The Prosecutor v. Hadzihasanovic et al. - Case No. IT-01-47-AR72

“Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility”

16 July 2003
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Hunt and Gunëy)

Procedural Background

· On 12 November 2002, Trial Chamber II rendered its “Decision on Joint Challenge to Jurisdiction” (“Impugned Decision”). It held (1) 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) of the Statute constitutes a declaration of existing law under customary international law and does not constitute new law, and (2) 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.¹

· On 27 November 2002, Enver Hadzihasanovic, Mehmed Alagic² and Amir Kubura (“Appellants”) filed an “Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction” (“Interlocutory Appeal”) pursuant to Rule 72(B)(i) of the Rules of Procedure and Evidence (“Rules”), challenging the Impugned Decision on (1) and (2). The Prosecution filed a response on 9 December 2002³ and an addendum on 20 December 2002. The Appellants filed a joint reply on 13 December 2002.

· On 21 February 2003, a bench of three appellate Judges, under Rule 72(E) of the Rules, declared the Interlocutory Appeal valid insofar as it challenges (1) and (2).

The Decision

The Appeals Chamber unanimously dismissed the first ground of appeal but allowed the second ground of appeal, by majority (Judge Shahabuddeen and Judge Hunt dissenting ).

The Reasoning

Command responsibility in internal armed conflict

The Appellants submitted that the Trial Chamber erred in two respects: (a) it wrongly found that there was a basis in customary international law for the applicability of the doctrine of command responsibility in internal armed conflicts at the time material to the Indictment; and (b) it failed to respect the principle of legality in reaching its conclusion that it had jurisdiction in the present case.⁴

Whether customary international law provides for command responsibility in internal armed conflicts

The Appeals Chamber first stated that there are two “uncontested” point of law: 1) serious violations of international humanitarian law in internal armed conflicts –included those of Article 3 common to the four Geneva Conventions- entail criminal responsibility under customary international law⁵; 2) at all times relevant to the indictment the doctrine of command responsibility was part of customary international law related to international armed conflicts.⁶

From those two points, the Appeals Chamber inferred that violations of Common Article 3 committed in international armed conflicts would be prosecutable under the regime of command responsibility. It thereafter found “difficult to see why the concept [of command responsibility] would not equally apply to breaches of the same prohibitions when committed in the course of an internal conflict”.⁷

The Appeals Chamber analysed the weight of the principle of responsible command in the main provisions related to internal armed conflicts, held that Article 3 of the Statute of the Tribunal (Violations of the Laws or Customs of War) “assumes that there is an organized military force”, that it is “evident” that there cannot be organised military force save on the basis of responsible command, and that it is “also reasonable” to hold that it is responsible command which leads to command responsibility as “command responsibility is the most effective method by which international criminal law can enforce responsible command”.⁸ The Appeals Chamber however admitted that “most States have not legislated for command responsibility to be the counterpart of responsible command in internal conflicts ”.⁹

The interpretation of the Appeals Chamber is that a military organisation implies responsible command, that responsible command in turn implies command responsibility, and finally that since 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 also recognises that there can be command responsibility in respect of such crimes.¹⁰

Internal armed conflicts and reciprocity

The Appeals Chamber addressed the argument of the Appellants that international law developed to regulate the relations between States on the basis of reciprocity and that command responsibility for acts committed in the course of an internal armed conflict does not raise any questions of reciprocity.¹¹

The Appeals Chamber did not consider that the matter depends on notions of reciprocity and held that, to the extent that States have come to consider that they have a common interest in the observance of certain minimum standards of conduct in certain matters¹² including certain aspects of conduct in an internal armed conflict, internal armed conflict are “now the concern of international law without any questions of reciprocity”.¹³

From this finding the Appeals Chamber inferred that “the fact that it was in the course of an internal armed conflict that a war crime was about to be committed or was committed is not relevant to the responsibility of the commander”.¹⁴ According to the Appeals Chamber, it is the principle of responsible command that matters: “[t]he basis of the commander’s responsibility lies in his obligations as commander of troops making up an organised military force under his command, and not in the particular theatre in which the act was committed by a member of that military force”.¹⁵

Responsible command and command responsibility

The Appellants argued that there is a clear distinction between the principle of responsible command and the principle of command responsibility. The Appeals Chamber concurred that there is a difference between the two concepts: “[t]he difference is due to the fact that the concept of responsible command looks to the duties comprised in the idea of command, whereas that of command responsibility looks at liability flowing from breach of those duties”.¹⁶ The Appeals Chamber maintained that “the elements of command responsibility are derived from the elements of responsible command”.¹⁷ It relied on the United States Supreme Court’s decision in Yamashita v. Styer , which held that “the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates”¹⁸, in order to hold also that “the duties comprised in responsible command are generally enforced through command responsibility” and that “the latter flows from the former ”.¹⁹

Responsible command in other courts

As a further justification, the Appeals Chamber recalled that Article 7(3) of the Statute envisages superior responsibility for acts of subordinates amounting to violations including those of Article 3 of the Statute. The Appellants, however, contend that for this specific reason Article 7(3) is ultra vires. This is not the opinion of the Appeals Chamber which to supplement its finding that command responsibility applies to internal conflicts notes that this issue is not disputed before the tribunals established for Rwanda, Sierra Leone and East Timor. In its view, “the establishment of these bodies was consistent with the proposition that customary international law previously included the principle that command responsibility applied in respect of an internal armed conflict”.²⁰

The fact that command responsibility is not envisaged in Protocol II additional to the Geneva Conventions of 1949

The Appellants further submitted that the doctrine of command responsibility was referred to in the 1977 Protocol I additional to the Geneva Conventions of 1949²¹ applicable to international armed conflicts but was not included in Protocol II applicable to non-international armed conflicts. This difference, in their view, supports the argument that State practice did not consider command responsibility for internal armed conflicts as part of customary international law.

The Appeals Chamber held that “the non-reference in Protocol II to command responsibility in relation to internal armed conflicts did not necessarily affect the question whether command responsibility previously existed as part of customary international law relating to internal armed conflicts”.²² In its view, there is a “play of factors responsible for the silence which, for any of a number of reasons, sometimes occurs over the codification of an accepted point in the drafting of an international instrument”.²³ It held: “[w]ere it otherwise, the Appeals Chamber would have to uphold that, ‘as argued by the Defence, it is not a crime for a commander in an internal conflict to fail to prevent or punish the killings committed by his subordinates,’²⁴ i.e., even if the commander knows or has reason to know of the killings”.²⁵ The Appeals Chamber did not consider that it was “required to sustain so improbable a view in contemporary international law” and found such a view to be “not consistent with its reasoning in the Tadic Jurisdiction Decision²⁶ and in the Celibici Appeal Judgment²⁷ or with the reasoning of the Trial Chamber in Aleksovski²⁸”.²⁹

The Appeals Chamber upheld the finding of the Trial Chamber that “command responsibility was at all times material to this case a part of customary international law in its application to war crimes committed in the course of an internal armed conflict ”.³⁰

Command responsibility for crimes committed before the superior-subordinate relationships exists

The Prosecution alleged in the Indictment that Amir Kubura was responsible for the acts of his subordinates before he took up his position as acting commander of the Bosnian Army, 3rd Corps, 7th Muslim Mountain Brigade, because “the material fact for determination is […] not who was in command at the time of the crime, but when a commander became aware of the crime, yet failed to take the ‘reasonable and necessary measures’ to punish the violation”.³¹ The Prosecution relied on the Kordic Trial Judgement, which states that “[ t]he duty to punish naturally arises after a crime has been committed” and that “[p]ersons who assume command after the commission are under the same duty to punish ”.³² The Appellants argued that there is no basis in conventional or customary law for holding a commander criminally responsible for the acts of persons who were not his subordinates when they committed the acts.

The Appeals Chamber held that “no practice can be found nor there is any evidence of opinio juris that would sustain the proposition that a commander can be held responsible for crimes committed by a subordinate prior to the commander’s assumption of command over that subordinates”.³³ It found “indications that militate against the existence of a customary rule establishing such responsibility”: Article 28 of the Statute of the International Criminal Court, Article 86(2) of Protocol Additional to the Geneva Convention (Protocol I)³⁴, and Article 6 of the Draft Code of Crimes Against Humanity and Security of Mankind adopted by the International Law Commission at its forty-eighth session all envisage situations in which a breach is in the process of being committed or is going to be committed and do not envisage breaches that have been committed.³⁵

The Appeals Chamber held that “an accused cannot be charged under Article 7(3) of the Statute for crimes that have been committed by a subordinate before the said accused assumed command over that subordinate”.³⁶

Partial Dissenting Opinion of Judge Shahabuddeen

Judge Shahabuddeen agreed with the Appeals Chamber that the doctrine of command responsibility applied to internal armed conflicts at the time of the acts charged in the Indictment. However, he could not agree with the Appeals Chamber that the doctrine does not apply to commanders in respect of crimes committed by their subordinates before they assumed command. In his view, there are no available cases determining the issue one way or the other. He recalled that the Tribunal has the competence to interpret established principles of law such as command responsibility and to determine whether a particular situation before it falls within the principle as so interpreted. In doing so, he considers that the Appeals Chamber “will not be changing customary international law but will be carrying out its true intent by interpreting and applying one of its existing principles”.³⁷ He reviewed the principles of interpretation and the articles relevant to command responsibility, and found that the Appeals Chamber should have dismissed the second ground of appeal.

Separate and Partially Dissenting Opinion of Judge Hunt

Command Responsibility Appeal

Judge Hunt expressed his complete agreement with the finding of the Appeals Chamber as regards the first ground of appeal and the reasoning which led to it but disagreed with the Appeals Chamber as regards the second ground of appeal. In his view, the situation of a commander who knows or has reasons to know that a person who has become his subordinates committed a crime before he became that person’s superior reasonably falls within the principle of command responsibility. Judge Hunt agreed with the majority of the Appeals Chamber that there is no case-law on the issue but disagreed with the finding that the absence of such reference excludes criminal responsibility in such a situation. In his opinion, which rejects all of the arguments of the majority, he reviews the case-law referred to by the Appeals Chamber as well as its interpretation of the articles relevant to command responsibility.

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1. Hadzihasanovic, IT-01-47-PT, Decision on Joint Challenge to Jurisdiction, 12 November 2002, Judicial Supplement No. 38.
2. Mehmed Alagic passed away on 7 March 2003. By order of 21 March 2003, the Trial Chamber terminated the proceedings against him.
3. Prosecution’s Response to Defence Interlocutory Appeal on Jurisdiction (“Response”).
4. The issue of the principle of legality will not be dealt with in the present summary as it has been dealt with extensively by the Appeals Chamber in Milutinovic, IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, Judicial Supplement No. 41.
5. See Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (“Tadic Jurisdiction Decision”), 2 October 1995, Appeals Chamber, para.134.
6. Delalic et al, IT-96-21-A, Judgement (“Celebici Appeal Judgment”), 20 February 2001, paras. 222-241, Judicial Supplement No. 23; Bagilishema, ICTR-95-1A-A, Judgement (Reasons), 13 December 2002, paras. 35-37.
7. Para. 13.
8. Paras. 14-16.
9. Para. 17.
10. Paras. 17-18.
11. Interlocutory Appeal, para. 39.
12. The Appeals Chamber referred to Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, p. 23; and Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, pp. 112 and 114.
13. Para. 19.
14. Para. 20.
15. Ibid.
16. Para. 22.
17. Ibid.
18. 327 U.S. &, 14-15 (1946).
19. Para. 23.
20. Para. 26.
21. Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (“Additional Protocol I”), 1125 UN Treaty Series, pp. 3-608.
22. Para. 28.
23. Para. 29.
24. Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction, 27 November 2002, para. 20(a).
25. Para. 30
26. Tadic Jurisdiction Decision, 2 October 1995, para.77.
27. Celibici Appeal Judgement, paras. 116-181.
28. Aleksovski, IT-95-14/1-T, Judgement, 25 June 1999, para. 228.
29. Para. 30.
30. Para. 31.
31. Prosecution’s Response to Defence Written Submissions on Joint Challenge to Jurisdiction Arising from the Amended Indictment, 24 May 2002, para. 17.
32. Kordic and Cerkez, IT-95-14/2-T, Judgement (“Kordic Trial Judgement”), 26 February 2001, para. 446, Judicial Supplement No. 23.
33. Para. 45.
34. In the Celibici Appeal Judgement, the Appeals Chamber held that the “criminal offence based on command responsibility is defined in Article 86(2) only” (para. 237).
35. Paras. 46-49.
36. Para. 51.
37. Para. 10.