Case: IT-01-47-AR72

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge David Hunt
Judge Mehmet Güney

Registrar:
Mr Hans Holthuis

Decision of:
16 July 2003

Counsel for the Prosecutor

Mr Ekkehard Withopf

Counsel for the Defence

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

1. Article 7 of the Tribunal’s Statute provides, so far as is here relevant:

Article 7
Individual criminal responsibility

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

[…]

3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

[…]

The responsibility stated in Article 7(3) is described, colloquially, as either command responsibility or superior responsibility, because it is applicable not only to military commanders but also to political leaders and civilian superiors whose position of authority is based upon the power of effective control, either de jure or de facto.¹

2. The Decision of the Appeals Chamber delivered in this interlocutory appeal deals with two issues which the appellants raised by way of a challenge to the jurisdiction of the Tribunal. Each of them related to the concept of command (or superior) responsibility stated in Article 7:

(1) whether this concept of command responsibility applies where the armed conflict in the course of which the superior’s subordinates are alleged to have committed such offences was an internal one rather than an international one; and

(2) whether in accordance with the same concept a superior may be criminally responsible where (after assuming command) he knows or has reason to know that those who had become his subordinates had committed crimes before he became their superior.

The Appeals Chamber has unanimously given an affirmative answer to the first of those issues, but a majority of the Appeals Chamber has given a negative answer to the second issue.

3. In determining the first of those issues, the Appeals Chamber has reasoned as follows:

(a) There is no contest that, under customary international law –

(i) serious violations of international humanitarian law in an internal armed conflict incur individual criminal responsibility, and

(ii) command responsibility exists in relation to such serious violations of international humanitarian law in an international armed conflict.²

(b) A principle will be held by the Tribunal to be part of customary international law only if it is satisfied that existing State practice accepts that principle as legally binding (opinio juris).³

(c) A principle so held to have been part of customary international law may however be applied to a new situation where that situation reasonably falls within the application of the principle.⁴

(d) Customary international law assumes that, whether in an internal or an international armed conflict, there is an organized military force. An organized military force can only exist on the basis of responsible command. Responsible command leads to command responsibility, which is the most effective method by which international criminal law can enforce responsible command.⁵

(e) Relevant aspects of international law are accepted, as a matter of customary international law, as governing the conduct of an internal armed conflict. Those relevant aspects unquestionably include an acceptance that a military force engaged in such a conflict is organized and therefore under responsible command. In the absence of anything to the contrary, the underlying State practice and opinio juris relating to the requirement that such a military force be organized must be interpreted as bearing its normal meaning, that military organisation implies responsible command and that responsible command in turn implies command responsibility.⁶

(f) Thus, wherever customary international law recognises that a war crime can be committed by a member of an organized military force, it also recognises that a commander is criminally responsible if he knew or had reason to know that the subordinate was about to commit such acts or had done so and if he failed to take the necessary and reasonable measures to prevent such acts or to punish the subordinate.⁷

(g) As customary international law recognises that some war crimes can be committed by a member of an organised military force in the course of an internal armed conflict, it therefore also recognises that there can be command responsibility in relation to those crimes.⁸

(h) As the existence of this customary international law predated the events pleaded against the appellants, there is no breach of the principle of legality – that a person may only be found guilty of a crime where the acts alleged against him constituted a crime at the time of their commission (nullum crimen sine lege).⁹

4. I agree completely with that conclusion and with the reasoning which led to it. It is important, in my view, to emphasise that the application of an existing principle accepted as customary international law to a new situation where that situation reasonably falls within its application is hardly a novel proposition. Reference was made to such a process in the Memorandum of Proposals for the Prosecution and Punishment of Certain War Criminals and Other Offenders at the London Conference, presented on behalf of the United States to the Foreign Ministers of the Allied Powers and to their representatives at San Francisco, on 30 April 1945:¹⁰

The application of this law may be novel because the scope of the Nazi activity has been broad and ruthless without precedent. The basic principles to be applied, however, are not novel and all that is needed is a wise application of those principles on a sufficiently comprehensive scale to meet the situation. International law must develop to meet the needs of the times just as the common law has grown, not by enunciating new principles but by adapting old ones.

Such a process of reasoning was applied in the judgments delivered in at least two trials which subsequently took place in Nuremberg. In the Justice case,¹¹ the Tribunal said:¹²

International law is not the product of statute. Its content is not static. The absence from the world of any governmental body authorized to enact substantive rules of international law has not prevented the progressive development of that law. After the manner of the English common law it has grown to meet the exigencies of changing conditions.

In the Krupp trial,¹³ the defendants raised a defence of necessity, claiming that, in order to meet the production quotas imposed upon them as industrialists by the authorities, it was necessary to employ prisoners of war, forced labour and concentration camp inmates. The Tribunal accepted the availability of such a defence where it is shown that the acts charged were done “to avoid an evil both serious and irreparable”, there “was no other adequate means of escape” and the remedy was “not disproportioned to the evil”,¹⁴ and that it could apply if the existence of a tyrannical and oppressive régime is assumed. The Tribunal, however, denied its application to the facts of that case because the defendants were not acting under compulsion or coercion but with an “ardent desire to employ forced labour”.¹⁵ In accepting the availability of such a defence, the Tribunal expressly recognised that it was applying an existing principle of law to a new situation when it said :¹⁶

As the prosecution says, most of the cases where this defence has been under consideration involved such situations as two shipwrecked persons endeavouring to support themselves on a floating object large enough to support only one; the throwing of passengers out of an overloaded lifeboat; or the participation in crime under the immediate and present threat of death or great bodily harm. So far as we have been able to ascertain with the limited facilities at hand, the application to a factual situation such as that presented in the Nuremberg Trials of industrialists is novel.

Subsequently, the Supreme Court of Israel also remarked that customary international law is “never static but is found to be in a process of constant growth”.¹⁷

5. There is nothing further I wish to add to my complete agreement with the conclusion stated in the Appeals Chamber Decision on this first issue, and with the reasoning which led to it.

6. In determining that a superior can not be criminally responsible where (after assuming command) he knows or has reason to know that those who had become his subordinates had committed crimes before he became their superior, the majority of the Appeals Chamber has reasoned as follows:

(a) No State practice exists concerning the existence of command responsibility in such a situation, nor any opinio juris, and thus no customary international law in force at the time when the crimes were committed.¹⁸

(b) In fact, there are indications which militate against the existence of a customary rule establishing such a criminal responsibility, and a number of examples are given.¹⁹

(c) The Tribunal can impose criminal responsibility only if the crime charged was clearly established at the time when the events in issue occurred. In case of doubt, criminal responsibility cannot be found to exist, thereby preserving full respect for the principle of legality.²⁰

7. I do not agree either with the majority conclusion or with the first two steps of the reasoning which led to it.

(a) No customary international law

8. My approach to this issue commences at the same point accepted by the Appeals Chamber unanimously in relation to the first issue. Customary international law recognises that a commander is criminally responsible if he knew or had reason to know that the subordinate was about to commit acts amounting to a war crime or had done so and if he failed to take the necessary and reasonable measures to prevent such acts or to punish the subordinate.²¹ That principle may be applied to whatever situation reasonably falls within the application of the principle.²² In my opinion, the situation of a superior who (after assuming command) knows or has reason to know that a person who has become his subordinate had committed a crime before he became that person’s superior falls reasonably within that principle.

9. That principle cannot be limited artificially to the situation in which the superior -subordinate relationship existed at the time when the subordinate was committing or about to commit the acts amounting to a war crime, or at any time other than the time when the superior knows or has reason to know that the subordinate had committed the acts amounting to a war crime. One reason for this is that the criminal responsibility of the superior is not a direct responsibility for the acts of the subordinate. It is a responsibility for his own acts (or, rather, omissions) in failing to prevent or to punish the subordinate when he knew or had reason to know that he was about to commit acts amounting to a war crime or had done so.²³

10. The majority does not explain why the principle of command responsibility which has been accepted as customary international law cannot be applied to such a situation. The majority has instead looked first for the existence of State practice in relation to the very circumscribed factual situation to which the principle is sought to be applied, rather than whether that particular factual situation reasonably fell within the principle. This is a completely different approach to that unanimously adopted in relation to the first issue. The approach unanimously adopted in relation to whether command responsibility exists in an internal armed conflict necessarily ignored the existence of State practice in relation to that particular factual situation. The customary international law which supported the existence of the principle also supports the application of that principle in that situation.

11. The majority asserts that no State practice can be found supporting the criminal responsibility of a superior who fails to punish a subordinate for acts committed before the superior-subordinate relationship existed of which the superior knows or has reason to know only that the acts had already been committed.²⁴ (It will be convenient to refer to this situation as the “factual situation in question in this appeal”.)

12. I understand the reference here to be to the absence of any reference to the factual situation in question in this appeal in military manuals and the like. However, it is not suggested by the majority that such sources of State practice exclude a criminal responsibility in such a situation. Military manuals are usually expressed in fairly general terms which would certainly include such a situation. Let me give two examples:

(i) “The Law of War on Land being Part III of the Manual of Military Law” (UK, 1958 ), beside the heading “Responsibility of commanders for war crimes committed by subordinates”, provides:

In some cases military commanders may be responsible for war crimes committed by subordinate members of the armed forces or other persons subject to their control. Thus, for example, when troops commit, or assist in the commission of, massacres and atrocities against the civilian inhabitants of occupied territory, or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible, if he has actual knowledge or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and if he fails to use the means at his disposal to ensure compliance with the law of war.

The reference there to “troops or other persons subject to his control” is, I suggest, equally applicable to troops “subject to his control” at the time when he knew or had reason to know that they had committed crimes as it is to troops “subject to his control” at the time when they were committed. The notes to this text include this statement:

However, it is probable that the responsibility of the commander goes beyond the duty as formulated above. He is also responsible if he fails, negligently or deliberately, to ensure by all the means at his disposal that the guilty are brought to trial, deprived of their command and ordered out the theatre of war, as may be appropriate.²⁵

(ii) “The Law of Land Warfare” (US, 1956 revised 1976), under the heading “501.  Responsibility for Acts of Subordinates”, is in almost identical terms, but for the sake of accuracy I will quote the whole provision:

In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.

In neither case would a commander in the factual situation in question in this appeal believe that he must (or even could) say: “Yes, I know that these men who are now my subordinates committed an atrocious massacre the week before I assumed command  – but, as I was not then their superior (or, in a position to prevent them from committing these offences), I am under no duty to punish them”. I suggest that the reason why military manuals have not expressly referred to the factual situation in question in this appeal is that the duty to punish in that situation is so obvious that no-one has ever seen the need to refer to it expressly.

13. In my opinion, the absence of State practice supporting the criminal responsibility of the superior in the factual situation in question in this appeal is irrelevant where that situation falls reasonably within the principle which has been accepted as customary international law.

(b) Indications against the existence of a customary rule

14. A number of examples are given by the majority which, it asserts, militate against the existence of such a customary rule. They are given in no apparent order, but I propose to deal with them in chronological order. Such examples may possibly also be relevant to the issue as to whether the particular factual situation in question in this appeal reasonably falls within the principle of command responsibility.

15. (i) The Kuntze case²⁶ The majority points to a passage in the judgment of the Nuremberg Military Tribunal under Control Council Law 10 (“Control Council 10 Tribunal”) which states :²⁷

The foregoing evidence shows the collection of Jews in concentration camps and the killing of one large group of Jews and gypsies shortly after the defendant assumed command in the Southeast by units that were subordinate to him. The record does not show that the defendant Kuntze ordered the shooting of the Jews or their transfer to a collecting camp. The evidence does show that he had notice from the reports that units subordinate to him did carry out the shooting of a large group of Jews and gypsies as hereinbefore mentioned. He did have knowledge that troops subordinate to him were collecting and transporting Jews to collecting camps. Nowhere in the reports is it shown that the defendant Kuntze acted to stop such unlawful practices. It is quite evident that he acquiesced in their performance when his duty was to intervene to prevent their recurrence. We think his responsibility for these unlawful acts is amply established by the record.

To this passage, the majority adds the comment:²⁸

Whilst it is clear that this judgment recognises a responsibility for failing to prevent the recurrence of killings after an accused has assumed command, it contains no reference whatsoever to a responsibility for crimes committed prior to the accused’s assumption of command.

The majority states in the text of the Appeals Chamber Decision that it “considers that this case also constitutes an indication that would run contrary to the existence of a customary rule establishing command responsibility for crimes committed before a superior’s assumption of command over a perpetrator, and that it could certainly not be brought to support the opposite view”.²⁹

16. As the majority appears to concede, this passage says nothing which could suggest that a superior does not have any criminal responsibility for failing to punish a subordinate for acts committed before the superior-subordinate relationship existed of which the superior knows or has reason to know only that the acts had already been committed. The “indication” that he does not have such criminal responsibility which is perceived by the majority from this passage rests solely upon the absence in it of any reference “whatsoever” to such a responsibility. Such a line of reasoning could be valid only if the issues in the Kuntze case were such that the Control Council 10 Tribunal would be expected to have dealt in this passage with the wider issue (if, for example, Kuntze had been charged with such a form of criminal liability) – and, even then, mere silence would necessarily be an uncertain foundation for any inference that the Control Council 10 Tribunal would have dealt with that wider issue in the manner for which the majority contends.

17. It is clear from the Judgment of the Control Council 10 Tribunal that Kuntze was not charged with such a form of criminal liability. Kuntze was charged, in common with all the other defendants, with being a principal in or an accessory to the murder of large numbers of persons from the civilian populations of (inter alia) Yugoslavia by troops of the German armed forces under his command and jurisdiction and responsible to him, who were acting pursuant to orders issued, executed and distributed by him, and with ordering, abetting, taking a consenting part in, being connected with plans and enterprises involving and was a member of organisations or groups connected with such murders by such troops who were acting pursuant to orders issued, executed and distributed by him.³⁰ As none of the killings which had taken place before Kuntze had assumed command could have been committed by troops who were acting pursuant to orders issued, executed and distributed by him, there is no basis in that indictment for convicting him upon the basis of command responsibility for those crimes.

18. There is nothing in the passage quoted by the majority which suggests that it was either necessary or appropriate for the Control Council 10 Tribunal to have dealt with the wider issue. The facts upon which the Control Council 10 Tribunal relied for the summary given in this passage show that, on 24 October 1941, Kuntze was appointed as Deputy Armed Forces Commander Southeast and commander in chief of the 12th Army, on a temporary basis during the illness of Field Marshall List.³¹ He assumed such command on 27  October.³² The collection and the killing of the Jews to which the summary refers appears to have commenced on 29  October,³³ although the details given in the Judgment appear to refer mainly to reprisal killings, a different issue. The passage upon which the majority relies, however, says expressly that the collection and killing occurred “shortly after the defendant assumed command in the Southeast by units which were subordinate to him”. Kuntze, as this passage points out, received reports that those units had carried out the shooting of a large group of Jews and gypsies. There is no question, therefore, that the superior-subordinate relationship existed at the time when the collection and killing occurred. He was found to be criminally responsible for those acts because he failed to perform his duty to prevent their recurrence, and thus had acquiesced in those acts.³⁴

19. Why, then, would the Control Council 10 Tribunal have been expected to deal in this passage with the wider issue of the criminal responsibility of Kuntze for crimes committed by his subordinates before he assumed command? The majority does not in the Appeals Chamber Decision suggest any reason, and I can see none. The facts found by the Control Council 10 Tribunal elsewhere in the Judgment (when dealing with the reprisal killings) could have given rise to this wider issue  – but only if the facts had fallen within the charges laid, which they clearly did not.³⁵ The absence of any discussion of this wider issue – either in this passage or in the Judgment generally – provides no support for the majority’s conclusion that this passage contains an indication which runs contrary to the existence of a command responsibility for crimes committed before a superior’s assumption of command over the perpetrator. I do not accept that the Kuntze case has any bearing upon the issues in this appeal.

20. (ii) Article  86(2) of Additional Protocol  I to the Geneva Conventions The majority points to the following provision in Article 86(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 enable 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.

The majority says that “the language of this article envisions a situation in which a breach was in the process of being committed, or was going to be committed; breaches committed before the superior assumed command over the perpetrator are not included within its scope”.³⁶

21. Article 86(2), a source of customary international law supporting the command responsibility provided in Article 7(3) of the Tribunal’s Statute,³⁷ is unhappily worded when it is compared with Article 87(3) of Additional Protocol  I, which is in the following terms:

The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates and 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.

There are two significant differences between these two provisions:

(i) Article 86(2) speaks only of a duty “to prevent or repress the breach”. It makes no express reference to a duty to punish, an omission which required an explanation in the ICRC Commentary on the Additional Protocols, in these terms:³⁸

The term ‘suppress’ […] should be understood in a broad sense: literally of course this means putting an end to such conduct; depending on its gravity and the circumstances, such conduct can and should lead to administrative, disciplinary or even penal sanctions – in accordance with the general principle that every punishment should be proportional to the severity of the breach.”

On the other hand, Article 87(3) speaks expressly of a duty “to initiate disciplinary or penal action”, although only where the superior “is aware” that his subordinates are going to commit or have committed such breaches.

(ii) Article 86(2) speaks of the commander’s knowledge or reason to know of the breach being gained prior to or at the time of that breach. On the other hand, Article 87(3) refers expressly to the duty to punish where the superior’s knowledge or reason to know was gained only after the breach took place. As the majority has conceded, customary international law imposes a duty to punish even when the commander’s knowledge or reason to know of the breach has been gained only after the breach has taken place.³⁹

In these circumstances, the temporal restriction which the majority imposes upon the superior’s responsibility based upon the omission from Article 87 of any reference to the commander’s knowledge or reason to know gained only after the breach took place appears to rest upon a very uncertain foundation. Treaties are, of course, notorious for producing ambiguities of this type, hence the need for recourse in many cases in the Tribunal to the principles of interpretation stated in the Vienna Convention on the Law of Treaties. I refer to some of these cases in the next paragraph.

22. Article 31(1) of the Vienna Convention provides that “SaC treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. The object and purpose of Additional Protocol I is, according to its Preamble, to “reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application”, which accords neatly with the object and purpose of international humanitarian law generally:

The aim of international humanitarian law is to protect the human being and to safeguard the dignity of man in the extreme situation of war The provisions of international humanitarian law have always been tailored to fit human requirements. They are bound to an ideal: the protection of man from the consequences of brute force.⁴⁰

Such an approach has been adopted by the Appeals Chamber previously.⁴¹ The interpretation placed on Article 86(2) by the majority in this case has certainly not been so tailored. It will leave a gaping hole in the protection which international humanitarian law seeks to provide for the victims of the crimes committed contrary to that law. Where the prosecution is unable to identify, to find or to apprehend the relevant subordinates in order to prosecute them (a common event), there can be no prosecution if the superior has left his command before he knows or has reason to know of their commission, because he cannot be prosecuted even though the superior -subordinate relationship existed at the appropriate time; similarly, the superior who takes over his command, even though he may quickly know or have reason to know that the crimes have been committed and yet fail to punish, cannot be prosecuted for that failure according to the majority view.

23. Another consequence of the interpretation of the majority is that the anchoring of the duty to punish in the existence of the superior-subordinate relationship at the time when the subordinate was committing or was about to commit such acts necessarily melds the duty to prevent and the duty to punish into the one duty. This is at odds with the jurisprudence of this Tribunal, in which the duty to prevent has been treated as quite separate from the duty to punish. That jurisprudence proceeds upon the basis that, if the superior had reason to know in time to prevent, he commits an offence by failing to take steps to prevent, and he cannot make good that failure by subsequently punishing his subordinates who committed the offences. That was held by, for example, the Trial Chamber in the Blaskic Judgment,⁴² and the Trial Chamber in the Kordic Judgment.⁴³ The duty to punish, it was said, arises after the crime has been committed (that is, I would think, because the superior had been given reason to know only after that commission ). In the second of those cases,⁴⁴ the Trial Chamber (of which two members had also been members of the International Law Commission responsible for the Draft Code upon which the majority also relies ) said:⁴⁵

Persons who assume command after the commission [of the crime] are under the same duty to punish.

The two duties are, moreover, usually identified by the Appeals Chamber as alternatives.⁴⁶ The majority has not challenged this jurisprudence.

24. All of these considerations lead me to the conclusion that the interpretation placed by the majority upon Article 86(2) of Additional Protocol I does not accord with its object and purpose, and it is inconsistent with the existing jurisprudence of the Tribunal. I do not accept that the provisions of Article 86(2) militate against the application of the principle of command responsibility to the particular factual situation in question in this appeal.

25. (iii) Report of the International Law Commission (1996) and its Draft Code ⁴⁷The majority points out that the International Law Commission referred to Article 86(2) of Additional Protocol I as elaborating the principle of command responsibility,⁴⁸ and it also draws attention to Article 6 of the Draft Code of Crimes against the Peace and Security of Mankind which the Commission had put forward. Article 6 is in these terms (the emphasis has been added by the majority):

Article 6
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 reason to know, 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 necessary measures within their power to prevent or repress the crime.

The majority comments that “[o]nce again, the emphasis is on the superior-subordinate relationship existing at the time the subordinate was committing or was going to commit a crime. Crimes committed by a subordinate in the past, prior to his superior’s assumption of command, are clearly excluded”.⁴⁹

26. The first point to be made in relation to this comment is that an ILC draft does not constitute State practice for the purpose of identifying customary law.⁵⁰ The second point is that this draft code (which is the first, in a long line of such drafts, to deal expressly with the principle of command responsibility) has never been put into effect. The third point is that, as Article 6 of the draft is based upon Article 86(2) of Additional Protocol I, my comments relating to the majority’s interpretation of that Article must apply equally to the majority’s interpretation of Article 6 of the draft. My comment that the interpretation placed by the majority upon Article 86(2) does not accord with its object and purpose gains strength from the Kordic Judgment (referred to in par 23, supra), which suggests that such an interpretation was apparently not intended by the ILC when incorporating the provisions of Article 86(2) in Article 6.⁵¹

27. The last point to be made in relation to the majority’s comment concerns the emphasis placed by it upon the phrases “in the circumstances of the time” and “was committing or was going to commit such a crime”. The text of Article 6 of the Draft Code is said by the ILC’s Commentary to have been based upon three instruments – the Statutes of the two ad hoc Tribunals and Additional Protocol I.⁵² The phrase “in the circumstances of the time” does not appear in either of the Statutes, but it does in Article 86 of the Additional Protocol (which I have quoted above ).⁵³ The ICRC Commentary on the Additional Protocols makes it very clear that the reference in Article 86 to knowledge “in the circumstances at the time” was intended to apply only to the circumstance in which the superior has to exercise his duty to prevent the commission of crimes by his subordinates:⁵⁴

Every case must be assessed in the light of the situation of the superior concerned at the time in question, in particular distinguishing the time the information was available and the time at which the breach was committed, also taking into account other circumstances which claimed his attention at that point, etc.

Those considerations are wholly inapplicable to the situation in which a superior (even one who was the superior at the time the breach was committed) came to know or had reason to know subsequently that his subordinates had already committed the crime. My view is confirmed by the fact that Article 87(3) – which deals expressly (although in a limited way) with the duty of a superior to punish subordinates where he becomes aware that they have already committed a crime⁵⁵  – contains no reference to “the circumstances at the time” when he became aware.

28. Once again, therefore, I do not accept the interpretation placed by the majority upon either the ILC Report or its Draft Code, and I do not accept that either militates against the application of the principle of command responsibility to the particular factual situation in question in this appeal.

29. (iv) Rome Statute of the International Criminal Court The majority refers to Article 28 of that Statute (“Responsibility of commanders and other superiors ”), which provides:

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

The majority says that the language of this Statute “necessarily excludes criminal liability on the basis of crimes committed by a subordinate prior to an individual’s assumption of command over that subordinate”.⁵⁶

30. The status to be afforded to the Rome Statute has so far been considered by this Tribunal only prior to the Statute coming into force, Nevertheless, the Tribunal has given it significant legal value as an authoritative expression of the legal views of a great number of States at the time when the Statute was adopted (in July 1998).⁵⁷ In the present case, the relevant period is from January 1993 to January 1994, not July 1998, and the principle of legality, for which the majority preserves full respect,⁵⁸ requires some care to be taken of many provisions in the Rome Statute – even though it was only four years later – which were the result of months of negotiation and compromise. Attention has already been drawn by the Tribunal to the obvious fact that, whereas many of the Statute’s provisions may be taken as reflecting customary international law at the time it was adopted, it also creates new law or modifies existing law.⁵⁹

31. Article 28 was previously Article 25 in the draft Statute being considered at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (usually described as the Rome Conference) in 1998. So far as the reliance of the majority upon the terms of Article 28 in the Statute is concerned, Article 25 in the draft Statute was in identical terms. The report of the Working Group on General Principles of Criminal Law considered at the Rome Conference, stated in relation to that Article 25:⁶⁰

The Working Group draws the attention of the Drafting Committee to the fact that the text of this article was the subject of extensive negotiations and represents quite delicate compromises.

That this is so is patent, in my view, from the vast differences between the provisions relating to military commanders and those relating to other superiors, and between those provisions and existing instruments such as the Statutes of the ad hoc Tribunals.

32. In these circumstances, the terms of Article 28 of the Rome Statute are of very limited value in determining the customary international law at the time relevant to these proceedings. Having said that, however, it is obvious that the references in each of those sets of provisions to “were committing or about to commit such crimes”, which the majority has emphasised, were founded on Article 86(2) of Additional Protocol I. Again, therefore, my comments relating to the majority’s interpretation of that Article must apply equally to the majority’s interpretation of Article 28 of the Rome Statute.

33. For all the reason already given, I do not accept that Article 28 militates against the application of the principle of command responsibility to the particular factual situation in question in this appeal.

34. It follows that I reject all of the arguments of the majority.

35. I would accordingly dismiss the appeal in relation to both issues.

36. I have read with interest the material added by the majority to the Appeals Chamber Decision to meet what has been stated in the two opinions which dissent in relation to the second issue determined in this appeal.⁶¹ That material raises a number of new issues. What the majority still does not do is give any direct explanation for the completely different approach which it adopted in relation to the second issue from the approach which was unanimously adopted in relation to the first issue.⁶² There is nothing in the material added by the majority which justifies the different approach taken by the majority.

37. An issue between the majority and myself appears to be whether the very circumscribed factual situation with which the second issue is concerned falls within the application of the principle of command responsibility which has been accepted as customary international law.⁶³ The majority says that my assertion that this situation “clearly carries individual criminal responsibility under existing principle seems indefensible”.⁶⁴ The emphasis on “clearly” appears in the material added by the majority. That is not what I have said. What I have said is fully consistent with what the Appeals Chamber has said, unanimously, in that Decision:⁶⁵

More particularly, [the Appeals Chamber] appreciates that to hold that a principle was part of customary international law, it has to be satisfied that State practice recognised the principle on the basis of supporting opinio juris. However, it also considers that, where a principle can be shown to have been so established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle.⁶⁶

After stating the principle of command responsibility, I have stated my conclusion in these words:⁶⁷

In my opinion, the situation of a superior who (after assuming command) knows or has reason to know that a person who has become his subordinate had committed a crime before he became that person’s superior falls reasonably within that principle.

I stand by that statement, for the reasons I gave.⁶⁸

38. Somehow, and without explanation, the majority has moved (within the space of forty paragraphs) from a requirement that the particular factual situation falls “reasonably” within the principle to one that it “clearly” falls within that principle. I have not moved with the majority. There is a very real distinction between the two requirements. The majority appears to have confused the statement of reasonableness which was unanimously adopted earlier in the Appeals Chamber Decision with the principle of legality stated later by the majority as requiring the crime charged to be “clearly ” established under customary international law at the time the events in issue occurred.⁶⁹

39. The statement by the majority, that “SitC falls to the distinguished dissenting judges to show that Sa positive and solid foundation of a customary law principleC exists; it does not fall to us to demonstrate that it does not”,⁷⁰ is tenable only if it be accepted that, on my part, I have failed to demonstrate that such a principle of customary law exists. The argument which I put – and which appears to have been misunderstood by the majority – is that the relevant principle of customary international law in relation to the second issue is that which was accepted unanimously by the Appeals Chamber in this appeal, that a commander is criminally responsible if he knew or had reason to know that the subordinate was about to commit acts amounting to a crime within the meaning of the Tribunal’s Statute or had done so and if he failed to take the necessary and reasonable measures to prevent such acts or to punish the subordinate.⁷¹ My response to the legality argument was that the customary international law which supports the existence of the principle also supports the application of that principle in the situations which reasonably fall within it,⁷² and I will not repeat what I said earlier in relation to that.

40. The material added by the majority now makes clear what was perhaps implicit before, that it is (in the view of the majority) necessary, before a principle accepted in customary international law can be applied to any particular circumscribed factual situation, to demonstrate that custom already exists supporting its application to that situation. Surely it is the purpose of the relevant principle of customary international law which dictates the scope of its application, not the facts of the situation to which the principle is sought to be applied. And, if that scope or purpose is not sufficiently rigorous or precise, it may be defined by reference to the “principles of humanity” and “dictates of public conscience” as provided for in the Martens Clause.⁷³ If the view of the majority is correct, no principle of customary international law could ever be applied to a new situation, simply because it is a new situation.

41. An illustration of the application of a principle of customary international law to a particular circumscribed factual situation is to be found in the Shimoda case, which discussed the legality in international law of the act of the United States of America in dropping atomic bombs on Hiroshima and Nagasaki in 1945.⁷⁴ I do not refer to this case for the purpose of upholding its conclusion,⁷⁵ but for the line of reasoning adopted in that case which demonstrates the error in the view of the majority in relation to the application of an accepted principle of international criminal law to a particular circumscribed factual situation.⁷⁶ The plaintiffs, who had been injured in the bombing, sought damages from the State of Japan for having waived (in the Treaty of Peace with Japan, 1951) the claims of its citizens under (inter alia) international law against the United States for what was claimed to be its illegal act under the rules of positive international law (taking both treaty law and customary law into consideration) in force in 1945.⁷⁷ The Japanese Government argued that, as none of the many declarations, conventions and treaties prohibiting the use of nominated types of weapons which constituted the relevant customary international law included provisions directly touching upon the use of an atomic bomb (which had never been used previously in a war), its use was not expressly regulated by positive international law.⁷⁸

42. The Court, although denying relief on other grounds, rejected this argument and held that the “indiscriminate bombardment of undefended cities” with atomic bombs was an illegal act of hostilities according to the rules of international law.⁷⁹ In the course of its reasoning, the Court said:⁸⁰

It can naturally be assumed that the use of a new weapon is legal as long as international law does not prohibit it. However, the prohibition in this context is to be understood to include not only the case where there is an express rule of direct prohibition, but also the case where the prohibition can be implied de plano from the interpretation and application by analogy of existing rules of international law (customary international law and treaties). Further, the prohibition must be understood also to include the case where, in the light of principles of international law, the use of a new weapon is deemed to be contrary to these principles, for there is no reason why the interpretation of rules of international law should be limited to literal interpretation, any more than the interpretation of municipal law.

[…] Any weapon the use of which is contrary to the customs of civilised countries and to the principles of international law should ipso facto be deemed to be prohibited even if there is no express provision in the law; the new weapon may be used as a legal means of hostilities only if it is not contrary to the principles of international law.

The court concluded: “Thus, for a weapon to be legal it is not enough that it is a new weapon; and a new weapon must naturally be subjected to the examination of positive international law”.⁸¹

43. The last of the new issues raised by the majority concerns Articles 86(2) and 87(3) of Additional Protocol I. The majority has sought to address my argument that its reliance upon Article 86(2) for the temporal restriction which the majority imposes was, by reason of the provisions of Article 87(3), a very uncertain foundation for such a restriction.⁸² It points out that I have failed to acknowledge that it is Article 86(2) which expressly addresses the individual responsibility of superiors for acts of their subordinates, whilst Article 87(2) speaks of the obligations of States parties.⁸³ The majority cites no authority for the distinction which it draws between the two Articles. Both are regarded in law as binding only the High Contracting Parties. Each of them obliges those Parties to implement, pursuant to their treaty obligations, certain standards in their domestic laws, including duties upon commanders as provided in each of them. Although it is generally held that some provisions of the Additional Protocols have been accepted in customary international law as binding on individuals, it is unnecessary in the present case to resolve which ones have been so accepted. I referred to the contents of the two Articles not for the purpose of saying that one or the other or both were or were not accepted as so binding on individuals but (as I believe it is clear from what I said) only for the purpose of demonstrating the context in which Article 86(2) is to be found and the inadequacy of the majority’s interpretation of that Article. I was encouraged to do so by the ICRC Commentary to Article 86(2), which says that Article 86(2) “should be read in conjunction with […] Article 87 (Duty of commanders)”.⁸⁴

44. My opinion that the appeal should be dismissed in relation to both issues remains unchanged.

Done in English and French, the English text being authoritative.

Dated this 16th day of July 2003,
At The Hague,
The Netherlands.

______________
Judge David Hunt

[Seal of the Tribunal]