Personal jurisdiction

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Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan

34. The Appeals Chamber recalls that the UNSC, acting under Chapter VII of the UN Charter, has adopted the Statute by means of resolution and established the Tribunal as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.[1] The Statute, as the constitutive instrument of the Tribunal, defines the scope and limits of the Tribunal’s substantive jurisdiction.[2] In particular, Articles 1 to 9 of the Statute define the Tribunal’s jurisdiction ratione materiae, personae, loci and temporis. Article 1 of the Statute confers a general power for the Tribunal to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. There is no provision of the Statute which excludes any specific individual from the jurisdiction of the Tribunal.

[1] UNSC Resolution 808, S/RES/808(1992), 22 February 1993. See also, 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 on Jurisdiction”), paras 37-38; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.2, Decision on Krajišnik’s Appeal Against the Trial Chamber’s Decision Dismissing the Defense Motion for a Ruling that Judge Canivell is Unable to Continue Sitting in This Case, 15 September 2006, (“Krajišnik Decision”), para. 15.

[2] For the distinction between the notions of “substantive” and “inherent” jurisdiction, see Tadić Decision on Jurisdiction, para. 14. 

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ICTY Statute Article 1
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI

52. The Appeals Chamber recalls that pursuant to Article 1 of the Statute, the Tribunal is not limited in its jurisdiction to prosecute persons of a specific level of authority.[1] Indeed, a number of accused who had low-ranking positions in the military or the police or did not have any official position at all have been prosecuted and convicted by the Tribunal.[2] Hence, the subordinate role of an accused is legally irrelevant in determining his individual criminal responsibility. […]

[1] Article 1 of the Statute provides: […].”

[2] Cf. Erdemović Sentencing Judgement, paras 92-95; Tadić Sentencing Judgement, para. 60; Banović Sentencing Judgement, paras 45 and 91; Češić Sentencing Judgement, para. 37; Mrđa Sentencing Judgement, para. 53. See also Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993) and Annex thereto, U.N. Doc. S/25704, para. 54: “all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible” (emphasis added).

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ICTY Statute Article 1
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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 the Outcome of Proceedings - 29.06.2010 DELIĆ Rasim

6. First, the personal jurisdiction of the Tribunal is limited to “natural persons”,[1] which, read in the context and in light of the Statute’s object and purpose, should be understood in its ordinary meaning, i.e., the living. Second, Article 25 of the Statute clearly states that “[t]he Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor”, thus leaving no room for other persons interested in the outcome of the appeal.[2] Third, neither the Statute nor the Rules allow for Tribunal’s jurisdiction in relation to any procedures initiated by the convicted person’s heirs or victims. The Appeals Chamber is of the view that this clearly demonstrates that the Tribunal’s jurisdiction ratione personae is limited to living accused or convicted persons.[3]

In Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on Motion for Continuation of the Appellate Proceedings, 29 June 2010, the Appeals Chamber denied the motion seeking the continuation of the proceedings on behalf of Rasim Delić’s son and considered that

[…] the plain reading of the Motion indicates that the entirety of the submissions therein are made on behalf of Delić’s son,[4] who is not and cannot qualify as a party to any existing proceedings before the Tribunal;

[…] Delić’s son has no standing to submit a motion before the Tribunal and cannot be represented by Counsel assigned to Delić;

[…] consequently, […] the Motion is not validly filed before the Appeals Chamber and […] the Appeals Chamber has no jurisdiction to consider its merits;

[1] Article 6 of the Statute.

[2] See also, Decision of 29 June 2010 [Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on Motion for Continuation of the Appellate Proceedings, 29 June 2010], p. 2.

[3] In addition, trials and appeals before this Tribunal, as such, are not conducted in absentia, unless a living accused or the appellant waives his right to be present in the courtroom (see Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, paras 97-99 and references therein). The Appeals Chamber further notes that Rule 118(B) of the Rules provides for the possibility of the appeal judgement being rendered in the absence of the accused. However and in light of the above, the Appeals Chamber considers that this provision only deals with the issue of a living accused who is not physically present in the courtroom and therefore does not apply to the present situation.

[4] E.g., Motion, paras 3, 7; Response, para. 2.

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ICTR Statute Article 5;
Article 24(1)
ICTY Statute Article 6;
Article 25(1)
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Decision on Croatia's Amicus Curiae Application - 18.07.2016 PRLIĆ et al.
(IT-04-74-A )

9.          […] The Appeals Chamber further observes that the Tribunal’s jurisdiction is restricted to “natural persons” and the Tribunal does not have the competency to make findings on state responsibility.[1] […]

[1] Statute of the Tribunal, Arts 1, 6-7. See also Gotovina and Markač Decision of 8 February 2012 [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8 February 2012], para. 12.

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