165. The Indictment alleges that General Gali}, as commander of the Sarajevo Romanija Corps, and pursuant to Article 7(1) of the Statute, bears individual criminal responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of the campaign of shelling and sniping against the civilian population of Sarajevo.273 The Accused is also alleged to bear individual criminal responsibility pursuant to Article 7(3) of the Statute for the conduct of his subordinates.274
272 Jelisi} Appeals Judgment, para. 82. Article 3 of the Statute requires a close link between the acts of the accused and the armed conflict; that element is not required for crimes under Article 5. Article 5 requires proof that the act of the Accused formed part of a widespread or systematic attack against a civilian population; that element is not required for crimes falling under Article 3 of the Statute. It follows that each crime under these Articles has a distinct material element to be proven at trial not required by the other. The test is met and it is permissible to cumulatively convict under both statutory provisions.
273 Indictment, para. 10.
274 Id., para. 11.
166. Article 7 of the Statute provides for imposition of individual and superior responsibility on persons on the following basis:
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.
2. ₣…ğ
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.
1. Individual Responsibility under Article 7 (1) of the Statute
167. The Indictment, in describing the Accused’s responsibility, makes reference to each head of responsibility in Article 7(1).275 In the Prosecution’s Final Trial Brief reference is made to
“ordering” as the basis of responsibility. It is within the Trial Chamber’s discretion to convict, if at all, the Accused under the appropriate head of responsibility within the limits set by the Indictment and insofar as the evidence permits.276
168. The Trial Chamber considers, briefly, the case-law of the International Tribunals which elaborates the elements of the various heads of individual criminal responsibility in Article 7(1) of the Statute.277 Considering them in the order in which they appear in the Statute, “planning” has been defined to mean that one or more persons designed the commission of a crime, at both the preparatory and execution phases,278 and the crime was actually committed within the framework of that design279 by others.280 “Instigating” means prompting another to commit an offence, which is actually committed.281 It is sufficient to demonstrate that the instigation was “a clear contributing factor to the conduct of other person(s)”.282 It is not necessary to demonstrate that the crime would not have occurred without the accused’s involvement.283 “Ordering” means a person in a position of authority using that authority to instruct another to commit an offence. The order does not need to
275 Id., para. 10.
276 Furund`ija Trial Judgement, para. 189, Kupre{ki} Trial Judgement, para. 746; Kunarac Trial Judgement, para. 388, Krsti} Trial Judgement, para. 602.
277 Cf. Article 6(1) of the Statute of the ICTR. See also the Prosecution Pre-trial Brief (paras 69 et seq.) and the Defence’s submissions on Article 7 in its Pre-trial Brief (paras 6.1-6.35).
278 Akayesu Trial Judgement, para. 480. See also Blaškić Trial Judgement, para. 279; Kordić Trial Judgement, para. 386 quoting the Akayesu Trial Judgement.
279 Akayesu Trial Judgement, para. 473.
280 If the person planning a crime also commits it, he or her is only punished for the commission of the crime and not for its planning, Kordi} Judgement, para. 386 (quoting the Bla{ki} Trial Judgement, para. 278).
281 Akayesu Trial Judgement, para. 482; Blaškić Trial Judgement, para. 280; Kordić Trial Judgement, para. 387.
282 Kvo~ka Trial Judgement, para. 252, citing Kordi} Trial Judgement, para. 387.
283 Kvo~ka Trial Judgement, para. 252, citing Kordi} Trial Judgement, para. 387.
be given in any particular form.284 “Committing” means that an “accused participated, physically or otherwise directly, in the material elements of a crime under the Tribunal’s Statute”.285 Thus, it
“covers first and foremost the physical perpetration of a crime by the offender himself.”286 “Aiding and abetting” means rendering a substantial contribution to the commission of a crime.287 These forms of participation in a crime may be performed through positive acts or through culpable omission.288 It has been held in relation to “instigating” that omissions amount to instigation in circumstances where a commander has created an environment permissive of criminal behaviour by subordinates.289 The Defence contests the applicability of that case-law and considers that “in all the cases [under Article 7(1)] a person must undertake an action that would contribute to the commission of a crime”.290
169. In the Majority’s opinion, a superior may be found responsible under Article 7(1) where the superior’s conduct had a positive effect in bringing about the commission of crimes by his or her subordinates, provided the mens rea requirements for Article 7(1) responsibility are met. Under Article 7(3) (see further below) the subordinate perpetrator is not required to be supported in his conduct, or to be aware that the superior officer knew of the criminal conduct in question or that the superior did not intend to investigate or punish the conduct. More generally, there is no requirement of any form of active contribution or positive encouragement, explicit or implicit, as between superior and subordinate, and no requirement of awareness by the subordinate of the superior’s disposition, for superior liability to arise under Article 7(3). Where, however, the conduct of the superior supports the commission of crimes by subordinates through any form of active contribution or passive encouragement (stretching from forms of ordering through instigation to aiding and abetting, by action or inaction amounting to facilitation), the superior’s liability may be brought under Article 7(1) if the necessary mens rea is a part of the superior’s conduct. In such cases the subordinate will most likely be aware of the superior’s support or encouragement, although that is not strictly necessary. In the Majority’s view, the key point in all of this is that a superior with a guilty mind may not avoid Article 7(1) responsibility by relying on his or her silence or omissions or apparent omissions or understated participation or any mixture of overt and non-overt actions, where the effect of such conduct is to commission crimes by subordinates.
284 Krsti} Trial Judgement, para. 601, citing Akayesu Trial Judgement, para. 483; Blaškić Trial Judgement, para. 281;
Kordić Trial Judgement, para. 388.
285 Kvo~ka Trial Judgement, paras 250-1.
286 Tadić Appeal Judgement, para. 188.
287 Aleksovski Appeal Judgement, paras 162-4.
288 Tadi} Appeal Judgement, para. 188.
289 Bla{ki} Trial Judgement, para. 337.
290 Defence Pre-trial Brief, paras 6.3-6.4.
170. The Trial Chamber notes that the regulations concerning the application of the laws of war to the armed forces of the SFRY, which would have been known to the Accused, provided under the heading “Responsibility for the acts of subordinates” that, inter alia, “a military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinates units to continue to commit the acts.”291 In situations where a person in authority under duty to suppress unlawful behaviour of subordinates of which he has notice does nothing to suppress that behaviour, the conclusion is allowed that that person, by positive acts or culpable omissions, directly participated in the commission of the crimes through one or more of the modes of participation described in Article 7(1).
171. Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence.292 For instance, “ordering” – a form of responsibility emphasized by the Prosecution in its Final Trial Brief – may be inferred from a variety of factors, such as the number of illegal acts, the number, identity and type of troops involved, the effective command and control exerted over these troops, the logistics involved, the widespread occurrence of the illegal acts, the tactical tempo of operations, the modus operandi of similar acts, the officers and staff involved, the location of the superior at the time and the knowledge of that officer of criminal acts committed under his command.293
172. In order for individual criminal responsibility to ensue, conduct must be coupled with intent.
The requisite mens rea for all forms of participation under Article 7(1) is that the accused “acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct.”294 The mens rea of the accused need not be explicit but may be inferred from the circumstances.295
291 ^elebi}i Trial Judgement, para. 341, quoted in Bla{ki} Trial Judgement, para. 238.
292 Rule 61 Decision of 13 September 1996, Case No. IT-95-12, Prosecutor v. Ivica Rajic, paras 59-61; Kordi} Trial Judgement, para. 388; Martinovi} Trial Judgement, para. 61; see also Abbaye Ardenne case (Trial of SS Brigadenfuhrer Kurt Meyer), Case n. 22, Canadian Military Court in Aurich (Germany), in Law Reports of Trials of War Criminals, volume IV, pp 97-112, stating that “₣tğhere is no evidence that anyone heard any particular words uttered by the accused which would constitute an order, but it is not essential that such evidence be adduced. The giving of the order may be proven circumstantially; that is to say, you may consider the facts you find to be proved bearing upon the question whether the alleged order was given, and if you find that the only reasonable inference is that an order […] was given by the accused at the time and place alleged, and that the [order was complied with], you may properly find the accused guilty.” Inferences of this kind were also drawn by the International Military Tribunal for the Far-East sitting at Tokyo, Japan (IMTFE); see section “Massacres were ordered” in Röling and Rüter (eds.), The Tokyo Judgement, Amsterdam, 1977, vol. I, page 400, where massacres of prisoners of war were inferred to have occurred in various detention camps based on only one order in relation to one camp coupled with testimonies with regard to other camps
293 See ^elebi}i Trial Judgement, para. 384-6; Bla{ki} Trial Judgement, para. 307. Some of these factors were cited in the UN Commission of Experts, Final Report, S/1994/627, 27 May 1994.
294 Kvo~ka Trial Judgement, para. 251, citing Tadi} Trial Judgement, para. 688 and ^elebi}i Trial Judgement, para. 327.
295 ^elebi}i Trial Judgement, para. 328.
2. Article 7 (3) of the Statute
173. The case-law of the International Tribunal establishes that the following three conditions must be met before a person can be held responsible for the criminal acts of another under Article 7(3) of the Statute:(1) a superior-subordinate relationship existed between the former and the latter;
(2) the superior knew or had reason to know that the crime was about to be committed or had been committed; and (3) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator.296 The Appeals Chamber has said that control must be effective for there to be a relevant relationship of superior to subordinate.297 Control is established if the commander had “the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.”298 The Appeals Chamber emphasised that “in general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a Court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.”299
174. In the absence of direct evidence of the superior’s actual knowledge of the offences committed by his or her subordinates, this knowledge may established through circumstantial evidence. The Trial Chamber may consider, inter alia, the indicia given by the United Nations Commission of Experts in its Final Report on the armed conflict in former Yugoslavia.300 The Trial Chamber also takes into consideration the fact that the evidence required to prove such knowledge for a commander operating within a highly disciplined and formalized chain of command with established reporting and monitoring systems is not as high as for those persons exercising more informal types of authority.
175. In relation to the superior’s “having reason to know” that subordinates were about to commit or had committed offences, “a showing that a superior had some general information in his possession which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he had ‘reason to know’.”301 The information available to the superior may be in written or oral form. It need not to be explicit or specific.302 For instance, past behaviour of subordinates or a history of abuses might suggest the need to inquire further. It is not required that
296 ^elebi}i Trial Judgement, para. 346; Aleksovski Trial Judgement, para. 69; Blaškić Trial Judgement, para. 294;
Kordi} Trial Judgement, para. 401; Kunarac Trial Judgement, para. 395, Krsti} Trial Judgement, para. 604; Kvo~ka Trial Judgement para. 314.
297 ^elebi}i Appeal Judgement, paras 255-6.
298 Id., paras 192, 256.
299 Id., para. 197.
300 ^elebi}i Trial Judgement, para. 386, quoting the Commission of Experts Report, p. 17.
301 ^elebi}i Appeal Judgement, para. 238.
302 Id., para. 238.
the superior had actually acquainted himself or herself with the information in his or her possession.303
176. The evaluation of the action taken by individuals in positions of superior authority who have a legal duty to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators, must be done on a case-by-case basis. Furthermore, it must be kept in mind that the superior is not obliged to perform the impossible; “a superior should only be held responsible for failing to take such measures that are within his material possibility”.304
177. Finally, in cases where concurrent application of Articles 7(1) and 7(3) is possible because the requirements of the latter form of responsibility are satisfied alongside those of the former, the Trial Chamber has the discretion to choose the head of responsibility most appropriate to describe the criminal responsibility of the accused.305
III. FACTUAL AND LEGAL FINDINGS
178. In this third part, the Trial Chamber will explore what are the particular facts of the case and whether these particular facts support beyond reasonable doubt findings that the crimes alleged in the Indictment, charged under Articles 3 and 5 of the Statute and as as examined in Part II, were committed.