 1993, Ser A 260-A (1993), (ECHR);  EV v Turkey, Judgment, 7 Feb 2002;  SW v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-B (1995) (ECHR); C.R  v United Kingdom, Judgment, 22 Nov 1995, Ser A 335-C (1995).

[5]    Groppera Radio AG and Others v Switzerland, Judgment, 28 Mar 1990, Ser A 173, par 68.

[6]    See, eg, Trials of War Criminals Before The Nuremberg Military Tribunals Under Control Council Law No 10, Vol III (“Justice case”), pp 974-975.  

[7]    See X Ltd and Y v United Kingdom, D and R 28 (1982), Appl 8710/79, pp 77, 80-81.

[8]    In the Delalić case, the Appeals Chamber referred to the ICCPR to state that certain acts could be regarded as “criminal according to the general principles of law recognized by the community of nations” (Delalić Appeals Chamber Judgment, par 173). The IMT used a similar formulation when addressing the criminalisation of aggressive war: “the attacker must know that he is doing wrong” (IMT Judgment, p 219)

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

576. [T]he Trial Chamber is said by Landžo to have violated the principles of certainty in the criminal law,[1] and of nullum crimen sine lege,[2] or ex post facto law (as it was described by counsel for Landžo).[3]  These objections are misconceived.  The law to be applied must be that which existed at the time the acts upon which the charges are based took place.  However, the subsequent identification or interpretation of that law by the Tribunal, whenever that takes place, does not alter the law so as to offend either of those principles.[4]

[1]    Landžo Brief, pp 88-89.

[2]    Restated in Article 15 of the International Covenant on Civil and Political Rights, 1966: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

[3]    Appeal Transcript, pp 590, 595, 627.

[4]    Aleksovski Appeal Judgement, paras 126-127, 135.

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Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

311. The nullum crimen sine lege principle does not require that an accused knew the specific legal definition of each element of a crime he committed. It suffices that he was aware of the factual circumstances, e.g. that a foreign state was involved in the armed conflict. It is thus not required that Kordić could make a correct legal evaluation as to the international character of the armed conflict. Consequently, it is irrelevant whether Kordić believed that the effective control test constituted international customary law.

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Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

283.   The Appeals Chamber recalls that the ICTY Trial Chamber in the Galić case determined, by majority, that the ICTY had subject-matter jurisdiction over the crime of terror under Article 3 of the ICTY Statute.[1] The ICTY Appeals Chamber in the same case confirmed, by majority, the ICTY’s jurisdiction over the crime of terror, clarifying that customary international law imposed individual criminal responsibility for violations of the prohibition of terror against the civilian population at the time of the commission of the crimes for which Galić was convicted.[2] The ICTY Appeals Chamber in the D. Milošević case, by majority, subsequently reaffirmed the ICTY’s jurisdiction over the crime of terror.[3] In light of this jurisprudence, the Appeals Chamber considers that the matter of the ICTY’s jurisdiction over the crime of terror was settled by the ICTY Appeals Chamber and was therefore binding on the Trial Chamber in the present case.[4] As it was not open to the Trial Chamber to depart from the existing jurisprudence in this respect, the Appeals Chamber rejects Mladić’s contention that the Trial Chamber erred in failing to give sufficient weight to his submissions that there exist cogent reasons to do so.

284.   As to whether there exist cogent reasons for the Appeals Chamber to depart from the jurisprudence in this regard, the standards of appellate review require Mladić to demonstrate that the decision to exercise jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[5] […] 

285.  A review of the Galić Appeal Judgement reveals that the judges of the majority applied the same legal principles as Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case in reaching their conclusions, namely that: (i) the ICTY has jurisdiction to prosecute a violation of a rule of international humanitarian law under Article 3 of the ICTY Statute when four conditions are fulfilled, including when “the violation of the rule must entail, under customary international law, the individual criminal responsibility of the person breaching the rule” (“Fourth Condition”);[6] and (ii) the fulfilment of the Fourth Condition may be inferred from, inter alia, state practice indicating an intention to criminalize the violation.[7] 

286. In concluding that the Fourth Condition was fulfilled, the judges of the majority in the Galić case considered, inter alia, that: (i) references to terror as a war crime could be found in national and multinational documents as early as 1919 and 1945;[8] (ii) numerous states, including the former Yugoslavia, had criminalized terrorizing civilians as a method of warfare or in a time of war;[9] and (iii) a court in Croatia had entered a conviction under, inter alia, Article 51 of Additional Protocol I and Article 13 of Additional Protocol II for acts of terror against civilians which occurred between March 1991 and January 1993.[10] Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case, by contrast, expressed doubt as to whether the evidence referred to by the majority in the Galić case was sufficiently extensive and uniform to establish customary international law.[11]

287. In the Appeals Chamber’s view, Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case applied the same legal principles as the majority in the Galić case in determining the sufficiency of the evidence of state practice before them and merely disagreed on the result.[12] Bearing in mind that “two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence, both of which are reasonable”,[13] the Appeals Chamber finds that Mladić fails to demonstrate that the finding by the ICTY Appeals Chamber that the ICTY had jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was wrongly decided. In the absence of cogent reasons to depart from the controlling jurisprudence, the Appeals Chamber finds no error in the Trial Chamber’s determination that the ICTY had jurisdiction over the crime of terror in the present case. 

288.   As to Mladić’s contention that the definition of the crime of terror nonetheless violated the principle of nullum crimen sine lege for lack of specificity and foreseeability,[14] the Appeals Chamber notes that the Trial Chamber set out the elements of the crime in accordance with the ICTY Appeals Chamber’s definition in the Galić Appeal Judgement, as clarified in the D. Milošević Appeal Judgement.[15] In particular, the Trial Chamber stated that the crime of terror requires proof of, inter alia, acts or threats of violence committed with the primary purpose of spreading terror among the civilian population and directed against the civilian population or individual civilians not taking direct part in hostilities causing the victims to suffer grave consequences.[16]

289.   Relying on Judge Shahabuddeen’s separate opinion in the Galić Appeal Judgement stating that “there is neither the required opinio juris nor state practice to support the view that customary international law knows of a comprehensive definition [of terror]”,[17] Mladić argues that the ICTY was not in a position to define the elements of the crime.[18] He further contends that the definition adopted by the ICTY, particularly the requirement that victims suffer “grave consequences” from the acts or threats of violence, did not provide a clear gravity threshold and was improperly determined through a jurisdictional analysis which was developed after the Indictment period.[19]   

290.   The Appeals Chamber recalls that the principle of nullum crimen sine lege requires that a person may only be found guilty of a crime in respect of acts which constituted a violation of a norm which existed at the time of their commission.[20] Moreover, the criminal liability in question must have been sufficiently foreseeable and the law providing for such liability must have been sufficiently accessible at the relevant time.[21] This principle does not, however, prevent a court from interpreting and clarifying the elements of a particular crime, nor does it preclude the progressive development of the law by the court.[22]

291.   The Appeals Chamber notes that Judge Shahabuddeen specified in his separate opinion in the Galić Appeal Judgement that: (i) he agreed with the view that terror as charged is a crime known to customary international law;[23] (ii) the ICTY could recognize that customary international law does know of a core or predominant meaning of “terror” for which there was individual criminal responsibility at the material times;[24] and (iii) he was satisfied that a serious violation of the laws or customs of war within the meaning of Article 3 of the ICTY Statute, namely, by resorting to the core of terror, gives rise to such responsibility, which existed at the time of the alleged acts of the appellant.[25] In the view of the Appeals Chamber, the ICTY Appeals Chamber in the Galić and D. Milošević cases merely clarified the elements of the crime of terror, which existed in customary international law, for the purposes of Article 3 of the ICTY Statute.[26] The Appeals Chamber considers that this is consistent with the principle of nullum crimen sine lege, as recalled above. Consequently, Mladić fails to show any error in the Trial Chamber’s application of the elements of the crime of terror as clarified by the ICTY Appeals Chamber.[27]

292.   As to foreseeability, the Appeals Chamber recalls that the accused must be able to appreciate that his conduct was criminal in the sense generally understood, without reference to any specific provision.[28] Although the ICTY did not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction, it had recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the Indictment was prohibited and punishable.[29]

See also para. 293.

294. […] [I]n the Appeals Chamber’s view, the specification that, for the purposes of Article 3 of the ICTY Statute, the crime of terror also requires that victims suffered “grave consequences”,[30] in no way detracts from the conclusion that Mladić could reasonably have known that the commission of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was prohibited and punishable.[31] […]

[1] Galić Trial Judgement, para. 138. See Galić Trial Judgement, paras. 63-138. See also Galić Trial Judgement, Separate and Partially Dissenting Opinion of Judge Nieto-Navia, paras. 108-113.

[2] Galić Appeal Judgement, para. 98. See Galić Appeal Judgement, paras. 86-98. See also Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, paras. 2, 4-22, 24.

[3] D. Milošević Appeal Judgement, para. 30. See also D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 1-13. The Appeals Chamber notes that the ICTY Appeals Chamber in the Prlić et al. case, by majority, upheld convictions for the crime of terror. See Prlić et al. Appeal Judgement, paras. 424, 562-564, 1774-1789, 2017-2026, 2400-2402, 2406, 2800-2802; Prlić et al. Trial Judgement, Volume 3, paras. 1689-1692. See also Prlić et al. Appeal Judgement, Partially Dissenting, Dissenting Opinions and Declaration of Judge Liu Daqun, paras. 8-10 (wherein Judge Liu reiterated his position that the ICTY does not have jurisdiction over the crime of terror and that such convictions should therefore have been vacated because the crime did not exist under customary international law at the relevant time). In addition, despite opposition to the ICTY’s jurisdiction over the crime of terror by Karadžić at trial, the ICTY Trial Chamber in the Karadžić case reiterated that Article 3 of the ICTY Statute covers the crime of terror, and entered a conviction for it, which was upheld on appeal. See Karadžić Appeal Judgement, para. 777; Karadžić Trial Judgement, paras. 458, 6008, 6022, 6071; Prosecutor v. Radovan Karadžić, Case No. IT-95-05/18-PT, Karadžić Pre-Trial Brief, 29 June 2009, paras. 24, 25.

[4] See Aleksovski Appeal Judgement, para. 113. See also [Prosecutor v. Ante Gotovina, Ivan Čermak, and Mladen Markač, Case No. IT-06-90-AR73.6, Decision on Ivan Čermak and Mladen Markač Interlocutory Appeals Against Trial Chamber’s Decision to Reopen the Prosecution Case, 1 July 2010], para. 24.

[5] See supra [Mladić Appeal Judgement], para. 14 and references cited therein.

[6] Galić Appeal Judgement, para. 91; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, para. 5; D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, para. 2. See also Tadić Decision of 2 October 1995, para. 94.

[7] Galić Appeal Judgement, para. 92; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, para. 7; D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 6, 10. See also [Prosecutor v. Duško Tadić a/k/a Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], para. 128.

[8] See Galić Appeal Judgement, para. 93 and references cited therein.

[9] See Galić Appeal Judgement, paras. 94-96 and references cited therein.

[10] See Galić Appeal Judgement, para. 97 and references cited therein.

[11] D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 6-8; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, paras. 8-10.

[12] See D. Milošević Appeal Judgement, Partly Dissenting Opinion of Judge Liu Daqun, paras. 6-8; Galić Appeal Judgement, paras. 94, 95; Galić Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Schomburg, paras. 7-11.

[13] See Ntawukulilyayo Appeal Judgement, para. 15 and references cited therein.

[14] See Mladić Appeal Brief, paras. 350, 352-371; T. 25 August 2020 p. 64.

[15] See Trial Judgement, paras. 3186-3188.

[16] See Trial Judgement, para. 3186.

[17] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 3.

[18] See Mladić Appeal Brief, paras. 354-358.

[19] See Mladić Appeal Brief, paras. 359-370, referring to, inter alia, Tadić Decision of 2 October 1995, para. 94.

[20] See Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003 (“Milutinović et al. Decision of 21 May 2003”), para. 37; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Aleksovski Contempt Appeal Judgement”), para. 38; Čelebići Appeal Judgement, para. 576; Aleksovski Appeal Judgement, para. 126. See also Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (“Hadžihasanović et al. Decision of 16 July 2003”), para. 51.

[21] Milutinović et al. Decision of 21 May 2003, paras. 37, 38. In the case of an international tribunal such as the ICTY, accessibility does not exclude reliance being placed on a law which is based on custom. Hadžihasanović et al. Decision of 16 July 2003, para. 34.

[22] Milutinović et al. Decision of 21 May 2003, para. 38; Čelebići Appeal Judgement, paras. 173, 576; Aleksovski Appeal Judgement, paras. 126, 127.

[23] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 3.

[24] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 4.

[25] Galić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 5.

[26] See D. Milošević Appeal Judgement, paras. 31-37; Galić Appeal Judgement, paras. 100-104.

[27] Trial Judgement, paras. 3186-3188.

[28] Hadžihasanović et al. Decision of 16 July 2003, para. 34.

[29] Milutinović et al. Decision of 21 May 2003, paras. 40, 41.

[30] See Trial Judgement, para. 3186. See also D. Milošević Appeal Judgement, paras. 32, 33.

[31] Mladić’s contention that the definition of the crime of terror adopted by the ICTY provided an unclear gravity threshold creating “two distinct sets of victims” (see Mladić Appeal Brief, paras. 365, 366) also does not demonstrate an error. The “grave consequences” requirement to which Mladić points in this respect is jurisdictional, meaning that the crime of terror victim group remains the same: “the civilian population or individual civilians not taking direct part in hostilities”, but that the ICTY could only exercise its jurisdiction over the crime where the grave consequences requirement is met. See Trial Judgement, para. 3186. See also D. Milošević Appeal Judgement, paras. 31-33.

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ICTY Statute Article 3 of the ICTY Statute
Notion(s) Filing Case
Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

494.  The Appeals Chamber notes that in finding that it had jurisdiction over the crime of hostage-taking, the Trial Chamber recalled the four conditions set out in the Tadić Decision of 2 October 1995 to satisfy Article 3 of the ICTY Statute’s “residual jurisdiction”, namely that: (i) the offence charged must violate a rule of international humanitarian law; (ii) the rule must bind the parties at the time of the alleged offence; (iii) the rule must protect important values and its violation must have grave consequences for the victim; and (iv) that such a violation must entail the individual criminal responsibility of the perpetrator.[1] The Trial Chamber relied, inter alia, on the ICTY Appeals Chamber jurisprudence in the Tadić, Čelebići, and Karadžić cases and concluded that hostage-taking under Article 3(1)(b) common to the Geneva Conventions met these conditions as the rules in Common Article 3 are part of customary international law in international and non-international armed conflicts, the acts prohibited by Common Article 3 breach rules protecting important values and involve grave consequences for the victims, and violations of such rules entail individual criminal responsibility.[2] In light of the established jurisprudence on this matter, the Appeals Chamber finds that the Trial Chamber correctly relied on the Tadić Decision of 2 October 1995 and other consistent ICTY Appeals Chamber jurisprudence in the exercise of its jurisdiction over the crime of hostage-taking and, contrary to Mladić’s argument, it was not required to conduct a more detailed analysis in this respect.[3]

495.  With respect to Mladić’s submission that the Trial Chamber violated the principle of nullum crimen sine lege, the Appeals Chamber recalls that this principle prescribes that a person may only be found guilty of a crime in respect of acts which constituted a violation of a norm which existed at the time of their commission.[4] In light of the well-established jurisprudence that hostage-taking was a crime under customary international law during the period covered by the Indictment, the Appeals Chamber rejects Mladić’s contention that, by relying on the Tadić Decision of 2 October 1995, the Trial Chamber breached the principle of nullum crimen sine lege.

[1] Trial Judgement, para. 3009, referring to [The Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Decision of 2 October 1995”], paras. 94, 143.

[2] Trial Judgement, para. 3010, referring to, inter alia, Karadžić Decision of 9 July 2009, paras. 23, 25, 26, Čelebići Appeal Judgement, paras. 138, 139, 143, 147, 167, 173, 174, Tadić Decision of 2 October 1995, paras. 89, 98, 134.

[3] The Appeals Chamber finds without merit Mladić’s argument that the ICTY Appeals Chamber in the Čelebići and Kunarac et al. cases “implicitly” affirmed the need for a trial chamber to conduct a detailed analysis of its jurisdiction where jurisdiction may be in issue. See Mladić Appeal Brief, para. 699, referring to Kunarac et al. Appeal Judgement, paras. 67, 68, Čelebići Appeal Judgement, paras. 167, 168. The relevant jurisprudence to which he refers shows that the ICTY Appeals Chamber relied on the Tadić jurisprudence and reaffirmed that Article 3 of the ICTY Statute encompasses violations of Common Article 3. See Kunarac et al. Appeal Judgement, para. 68, nn. 60-62; Čelebići Appeal Judgement, paras. 168, 169.

[4] See [Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003 (“Milutinović et al. Decision of 21 May 2003”)], para. 37; Aleksovski Contempt Appeal Judgement, para. 38; Čelebići Appeal Judgement, para. 576; Aleksovski Appeal Judgement, para. 126. […].

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ICTY Statute Article 3