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Maogoto, Jackson Nyamuya --- "Presiding Over the Ex-President: A Look at Superior Responsibility in Light of the Kosovo Indictment" [2002] DeakinLawRw 8; (2002) 7(1) Deakin Law Review 173


Presiding Over the Ex-President: A Look at Superior Responsibility in Light of the Kosovo Indictment

Jackson Nyamuya Maogoto[*]

I Introduction

In the bloody aftermath of World War I it became apparent that those in military or civilian authority provided a cornerstone for the good conduct of those under their command, and hence should carry some liability for their actions.1 A Commission2 established by the allies after World War I to assess the responsibility of German officers rightly assumed that a combination of power to intervene, knowledge of crimes and subsequent failure to act should render those concerned liable for the crimes of their subordinates.[2] Though the idea of an international penal process fizzled out, the Commission’s proposals found expression (albeit muted) in the subsequent German national trials at Leipzig.[2] It was to take another round of bloodshed and carnage about two decades later in World War II, before the concept of superior responsibility was explicitly codified as an international law norm with the adoption of the Nuremberg and Tokyo Charters[2] at the end of the war. The concept was to provide one of the cornerstones in the prosecution of German and Japanese war criminals by precluding the defence of superiors (military and civilian) that they were not criminally liable owing to their distance from the actual theatre of war and/or their non-participation in the actual commission of atrocities. The Nuremberg and Tokyo judgments established the foundation for the development of international criminal law and elaborated on the elements of criminal responsibility and proof.[2]

Despite the clarity of language in the Nuremberg and Tokyo Charters[2] and the strengthening of these principles via conventions,[2] regional treaties,[2] and recent declarations in the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTFY),[2] the International Criminal Tribunal for Rwanda (ICTR)[2] and the Rome Statute of the International Criminal Court (Rome Statute),[2] the actual obligation of prosecuting either former or sitting heads of State remains a formidable task. In modern times, heads of State arrogantly continue to flaunt their hold on power and their ability to avoid criminal liability.[2] To date, no sitting head of State has been criminally prosecuted or punished by another State for crimes against humanity, genocide or violations of the laws of armed conflict.[2] Though attempts have been made to prosecute and punish former heads of State, this has been largely unsuccessful as evidenced by the trial of Pinochet.[2] Despite the lack of success in the Pinochet Case,[2] the precedent offered evidence that States may be shifting toward a willingness to prosecute heads of State.[2]

In 1999, Slobodan Milosevic became the first sitting head of State to be indicted by an international criminal tribunal. The ICTFY Prosecutor indicted the then Federal Republic of Yugoslavia (FRY) President, President of Serbia and Chief of Staff of the FRY Armed Forces (Yugoslav Army) for crimes committed in Kosovo by the Yugoslav Army on the basis, inter alia, of his responsibility accruing from de jure and de facto positions of command.[2] The following year, Yugoslavian citizens pleased the world when they ousted their former dictator, thus making him vulnerable to prosecution. After a decade of first trying to contain and then capture the former Yugoslav leader, on 28 June 2001, a disbelieving Slobodan Milosevic was hustled out of Belgrade’s main prison on a journey that ended in the UN-controlled Scheveningen prison. The deposed dictator now faces the reality of having his actions subjected to legal review by the ICTFY.[2] Milosevic’s trial is currently underway. He faces among other charges, crimes against humanity and violations of the laws of war for authorising the mass deportation and killing of ethnic Albanians in Kosovo in 1998 and 1999. Initially, it was the prosecution’s intention that the events in Kosovo during 1999 be considered during the first trial, followed thereafter by a second trial targeting Milosevic’s role during the war in Bosnia and Herzegovina in 1995 and in the conflict with Croatia but before commencement of the trial, the prosecution successfully applied for an order to have all three indictments against Milosevic tried together.[3]

This Article discusses Milosevic’s responsibility as a superior in light of the Kosovo indictment, one of the three indictments issued against him by examining the various elements that are pivotal to the finding of superior responsibility. Part II of the Article commences with a general discussion of the superior responsibility doctrine by reviewing the law from the World War II international military tribunals and subsequent developments. Part III of the Article moves on to tackle the superior-subordinate relationship element, a prerequisite for a charge of superior responsibility. It examines the two arms of the element, de jure and de facto command and control. Part III examines the applicable standards of knowledge, which form an essential complement to a finding of superior-subordinate responsibility in determining guilt.

II Superior Responsibility Doctrine

The doctrine of command responsibility is based on the presumption that military officers and civilian officials possess the knowledge, authority and power to curb the transgressions of their troops. Command culpability is designed to encourage military commanders and civilian superiors to fulfil their legal duty to control the conduct of combatants. There is an equitable impulse which is satisfied by imposing primary, if not exclusive, responsibility on high-ranking officials in seeking a full rendition of a State’s conspiratorial design which may not be clearly and coherently determined in a prolixity of individual prosecutions of low-ranking subordinates. Failure to impose legal controls corrodes the integrity of the code of conflict and could contribute to chaotic consequences. The legal duty resting upon superior authorities requires that they take all necessary and reasonable measures to prevent the commission of offences. In the event that such crimes already had been committed, there is a duty to punish the perpetrators.

A The Law from the World War II International Military Tribunals

The liability of political and other leaders was set forth as follows in the Nuremberg Charter:

Art. 6: Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes [Art. 6(b) deals specifically with war crimes and Art. 6(c) deals with crimes against humanity] are responsible for all acts performed by any persons in execution of such plan.
Art. 7: The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.[4]

Neither the Nuremberg Charter nor the Judgment of the International Military Tribunal for the Trial of German Major War Criminals explicitly addressed the responsibility of military commanders or other leaders for a failure to act, probably because the degree of participation by leaders in the offences for which they were convicted made consideration of this issue unnecessary in the face of strong evidence of their direct liability. The most significant command responsibility cases to come from Nuremberg illustrating this judicial stance however came from the trials conducted under the auspices of Control Council Law No. 10[5] as opposed to the international military tribunal itself. In the leading German cases such as the High Command Case[6] and the Hostages Case,[7] it was usually clear that offences had been committed and that orders had been given at the highest level. Consequently, the decisions in the German cases revolve around the degree of responsibility to be assigned to commanders for implementing these orders. While prosecution of Nazi leaders for superior responsibility hinged on direct liability, in the Far east, prosecution of Japanese leaders revolved around imputed liability based on the superior’s actual or constructive knowledge of crimes by subordinates or gross negligence that contributed to their commission. In general, the leading Japanese cases dealing with the doctrine of military command responsibility such as Yamashita[8] and Toyoda,[9] addressed incidents in which it was clear that offences had been committed but there was no direct evidence that the accused ordered their commission.

The Yamashita Case is probably the best-known military command responsibility case. It is thought to stand for the proposition that a military commander is liable for the acts of his troops on the basis of strict liability. Major William H Parks, however, has criticised this viewpoint:

The value of the study of the Yamashita trial lies not in its often misstated facts nor in the legal doctrine of strict liability it purportedly espoused (but did not), but in the legal conclusions it actually reached. Yamashita recognised the existence of an affirmative duty on the part of a commander to take such measures as are within his power and appropriate in the circumstances to wage war within the limitations of the laws of war, in particular exercising control over his subordinates; it established that the commander who disregards this duty has committed a violation of the law of war; and it affirmed the summum jus of subjecting an offending commander to trial by a properly constituted tribunal of a State other than his own. [10]

While both international military tribunals and subsequent national trials by the victorious allies explicitly articulated command responsibility with respect to military commanders, and civilian superiors who had directly participated in military operations, it was unclear whether one should conclude that political and bureaucratic leaders have exactly the same responsibilities as do military leaders for the acts of their subordinates. This is especially so considering that the main reason why the command responsibility doctrine may differ for military commanders and others is that military commanders do exercise command and control over subordinates in a rigid hierarchical system with disciplinary powers and the authority to order subordinates. The scope of this military authority includes the power to order subordinates to risk their own lives. Most bureaucratic leaders do not wield the same type of life and death authority. The only post-World War II trial which appears to have considered the responsibility of political and bureaucratic leaders for failure to act was the international military tribunal at Tokyo. The Tokyo Tribunal articulated and imposed direct international legal responsibilities on political and bureaucratic leaders as well as military leaders.[11]

W J Fenrick notes that ‘[a]lthough it is practicable to state the customary law doctrine of military command responsibility as it existed about 1950 in terms which are generally acceptable, it is more difficult to establish the elements of a more generalised doctrine of command responsibility applicable to political and bureaucratic superiors as well as to military superiors. [12] There are two basic reasons for this. Firstly, while existing international law and military reality impose substantial direct responsibility on military commanders to control their troops, the distance of political leaders from the actual theatre of war and military activity is viewed as insulating them from personal liability.[13] Secondly, although the Nuremberg Charter explicitly indicated that officials and political leaders would not be freed from responsibility or punishment, the relevant command responsibility cases focused on incidents in which non-military persons were active participants in issuing orders and inciting subordinates to commit crimes.[14]

While the decision by the international military tribunal at Tokyo stands alone with regard to the command responsibility of political and bureaucratic leaders, its precedential value is important. Addressing the importance of this precedence in extrapolating an analogous doctrine of command responsibility for civilian leaders, W J Fenrick observes that

[t]he Tokyo decision provides support for the following propositions: (1) once the veil of statehood is pierced, international law may impose obligations on political and bureaucratic leaders in the same way that it imposes obligations on military leaders; (2) political and bureaucratic leaders may be held responsible for the acts of subordinates when they have ordered the commission of these acts; (3) political and bureaucratic leaders may be held responsible for the acts of subordinates when the leaders have a relationship with subordinates similar to those of a military commander and they fail to act to prevent or punish; and (4) political and bureaucratic leaders may be held responsible for the acts of subordinates when the leaders have a duty established either directly by international law or indirectly by domestic law or practice to ensure that their subordinates comply with the law and the leaders fail to fulfil that duty.[15]

A Post-World War II Developments

After the World War II trials, the application of command responsibility went into a freeze. There were no war crimes trials involving the doctrine of command responsibility at the international level for close to five decades. At the municipal level, the only noteworthy event occurred in the aftermath of the publicised My Lai massacre during the Vietnam conflict. There was considerable discussion of the concept of command responsibility and its application to senior U.S. military commanders. Though disciplinary action was taken against a few senior officers and Captain Medina was tried for a violation of US municipal law under the Uniform Code of Military Justice for the acts of his subordinate, Lieutenant Calley, neither the Medina Case, which resulted in an acquittal, nor the disciplinary action resulted in a significant development of the doctrine.

In the interim between the post-World War II tribunals and the ICTFY and ICTR tribunals, the most significant development for the international law of command responsibility is the encoding of the doctrine in 1977 as part of Additional Protocol I of the Geneva Conventions of 1949.[16] Additional Protocol I subsequently directly influenced the ICTFY in the Celebici Case in its construction of Article 7(3), the command responsibility provision of the ICTFY.[17] The Celebici Case in the ICTFY is the first international military tribunal opinion to hold a defendant liable under this formalisation of command responsibility as well as the first elucidation of the concept of command responsibility by an international judicial body since the cases decided in the wake of World War II.[18]

Consideration of the doctrine of command responsibility as it will be argued before the ICTFY must begin with Article 7 of the ICTFY Statute which contains explicit command responsibility provisions (mirrored in the ICTR Statute). Article 7 states that:

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in 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. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
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.
4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.[19]

Looking at this formulation of superior responsibility in the ICTFY Statute, W J Fenrick offers the following analysis:

Although Article 7(3) is infelicitously worded, it provides a basis for liability independent of Article 7(1). The superior who is found liable under Article 7(3) is not liable for the international legal equivalent of domestic military offences such as dereliction of duty or negligent performance of a military duty. If subordinates commit offences such as the grave breach of wilful killing as referred to in Article 2 of the Statute, then a superior found liable as a result of Article 7(3) is also guilty of the grave breach of wilful killing. Further, a superior who is held liable under Article 7(3) is a party to the main offence and is liable for the commission of the applicable offence under Articles 2 through 5 of the Statute.[20]

The ICTFY in the Celebici Case expounded upon the intricacies of each element of the command responsibility doctrine. The court construed the following three elements from the text of Article 7(3) of the ICTFY statute:

(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.[21]

These same three elements are readily apparent in Article 28(1), of the Rome Statute, the latest encodement of superior responsibility. Thee ICC military commander standard provides that 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, [relationship element] where:

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; [knowledge element] and (b) 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. [inaction element].[22]

The ICC civilian standard, Article 28(2), additionally embodies the same three elements. While the ICC civilian standard has the same three elements as the military standard, it may arguably add a fourth element with the provision of Article 28(2)(b),[23] a requirement for a nexus between the criminal activity of the subordinate and the subordinate’s activities that the superior can control. On the other hand, one could also interpret Article 28(2)(b) as merely a modification of the superior-subordinate relationship element. Summing up the bifurcation between the military and civilian standard that the Rome Statute espouses, Greg R Vetter puts it thus:

Article 28(1) of the ICC Statute applies to a ‘military commander or person effectively acting as a military commander.’ In contrast, article 28(2) applies to ‘superior and subordinate relationships not described in paragraph 1,’ that is, non-military superior-subordinate relationships. Historically, the military command responsibility doctrine applied not only to military commanders, but also to civilians. Thus, one can argue that in bifurcating the command responsibility standard based on the type of superior-subordinate relationship, the Rome Statute allows a lesser knowledge standard for civilians, that is, ‘consciously disregarded,’ and allows the potentially new nexus element, that is, ‘crimes concerned activities,’ to also potentially bar liability for civilians.[24]

III Superior-Subordinate Relationship Element

As noted in the Celebici Case,[25] the touchstone of command responsibility is a superior-subordinate relationship characterised by the capacity to effectively control the actions of subordinates.[26] This may be based on either the formal legal authority (de jure command) or informal practical power (de facto command) to prevent or to punish the crimes of subordinates.[27] Depending on the source from which authority is acquired, the existence of a superior-subordinate relationship can be established in these two independent ways. The most obvious means for the assumption of power is through official delegation of command through relevant legislation or authority accruing from holding a pertinent office. However, a position of command cannot be determined by reference to formal status alone.[28] In the absence of a formal grant of authority, the accused must actually be found to possess the right to control subordinates.[29] Mere authority to control actions of others does not preclude a finding of command responsibility.[30] An express formulation of the duty pertaining to commanders giving them the responsibility to prevent their subordinates from violating the laws of war and the responsibility to punish their subordinates if the laws of war are violated is found in Article 7(3) of the ICTFY Statute.[31]

The failure of commanders to discharge their binding obligation entails their responsibility for the underlying crimes committed by their subordinates under Article 7(3) of the ICTFY Statute.[32] This liability should be differentiated from liability that accrues from positive and direct participation in the crime, e.g., through ordering or inciting others, as is the case with ICTFY Statute Article 7(1).[33] It is obvious, thus, that the doctrine of command responsibility refers to both ‘direct liability’ as well as ‘imputed liability’.[34]

The court in Celebici discussed the nature of the superior-subordinate relationship at issue in the ICTFY Statute’s command responsibility provision. To construe the word ‘superior,’ the court analysed several cases, including the High Command and Hostage Cases.[35] The Celebici court held that while formal designation as a commander was not necessary, de facto or de jure possession of powers of control over actions of subordinates was in some cases sufficient to qualify one as a ‘superior.’[36] Further, the court specifically held that a superior may be a military person or a civilian.[37] The Court also ruled that the employment of the term ‘superior’ in Article 7(3), in juxtaposition with Article 7(2)’s affirmation of the criminal responsibility of a ‘Head of State,’ ‘Government official’ or ‘responsible Government official,’ indicated that criminal liability extended beyond military commanders to encompass political leader and other civilians in positions of authority.[38] The Tribunal noted that civilians were liable in those instances in which they exercised a measure of control over their subordinates analogous to that of military commanders.[39] The Appellate Chamber in Celebici summarised and further clarified the jurisprudence of command responsibility under the ICTFY Statute.[40] The Chamber affirmed that command responsibility under Article 7(3) encompassed both de jure and de facto authority[41] exercised by civilian as well as military authorities.[42] Central in determining command responsibility was the effective control to prevent or to punish criminal conduct[43] rather than formal position.[44] It stressed that the exercise of effective control to prevent or to punish crimes was the ‘minimum requirement for the recognition of the superior-subordinate relationship’ which typically entailed a subordinate relationship.[45]

In the Aleksovski Case, the Tribunal observed that hierarchical power was the touchstone of command responsibility.[46] A civilian may be characterised as a superior in those instances in which he/she possessed the de jure or de facto capacity to issue orders to prevent an offence and to punish the perpetrators.[47] A civilian authority, however, need not possess the authority to sanction analogous to a military official; this would unduly limit the scope of the doctrine of command culpability so as to exclude most civilians.[48] Aleksovski clarified that command responsibility was applicable to both military and civilian officials exercising de facto as well as de jure authority with the Trial Chamber affirming that de facto authority was to be measured by various factors, the most important of which was the capacity to prevent and to punish an offence or to report disciplinary violations to competent authorities.[49]

Commenting on the ICTFY jurisprudence of command responsibility in light of the ICTFY’s judgments in Celebici,[50] Blaskic,[51] Alekvoski[52] and Kordic,[53] Professor Mathew Lippman observes that

[i]n summary, the ICTFY decisions importantly contributed to expanding the doctrine of command culpability to civilians and to military officials exercising de facto as well as de jure authority. A range of factors might be considered in establishing de facto authority. However, the capacity to directly or indirectly prevent and to punish criminal conduct was central to the imposition of command responsibility. There must be at least a loose superior and subordinate relationship, but this does not require a rigid organizational chain of command. Mere influence was not sufficient to establish command liability.[54]

Turning to the Kosovo indictment, the superior-subordinate relationship element that renders Milosevic open to criminal liability hinges on establishing his de jure and/or de facto control over the actions of the Yugoslav Army. Commencing with de jure command, Milosevic’s de jure authority stems from his position as President of the FRY, in which capacity he also functioned as President of the Supreme Defence Council of the FRY. The Supreme Defence Council consists of the President of the FRY and the Presidents of the member republics, Serbia and Montenegro.[55] The Supreme Defence Council decides on the National Defence Plan and issues decisions concerning the Yugoslav Army. As President of the FRY, Slobodan Milosevic had the power to ‘order implementation of the National Defence Plan’[56] and commanded the Yugoslav Army in war and peace in compliance with decisions made by the Supreme Defence Council. Milosevic, as Supreme Commander of the Yugoslav Army, performed these duties through ‘commands, orders and decisions.’[57] Under the FRY Act on the Armed Forces of Yugoslavia, as Supreme Commander of the Yugoslav Army, Milosevic also exercised command authority over republican and federal police units subordinated to the Yugoslav Army during a state of imminent threat of war or a state of war.[58] As the crisis in Kosovo unfolded, a declaration of imminent threat of war was proclaimed on 23 March 1999, and a state of war on 24 March 1999. With the declaration of an imminent state of war and subsequently a state of war, the Armed Forces came under Milosevic’s control.[59] As a result, Milosevic placed himself at the top of the military chain of command, and became responsible for the actions of his troops.[60] Milosevic’s position in the chain of command provided the requisite causal link needed to connect him to the crimes in Kosovo, thus satisfying the elements of a prima facie case needed to execute his indictment. Milosevic’s position in the military chain of command renders him responsible for the actions of his subordinates within the Yugoslav Army and any police forces, both federal and republican, who committed the crimes alleged in the indictment between January and May 1999 in the province of Kosovo in as far as commands, orders and decisions relating to the war can be traced back to him either personally and/or to his office.

Undoubtedly, in addition to his de jure powers, Milosevic exercised extensive de facto control over numerous institutions essential to, or involved in, the conduct of the offences alleged in the Kosovo indictment. In as much as he had authority or control over the Yugoslav Army and police units, other units or individuals subordinated to the command of the Yugoslav Army in Kosovo, Milosevic, would bear criminally responsibility for the acts of his subordinates, including members of the Yugoslav Army and employees of the Ministries of Internal Affairs of the FRY and Serbia. As noted in the Kosovo indictment, ‘beginning no later than October 1988, Milosevic exercised de facto control over the ruling and governing institutions of Serbia, including its police force as well as de facto control over Serbia’s two autonomous provinces--Kosovo and Vojvodina--and their representation in federal organs of the SFRY and the FRY.’[61] It is of importance that in significant international negotiations, meetings and conferences, Milosevic was the primary interlocutor with whom the international community negotiated. He negotiated international agreements that subsequently were implemented within Serbia, the SFRY, the FRY, and elsewhere on the territory of the former SFRY.[62] This further cements the facts that point to his authority and power over the territory of the FRY, which includes the province of Kosovo.

Having reviewed facts pointing to Milosevic’s de jure and de facto authority, this writer is of the opinion that if liability for the acts of others is established through the element of authority over subordinates, it follows that the mere existence of such authority, whether acquired de jure or de facto, renders one superior for the purposes of Article 7(3) of the ICTFY Statute.[63] However it should be noted that the liability in Article 7(3) should be differentiated from liability that accrues from positive and direct participation in the crime, e.g., through ordering or inciting others, as is the case with Article 7(1).[64] The criminal complicity in Article 7(1) requires that it be proved that Milosevic directly, wilfully and substantially contributed to the commission of the offences. Failing proof of direct command responsibility, indirect command responsibility will come into play with the need to prove that Milosevic had either actual or constructive knowledge of crimes by subordinates or had committed gross negligence that contributed to their commission. At this point, the Article now turns to consider the critical issue of applicable standards of knowledge which complements the superior-subordinate element by establishing the presence or absence of guilt.

IV Applicable Standards of Knowledge

The Report of the Secretary-General which accompanied the draft ICTFY Statute addressed the issue of command responsibility as follows:

A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute. But he should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew or had reason to know that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them.[65] [Emphasis added]

In the Celebici Case, the Trial Chamber interpreted the requirements of Article 7(3) in light of customary international law and ruled that a superior possessed the requisite mens rea to incur criminal responsibility in those instances in which: he possessed actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes;[66] or he/she possessed information which, at a minimum, provided notice of the need for an additional investigation in order to determine whether such crimes had been committed or were about to be committed by subordinates.[67] The Court stressed that the doctrine of command responsibility did not provide for strict liability.[68] The court analysed the ICTFY Statute knowledge element in two parts: (1) actual knowledge, ‘knew;’ and (2) ‘had reason to know.’ The court in the Celebici Case was clearly aware of the Rome Statute provisions relating to superior responsibility.[69] With respect to actual knowledge, the Celebici court rejected the prosecutors’ proffered ‘Yamashita-like’ presumption that a commander’s knowledge of the crimes can be presumed holding that actual knowledge cannot be presumed but, in the absence of direct evidence of superior knowledge, can be inferred from circumstantial evidence.[70] The court effectively shunted aside the ‘presumption of knowledge’ standard attributed to the Yamashita Case. This standard in and of itself, has failed to develop into is a norm of customary international law. Its most important index which hinges on ‘widespread nature and notoriety of crimes’ falls within the ICTFY’s enunciation of circumstantial evidence within the ‘actual knowledge standard’ which was further elaborated on in the Blaskic Case.[71]

With respect to the ‘had reason to know’ standard, the court acknowledged that wilful blindness is criminal, and then was careful to distinguish the ICTFY standard, ‘knew or had reason to know,’ from ‘should have known.’ In this area the court was carefully respecting these minute differences in language because of the rejected ‘should have known’ formulations offered during the negotiations over Additional Protocol I to the Geneva Conventions.[72] The court held that the following standard reflected the practice of customary law at the time of the indictment of the Celebici defendants, and was accordingly the mens rea standard for Article 7(3) of the ICTFY Statute:

[A] superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates.[73]

A Actual Knowledge

The term ‘knowledge’ denotes awareness as to the existence of circumstance or awareness of it occurring.[74] According to the Celebici Judgment, ‘actual knowledge’ in Article 7(3) of the ICTFY Statute may be established through direct or circumstantial evidence.[75] Actual knowledge may also be imputed to superiors where they had ‘in [their] possession information of a nature, which at least, would put [them] on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by [their] subordinates.’[76]

The Kosovo indictment implicates Milosevic and his top lieutenants in the planning, instigation and ordering of the campaign of terror and violence directed at Kosovo Albanian civilians living in Kosovo in the FRY.[77] The indictment alleges that the campaign of terror and violence directed at the Kosovo Albanian population was executed by forces of the FRY and Serbia acting at the direction, with the encouragement, or with the support of Milosevic and his top lieutenants.[78] The operations targeting the Kosovo Albanians were undertaken with the objective of removing a substantial portion of the Kosovo Albanian population from Kosovo in an effort to ensure continued Serbian control over the province. To achieve this objective, the forces of the FRY and Serbia, acting in concert, engaged in well-planned and co-ordinated operations as described in paragraphs 92 through 98 of the indictment.[79]

Facts bear out the indictment’s observation that the forces of the FRY and Serbia, in a systematic manner, forcibly expelled and internally displaced hundreds of thousands of Kosovo Albanians from their homes across the entire province of Kosovo by intentionally creating an atmosphere of fear and oppression through the use of force, threats of force, and acts of violence. Throughout Kosovo, the forces of the FRY and Serbia looted and pillaged the personal and commercial property belonging to Kosovo Albanians forced from their homes. Policemen, soldiers, and military officers used wholesale searches, threats of force, and acts of violence to rob Kosovo Albanians of money and valuables, and in a systematic manner, authorities at FRY border posts stole personal vehicles and other property from Kosovo Albanians being deported from the province.

Milosevic finds himself in the unenviable position of trying to claim lack of knowledge of the atrocities in Kosovo. Not only were they so extensive, they were captured vividly on print and electronic media. There is strong evidence that he knew because of the direct communications from the ICTFY Prosecutor warning Milosevic of his responsibilities under international law.[80] So great was the humanitarian tragedy that the international community was forced to react through military force in an attempt to contain and halt the unfolding humanitarian catastrophe.[81]

B ‘Had Reason to Know’ Standard

Other than actual knowledge, Article 7(3) of the ICTFY Statute creates responsibility for failure to act upon information which a superior ‘had reason to know’.[82] This should be understood as having the same meaning as the phrase ‘had information enabling them to conclude,’ used in Additional Protocol I.[83] The ‘had reason to know’ standard means that commanders who are in possession of sufficient information to be on notice of subordinate criminal activity cannot escape liability by declaring their ignorance, even if such ignorance of the specific crime is amply established.[84] This standard creates an objective negligence test which takes into full account the circumstances at the time. Absence of knowledge is no defence if the superior did not take reasonable steps to acquire such knowledge,[85] which in itself is criminal negligence. Although this standard rejects a presumption of knowledge it, nonetheless, also rejects pleas of ignorance even if they are genuine. This raises a duty to know,[86] rebuttable only through evidence of due diligence, because it is a commander’s duty to be apprised of facts within his/her other command.[87]

The mens rea in the definition of Article 7(3) of the ICTFY Statute requires direct intention, indirect intention (otherwise known as oblique intention or dolus eventualis) or gross negligence. Indirect intention, defined as foreseeing a certain consequence as possible and yet proceeding with some unlawful act, is accepted in virtually every legal system, but there is divergence on whether foreseeability as to the consequence should be merely possible or virtually certain.[88] This view is supported by the Celebici Judgment in which the ICTFY noted that a commander may be held liable as long as the information available to that superior was sufficient to justify a further inquiry.[89] The Court further took cognisance of the standard contained in Article 28(1)(a) of the Rome Statute, pointing out that the test in Article 86(2) of Additional Protocol I was customary law at the time the offences were perpetrated and therefore applicable in the context of Article 7(3) of the ICTFY Statute.[90]

In the Celebici Case, the ‘reason to know’ standard was interpreted in accordance with what the Trial Chamber considered to be the ordinary meaning of the term.[91] The Court elaborated that a superior only may be held criminally responsible in those instances in which specific facts were available which would provide notice of offences.[92] This information need not definitively establish the commission of the delicts; it was sufficient that a superior was placed on notice that an additional investigation was required to determine whether offences were being committed or were about to be committed by subordinates.[93] The Trial Chamber stressed that this was the position of customary international law at the time of the commission of the crimes before the Court.[94] The Trial Chamber explained that this notice standard was based on the policy that the law should not condone a superior remaining wilfully unaware of the acts of his or her subordinates.[95]A superior who disregarded information within his or her actual possession which compelled the conclusion that a criminal offence may be, or was about to be committed, was guilty of a dereliction of duty.[96]

It appears that Milosevic and his government attempted to solve their Kosovo problem by producing a basic demographic change in the province through deportation of its Albanian population, the overwhelming majority. This was designed to produce a permanent solution, by redrawing the ethnic map of the province by driving out most of the people of Albanian ancestry who lived there, a plan that seems to be borne out by the tactics that the Serbian forces used in the military campaign in Kosovo. Under the circumstances it will not be an easy task for Milosevic to claim that he had no way of knowing that atrocities were being committed when the policy command was to rid Kosovo of its Albanian population something that of necessity would only be achieved through terror and intimidation, something not possible without threats of violence and actual violence.[97] Matters are not helped by the fact that Milosevic declared a state of war against the very citizens that he was supposed to be serving as president. Regardless of the evidentiary uncertainty underlying the level of Milosevic’s knowledge, it is readily apparent that there was either inaction, or ineffective action, to stop the atrocities.

If it cannot be proved under the ‘actual knowledge’ standard that Milosevic has blood on his hands through direct evidence linking his commands, orders and decisions to the execution of the war in Kosovo, constructive knowledge may be established through circumstantial evidence to reach a finding of ‘imputed command responsibility’ as opposed to ‘direct command responsibility’. This knowledge is arrived at through examining striking features of subordinate criminal activity and arriving at the inference that the superior who is accused was aware of those crimes. Imputation or inference through circumstantial evidence can be established in a number of ways. The Commission of Experts, responsible for investigating the legal and factual bases for gross violations of humanitarian law in the former Yugoslavia, noted that commanders ‘must have known’ about the criminal activities of their subordinates based on the number, type and scope of illegal acts; the time during which they occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; their widespread occurrence; the tactical tempo of operations; the modus operandi of similar illegal acts; the offenders and staff involved and the location of the commander at that time.[98]

V Duty of Superiors to Curb Transgressions of Subordinates

In the preceding sections, command and control has been discussed as well as the notice of commission of offences through the requisite knowledge standards. These elements, while forming the core of superior responsibility, nonetheless have the golden thread of the duty to control or prevent the crimes running through them. The doctrine of command responsibility rests on the presumption that military officers and civilian officials possessing knowledge and authority have the accompanying obligation to curb the transgressions of their troops. Command culpability is designed to encourage fulfilment of this legal duty and a failure to take appropriate measures to punish perpetrators entails individual criminal responsibility. While the post-World War II cases made it possible to develop a precise word picture of the doctrine as it applied to military operations, the skeleton of the doctrine in relation to duty to act as it applies to political and other leaders still needs fleshing out.

At the international trials in Tokyo, Koki Hirota, a diplomat and a civilian[99] was found guilty by the international military tribunal on Count 55, a command-responsibility-like provision,[100] based on the fact that during Hirota’s second term as foreign minister, Japan’s army was invading China and the Japanese army committed atrocities over a seven-week period in and around the city of Nanking. Hirota had received reports of these atrocities.[101] He discussed the reports with the Japanese War Ministry, but he accepted ‘assurances’ from the War Ministry that the problem would be corrected despite continuing reports.[102] Three decades later,the duty of commanders to take feasible measures within their power to prevent or repress crimes by troops under their command and control was explicitly encoded in Additional Protocol I. Article 86 imposed obligations on High Contracting Parties and while Article 87 dealt with the duty of commanders.[103]

Five years after the adoption of Additional Protocol I, the invasion of the Sabra and Shatila refugee camps near Beirut in September 1982[104] sparked serious debate on the application of the doctrine in relation to civilian/political leaders. Lebanese Phalangist militia forces trained, paid, equipped, and, to a degree, under the control of Israel, were permitted by Israel to enter the Sabra and Shatila refugee camps near Beirut. While there they massacred several hundred Palestinian refugees. Following the massacre, the Israelis established the Kahan Commission to assess the responsibility of various Israeli commanders and political figures for the massacre. Although the Commission’s treatment of command responsibility was based more on a moral analysis rather than legal doctrine, the Kahan Commission adopted a legalistic framework for assigning responsibility.[105]The Commission rejected the argument that the political leadership possessed no knowledge that the camps were being entered and concluded that certain political leaders, once informed of the entry into the camps, failed to fulfil duties to inquire about the circumstances, concluding that that Phalangist excesses must have or should have been foreseen on the basis of direct and circumstantial evidence presented to the political leaders.[106]

It was not until the establishment of the ad hoc international criminal tribunals in the 1990s that the issue of the duty of superiors in light of whether they held military or civilian positions was addressed judicially. In the Akayesu Case, the ICTR declined to state a general rule that the command responsibility doctrine applies to civilians.[107] Analysing the Hirota Case, the court cited Judge Roling’s dissent, which expressed concern with holding government officials responsible for the behaviour of the army.[108] The Akayesu court then found that ‘command responsibility for civilians remains contentious,’ therefore, the ICTR should evaluate civilians on a case by case basis to be sure that the ‘power of authority actually devolved upon the [civilian] . . . to take all necessary and reasonable measures’ to prevent or punish the crimes.[109]

In contrast in Celebici, the ICTFY held unequivocally that command responsibility ‘extends not only to military commanders but also to individuals in non-military positions of superior authority,’[110] even though it later limited its statement to civilian superiors who exercise subordinate control similar to that of military commanders.[111] Though the defense in Celebici argued that the prosecution must prove that the superior’s failure directly caused each violation, the court ‘found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility.’[112] The Celebici decision stressed that the information available to an official need not provide definitive proof and only must alert an official that an additional investigation is required.[113]

In the Blaskic Case, the Trial Chamber, ruled that a commander was required to exercise due diligence in the exercise of his duties.[114] Ignorance was not a defence in those instances in which the absence of knowledge resulted from a failure to take affirmative steps to remain informed of the actions of subordinates.[115] Clarifying that the reasonableness of a commander’s remedial measures to prevent and to punish criminal conduct was based on the extent of his effective control, the Court noted that Blaskic need not have possessed a clear criminal intent to expel and to exterminate Muslim civilians in order to be found criminally culpable.[116] The accused was well-aware from past reports that various units included troops with a history of committing war crimes. Though Blaskic was informed of the atrocities he failed to take reasonable and appropriate remedial measures

It is clear that, under the existing international law doctrine of command responsibility, as reflected in the ICTFY Statute, political, paramilitary and bureaucratic superiors may be held liable for a failure to control their subordinates as well as for acts they have themselves committed. The customary international law doctrine of command responsibility as it is reflected in the ICTFY Statute is applicable to military commanders, paramilitary commanders, political leaders, and other leaders who exercise a high degree of control over subordinates. The concept of command responsibility imposes personal criminal responsibility on a superior for international crimes committed by persons under his or her command or control as a result of a failure to act.

The events in Kosovo in 1999 which triggered the first ever indictment ‘in the history of [the ICTY] to charge a Head of State during an on-going armed conflict with the commission of serious violations of international humanitarian law’[117] covers facts relating to both ‘direct responsibility’ as well as ‘imputed responsibility’. Besides branding Milosevic as a war criminal, the indictment puts the command responsibility doctrine at centre stage in the debate over the scope and extent of duty that falls on a civilian superior. As the ultimate commander of the Yugoslav Army and Serb interior Ministry Police, Milosevic should have known that his troops were committing criminal acts. Considering the nature of his autocratic regime and his strong personal control over governmental institutions, Milosevic certainly had the power and authority to not only demand a comprehensive account, but also to institute the necessary disciplinary procedures. Besides effective command and control, facts bear out his authority to directly discipline his senior officers and thus influence the actions of soldiers in the field. It is not unreasonable to hope that the Milosevic trial will add flesh to the skeleton of the doctrine of command responsibility as it applies to political and other leaders.

In summing up this section, this Article will briefly review the Rome Statute provisions in view of its explicit bifurcation of the military and civilian standards. Prior to the Rome Statute, one issue in international law was whether the command responsibility doctrine embodied a single standard that applied to military commanders (or those effectively acting as military commanders) and non-military commanders.[118] Even though it arose in military law, the command responsibility doctrine has in a few instances been applied to civilian leaders. The Rome Statute merely served to compound the issue. Article 28 of the Statute uses similar language to provide separately two command responsibility standards, one for military commanders and another for civilian superiors.

Thus, under the Rome Statute, a civilian leader who is not ‘effectively acting as a military commander,’[119] and who is prosecuted for crimes within the ICC’s jurisdiction, will benefit from the more favourable civilian command responsibility standards. The objection to this is based on the fact that civilian leaders can set policy and objectives and exert control and authority. The less democratic the regime, the more likely it is that the civilian leader’s authority spans across many industries and important societal institutions. In the words of Professor Mathew Lippman,

[m]ilitary officials are liable for what they reasonably should have known while civilians culpability is limited to the conscious disregard of information which clearly connotes the commission of war crimes. This appears to limit the liability of civilian officials to instances of gross and wanton recklessness entailing a failure to act in response to clear and compelling evidence of criminal conduct. Mere inattentiveness, lack of due care or a failure to monitor or to investigate would not appear to be sufficient to satisfy this standard. The result is that a much lighter burden of care and concern appears to be imposed upon civilian than military officials.

VI Conclusion

Milosevic’s ultimate culpability at the ICTFY will be a function of the evidence. Astonishing volumes of evidence exist that human rights violations occurred in Kosovo,[120] and there is ample circumstantial evidence linking Milosevic through the chain of command to the armed forces that were deployed in Kosovo. But whether Milosevic would ultimately fall under the ICTFY Statute’s Article 7(1) direct responsibility standard or its Article 7(3) indirect responsibility standard turns on Milosevic’s level of knowledge.

After the Milosevic indictment was on record and the Serbian troops had withdrawn from Kosovo, the international community focused on collecting evidence of the crimes committed by Serbian forces. This evidence will determine the strength of the ICTFY Prosecutor’s case against Milosevic. Specifically, keen interest is on any evidence that can support accusations of ‘direct’ command responsibility that Milosevic planned and ordered the ethnic cleansing.[121] ‘A direct command responsibility claim creates the most solid case against Milosevic, while an imputed command responsibility claim creates different issues of proof for the prosecution.’[122] No doubt Milosevic will be tried according to the court’s elucidation of the command responsibility doctrine, much of which is expressed by the Celebici opinion.

First, it is possible that Milosevic would fall under Article 7(1) of the ICTFY Statute as one who ‘orders, solicits, or induces the commission of such a crime.’ Given reports that Milosevic was not fond of ‘paper trails,’ this might be an insurmountable burden of proof.[123] Since a direct ‘paper trail’ evidencing direct responsibility is unlikely, the ICTFY prosecutor may find it difficult to prove that Milosevic personally ordered or solicited or induced the crime. If this is the case, the second alternative is to consider Milosevic's situation under Article 7(3).

‘The inquiry into the second alternative would focus more on the pre-existing relationships between Milosevic and the Serbian forces that were deployed in Kosovo, rather than on proving that a specific order was transmitted to these forces to commit atrocities.’[124] The indictment recounts Milosevic’s de jure authority over these forces as well as his ‘extensive de facto control over numerous institutions essential to, or involved in, the conduct of the offences.’[125] Considering that Milosevic’s level of control over the armed forces is sufficient to establish a superior-subordinate relationship, then his guilt, under the ICTFY Statute, would turn on whether he ‘knew, or owing to the circumstances at the time, should have known,’ of the atrocities. There will be strong circumstantial evidence that he knew because of the direct communications from the ICTFY Prosecutor warning Milosevic of his responsibilities under international law.[126]

The ICTFY accepted Prosecutor Louise Arbour’s indictment of Slobodan Milosevic and four others for ‘direct’ command responsibility and ‘imputed’ command responsibility for various crimes against Kosovo Albanians.[127] Despite the underlying politics of the whole drama, the easier way to establish guilt will be through Article 7(3). Article 7(1) is more difficult. To show that the former president was part of what the prosecutors labelled a joint criminal enterprise meaning he and the field commanders conspired to rid certain areas of non-Serbs will not be easy. Nonetheless it is not an impossibility in view of the impressive collection of thousands of documents, intercepts of conversations, videotapes and recorded press interviews at the disposal of the prosecution. The calling of witnesses from Milosevic’s inner circle will definitely be of enormous value.

How Milosevic intends to address the issues is the key question. While a lot of circumstantial evidence exists, this far, the prosecution’s case has not in the author’s opinion lived up to grandiloquent rhetoric that characterised the prosecution’s opening statement. Some of the evidence is seen to be of dubious pedigree. With Milosevic refusing to recognise the legitimacy of the court and appoint counsel, the assembled media believed that it would be a straightforward case of reporting the former head of State’s uncontested guilt. However Milosevic’s ability in his defence statement to turn the tables on his accusers has caused some consternation, resulting in media coverage being low key. Milosevic defends Yugoslav Army action, saying it was involved in a counterinsurgency campaign against a terrorist organisation, the Kosovo Liberation Army. His skilful cross examination has often exposed the blindspot towards Albanian criminality and violence.


[*] PhD candidate at the University of Melbourne majoring in international criminal and humanitarian law. The author wishes to acknowledge the helpful and enlightening comments of an anonymous referee that contributed to the strengthening and broadening of the argument in this article. Any mistakes however remain the author’s.

1 The Commission on the Responsibility of the Authors of the War and Enforcement of Penalties proposed that a tribunal be established to prosecute those who ordered or abstained from either preventing or repressing violations of the laws or customs of war to be committed. Report Presented to the Preliminary Peace Conference, Versailles, [2]9 March 1919, reprinted in (1920) 14 American Journal of International Law 95. 2 2 The Commission on the Responsibility of the Authors of the War and Enforcement of Penalties.

3 The Commission on the Responsibility of the Authors of the War and Enforcement of Penalties proposed that a tribunal be established to prosecute those who ordered or abstained from either preventing or repressing violations of the laws or customs of war to be committed. Ibid[.]

4 For an analysis of the German national trials in relation to command responsibility, see Matthew Lippman, ‘Conundrums of Armed Conflict: Criminal Defenses To Violations of The Humanitarian Law of War’ (1996) 15 Dickinson Journal of International Law 1, 4-20.

5 Charter of the International Military Tribunal (Nuremberg Charter), reprinted in International Military Tribunal, Trial of The Major War Criminals Before The International Military Tribunal (1946-49) (1949-53) Vol 1: Tokyo Charter is reprinted in US Department of State, Trial of the Japanese War Criminals (1946) 39-44[.]

6 The Nuremberg and Tokyo trials were followed by a series of national and multinational prosecutions of German and Japanese civilian and military officials. See eg Matthew Lippman, &#8[2]The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany’ (1992) 3 Indiana International and Comparative Law Review (1992). See also Matthew Lippman, ‘Nuremberg: Forty Five Years Later’ (1991) 7 Connecticut Journal of International Law 1 (1991).

7 See the Nuremberg and Tokyo Charters, above n 4[.]

8 See Universal Declaration of Human Rights, adopted by the UN General Assembly 10 December 1948, GA Res [2]17 A (III), 3rd Sess., UN Doc A/810 at 71, (proclaiming that ‘[e]veryone has the right to life, liberty and security of person’ and that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’); International Covenant on Civil and Political Rights, adopted by the UN General Assembly 16 December 1966, 999 UNTS 171 (codifying many of the guarantees set forth in the Universal Declaration of Human Rights).

9 Eg, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950 [2] 13 UNTS 222 (the European Convention on Human Rights); American Convention on Human Rights, 22 November 1969, OAS Official Records, OEA/ser.K./XVI/1.1, Doc 65 rev 1, corr 1 (1970) reprinted in 9 ILM 673 (1970).

10 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, Statute, UN Doc S/[2]5704, annex (1993), reprinted in 32 ILM 1192 (1993).

11 International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, SC Res 955, annex UN SCOR, 49th Sess, Res & Dec, at 15, UN Doc S/INF/50 (1994), reprinted in 33 ILM 160[2] (1994).

1[2] UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute of the International Criminal Court, 17 July ICTFY 1998, UN Doc A/CONF/183/9, reprinted in 37 ILM. 999 (1998) (Rome Statute). The Rome Statute unequivocally ensures in art 25 that ‘[a] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.’ Ibid at art 25. Art 27 further proclaims that the Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

13 Mary Margaret Penrose, &#8[2]It’s Good To Be The King!: Prosecuting Heads of State and Former heads of State Under International Law’ (2000) 39 Columbia Journal of Transnational Law 193, 200.

14 The list of potential defendants is long and current Previously, there was Pol Pot, and now all but two prominent Khmer Rouge figures remain free in Cambodia. In addition, there are Idi Amin, Mengistu Haile Mariam, Jean Claude (Baby Doc) Duvalier and Alfredo Stroessner. Reliable information indicates the present residence of each of these individuals, yet, only Hissene Habre, the former Chadian dictator, and most recently Indonesia's Suharto, have seemingly been affected by the Pinochet precedent. Thus, while the words exist that permit--and, at times demand--former and sitting heads of state be prosecuted and possibly punished for their atrocities, the actions of the world community have fallen short of these proclamations. For details on the crimes of this former leaders and the impunity they continue to enjoy, see, Mary Margaret Penrose, &#8[2]It’s Good To Be The King!: Prosecuting Heads of State and Former heads of State Under International Law’ (2000) 39 Columbia Journal of Transnational Law 193; Diane F Orentlicher, ‘Putting Limits on Lawlessness: From Nuremberg to Pinochet’, Washington Post, 25 October 1998 at C01; Seth Mydans, ‘Cambodia Agrees to Tribunal Setup for Khmer Rouge Trials’ New York Times, 30 April 2000; Karl Vick, ‘Former Chad Dictator Faces Pinochet Test’ Washington Post, 27 January 2000 at A22; ‘An African Pinochet’ Editorial, New York Times, 11 February 2000 at A30. In fact, the only international prosecution of a head of State before the arrest and transfer of Milosevic was the case involving Jean Kambanda, former Prime Minister of Rwanda, who pled guilty to crimes of genocide and was sentenced to life in prison by the ICTR. See The Prosecutor v. Jean Kambanda, Judgment and Sentence of 4 September 1998, ICTR 97-23-S, available at http://www.ictr.org (visited 30 November 2001).

15 R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, 3 WLR 1456 (HL 1998) (&#8[2]Pinochet I’ in the text) annulled by R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2), 2 WLR 272 (HL 1999) (‘Pinochet II’) and R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, 2 WLR 827 (HL 1999) (‘Pinochet III’). For a legal analysis of the Pinochet case, see generally J. Craig Barker, ‘The Future of Former Head of State Immunity after ex parte Pinochet’ (1999) 48 International and Comparative Law Quarterly 937; Andrea Bianchi, ‘Immunity versus Human Rights: The Pinochet Case’ (1999) 10 European Journal of International Law 237; Michael Byers, ‘Decisions of British Courts During 1999 Involving Questions of Public International Law’ (1999) 70 British Yearbook of International Law 277, 277-95 (1999); Christine Chinkin, ‘In Re Pinochet’ (1999) 93 American Journal of International Law 703.

16 Pinochet Case, ibid[.]

17 Many human rights activists and scholars have openly proclaimed that the Pinochet precedent is one of the most important advances since the Nuremberg Trials. See for example Warren Hoge, &#8[2]After 16 Months of House Arrest, Pinochet Quits England’ New York Times, 3 March 2000 at A6 (reporting that Amnesty International issued a statement proclaiming that ‘the case represented the greatest advancement for international law since the Nuremberg trials’). Professor Diane Orentlicher suggests that ‘the Law Lords’ ruling [in the Pinochet case] is part of a larger trend emerging in the past few years: the beginning of the end of impunity.’ Diane F Orentlicher, ‘Crimes Against Humanity, Nuremberg Comes Back to Haunt’ Los Angeles Time, 20 December 1998 at M1; see also David Adams, ‘ “Pinochet Precedent” Ends Era of Impunity for Leaders’, St Petersburg Times, 5 March 2000 at 2A.

18 Indictment of [2]2 May 1999, IT-99-37, para 55-89, first amended on 29 June, second amendment on 29 October 2001 <http://www.un.org/ICTFY/indictment/ english/24-05-99milo.htm> (visited 20 January 2002). The indictment charge Milosevic with with crimes against humanity and violations of the laws or customs of war. The Kosovo indictment is not the only one against Milosevic. Two subsequent indictments for alleged crimes in Croatia and Bosnia and Herzegovina during the early ‘90s were issued in 2001. The Croatia Indictment, IT-01-50, charges the former Serbian leader with crimes against humanity, grave breaches of the Geneva conventions, and violations of the laws or customs of war. The Bosnia Indictment, IT-01-51, charges Milosevic with genocide, crimes against humanity, grave breaches of the Geneva conventions and violations of the laws or customs of war. These indictments can be accessed at the following URL <http://www.un.org/ICTFY/indictment/english/mil-ii011008e.htm> (visited 20 January 2002).

[2] Though, at Nuremberg each of the twenty-two defendants saw his day in court and suffered the penalties pronounced against him, not one of these individuals was considered a sitting or former head of State. While in Tokyo, four of the Class A war criminals were former prime ministers, the Allies decision not to prosecute Emperor Hirohito stole the thunder from the trials by privileging realpolitik considerations over justice.

[3] See Press Release, ‘The Prosecutor Against Slobodan Milosevic’: The Appeals Chamber Has Scheduled a Hearing on the Issue of the Joinder of the Indictments’ 25 January 2002 <http://www.un.org/ICTFY/latest/latestdev-e.htm> (visited 27 January 2002); ICTFY Weekly Press Briefing, 23 January 2002 <http://www.un.org/ICTFY/latest/latestdev-e.htm> (visited 27 January 2002).

[4] D Schindler and J Toman (eds), The Laws of Armed Conflict: A Collection of Conventions, Resolutions and Other Documents 826 (2nd ed, 1981) 826.

[5] Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, 3 Official Gazette Control Council for Germany (1946) 50-55.

[6] United Nations War Crimes Commission, The German High Command Trial, Law Reports of Trials of War Criminals (1949) Vol 12 at 34. Fourteen high-ranking officers of the German army were tried for war crimes and crimes against humanity.

[7] Ibid. The Hostages Trial, Vol 8, 34.

[8] Ibid. Yamashita Trial, Vol 4, 1. General Yamashita was tried for atrocities committed by troops under his command in the Philippines in the closing days of the war.

[9] Major William H Parks, ‘Command Responsibility for War Crimes’ (1973) 62 Military Law Review 1, 69-73. Admiral Toyoda was Commander in Chief of the Japanese Combined Fleet, Combined Naval Forces and Naval Escort Command and Chief of the Naval General staff. He was acquitted in one of the last major war crime trials.

[10] Ibid 37-38.

[11] International Military Tribunal for the Far East, Japanese War Crimes Trials, 1946-1948 (1948) 48, 443-45.

[12] W J Fenrick, ‘Some International Law Problems Related to prosecutions Before the International Criminal Tribunal for the Former Yugoslavia’ (1995) 6 Duke Journal of Comparative and International Law 103, 116.

[13] Ibid.

[14] Ibid.

[15] Ibid 117-118.

[16] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed conflicts (Additional protocol I) opened for signature 12 December 1977, 1125 UNTS 3, 16 ILM 1391.

[17] Prosecutor v Delalic, (Celebici Case) No IT-96-21-T (ICTFY 16 November 1998), <http:// www.un.org/icty/celebici/trialc2/jugement/part1.htm> (visited 22 October 2001) para 390-93.

[18] See Press Release: Celebici Case: The Judgement of the Trial Chamber, No CC/PIU/364-E, Nov. 16, 1998, available at <http:// www.un.org/icty/pressreal/p364-e.htm> (visited 3 November 2001). The press release states:

This Judgement is the first elucidation of the concept of command responsibility by an international judicial body since the cases decided in the wake of the Second World War. It emphasizes that the doctrine of command responsibility encompasses ‘not only military commanders, but also civilians holding positions of authority’ and ‘not only persons in de jure positions but also those in such positions de facto.

[19] ICTFY Statute, above n 10, art 7.

[20] Fenrick, above n 29, 111-112.

[21] Celebici Case, above n 34, para 346.

[22] Rome Statute, above n 12, art 28(1) (emphasised and bracketed text added to identify elements).

[23] Ibid art 28(2)(b) (‘The crimes concerned activities that were within the effective responsibility and control of the superior ....’).

[24] Greg R Vetter, ‘Command Responsibility of non-military Superiors in the International Criminal Court (ICC)’ (2000) 25 Yale Journal of International Law 89, 116.

[25] Celebici Case, above n 33, paras 4-10.

[26] Ibid. Criminal liability for command responsibility ‘may arise either out of the positive acts of a superior, referred to as direct command responsibility, or from culpable omissions, indirect command responsibility.’ Ibid para 333. The latter arises in those instances in which there is a duty to prevent or to repress the unlawful conduct of subordinates. Ibid para 334.

[27] Ibid para 354.

[28] Ibid para 370. While many of the indictments in both the ICTFY and the ICTR contain counts based on command responsibility, the Celebici Case in the ICTFY is the first international military tribunal opinion to hold a defendant liable under the formalisation of command responsibility spelt out in the ICTFY and ICTR Statutes. The Celebici opinion reviewed and discussed all the important command responsibility cases and legal developments.

[29] Ibid.

[30] Ibid para 354.

[31] ICTFY Statute, above n 10.

[32] See ILC Draft Code Commentary on Article 6, Report of the ILC on the work of its 48th session, GAOR, 51st sess, Supp No 10, UN Doc A/51/10 (1996) reprinted in (1997) 18 Human Rights Law Journal 96, 108-09. The Commentary notes that a commander who has failed in his duty to act ‘may be considered to be an accomplice under general principles of criminal law relating to complicity.’

[33] See Report of the Secretary-General Pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704, para 56.

[34] It has wrongly been suggested that because command responsibility requires personal involvement and a degree of knowledge, it is not a case of ‘imputed liability.’ See William G Eckhardt, ‘Command Criminal Responsibility: A Plea for a Workable Standard’ (1982) 97 Military Law Review 1, 5.

[35] See the Celebici Case, above n 33, para 365-68.

[36] Ibid para 370.

[37] Ibid. To the extent that a camp commander would be viewed primarily as a military commander, the Celebici court’s discussion of command responsibility for non-military superiors would be dicta. In introducing its discussion of the responsibility of non-military superiors, the court says that it ‘deems it appropriate to first set out its reasoning [on command responsibility for] persons in non-military positions of authority.’ Ibid para 355.

[38] Ibid para 356.

[39] Ibid para 378.

[40] Ibid para 192.

[41]Ibid .

[42] Ibid paras 192, 195. The term command normally means powers that attach to a military superior while the term control may encompass powers exercised by civilian leaders. The latter has been accepted as part of the jurisprudence of the Tribunal. Ibid para 196.

[43] Ibid paras 197-98.

[44] Ibid para 197.

[45] Ibid para 306.

[46] Ibid para 78.

[47] See Prosecutor v. Aleksovski, Case No IT-95-14/1-T, paras 1, 230 (International Criminal Tribunal for the Former Yugoslavia 1999), http://www.un.org/ICTFY.

[48] Ibid para 78.

[49] Lippman, below n 70, 76.

[50] Celebici Case, above n 33.

[51] Blaskic Case, below n 90.

[52] Alekvoski Case, above n 63.

[53] Ibid para 78.

[54] Mathew Lippman, ‘Humanitarian Law: The Uncertain Contours of Command Responsibility’ (2001) 9 Tulsa Journal of Comparative and International Law 1, 81.

[55] Kosovo Indictment, above n 17, para 21.

[56] Prosecutor v. Milosevic, No IT-99-37, Decision on Review of Indictment and Application for Consequential Orders, para 10 (1) (ICTFY, Trial Chamber, 24 May 1999).

[57] Kosovo Indictment, above n 17, para 21.

[58] Ibid para 22.

[59] See David S Cloud & Carla Anne Robbins, ‘Tribunal Readies War-Crimes Indictment of Milosevic’ Wall Street Journal, 27 May 1999 at A21.

[60] Ibid.

[61] Kosovo Indictment, above n 17, para 25.

[62] Ibid para 32.

[63] ICTFY Statute, above n 9, art 7(3).

[64] See Report of the Secretary-General Pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc S/25704, para 56.

[65] Ibid.

[66] Celebici Case, above n 33 at para 383.

[67] Ibid.

[68] Ibid.

[69] The court in Celebici noted the new ICC civilian knowledge standard. See ibid para 393, n 424.

[70] The court justified rejecting the presumption as follows:

[T]he Prosecution asserts the existence of a rule of presumption where the crimes of subordinates are a matter of public notoriety, are numerous, occur over a prolonged period, or over a wide geographical area. However, the legal authorities cited by the Prosecution in this regard are insufficient to support the operation of such a rule. Among the cases relied upon by the Prosecution in this respect is that of General Yamashita. An examination of the findings of the Military Commission however, does not bear out this claim. In fact, the nature of the mens rea ascribed to General Yamashita in that case is not immediately apparent from the Commission’s decision.

Ibid para 384.

[71] Prosecutor v. Blaskic, Judgment, Case No IT-95-14, PP 9, 112 (International Criminal Tribunal for the Former Yugoslavia 2000), http://www.unorg.ICTFY. Ibid para 307.

[72] See Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict: Protocols I and II to the Geneva Conventions, UN Doc A/32/144 (1977) reprinted in 16 ILM 1391 (1977);

[73] Celebici Case above n 33, para 393.

[74] See ICC Prep-Com, 11-21 February 1997, Decisions Taken by the Preparatory Committee, UN Doc A/AC.249/ 1997/L.5 Article H (12 March 1997).

[75] Prosecutor v. Delalic, (Celebici Judgment) Judgment No IT-96-21-T (16 November 1998), <http://www.un.org/ icty/celebici/trialc2/jugement/main.htm> (visited 19 August 2001).

[76] Ibid para 383.

[77] Kosovo Indictment, above n 17, para 53.

[78] Ibid para 54.

[79] Ibid.

[80] See Press Release--Justice Louise Arbour, the Prosecutor of the International Tribunal, Writes to President Milosevic and Other Senior Officials in Belgrade and Kosovo To Remind Them of Their Responsibilities Under International Law, No JL/PIU/389-E, 26 March 1999, available at <http:// www.un.org/ICTFY/pressreal/p404-e.htm> (visited 5 November 2000) (quoting from the Prosecutor’s letter: ‘[I]n the light of current reports of escalating violence in Kosovo, I am gravely concerned that serious violations of international humanitarian law continue to be committed... I therefore look to you to exercise your authority over your subordinates... to prevent the commission of further crimes.’)

[81] See Chronology of Kosovo Conflict, Associated Press electronic news release, 2 April 1999 <http://wire.ap.org// gotoap.cgi> (visited 4 April 2001). A detailed summary of the NATO forces involved in Operation Allied Force and the enemy Yugoslav forces can be found at the US Department of Defense website at <http://www.defenselink.mil/specials/kosovo/> (visited 4 April 2001).

[82] ICTFY Statute, above n 9.

[83] Additional Protocol I, above n 32, art 86(2).

[84] See Celebici Judgment, above n 91, para 387; in Commonwealth v. Welansky, 316 Mass. 383, 55 N.E. 2d 902 (1944), it was held that knowing facts that would cause a reasonable man to ascertain the danger is equivalent to knowing the danger.

[85] See Celebici Judgment, ibid at para 388, citing 20 Record of Proceedings of the International Military Tribunal for the Far East (1946-1949) (Library of Congress, microfilm, reel 37 of 37) 48, 445, and Hostages Case, above n 63, 1230, 1271.

[86] Recognised in United States v. Pohl, Law Reports of Trials of War Criminals, above n 23, Vol 5 at 958, 1055 (1950); Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v. Roechling, Judgment on Appeal to the Superior Military Government Court of the French Occupation Zone in Germany (Roechling Case), ibid, Vol 14 at 1097; Celebici Judgment, above n 44, para 388.

[87] See Yamashita Case, above n 23, 94-95; United States v. Pohl, ibid at 49, 62.

[88] For example, in English law, oblique intent is not considered to be an independent form of mens rea, rather it may provide the jury with evidence of direct intent. See R. v. Nedrick [1986] EWCA Crim 2; [1986] 3 All ER 1.

[89] Celebici Judgment, above n 28, para 393.

[90] Ibid.

[91] Celebici Case, above n 33 at para 393.

[92] Ibid.

[93] Ibid.

[94] Ibid.

[95] Ibid para 387.

[96] Ibid.

[97] The operation code-named ‘horseshoe,’ or ‘potkova’ in the Serbian language is held out by NATO and its Allies to confirm that Milosevic aimed at systematic deportation of Kosovo’s Albanian majority based on among other things, the expulsion tactics of the Serb army. However the Operation is shrouded in controversy. The documentation on ‘Operation Horseshoe’ was not presented to the public for critical scrutiny but was merely claimed to exist. In some quarters, it has even been claimed to be a forgery. See eg, ‘ “Operation Horseshoe”: Kosovo Forgery Revealed’ (Rockford Institute Centre for International Affairs). <http://www.infotrad.clara.co.uk/antiwar/horseshoehoax.htm> (visited 20 January 2002); ‘The Aftermath of the Publication of the German Government Documents’ (Eric Canepa, trans, & ed), <http://www.lbbs.org/crisescurevts/germandocsmore.htm> (visited January 2002). Jan Oberg, Transnational Foundation for Peace and Future Research, Press Info 64 (25 April 1999) at www.transnational.org/pressinf/pf64.html> (visited on 20 January 2002).

[98] See Final Report of the Commission of Experts, Established Pursuant to Security Council Resolution 780 (1992), UN SCOR, Annex, UN Doc S/1994/674, (27 May 1994) para 58. See also Celebici Judgment, above n 91, para 386.

[99] R John Pritchard & Sonia Magbanua Zaide (eds), The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East 49, (1981, 20 Vols) Vol 1, 21-75.

[100] See ibid 70-71.

[101] See ibid 49,610-11.

[102] See ibid, Vol 20, 49,791.

[103] While Articles 86 and 87 should be considered as essentially reflecting current customary law, the two separate commentaries on Additional Protocol I, by the ICRC and Bothe, Partsch and Solf discuss Article 86 in essentially military terms. The approach taken is that non-military persons may be superiors within the meaning of Article 86, but, if so, they should be exercising powers over subordinates which are substantially similar to those of military commanders. The ICRC Commentary discusses ‘superior’ in what is, at a minimum, quasi- military terms. See Yves Sandoz et al. (eds) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949 (1987) 1005-16; Michael Bothe et al, New Rules for Victims of Armed Conflicts (1982) 523- 29.

[104] Fenrick, above n 29, 120-123.

[105] Ibid 121.

[106] Final Report of The Commission of Inquiry into the Events at the Refugee Camps in Beirut 1983, 22 ILM (1983) 473.

[107] See Prosecutor v. Akayesu, No. ICTR-96-4-T (ICTR 2 September 1998), available at <http:// www.un.org/ictr/english/judgements/akayesu.html> (visited 3 November 2000) § 6.2. Quoting the commentary to Additional Protocol I, the court expressed that there are many ‘varying views regarding the Mens rea requirement for command responsibility.’

[108] Judge Roling was quoted as stating that a court should:

[B]e careful in holding civilian government officials responsible for the behaviour of the army in the field. Moreover, the Tribunal [IMT-FE] is here to apply the general principles of law as they exist with relation to the responsibility for omissions. Consideration of both law and policy, of both justice and expediency, indicate that this responsibility should only be recognized in a very restricted sense.

Ibid.

[109] Ibid.

[110] Celebici Case, above note 33, para. 363.

[111] Ibid para 378.

[112] Ibid para 398.

[113] Celebici Case, above note 33, para 393.

[114] Blaskic Case, above note 88, para 574

[115] Ibid para 332.

[116] Ibid para 474.

[117] Press Release: President Milosevic and Four Other Senior FRY Officials Indicted for Murder, Persecution and Deportation in Kosovo, No. JL/PIU/403-E, 27 May 1999, available at <http:// www.un.org/icty/pressreal/p403-e.htm> (visited 5 November 2000) (quoting Prosecutor Louise Arbour in her application of indictment to Judge Hunt); see also Charles Trueheart, Kosovo in Crisis, Wahington Post, 28 May, 1999, at A1 (referring to the joint indictment as ‘the first in history against a wartime chief of state.’).

[118] See M Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996).

[119] Rome Statute, above n 12, art 28(1).

[120] See generally US Dep’t of State, The Ethnic Cleansing in Kosovo: Fact Sheet Based on Information from U.S. Govt. Sources, available at

\ <http:// www.state.gov/www/regions/eur/rpt_990604_ksvo_ethnic.html> (visited 5 November 2000) (detailing atrocities and war crimes by location and type).

[121] Kosovo indictment, above n 17 para 34-35,37.

[122] Vetter, above n 40 at 138-139.

[123] See Elizabeth Neuffer, ‘Indictment of Milosevic to Test NATO’s Will’ Boston Globe, 30 May 1999 at E1 noting that ‘[t]hose familiar with Mr Milosevic’s habits say he rarely leaves an incriminating paper trail, doesn't use the telephone, and issues no written directives.’

[124] Vetter, above n 41, 139.

[125] Kosovo indictment, above n 17, 55-62.

[126] See Press Release--Justice Louise Arbour, the Prosecutor of the International Tribunal, Writes to President Milosevic and Other Senior Officials in Belgrade and Kosovo To Remind Them of Their Responsibilities Under International Law, No JL/PIU/389-E, 26 March 1999, available at <http:// www.un.org/icty/pressreal/p404-e.htm> (visited 5 November 2001) (quoting from the Prosecutor’s letter: ‘[I]n the light of current reports of escalating violence in Kosovo, I am gravely concerned that serious violations of international humanitarian law continue to be committed... I therefore look to you to exercise your authority over your subordinates...to prevent the commission of further crimes.’).

[127] See Prosecutor v Milosevic, No IT-99-37 (ICTFY 24 May 1999) para 6, available at Decision on Review of Indictment and Application for Consequential Orders (visited 222 October 2000) <http:// www.un.org/icty/milosevic/decision-e/052499rev.htm> .


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