The Prosecutor v. Enver Hadzihasanovic et al. - Case No. IT-01-47-PT

"Decision on Joint Challenge to Jurisdiction"

12 November 2002
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· On 21 February 2002, the Defence for the three accused filed a “Joint Challenge to Jurisdiction Arising from the Amendment Indictment” (hereinafter “Joint Challenge ” or “Motion”), in which it raised three jurisdictional objections to the Amended Indictment filed by the Office of the Prosecutor on 11 January 2002.¹

· On 27 February 2002, the Prosecution filed its response to the Joint Challenge (“Prosecution’s Response to Joint Challenge to Jurisdiction Arising from the Amended Indictment”).

· On 25 March 2002, the Trial Chamber issued a Scheduling Order in which it ordered that the parties file concurrently submissions by 10 May 2002, written responses by 24 May 2002, and written replies by 31 May 2002. The parties have submitted their filings accordingly.²

· On 17 June 2002, the Defence filed its Additional Joint Defence Reply to Issues Raised by the Prosecution’s Reply to the Defence Challenge to Jurisdiction.³

· On 27 June 2002, the Prosecution filed a supplementary authority following a decision taken in another Trial Chamber.⁴

The Decision

The Trial Chamber dismissed the Motion in full. In respect of the three issues raised by the Defence it found that:

(1) the doctrine of command responsibility already by – and since - 1991 was applicable in the context of an internal armed conflict under customary international law ( para. 179);

(2) in principle a commander can be liable under the doctrine of command responsibility for crimes committed prior to the moment that the commander assumed command (para . 202);

(3) the inclusion of the words “were about to”, “plan”, and “prepare” before “execute ” in paragraphs 61 and 66 of the Amended Indictment are related to the superior’s knowledge that subordinates were allegedly “about to commit such acts” and therefore falls within the scope of Article 7(3) of the Statute (para. 210).

The Reasoning

Introduction

Application for Leave to Appeal

Before addressing the issues raised in the Joint Challenge, the Trial Chamber, took note of a decision issued by a Bench of the Appeals Chamber in the Stakic case, dismissing an Application for leave to appeal a Trial Chamber decision itself dismissing a challenge to jurisdiction in relation to Article 7(3) of the Statute , namely that the criminal responsibility established by Article 7(3) of the Statute violates the principle nullum crimen sine lege, because the doctrine of command responsibility was not a norm of international customary law at the time of the alleged offence.⁵ The Appeals Chamber dismissed the challenge to jurisdiction on the ground that it did “not relate to any of the matters set out in Rule 72(D)⁶ of the Rules”.⁷

Interpretation of the Joint Challenge

The Trial Chamber interpreted the current Joint Challenge as “one that negates jurisdiction under Article 7(3) ex initio and submits that the Amended Indictment cannot be based on a violation of Article 7(3) of the Statute (Rule 72(A) and Rule 72(D )(iv))”.⁸ Had the Trial Chamber ruled that the allegations of the Defence were founded, the Amended Indictment would have had to be rejected and no trial could have taken place.⁹

Issue 1: Command responsibility in non-international armed conflicts

According to the Trial Chamber, the first issue, is “whether international law at the time of the establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 provided for criminal liability of superiors for omissions in the context of a non-international armed conflict in general, thereby allowing for the prosecution of the Accused for their concrete acts allegedly committed between January 1993 and January 1994 under Article 7(3) of the Statute.”¹⁰

Arguments of the parties

The Defence contended that neither customary nor conventional international law provided for criminal responsibility of superiors in a non-international armed conflict as applied under Article 7(3) of the Statute of the International Tribunal for violations of Article 3 (Violations of the laws or customs of war) of the Statute at the time of the alleged offences were committed and that, therefore, all counts in the Amended Indictment fall outside of the jurisdiction of the International Tribunal, as defined by the Secretary-General and endorsed by the Security Council.

The Prosecution argued that the doctrine of command responsibility was part of customary international law before 1994 and, at the latest, as of 1 January 1991.¹¹ It further contended that under the Report of the Secretary-General, if a basis exists for command responsibility in customary law, no additional conventional source is required.¹²

General principles

The principle of nullum crimen sine lege

The Trial Chamber noted its obligation to “fully respect” the principle of nullum crimen sine lege, as a “fundamental principle in criminal law and in international human rights law”.¹³ It relied, inter alia, on the case law of the European Court of Human Rights, according to which the term “law” in Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms¹⁴ includes both written and unwritten law and “implies qualitative requirements, notably those of accessibility and foreseeability”¹⁵ and according to which “Article 7 cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation”.¹⁶ It also relied on Article 22 of the Statute of the International Criminal Court,¹⁷ to support its view that “in interpreting the principle of nullum crimen sine lege, it is critical to determine whether the underlying conduct at the time of its commission was punishable”.¹⁸ The Trial Chamber stated that “[i]n order to meet the principle of nullum crimen sine lege, it must only be foreseeable and accessible to a possible perpetrator that his concrete conduct was punishable at the time of commission. Whether his conduct was punishable as an act or an omission, or whether the conduct may lead to criminal responsibility, disciplinary responsibility or other sanctions is not of material importance.”¹⁹

The fundamental principles of international humanitarian law

Following Article 31 of the Vienna Convention on the Law of Treaties, the Trial Chamber held that it was bound to interpret the Statute “in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of its object and purpose.”²⁰ According to Article 1 of the Statute, the Tribunal has the power to prosecute persons responsible for serious violation of international humanitarian law. As a consequence , the Tribunal, in the view of the Trial Chamber, must consider the principles underlying this body of law. It found that the following fundamental principles applied: “the principle of criminal responsibility for violations of such law […], the principle of responsible command and the principle of command responsibility.”²¹

Developments in relation to the principle of command responsibility

Developments prior to the establishment of the International Tribunal

The Trial Chamber asserted that “the Nuremberg and Tokyo Tribunals and subsequent judicial bodies applied the doctrine of responsibility in a number of judgements ”,²² and that “the Nuremberg Charter contained a provision for criminal responsibility upon which the case-law related to command responsibility was based”.²³ It nevertheless noted that “[n]otwithstanding the fact that in the criminal cases just described a number of persons had been held criminally responsible on the basis of the principle of command responsibility, no reference to this principle was included in the Geneva Conventions adopted in 1949”.²⁴ The Trial Chamber further referred to the “rather limited” developments in the field of international humanitarian law, including the doctrine of command responsibility , and observed that “[n]o international judicial organ had applied this doctrine , until the International Tribunal was established”.²⁵ The Trial Chamber nevertheless noted that on the national level, in some military manuals, “reference is made to the principle that a superior is responsible for violations of the laws of war committed by his subordinates”,²⁶ but acknowledged that those manuals were “elaborated in order to regulate the functioning of the army in the context of an international armed conflict”.²⁷ In the end, the principle of command responsibility was codified only in Articles 86 and 87²⁸ of Additional Protocol I to the Geneva Conventions of 1949, Additional Protocol II referring only to “responsible command”. Article 12²⁹ of the 1991 Draft Code of Crimes specifically deals with the responsibility of superiors for certain violations occurring in non-international armed conflicts.

Following its analysis of the developments prior to the establishment of the Tribunal , the Trial Chamber held as preliminary findings, inter alia, that “the doctrine ha[d] been recognised as applying to offences committed either within or in the absence of an armed conflict; and the doctrine ha[d] been recognised as applying to offences committed either in an international or an internal armed conflict”. Nevertheless it took note of the fact that “neither finding has been explicitly codified in an international agreement or treaty, with the exception of Additional Protocol I in relation to international armed conflicts, and that neither finding has been ruled on explicitly by an international judicial body, again with the exception of instances of international armed conflicts.”³⁰

The establishment of the International Tribunal

The Trial Chamber conducted a survey of official reports and preparatory documents to assist it in interpreting the provisions of the ICTY Statute related to command and individual responsibility. It concluded that the Security Council had not characterised the conflict as being internal or international and relied upon the finding of the Appeals Chamber in the Tadic Appeals Decision on Jurisdiction.³¹ More generally, it observed that “[o]n the basis of the drafting history of the Statute of this Tribunal, the Trial Chamber observes that the intention of the drafters was to establish a system by which “all” persons responsible for violations of international humanitarian law could be held responsible. The Security Council resolutions on the conflict in the former Yugoslavia, the suggestions by various States, the report of the Secretary-General and the discussion in the Security Council during the adoption of the Statute all clearly point in that direction. From these sources, one can not conclude that individual criminal responsibility for superiors would not apply if the armed conflict might be considered of a non-international character.”³² Further the Trial Chamber supported its observation by a textual analysis of Article 7(3) of the Statute, which “refers to any of the acts referred to in Articles 2 to 5”, and that “the crimes listed in Article 3, violations of the laws and customs of war [..] are applicable in either internal or international armed conflicts”.³³

Jurisprudence of the International Tribunal

The Trial Chamber conducted an overview of the Tribunal’s case law as regards the interpretation of Article 7(3) and noted that “[t]he nature of the conflict vis -à-vis command responsibility has never been discussed, challenged or commented upon by the Prosecution, Defence, Trial Chamber or Appeals Chamber.”³⁴ It referred inter alia to the Celebici case, where the Trial Chamber and the Appeals Chamber found that the principle of command responsibility is “well -established” in conventional and customary law.³⁵ In the Celibici case, the Appeals Chamber also found that the principle of command responsibility could be applicable to de facto armies and paramilitary groups,³⁶ which finding, in the view of the Trial Chamber, “would strongly suggest applicability of the principle of command responsibility in non-international armed conflicts”.³⁷ The Trial Chamber also referred to the Aleksovski case, in which the Trial Chamber upheld that superior responsibility under Article 7(3) is “not reserved for official authorities” and that “[a]ny person acting de facto as a superior may be held responsible under Article 7(3).”³⁸ In this case in fact the Trial Chamber concluded that the acts of the accused took place in a non-international armed conflict and constituted a violation of Article 3 of the Statute for which it held the accused responsible under Article 7(3).³⁹ After the review of the relevant case law the Trial Chamber concluded that “in order to apply the principle of command responsibility as a basis for individual criminal responsibility for crimes contained in the Statute, a Trial Chamber must satisfy itself of certain criteria related to the superior-subordinate relationship, the duty that arises from that relationship to prevent or punish offences of a subordinate , and that a superior knew or had reason to know about the acts of his subordinate in relation to the commission of offences. For [the question of] whether the application of the doctrine of command responsibility to Article 3 violations in the context of a non-international armed conflict falls within the jurisdiction of the International Tribunal […] it does not find in its jurisprudence any impediment, but rather a confirmation for the existing jurisdiction of this Tribunal.”⁴⁰

Developments since the adoption of the Statute of the International Tribunal

The Trial Chamber noted that the doctrine of command responsibility has been included in “a number of instruments adopted after the establishment of the International Tribunal”⁴¹ and that these instruments do not make any reference to the relevance of the nature of the conflict. However the Trial Chamber acknowledged that “subsequent developments cannot be used to determine whether the principle of command responsibility was, under customary international law, applicable to internal armed conflicts at the time the alleged offences were committed”. It mentioned these developments merely “to illustrate that core elements of the principle have been subsequently codified in largely the same manner as in the Statute and jurisprudence of the International Tribunal.”⁴²

The Trial Chamber referred inter alia to Article 6(3) of the Statute of the International Criminal Tribunal for Rwanda,⁴³ Article 6 of the Draft Code of Crimes against the Peace and Security of Mankind adopted by the ILC in 1996⁴⁴ and Article 28 of the Statute of the International Criminal Court.⁴⁵

Conclusion

The Trial Chamber found that the accused “may be held criminally responsible for the allegations contained in the Amended Indictment under the principle of command responsibility if it can be proved that they, in the context of an armed conflict , were superiors who knew or had reason to know that subordinates, over whom they had effective control, were about to or had committed criminal acts falling under the jurisdiction of this Tribunal and they failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators thereof.”⁴⁶

It concluded that “the doctrine of command responsibility already by - and since - 1991 was applicable in the context of an internal armed conflict under customary international law [and that] Article 7(3) constitutes a declaration of existing law under customary international law and does not constitute new law.” Therefore it rejected this part of the Motion.

Issue 2: Command responsibility for crimes committed before superior-subordinate relationship exists

The Amended Indictment alleges that Amir Kubura took up his position on 1 April 1993. Counts 1, 2, 5 and 6 all reference crimes that were alleged to have been committed in January 1993.⁴⁷ Paragraph 58 of the Amended Indictment states that Kubura is responsible under the doctrine of command responsibility because “after he assumed command, he was under a duty to punish the perpetrators.” The Defence contends that there is no basis in customary or conventional law for holding a superior liable for a crime like murder allegedly committed by subordinates before the accused Kubura became commander.⁴⁸

The Trial Chamber held that “[w]hile Kubura, according to the Amended Indictment, was not the superior at the time the crimes in the named counts were alleged to have been committed, it is only when the Trial Chamber hears the evidence related to Kubura’s ability to exercise effective control over the alleged subordinates who allegedly committed the crime that it will be able to determine if he had the material ability to punish them for crimes committed approximately three months prior to his taking over command, as the Amended Indictment charges.”⁴⁹ It further found that the time “when Kubura was in a position to “know or had reason to know” information regarding the alleged commission of the offences is a factual issue to be determined at trial.”⁵⁰]

It concluded that “in principle a commander can be liable under the doctrine of command responsibility for crimes committed prior to the moment that the commander assumed command.” It denied this part of the Motion.

Issue 3: Liability of superiors for failure to prevent or punish planning and preparation of offences

Paragraphs 61 and 66 of the Amended Indictment state, in relation to the three accused, that they “knew of had reason to know that the […] ABiH forces under their command and control were about to plan, prepare or execute” certain acts.

The Defence argued that Article 7(3) of the Statute does not impose liability on a superior for failing to prevent or punish the planning or preparation of an offence but only the commission of the offence.⁵¹ The Defence submitted that in “many” of the cases before the International Tribunal, unless the violation was actually committed, no liability was found under Article 7(3).⁵² It recognised that the duty to prevent necessarily exists before the commission of an offence, but that liability of a superior arises only if the offence was actually committed. To allow for liability when no crime was committed would amount to a form of “attempt”, and attempt is not included in the Statute.⁵³

The Trial Chamber found that “the inclusion of the words ‘were about to’, ‘plan’ , and ‘prepare’ before ‘execute’ in paragraphs 61 and 66 of the Amended Indictment are related to the superior’s knowledge that subordinates were allegedly ‘about to commit such acts’ and therefore falls within the scope of Article 7(3) of the Statute”.⁵⁴ It denied the request of the Defence that the Prosecution be ordered to rephrase paragraphs 61 and 66.

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1. The three objections, which will be developed infra, are: (1) International law at the relevant time did not provide for criminal responsibility of superiors in the context of a non-international armed conflict (or “internal conflict”, both terms being used interchangeably); (2) Article 7(3) of the Statute of the International Tribunal does not provide for liability of superiors for crimes committed before the existence of a superior-subordinate relationship between the perpetrators and the superior; and (3) Article 7(3) of the Statute does not provide for liability of superiors for failure to prevent or punish the planning and preparation of offences.
2. Prosecution’s Brief Regarding Issues in the “Joint Challenge to Jurisdiction Arising from the Amended Indictment”, 10 May 2002 (hereinafter “Written Submissions of Prosecution”); Joint Challenge to Jurisdiction Arising from the Amended Indictment Written Submissions of Enver Hadzihasanovic, 10 May 2002 (hereinafter “Written Submissions of Hadzihasanovic”); Written Submission of Amir Kubura on Defence Challenges to Jurisdiction, 10 May 2002 (hereinafter “Written Submissions of Kubura”); Submissions of Mehmed Alagic [sic] on the Challenge to Jurisdiction Based on the Illegality of Applying Article 7(3) to Non-International Armed Conflict,” dated 9 May 2002, and filed on 10 May 2002 (hereinafter “Written Submissions of Alagic”); Prosecution’s Response to Defence Written Submissions on Joint Challenge to Jurisdiction Arising from the Amended Indictment, 24 May 2002 (hereinafter “Prosecution Response”); Enver Hadzihasanovic’s Response to the Prosecution’s Brief Regarding Issues in the “Joint Challenge to Jurisdiction Arising from the Amended Indictment”, 24 May 2002 (hereinafter “Hadzihasanovic Response”); Response of Mehmed Alagic [sic] on the Challenge to Jurisdiction, 24 May 2002 (hereinafter “Alagic Response”); Response of Amir Kubura to Prosecution’s Brief on Defence Challenges to Jurisdiction of 10 May 2002, dated 23 May 2002, and filed on 24 May 2002 (hereinafter “Kubura Response”); Prosecution’s Reply to Defence Responses to the Prosecution’s Brief Concerning Issues Raised in the Joint Challenge to Jurisdiction Arising from the Amended Indictment, 31 May 2002 (hereinafter “Prosecution Reply”); Enver Hadzihasanovic’s Reply to the Prosecution’s Response to Defence Written Submissions on Joint Challenge to Jurisdiction Arising from the Amended Indictment, 31 May 2002 (hereinafter “Hadzihasanovic Reply”); Reply of Mehmed Alagic [sic] on the Challenge to Jurisdiction, 31 May 2002 (hereinafter “Alagic Reply”); Reply of Amir Kubura to Prosecution’s Response to Defence Written Submissions on Challenge to Jurisdiction, 31 May 2002 (hereinafter “Kubura Reply”). The Trial Chamber advised that citations to one accused’s submissions below should not be read as limiting or excluding arguments made by another accused on the same or a similar issue. See, Written Submissions of Hadzihasanovic, para. 3, and Written Submissions of Alagic, para. 4, on the adoption of co-accused arguments.
3. Additional Joint Defence Reply to Issues Raised by the Prosecution’s Reply to the Defence Challenge to Jurisdiction; 17 June 2002 (hereinafter “Additional Reply”). The Defence had suggested that Amicus curiae submissions be sought pursuant to Rule 74 (Amicus curiae: A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber.), in particular from the permanent members of the Security Council. On 8 May 2002 Mr. Illias Bantekas, Reader and Director International Law Unit, School of Law, University of Westminster, submitted an application for leave to submit an Amicus curiae brief on the issue at hand, on the basis of his extensive research on the doctrine of command responsibility. The application was denied by the Trial Chamber.
4. Supplementary Authority to Prosecution’s Reply to Defence Responses to the Prosecution’s Brief Concerning Issues Raised in the Joint Challenge to Jurisdiction Arising from the Amended Indictment, filed on 27 June 2002. The Trial Chamber noted that the decision provided by the Prosecution (Strugar et al., Decision on Defence Preliminary Motion Challenging Jurisdiction, IT-01-42-PT, 7 June 2002) was on appeal.
5. Stakic, IT-97-24-AR-72, Decision on Application for Leave to Appeal, 19 February 2002 (hereinafter “Stakic Decision”).
6. Rule 72 (Preliminary Motions) (D) For the purpose of paragraphs (A)(i) and (B)(i), a motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to:
(i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute;
(ii) the territories indicated in Articles 1, 8 and 9 of the Statute;
(iii) the period indicated in Articles 1, 8 and 9 of the Statute;
(iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute.
7. Stakic Decision, page 3. On 27 November 2002, the Defence for the three accused filed an “Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction” (hereinafter “Interlocutory Appeal”). The Defence alleges that the appeal is filed “as of right”, pursuant to Rule 72(D)(i), as, in its view, the Amended Indictment does not relate, in accordance with Rule 72(D)(iv), to “any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute” (see paras 1 & 2).
8. The Trial Chamber referred to Krajisnik, IT-00-39-AR72.2, Decision on Interlocutory Motion Challenging Jurisdiction, 25 May 2001 and noted that “this decision by the Appeals Chamber, which dismissed an appeal challenging the criminal responsibility established by Article 7(3) of the Statute on the grounds that it violated the principle nullum crimen sine lege because the doctrine of command responsibility was not an international custom at the time of the alleged offence was based on the former version of Rule 72, which did not include section D(iv).”
9. In this respect, in its Interlocutory Appeal, the Defence submitted that “[i]f the present appeal was not considered as falling within Rule 72(D), and the trial was then to proceed, only for the Defence submissions to be upheld by the Appeals Chamber in a final Appeal, a whole trial would have been held for nothing, which would be en enormous waste of time and expense, not to mention a gross violation of the rights of the Accused” (para. 6).
10. The Defence Joint Challenge 21 February 2002 includes all charges under Article 3 as not entailing individual criminal responsibility under Article 7(3) and submits that there is no distinction between charges under common Article 3 of the Geneva Conventions and other Article 3 charges, as in the 7 December 2001 Decision. See Alagic Reply, para. 24 and Kubura Written Submissions, para. 13.
11. Written Submissions of Prosecution, para. 4. To support this assertion the Prosecution cited the application of the doctrine during the “WWII war criminal trials”, and its subsequent codification in the 1977 Additional Protocol I, the ICTY and ICTR Statutes, and the ICC Statute in 1998 (para. 7).
12. Prosecution Response, paras 12-15.
13. Paras 55-56.
14. Article 7 (No punishment without law)
1. 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. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
15. ECtHR, S.W. v. UK (1995), para. 35.
16. Ibid., para. 36.
17. Article 22 (Nullum crimen sine lege)
1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.
18. Para. 62. The Trial Chamber stated that “the emphasis on conduct, rather than on the specific description of the offence in substantive criminal law, is of primary importance”.
19. Ibid.
20. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (emphasis added by the Trial Chamber).
21. Para. 65.
22. Para. 70.
23. Ibid. Referring to Article 6 of the Charter of the International Military Tribunal (8 August 1945) which states, in part: “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” The Trial Chamber also referred to the Tokyo Tribunal Indictment, para. 56; In re Yamashita, 327 US 1, 15 (1946); United States v. Karl Brandt and others (“Medical Case”), vol. II, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 186, 212; United States v. Wilhelm List and others (“Hostage Case”) vol. XI, 1230, 1303.
24. Para. 73.
25. Para. 77.
26. Para. 78.
27. Para. 82.
28. Article 86 (Failure to Act)
1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87 (Duty of Commanders)
1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, and prevent and, where necessary, to suppress and report to competent authorities breaches of the Conventions and this Protocol. 2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of the obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.
29. Article 12 (Responsibility of the superior): “The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had information enabling them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all feasible measures within their power to prevent or repress the crime.” Draft Articles on the Draft Code of Crimes against the Peace and Security of Mankind, as revised by the International Law Commission (hereinafter “ILC”) through 1991. First Adopted by the U.N. ILC, 4 December 1954, U.N. Doc. A/46/405 (1991), 30 I.L.M. 1554 (1991).
30. Para. 93.
31. Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 187: “ […] the conflicts in the former Yugoslavia have both internal and international aspects, […] the members of the Security Council had both aspects of the conflicts in mind when they adopted the Statute of the International Tribunal, and that they intended to empower the International Tribunal to adjudicate violations of humanitarian law that occurred in either context. To the extent possible under existing international law, the Statute should therefore be construed to give effect to that purpose.”
32. Para. 119.
33. Para. 120.
34. Para. 121.
35. Delalic et al., IT-96-21-T, Judgement, 16 November 1998, para. 333. Delalic, et al., IT-96-21-A, Judgement, 20 February 2001, para. 195, Judicial Supplement No. 23. In this case, one accused, Zdravko Mucic, was found to be commander of a prison camp during an international armed conflict.
36. Celibici Appeal Judgement, para. 193.
37. Para. 130.
38. Aleksovski, IT-95-14/1, Judgement, 25 June 1999, para. 76 (emphasis added by the Trial Chamber).
39. Ibid., para. 228.
40. Para. 141.
41. Para. 142.
42. Para. 143.
43. Article 6 deals with command responsibility within the internal conflict that occurred in Rwanda. The Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), S/1995/134, 13 February 1995, made clear that “[t]he Secretary-General has elected to take a more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal and included within the subject-matter jurisdiction of the Rwanda Tribunal international instruments regardless of whether they were considered part of customary international law or whether they have customarily entailed individual criminal responsibility of the perpetrator of the crime” (para. 12). The Trial Chamber noted that “[t]he issue of whether criminal liability under the doctrine of command responsibility attached to such crimes under customary international law was not the subject of this comment by the Secretary-General” (para. 145).
44. Article 6 of the Code refers to superior responsibility. The Trial Chamber pointed out that the Commentary on the ILC 1996 Draft Code found the principle reaffirmed in subsequent instruments including Additional Protocol II, Article 1.
45. Article 28 deals with “Responsibility of commanders and other superiors” for crimes within the jurisdiction of the Court, including crimes committed in the case of an armed conflict not of an international character (Article 8(2)(c) and (e)).
46. Para. 178.
47. Amended Indictment, para. 59(a).
48. Written Submissions of Kubura, para. 29.
49. Para. 201.
50. Ibid
51. Joint Challenge, para. 17; Written Submissions of Hadzihasanovic, para. 90-91; Written Submissions of Kubura, para. 50.
52. Written Submissions of Hadzihasanovic, para. 91, citing Blaskic, IT-95-14-T, Judgement, 3 March 2000 (Judicial Supplement No. 13) and Kordic & Mario Cerkez, IT-95-14/2-T, Judgement, 26 February 2001 (Judicial Supplement No. 23); Kubura Response, paras 14-16.
53. Hadzihasanovic Response, para. 50; Kubura Response, para. 16.
54. Para. 210.