"Judgement"

3 March 2000
Judges Jorda [Presiding], Rodrigues and Shahabuddeen

Factual Background

The Indictment charges that1, from May 1992 to January 1994 members of the armed forces of the Croatian Defence Council ("HVO") committed serious violations of international humanitarian law against Bosnian Muslims in Bosnia and Herzegovina.

It is alleged that at all times material to the Indictment the accused held the rank of Colonel in the HVO, and that he became commander of the Regional Headquarters of the HVO Armed Forces in central Bosnia on 27 June 1992. At the beginning of August 1994, he was promoted to the rank of General and appointed Commander of the HVO.

The Indictment charges the accused on the basis of both individual responsibility (Article 7(1) of the Statute of the Tribunal) and superior responsibility (Article 7(3)) with:

• Grave breaches of the 1949 Geneva Conventions (Article 2 - wilful killing; wilfully causing great suffering or serious injury to body or health; extensive destruction of property; inhuman treatment; taking civilians as hostages),

• Violations of the laws or customs of war (Article 3 - devastation not justified by military necessity; unlawful attack on civilians; unlawful attack on civilian objects; murder; violence to life and person; plunder of public or private property; destruction or wilful damage to institutions dedicated to religion or education; cruel treatment; taking of hostages), and

• Crimes against humanity (Article 5 - persecutions on political, racial or religious grounds; murder; inhumane acts).

Preliminary Legal Issues

The existence of an armed conflict is required for Articles 2, 3 and 5 of the Statute to apply. However, the content of this requirement differs depending on which article is applied. The existence of an armed conflict is a condition of applicability of Articles 2 and 3, but a jurisdictional condition of Article 5. Thus, an armed conflict is not a condition for a crime against humanity but is for its punishment by the Tribunal2.

The Trial Chamber reaffirmed the need to show a nexus between the crimes charged and the armed conflict. However, the requirement that crimes against humanity be committed "in armed conflict" does not suggest that the perpetrator must have intended to take part in the armed conflict itself so long as his acts were part of the geographical and temporal scope of the conflict3.

Article 2 of the Statute

For the grave breaches contained in Article 2 of the Statute to apply, two conditions must be met: (1) the conflict must be international in nature; (2) the crimes must be committed against "protected persons" within the meaning of the Geneva Conventions of 1949.

An armed conflict which seems prima facie to be internal in nature can become international if a State intervenes "directly" in another State4. An armed conflict can also be internationalised when some participants actually act on behalf of another State. The proper standard to establish such an indirect intervention is "overall control"5:

control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go as far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the party to the conflict) has a role in organising, co-ordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.

"Overall control" is thus established when acts of armed forces, militia or paramilitaries may be ascribed to a foreign State. In the present case, the control exercised by Croatia over the Bosnian Croat forces and authorities must be assessed in light of the following elements: (1) the nationalistic and expansionist political views of the then President of the Republic of Croatia, Franjo Tudjman and his control over official government policy; (2) the sharing of these goals and aspirations by the Bosnian Croat leaders; (3) the control by Croatia over the decision-making mechanism in Herzeg-Bosna; (4) the sharing of military personnel; (5) the control by Croatia over all important appointments in the Croatian community of Herceg-Bosna; (6) the financial assistance flowing from Croatia.

After considering all the evidence, the Trial Chamber found that, on the basis of both direct6 and indirect intervention scenarios Croatia’s intervention in Bosnia Herzegovina had been duly demonstrated and that the conflict therefore was international.

The second requirement of Article 2 is that the victims or properties subject to violations be protected within the meaning of the Geneva Conventions 1949. The Trial Chamber first stated that the nationality requirement contained in the Geneva Conventions should not be given an overly strict or formal interpretation7. In an inter-ethnic armed conflict, a person’s ethnic background may be regarded as a decisive factor in determining the nation to which he owes his allegiance, and thus may establish the status of the victim as a protected person8. When it comes to determining nationality, ethnicity is more important than citizenship. In this case, Bosnian Muslims could thus be regarded as being of a nationality distinct from their oppressors and consequently as "protected persons".

The Trial Chamber also refuted the Defence argument that Croatia and Bosnia-Herzegovina were co-belligerents which, if proved, would have deprived the victims of their protected status9. Once again, the Chamber refused to adopt a formalistic approach to the issue and instead examined the actual relations between the two countries at the time and in the region. Although various formal agreements between the two countries existed10, their relation could not be regarded as that of co-belligerents fighting a common enemy. According to the Trial Chamber, "Bosnia-Herzegovina perceived Croatia as a co-belligerent to the extent that they were fighting alongside each other against the Serbs. Nonetheless, it is evident that Bosnia did not see Croatia as a co-belligerent insofar as Croatia was lending assistance to the HVO in its fight against the ABiH over the period at issue"11. In fact, they were allies only on a selective and opportunistic basis insufficient to characterise them as co-belligerents or to deny victims protected status12. This conclusion is also congruent with the logic of Article 4 of the Fourth Geneva Convention13.

The Trial Chamber concurred with the Prosecutor’s argument that the property of the Bosnian Muslims was actually "in the hands of an occupying Power"14. The Prosecutor successfully argued that, within the enclaves concerned, Croatia played the role of occupying Power "through the overall control it exercised over the HVO, the support it lent it and the close ties it maintained with it. Thus, and by using the same reasoning applied in order to establish the international nature of the conflict, the overall control exercised by Croatia over the HVO means that at the time of its destruction, the property of the Bosnian Muslims was under the control of Croatia and was in occupied territory"15. Those properties are thus "protected" within the meaning of the Geneva Conventions.

Having established the international nature of the conflict and the protected status of the victims, the Trial Chamber then considered the underlying offences constituting grave breaches16. Two findings merit particular emphasis: first, the Chamber made it clear that the mens rea which characterises all violations of Article 2 encompasses both guilty intent ("intention coupable") and recklessness ("imprudence délibérée") which may be likened to serious criminal negligence. Second, civilian hostages17 are persons deprived of their freedom, often wantonly and sometimes under threat of death18. However, the Chamber declared that in certain cases detention may be lawful, for example, when security reasons so dictate and added that the Prosecution must establish that at the time of the supposed detention, "the allegedly censurable act was perpetrated in order to obtain some concession or to gain some advantage"19.

Article 3 of the Statute

The Trial Chamber first stated that "[t]he specific provisions of Article 3 of the Statute satisfactorily cover the provision of the said Protocol relating to unlawful attacks upon civilian targets and the prohibition on attacks against civilians as provided by Protocols I and II"20. However, on the basis of specific facts of the case, the Trial Chamber found that the parties to the conflict were bound by the relevant provisions of the Additional Protocols because they had signed a specific agreement to this effect.

The Trial Chamber then turned to several underlying offences in Article 321. Two are briefly considered here: (1) "Unlawful attack against civilians and attack upon civilian property": the Trial Chamber held that the attack must have caused deaths and/or grievous bodily injury among the civilian population or damage to civilian property. "The parties to the conflict are obliged to attempt to distinguish between military targets and civilian persons or property. Targeting civilians or civilian property is an offence when not justified by military necessity."22 (2) "Violence to life and person"23: the Trial Chamber declared that this was a "broad offence" which includes murder, mutilation, cruel treatment and torture and "which is accordingly defined by the cumulation of the elements of these specific offences"24. The mens rea for this offence is fulfilled once it has been established that the accused intended to commit violence to life or person of the victims "deliberately or through recklessness and the little respect he had for those persons’ lives or integrity"25.

Article 5 of the Statute

A crime against humanity is rendered special by the methods employed in its perpetration (the widespread characteristic) or by the context in which these methods must be framed (the systematic characteristic) and by the status of the victims (any civilian population).

The systematic characteristic of the offence can take various forms26:

1) the existence of a political objective, a plan of attack or an ideology, in the broad sense of the word, to destroy, persecute or weaken a community;
2) the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another;
3) the preparation and use of significant public or private resources, whether military or other;
4) the implication of high-level political and/or military authorities in the conception and production of the methodical plan.

A plan need not be formalised or declared expressly but may be inferred from the occurrence of a series of events such as the general historical context and the overall political background or other circumstantial events27. Nor does the plan need to be a policy of the State since a crime against humanity is not an act of criminal sovereignty28.

The widespread characteristic of crimes against humanity29 refers to the scale of the acts perpetrated and to the number of victims30. The attack must therefore be directed towards a multiplicity of -potential- victims. The term "directed" refers to the intention of the perpetrator to commit a widespread or systematic crime rather than the physical result of his action31.

Although the two requirements of systematicity and widespreadness come in the alternative, "[t]he fact still remains however that, in practice, these two criteria will often be difficult to separate since a widespread attack targeting a large number of victims generally relies on some form of planning or organisation whose existence the Judges will seek to demonstrate insofar as is possible. The quantitative criterion is not objectively definable as witnessed by the fact that both international texts and international and national case-law do not set any threshold beyond which a crime against humanity is constituted"32.

In addition, crimes against humanity must be "directed against any civilian population". This condition must not be interpreted too strictly because the defining element of crimes against humanity is not found principally in the status of the victim but in the scale of the criminal acts and, above all, the organisation with which these acts must be committed33. In this context too, the notion "directed against" puts the emphasis on the perpetrator’s intention rather than on the physical result of his acts. In other words, if it is demonstrated that the perpetrator of the acts of violence had the primary intention of inflicting injury upon a civilian population, he could be found guilty of a crime against humanity even if the attack caused military as well as civilian casualties34.

The presence within the civilian population of individuals who are not covered by the definition of civilians does not deprive it of its civilian character and protected status35. Consequently, a crime against humanity does not encompass only acts committed against civilians in the strict sense of the term but also acts of violence perpetrated against members of a resistance movement and former combatants - regardless of whether they wore uniforms or not - who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained36.

The factual situation of the victim at the moment the crimes are committed, rather than his or her actual status, must be considered in determining standing as a civilian. Finally, the presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of the population37.

The Trial Chamber also reviewed the sub-characterisations of the crimes contained in the Indictment38. Two elements deserve particular attention: first, the Trial Chamber explained that the concept of "murder" found in Article 5(a) of the Statute is to be understood as the English translation of "meurtre" rather than "assassinat" as it stands in the French version of the Statute, the latter being a premeditated form of murder39. Second, the Chamber stated that persecution may take forms other than injury to the human person, in particular those acts rendered serious not by their apparent cruelty but by the "discrimination they seek to instil within humankind"40.

The mental element of crimes against humanity is basically threefold: first, the agent must be aware of the general context in which his acts occurred and aware of the nexus between his acts and the context41.

Second, the agent need not have sought all the elements of the general context in which his acts were perpetrated. It suffices that, in the capacity he willingly held, he knowingly took the risk of participating in the implementation of the context42. More specifically, an individual in a position of command is morally bound to question the malevolent intentions of those defining the ideology, policy or plan as part of which the crime is perpetrated43. The required nexus does not imply that the perpetrator supported the regime heading the criminal campaign or that he possessed the full and absolute intention to act as its intermediary "so long as proof of the existence of direct or indirect malicious intent or recklessness is provided"44. It must therefore be established that the agent "knew" of the criminal policy or plan, which in itself does not necessarily require intent on his part or, to adopt the "civil law" terminology, that he had direct malicious intent ("… the agent seeks to commit the sanctioned act which is either his objective or at least the method of achieving his objective"), indirect malicious intent (the agent did not deliberately seek the outcome but he knew that it would happen) or intentional negligence, known in common law as recklessness ("the outcome is foreseen by the perpetrator as only a probable or possible consequence")45. In other words, knowledge also includes the conduct "of a person taking a deliberate risk in the hope that the risk does not cause injury"46.

Third, with regard to the indicia of the required mens rea, the Trial Chamber mentioned a number of elements that could be taken into account to infer such specific intention; these include the historical and political circumstances in which the acts of violence were committed, the functions of the agent when the crimes were committed or the scope and gravity of the acts perpetrated47.

Criminal Responsibility: Article 7 (1) and 7 (3) of the Statute

Individual criminal responsibility enshrined in Article 7(1) goes beyond the scope of persons physically committing the crimes48. In the present case, the accused was not charged with having personally committed any of the crimes, that is for being the actual perpetrator of the actus reus of any offence. Instead, he allegedly bears responsibility for offences committed by others, because he "ordered, planned, instigated or otherwise aided and abetted in the planning, preparation, or execution of those crimes"49.

The Trial Chamber went on to consider the forms of conceivable participation in the present instance50. The Trial Chamber held that a person who ‘planned, instigated or ordered’ possessed the mens rea of the crime, that is, intended, directly of indirectly, the perpetration of the crime. A common feature of these forms of participation is that a person other than the one planning, instigating or ordering the crime actually perpetrated the actus reus of the offence51. In addition to being held responsible for "ordering" a crime, the order given need not be in writing or in any particular form; it can be express or implied and proved by circumstantial evidence52. In addition, the order does not need to go directly from the one ordering to the one person doing the actus reus of the crime. Furthermore, what is relevant is the commander’s mens rea, not that of the subordinate executing the order53. Therefore, it is irrelevant whether the illegality of the order was apparent on its face.

The Trial Chamber held that the actus reus of aiding and abetting may be perpetrated through an omission, provided that the failure to act had a substantial effect on the commission of the crime and was coupled with the requisite mens rea54. The mere presence of a person with superior authority at the crime scene is an important indication in considering whether that person encouraged or supported the perpetrators of the crimes55. Moreover, "proof is not required that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator"56.

The Trial Chamber drew a distinction between "knowledge" and "intent" with respect to the mens rea requirement for aiding and abetting57. It declared that the aider and abettor needs "to have intended to render this assistance, or as a minimum, have accepted that such assistance would be possible and foreseeable consequence of his conduct"58.

Turning to individual criminal responsibility under Article 7(3), three points stand out. First, superior authority under Article 7(3) is de facto as well as de jure authority59. To be held accountable under Article 7(3), the superior must have effective control over its subordinates60. Consequently, a commander may incur criminal responsibility for the acts of persons who are not under his formal or direct authority but over whom he exercises effective control61. "Hence, although the Trial Chamber agrees with the Defence that the ‘actual ability’ of a commander is pertinent, it is not required that the commander have any legal authority to prevent or punish acts by the subordinates. What counts is his ‘material ability’, which instead of issuing orders or taking disciplinary action may entail, for instance, submitting reports to the competent authorities in order for appropriate measures to be taken"62.

In addition, the Trial Chamber held that if a commander lacks knowledge that crimes are about to be or have been committed, such lack of knowledge must be held against him, when it is the result of negligence in the discharge of his duties. His particular position of command and the circumstances prevailing at the time must also be taken into account63.

Finally, the Trial Chamber observed that a commander cannot be held responsible under Article 7(1) for planning, instigating or ordering the commission of certain crimes and, at the same time, reproach him for not preventing or punishing those very same crimes pursuant to Article 7(3). In contrast, "a failure to punish past crimes, which renders the commander liable under Article 7(3) for those crimes may, subject to fulfilment of the respective mens rea and actus reus requirements, also be the basis for his liability for either aiding and abetting, or instigating the commission of further crimes in the future, pursuant to Article 7(1)"64.

Sentencing

In its determination of the appropriate sentence, the Trial Chamber distinguished between the specific material circumstances directly related to the offences and the specific personal circumstances. The former makes it possible to determine the gravity of the offence, whereas the latter allows the court to adapt the sentence to the accused’s personality and potential for rehabilitation. However, because of the particular nature and mandate of the International Tribunal, the Chamber held that "it is appropriate to attribute a lesser significance to the specific personal circumstances"65.

The Trial Chamber identified several material circumstances which potentially might play a role in the present instance. It declared that the fact that the accused did not directly participate in the commission of the crime might be regarded as a mitigating factor "when the accused holds a junior position within the civilian or military structure"66. It also repeated that duress could be considered a mitigating circumstance when the accused had no choice or moral freedom in committing the crime. It finally stated that the context surrounding the commission of the crimes, namely the conflict itself, should also be taken into account when determining the sentence. The Trial Chamber considered the relative disorganisation and inexperience of the troops at the time and also noted the crimes allegedly committed by the other party. However, the Trial Chamber stated that, because it found the accused guilty of crimes against humanity, the possibility of disorder ensuing from a conflict situation cannot be considered a mitigating circumstance67.

The Trial Chamber went on to review numerous personal mitigating circumstances that may play a role in the present case68. The Chamber observed however that, in a case as serious as the one at hand, and because many accused share the personal factors, these factors must be given very little or even no weight when determining the sentence69.

In respect of the aggravating factors, the Trial Chamber distinguished those related to the scope of the crime from those relating to the degree of the accused’s responsibility. The former are comprised of the means employed to commit the crimes and the effects of the crimes upon the victims. The latter encompass the assessment of the position of the criminal in the hierarchy, his form of participation and perhaps the premeditation of the crimes. With respect to the means used to commit the crimes, the Trial Chamber noted the extreme cruelty of the attack and the crimes committed subsequently. It also took into account the number of victims70, the motive of the crime71 and the physical and psychological effect of the crimes upon the victims72.

The Trial Chamber made clear that the accused’s position of command, the form of his participation and the possible premeditation of his acts could justify a higher sentence73. The Trial Chamber also made a distinction between direct or active participation and indirect participation, stating that the former may constitute an aggravating factor74. In the present instance, the Trial Chamber declared that although Blaskic did not directly commit any of the crimes, he held a command position which made him responsible for the acts of his subordinates. "Hence, although the fact that he did not take a direct and active part does not constitute an aggravating circumstance in itself, it can in no way counteract the aggravation arising from the accused’s command position"75.

Finally, the Trial Chamber held that, as yet, there is no hierarchy of crimes with respect to sentence in this Tribunal76. In addition, because the facts supporting each count are generally similar77 and because the crimes with which the accused is charged form part of a single set of crimes committed in a given geographic region during a defined time-frame, the Trial Chamber imposed a single sentence for all the crimes of which the accused had been found guilty78.

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1. This Indictment should be referred to as the "second amended Indictment", dated 25 April 1997 and corrected on 16 March 1999. The original Indictment, confirmed on 10 November 1995, included five other accused, Dario Kordic, Mario Cerkez, Zlatko Aleksovski, Ivan Santic and Pero Skopljak. The Indictment was subsequently amended on 22 November 1996, and then again on 25 April 1997.
2. Para. 66. See also The Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 142 and The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 249 (summarised in Judicial Supplement No. 6). The Statute of the International Tribunal for Rwanda does not contain any requirement of an armed conflict with regard to crimes against humanity (see The Prosecutor v. Akayesu, Judgement, 2 September 1998, paras. 563-584).
3. Para. 71.
4. Para. 76. The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 84 (summarised in Judicial Supplement No. 6).
5. Ibid. para. 137.
6. With respect to the direct intervention of Croatia, the court was satisfied that the presence of HV soldiers or units in Bosnia Herzegovina, and more specifically in the Lasva Valley, had been "amply demonstrated" (paras. 83-94).
7. Article 4(1) of the Fourth Geneva Convention reads as follows: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or Occupying Power of which they are not nationals." (emphasis added)
8. Para. 128: "The disintegration of Yugoslavia occurred along ethnic lines. Ethnicity became more important than nationality in determining loyalties or commitments."
9. Article 4(2) of the Fourth Geneva Convention reads as follows: "nationals of a co-belligerent State shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are."
10. See para. 138.
11. Para. 139. ABiH is the Bosnian Muslim forces of Bosnia-Herzegovina.
12. See also para. 142: "In any case, it seems obvious if only from the number of casualties they inflicted on each other that the ABiH and the HVO did not act towards each other within the CBOZ in the manner that co-belligerent States should."
13. Para. 146: "If one bears in mind the purpose and goal of the Convention, the Bosnian Muslims must be regarded as protected persons within the meaning of Article 4 of the Convention since, in practice, they did not benefit from any diplomatic protection."
14. Pursuant to Article 53 of the Fourth Geneva Convention, the extensive destruction of property by an occupying Power not justified by military necessity is prohibited. According to the Commentary to the Fourth Geneva Convention, this protection is limited to properties situated in occupied territory: ‘In order to dissipate any misconception in regard to the scope of Article 53 it must be pointed out that the property referred to is not accorded general protection; the Convention merely provides here for its protection in occupied territory.’ (quoted in para. 148)
15. Para. 149. See also The Prosecutor v. Rajic, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, para. 42 and The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, paras. 579-588.
16. Paras. 151-158. For an extensive review of the underlying offences constituting grave breaches, see The Prosecutor v. Delalic et al. ("Celebici"), Judgement, 16 November 1998.
17. Article 2(h), Count 17 of the Indictment.
18. Para. 158 and Commentary to the Fourth Geneva Convention, p. 643.
19. Para. 158.
20. Para. 170. See also paragraph 172 concerning the conventional application of Protocol I and II with respect to Croatia and Bosnia-Herzegovina.
21. The elements of the offence are dealt with, count by count, at paragraphs 180-187 of the Judgement. See also The Prosecutor v. Delalic et al. ("Celebici"), Judgement, 16 November 1998 which contains an extensive discussion of the underlying offences of Article 3 (summarised in Judicial Supplement No. 1).
22. Para. 180.
23. This offence appears in Article 3(1)(a) common to the Geneva Conventions and is thus covered by Article 3 of the Statute.
24. Para. 182. This offence is to be linked to those of Article 2(a) (wilful killing), Article 2(b) (inhuman treatment) and Article 2(c) (causing serious injury to body) of the Statute.
25. Para. 182.
26. Para. 203.
27. See par. 204.
28. See The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, para. 654 and The Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, para. 26. See also Sup-paragraph 7(2)(a) of the Rome Statute which holds that criminal acts must be committed "pursuant to or in furtherance of a State or organisational policy [...]" (emphasis added)
29. The "widespread" element is an alternative to the "systematic" element of crimes against humanity. Both elements are not cumulative conditions. Therefore, crimes against humanity must be widespread or systematic. See The Prosecutor v. Mrksic et al. ("Vukovar Hospital"), Review of Indictment Pursuant to Rule 61, 3 April 1996, para. 30, and The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, para. 646-7 and other cases cited in paragraph 207 of the Judgement.
30. See Report of the ILC on the work of its 48th session, 6 May – 26 July 1996, pages 94-95: "inhumane acts [must] be committed on a large scale meaning that the acts are directed against a multiplicity of victims. This requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim."
31. See footnote 391 of the Judgement.
32. Para. 207.
33. Para. 208.
34. See footnote 401 of the Judgement.
35. The Prosecutor v. Kupreskic et al., Judgement, 14 January 2000, para. 549 (summarised in Judicial Supplement No. 11): "Thus, the presence of those actively involved in the conflict should not prevent the characterisation of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity." See paras. 212-213 of Judgement for references.
36. Para. 214.
37. Ibid.
38. See paras. 215-243.
39. Para. 216. See also The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 588. Concerning the elements of the crime, see para. 217.
40. Thus, persecution may take the form of confiscation or destruction of private dwellings or businesses, symbolic buildings or means of subsistence belonging to the Muslim population of Bosnia-Herzegovina for the sole reason that the property belongs to or represents that population (para. 227). See also para. 233. Finally, for an overview of the question of persecution, see The Prosecutor v. Kupreskic, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11).
41. See The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, para. 656: "the perpetrator must know of the broader context in which his act occurs." The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 248, (summarised in Judicial Supplement No. 6).
42. Para. 251.
43. Paras. 253 and 257.
44. Para. 254.
45. See The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, para. 656 and The Prosecutor v. Tadic, Judgement, 15 July 1999, para. 248, (summarised in Judicial Supplement No. 6).
46. Para. 254. See also para. 255: It emerges from this that the person who has "knowledge’ of the plan at the root of the crimes "is not only the one who fully supports it but also the one who, through the political or military functions which he willingly performed and which resulted in his periodic collaboration with the authors of the plan and in his participation in its execution, implicitly accepted the political context in which his functions, collaboration and participation must most probably have fit." And paragraph 257.
47. See para. 259 for an extended list of such indicia.
48. The Prosecutor v. Delalic et al. ("Celebici"), Judgement, 16 November 1998, para. 319(summarised in Judicial Supplement No. 1).
49. Para. 265 and Prosecutor’ s Final Brief, 22 July 1999, Book Seven, Part XI, para. 1.1.
50. Paras. 278-288. The court has already had the opportunity to establish the legal elements under customary international law of various heads of individual criminal responsibility included under Article 7(1): see The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997; The Prosecutor v. Akayesu, Judgement, 2 September 1998; The Prosecutor v. Delalic et al. ("Celebici"), Judgement, 16 November 1998 and The Prosecutor v. Furundzija, Judgement, 10 December 1998 (last two judgements summarised in Judicial Supplement No. 1).
51. See however para. 278 for the nuances of these three forms of participation.
52. See also The Prosecutor v. Akayesu, Judgement, 2 September 1998.
53. Para. 282.
54. The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, para. 686. With respect to the legal ingredients of the aiding and abetting responsibility, the Chamber concurred with the Furundzija Trial Chamber’s conclusions: "the actus reus consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime. The mens rea required is the knowledge that these acts assist the commission of the offence." The Prosecutor v. Furundzija, Judgement, 10 December 1998, para. 249 (summarised in Judicial Supplement No. 1).
55. The Prosecutor v. Aleksovski, Judgement, 25 June 1999, para. 65 (summarised in Judicial Supplement No. 6) and The Prosecutor v. Akayesu, Judgement, 2 September 1998, para. 693. In addition, aiding and abetting can be physically distanced from, and may occur before, during or after the commission of the crime (see same judgement, at para. 62).
56. The Prosecutor v. Furundzija, Judgement, 10 December 1998, para. 233 and The Prosecutor v. Aleksovski, Judgement, 25 June 1999, para. 61.
57. See Article 30(1) of the Rome Statute.
58. Para. 286 and The Prosecutor v. Tadic, Opinion and Judgement, 7 May 1997, para. 674. See also The Prosecutor v. Furundzija, Judgement, 10 December 1998, para. 246 (summarised in Judicial Supplement No. 1): "[I]t is not necessary that the aider and abettor should know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor."
59. The Prosecutor v. Delalic et al. ("Celebici"), Judgement, 16 November 1998, para. 370 (summarised in Judicial Supplement No. 1).
60. Idem, par. 378.
61. Para. 301.
62. Para. 302 and The Prosecutor v. Aleksovski, Judgement, 25 June 1999, para. 78.
63. Para. 332. See also para. 329, quoting the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), para. 3560, page 1046: "[the commander’s] role obliges them to be constantly informed of the way in which their subordinates carry out the tasks entrusted them (sic), and to take the necessary measures for this purpose."
64. Paras. 337-339.
65. Para. 765. The Trial Chamber adds: "though they [the personal circumstances] contribute to explaining the reasons why the accused committed the crimes they do not in any case mitigate the seriousness of the offence. Furthermore, these circumstances may aggravate the responsibility of an accused depending on the position he held at the time of the acts and on his authority to prevent the commission of crimes."
66. Para. 768.
67. Para. 770.
68. Cooperation with the Prosecutor, remorse, voluntary surrender, guilty plea, age as a mitigating factor and more generally the prospect of rehabilitation of the accused.
69. Para. 782. See The Prosecutor v. Furundzija, Judgement, 10 December 1998, para. 284 (summarised in Judicial Supplement No. 1).
70. The Prosecutor v. Tadic, Sentencing Judgement, 14 July 1997, paras. 11-55. In particular, the jurisprudence underlined the scope of the criminal acts, the repetitiveness of these acts and time frame over which the crimes were perpetrated. The Prosecutor v. Aleksovski, Judgement, 25 June 1999, para. 235 (summarised in Judicial Supplement No. 6) and The Prosecutor v. Erdemovic, Judgement, 7 October 1997, para. 85 and The Prosecutor v. Erdemovic, Sentencing Judgement, 5 March 1998, para. 15.
71. Para. 785: "The motive of the crime is liable to constitute an aggravating circumstance when it is particularly flagrant." See The Prosecutor v. Tadic, Sentencing Judgement, 14 July 1997, para. 45.
72. The Prosecutor v. Tadic, Sentencing Judgement, 14 July 1997, para. 56. The court was particularly aware of the fact that many victims were women or children.
73. Para. 789: "Therefore, when a commander fails in his duty to prevent the crime committed or to punish the perpetrator thereof he must be punished with a heavier sentence than the subordinates who committed the crime inasmuch as the failing conveys some tolerance or even approval on the part of the commander towards the commission of the crimes by his subordinates and thus contributes to encouraging the commission of new crimes." See for example The Prosecutor v. Kupreskic et al., Judgement, 14 January 2000, para. 862 (summarised in Judicial Supplement No. 11) and The Prosecutor v. Delalic et al., Judgement, 16 November 1998, para. 1240-1243 (summarised in Judicial Supplement No. 1). See also The Prosecutor v. Tadic, Judgement in Sentencing Appeals, 26 January 2000, paras. 55-57 (summarised in Judicial Supplement No. 11) where the low rank of the accused should be taken into account when imposing the sentence and that a sentence of more than twenty years’ imprisonment for one count would be excessive in that regard.
74. Para. 790: "Active and direct participation in the crime means that the accused committed by his own hand all or some of the crimes with which he is charged." See The Prosecutor v. Furundzija, Judgement, 10 December 1998, paras. 281-2 (summarised in Judicial Supplement No. 1).
75. Para. 790. See also The Prosecutor v. Delalic et al. Judgement, 16 November 1998, para. 1252 (summarised in Judicial Supplement No. 1).
76. Para. 801. See however The Prosecutor v. Tadic, Sentencing Judgement, 14 July 1997.
77. Para. 807: "it is impossible to identify which acts would relate to which of the various counts."
78. See Rule 101 of the Rules of Procedure and Evidence.