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Enforcement of Violations of IHL:
The ICTY Statute – Crimes and Forms of Liability
YASMIN NAQVI[∗]
This paper is based on a lecture to University of Tasmania law students in a summer school course on International Humanitarian Law,
15 January 2014
The Statute of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)[1] is a relatively brief document, particularly when compared to the Rome Statute of the International Criminal Court (‘ICC’). Subject matter jurisdiction and modes of liability take up a mere six articles.[2]
Unfortunately, this does not make the life of a lawyer practicing at the ICTY any easier. What it does mean is that every word and phrase in the Statute is given significant legal weight and is subject to detailed judicial interpretation. Legal Officers in Chambers can spend some months analysing just two words in the Statute. That may sound a little tedious. In a field of law such as international humanitarian law (‘IHL’) or international criminal law, however, correctly interpreting two words may make the difference between the Tribunal having jurisdiction or not having jurisdiction over a case, or between a person being found responsible or acquitted for a crime. For these reasons, and because even after 20 years of the ICTY’s existence, controversy and debate continue over a number of interpretations of the applicable law, the job of analysing two words in the Statute or in the case law is actually an exacting and exciting – if somewhat pressured – task.
This lecture describes the subject-matter jurisdiction and forms of liability under the ICTY Statute. I will focus on the interpretational difficulties that the Tribunal has faced in applying the Statute – how it has sought to resolve them – and what so-called ‘grey areas’ or areas of controversy remain.
As provided by Article 1 of the ICTY Statute, the Tribunal only has jurisdiction over serious violations of IHL committed in the territory of the former Yugoslavia since 1991. That means it only has jurisdiction over crimes – including crimes against humanity – when committed in armed conflict.
The existence of an armed conflict is required for Articles 2 (grave breaches), 3 (other serious violations of IHL) and 5 (crimes against humanity) of the Statute to apply. However, the content of the requirement differs depending on which article is applied. The existence of an armed conflict is a condition of applicability of Articles 2 and 3, but a jurisdictional condition of Article 5. Thus, an armed conflict is not a condition for a crime against humanity but is a condition for its punishment by the Tribunal.
The term ‘armed conflict’ may appear as descriptively clear. However, applying that notion to actual events has proved to be a challenging exercise. The case of Boškoski and Tarčulovski provides a good example.
Consider this scenario. It is Sunday, 12 August 2001, around 8 a.m. in a small village of some 3,000 residents in the Former Yugoslav Republic of Macedonia (‘FYROM’). Shelling occurs in the village, apparently from nearby army positions in the hills surrounding the village, destroying a couple of barns. An armed police unit of about 60 to 70 men then enter the village on foot. Two villagers – a father and son – run to close their front door and are gunned down. The police continue down the street, setting fire to cars and houses and throwing hand grenades. An armoured personnel carrier drives through the village, from which the police fire shots. At one villager’s house, around 10 men shelter in the basement, while the women and children shelter in the neighbouring house. The police fire at the basement window and the villagers surrender immediately. None of them are armed. They are taken outside, made to lie face down on the ground and beaten severely, all the while being called terrorists and being forced to sing nationalistic songs. One man is shot dead when he attempts to walk away. They are then forced to walk barefoot to the police station. They are taken to a police checkpoint where they are further beaten and then on to a police station, where they are tortured, beaten and forced to sign blank papers. Two men die as a result of the beatings. Elsewhere in the village, a number of men try to run away through the fields to the woods and are gunned down. Those who survived the beatings are eventually put into prison for four months on charges of terrorism.
The police officer in charge of the operation and the Minister of the Interior are accused by the ICTY Prosecutor of murder and wanton destruction of a village and cruel treatment.
Now imagine that you are a lawyer working for the ICTY and are asked to advise the three judges of the Trial Chamber whether the ICTY has jurisdiction over this case. The first question you ask is undoubtedly: did this happen in an armed conflict? Because unless these events happened during an armed conflict, the ICTY has no jurisdiction over the case.
You need to make an assessment of the situation in FYROM in August 2001. In particular, you need to analyse two things: (1) the intensity of the conflict; and (2) the organisation of the parties (in this case, the Macedonian police and army and the ethnic Albanian National Liberation Army (‘NLA’)).[3]
In terms of intensity, while the situation in 2001 in FYROM was on the United Nations Security Council’s radar and there were around 80,000 refugees and 86,000 internally displaced persons, there remained relatively few casualties of the violence experienced on both sides and to civilians (the highest estimates put the total number of those killed during 2001 as a result of the armed clashes at 168), and material damage to property and housing was of a relatively small scale. Does this mean that it cannot be considered as an armed conflict?
The Trial Chamber in Boškoski and Tarčulovksi did not think so. It held that these low figures may indicate that, despite the use of heavy weaponry by the FYROM forces, there was generally restraint in the way in which it was used. Another factor is that the armed clashes that occurred usually involved small numbers of forces and tended to be localised. It noted that, in general, the tactics favoured by the NLA were of a guerrilla nature in that they often involved a quick strike by a small force making full use of the terrain and that against such tactics there was limited scope for a massive military offensive that would normally produce greater casualties. The Trial Chamber also took into account the applicable legal framework at the time – the fact that: (i) the President was issuing orders under his role as commander-in-chief of the army; (ii) the prisoners were detained on charges of being part of an enemy force during a war and were released following an amnesty with an exception for war crimes; and (iii) the police routinely used force beyond that necessary for a law enforcement operation.[4]
In terms of organisation – it is not the case that the NLA at any time was a modern, well-organised and supplied, trained and disciplined, efficient fighting force. Does this mean the situation in August 2001 cannot be considered an armed conflict? The Trial Chamber again found that this was not the case. It found that the NLA was sufficiently organised to be considered as a party to an armed conflict, focusing on the fact that the NLA managed to compel the government to commit the full weight of its substantial army (including reserves) and large police force (including reserves) to fight against the NLA. [5]
At the appeal phase of this case, an argument about the Tribunal’s alleged lack of jurisdiction was brought from another angle. It was argued that a police operation countering ‘terrorists’ could not be subject to IHL because it was an action by the State in self-defence, as authorised under the Charter of the United Nations.[6] Notably, this argument brought at an international institution was reminiscent of the legal position of the US Department of State at the time fighting Taliban and Al-Qaeda groups in Afghanistan in the (itself ill-defined) ‘War on Terror’.[7]
The Appeals Chamber dealt with this challenge to the Tribunal’s jurisdiction by recalling some well-established principles: there is a fundamental distinction in international law between the rules governing a State’s right to resort to armed conflict (jus ad bellum) and the rules applicable in armed conflict (jus in bello). This distinction entails that the application of the jus in bello is not affected by the legitimacy of the use of force by a party to the armed conflict. Hence, whether an attack is ordered as pre-emptive, defence or offensive is irrelevant from a legal point of view – the only issue is whether the way the military action was carried out was criminal or not under IHL.[8]
For the grave breaches of the Geneva Conventions of 1949 contained in Article 2 of the Statute to apply, two conditions must be met:
(1) the conflict must be international in nature; and
(2) the crimes must be committed against "protected persons" within the meaning of the Geneva Conventions of 1949.[9]
The need to qualify the conflict seems clear enough. The challenge lies in the fact that the conflict in the former Yugoslavia was complicated to qualify. Up to 25 June 1991 the Socialist Federal Republic of Yugoslavia (‘SFRY’) was made up of six republics – Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia (including the regions of Kosovo and Vojvodina) and Slovenia. Coinciding with the collapse of communism and resurgent nationalism in Eastern Europe during the late 1980s and early 1990s, Yugoslavia experienced a period of intense political and economic crisis. In June 1991, Slovenia and Croatia declared independence. This was followed in April 1992 by the further declarations of independence of Macedonia and Bosnia and Herzegovina. The two remaining republics – Serbia and Montenegro – declared themselves as the Federal Republic of Yugoslavia (‘FRY’) on 27 April 1992.
While Slovenia managed to separate rather bloodlessly, Croatia was a different story. The sizeable ethnic Serb minority in Croatia openly rejected the authority of the newly proclaimed Croatian state citing the right to remain within Yugoslavia. With the help of the Yugoslav People’s Army (‘JNA’) and Serbia, Croatian Serbs rebelled, declaring nearly a third of Croatia’s territory under their control to be an independent Serb state. Croats and other non-Serbs were expelled from its territory in a violent campaign of ethnic cleansing. Clearly this was both an internal, and, with the intervention of Serbia and Montenegro, an international armed conflict.
For Bosnia and Herzegovina, the republic’s strategic position made it subject to both Serbia and Croatia attempting to assert dominance over large chunks of its territory. In fact, the leaders of Croatia and Serbia had in 1991 already met in a secret meeting where they agreed to divide up Bosnia and Herzegovina, leaving a small enclave for Muslims. In March 1992, in a referendum boycotted by Bosnian Serbs, more than 60 percent of Bosnian citizens voted for independence. Almost immediately, in April 1992, Bosnian Serbs rebelled with the support of the JNA and Serbia, declaring the territories under their control to be a Serb republic in Bosnia and Herzegovina. Through overwhelming military superiority and a systematic campaign of persecution of non-Serbs, they quickly asserted control over more than 60 per cent of the country. Bosnian Croats soon followed, rejecting the authority of the Bosnian Government and declaring their own republic with the backing of Croatia. The conflict turned into a bloody three-sided fight for territories. The situation was a horrific combination of two internal and two international armed conflicts.
In Tadić, which concerned crimes committed against Bosnian Muslim civilians in the Prijedor area of Bosnia-Herzegovina by Bosnian Serb forces with the support of the JNA controlled by Serbia, the Trial Chamber held that the civilians who technically held the same nationality as their tormentors did not qualify as protected persons.[10]
The Appeals Chamber disagreed. It first noted that it was necessary to determine whether the conflict was international, and it did so, even deviating somewhat from the International Court of Justice’s pronouncement on the level of control a State would need to exercise over a non-State party (‘overall control’ vs ‘effective control’) in order to so conclude.[11]
It then noted, in respect of the second requirement of Article 2 – that the victims or properties subject to violations be protected – that the nationality requirement contained in the Geneva Conventions should not be given an overly strict or formal interpretation. The Appeals Chamber reasoned that in an inter-ethnic armed conflict, a person’s ethnic background may be regarded as a decisive factor in determining the nation to which he owes his allegiance and thus may establish the status of the victim as a protected person. When it comes to determining nationality, ethnicity is more important than citizenship.[12] As a result of this interpretation, Tadić was convicted of a further nine counts.
Similarly, in Blaškić, the ICTY found that the control exercised by Croatia over the Bosnian Croat forces and authorities constituted both direct and indirect intervention and that the conflict was therefore international. It also found that Bosnian Muslims could be regarded as being of a nationality distinct from their oppressors and consequently as "protected persons".[13]
The list of grave breaches in the ICTY Statute may seem a bit limited; for instance, rape is not listed. Again, interpretation has allowed the ICTY to consider rape as a grave breach. In Čelebići, which concerned members of Bosnian armed forces charged with sexual violence against Bosnian Serb civilians kept in a prison camp in Čelebići in central Bosnia-Herzegovina, the Trial Chamber found that rape was a form of torture and therefore qualified as a grave breach and a violation of the laws and customs of war.[14] Similarly, in Furundžija, which concerned the rape of Bosnian Muslim women by Bosnian Croat soldiers, the Trial Chamber found that rape was a grave breach and a violation of the laws and customs of war.[15] Significantly, the Trial Chamber also confirmed that rape may be used as a tool of genocide.[16]
What about those offences that fall outside the grave breaches regime?
Article 3 of the Statute is a ‘residual clause’ which establishes jurisdiction over any serious violation of IHL not covered by Articles 2, 4 (genocide), or 5 (crimes against humanity) of the Statute.[17]
The jurisprudence of the Tribunal has consistently held that for an offence to fall under the scope of Article 3 of the Statute, four conditions must be met:
(1) The violation must constitute an infringement of a rule of international humanitarian law.
(2) The rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met.
(3) The violation must be serious, that is to say that it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim.
(4) The violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.[18]
This means, for example, that violations of Article 3 of the Geneva Conventions, e.g. murder and cruel treatment committed in a non-international armed conflict, are covered by Article 3 of the ICTY Statute. It also means that other violations of IHL, such as ‘acts or threats of terror the primary purpose of which is to spread terror among the civilian population’ may be found to constitute war crimes under the Statute so long as they meet the four conditions (as was held in the Galić case).[19]
The ICTY has the specific competence to prosecute persons for the crime of genocide. What does the crime of genocide add that war crimes and crimes against humanity do not cover? For a start, it criminalises behaviour that is intended to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. For this reason it is a much more narrow crime than the acts covered by war crimes. It is also far more serious.
Only one event to date has been considered by the ICTY as amounting to genocide: the events at Srebrenica and Žepa in July 1995.
What happened at Srebrenica and what made it genocide? Srebrenica and Žepa were UN protected enclaves, although the Bosnian Muslim army (ABiH) had also brought weapons into the enclave and sometimes used the enclaves as a base from which to launch attacks. In July 1995, the Bosnian Serb forces attacked the enclaves, quickly overpowering the Dutch Blue Helmet Observation Posts. The elderly, women and children made their way to the UN compound at Potočari. The men and older boys formed a column, led at the front and rear by the ABiH, to try to make a break to Bosnian Muslim held territory. At Potočari, the Bosnian Serb forces separated the women and children from the men. The women and children were put on buses and removed from the enclave. The men were detained in various schools in the district. At the same time, the column was subject to heavy shelling and shooting. Thousands of men surrendered or were captured by Bosnian Serb forces, and were put into detention sites. These men, together with those separated from their families at Potočari, were systematically executed over a period of about 3-4 days. Following these events, there were around 8,000 missing Bosnian Muslim men and boys.
The Trial Chamber in Popović et al found that the acts of genocide constituted: (1) killing members of the Bosnian Muslim group; and (2) causing serious bodily or mental harm to members of the group. In finding that these acts amounted to genocide, the Trial Chamber looked at:
• The scale and nature of the murder operation;
• The targeting of the victims;
• The systematic and organized manner in which it was carried out; and
• The plain intention to eliminate every Bosnian Muslim male who was captured or surrendered.
The Trial Chamber found that these elements proved beyond reasonable doubt that members of the Bosnian Serb Forces, including members of the VRS Main Staff and Security Branch, intended to destroy the Muslims of Eastern Bosnia as a group.[20]
Although the Trial Chamber found that the forcible transfer of the women and children, in and of itself, did not constitute an underlying act of genocide, it drew further support for its conclusion from ‘the other culpable acts systematically directed against the same group’ in the same time period (notably the forcible transfer operation aimed at the population in Potočari and its accompanying circumstances). It also noted that the frenzied efforts to forcibly remove the remainder of the population, while the male members of the community were targeted for murder, provided further evidence that the intent was to destroy.[21]
In Tolimir, which dealt with the same events, the Trial Chamber also found that the forcible transfer from Srebrenica and Žepa amounted to genocide by causing ‘serious mental harm’ and ‘deliberately inflicting on the [protected] group conditions of life calculated to bring about its physical destruction’. [22]
The other interesting thing that the genocide provision does that the war crimes provisions do not is that it makes inchoate offences punishable under the Statute: that is, not just the crime of genocide, but also conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. Arguably, a person could be convicted of such offences even if they did not cause genocide or the genocide was uncompleted.
A lingering question for the ICTY Appeals Chamber to resolve is whether a person may be convicted of both the crime of genocide and conspiracy to genocide. In Popović et al, the Trial Chamber found that the crime of genocide subsumed the inchoate offence of conspiracy to commit genocide, and hence that a person could not be found liable for both offences.[23] Conversely, in Tolimir, the Trial Chamber found the accused responsible for both offences.[24] It will, therefore, be interesting to see the development of these cases in the Appeals Chamber. The fact that the ICTR Appeals Chamber in Gatete held that a person must be convicted for all offences to reflect the full scope of criminality[25] (a judgement issued after the Popovic et al. Trial Judgement) raises the likelihood that the Appeals Chamber will affirm the Tolimir Trial Chamber’s position.
The first important point about Article 5 of the ICTY Statute is that the ICTY only has the power to prosecute persons accused of crimes against humanity when they are committed in armed conflict. This is a jurisdictional limitation of the ICTY, and links back to Article 1 of the Statute. The ICTY has explicitly recognised that this is not a requirement of a crime against humanity.[26]
In the Tadić Appeal Judgement, the Appeals Chamber held that it may be inferred from the words ‘directed against any civilian population’ in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern.[27]
A crime against humanity is rendered special by: (1) the widespread characteristic – which has been interpreted to refer to the magnitude of single acts and the number of victims; (2) the systematic characteristic, which has been taken to mean the organized nature of the acts of violence and the improbability of their random occurrence; and (3) the status of the victims (any civilian population).
Again, while the list of possible underlying acts is limited, the ICTY has interpreted these crimes quite widely so as to include other acts not explicitly listed. For instance:
• Rape has been considered as an act of enslavement;[28]
• Terrorising civilians has been considered as a means of committing persecution;[29]
• Forcible transfer has been considered as an ‘other inhumane act’.[30]
Forms of liability is the part of the legal framework that is considered once the crimes have been established. It involves the question of whether the individual on trial is legally responsible for that crime. With regard to individual responsibility, it is important to keep in mind a couple of general matters relating to these types of crimes:
• First, a large number of persons typically cooperate in the commission of crimes of atrocity. These crimes generally occur within a network that is part of a state or military, or is otherwise highly organized. The major challenge as a judge is to weigh the contribution of the individual who is on trial to the crimes which were collectively committed.
• Second, unlike ordinary national or domestic crimes, the degree of an accused’s criminal responsibility doesn’t diminish with distance between an accused and the actual perpetration of the crime. In fact it often grows, as with the concepts of joint criminal enterprise (‘JCE’) and superior or command responsibility.
There are six forms of individual criminal responsibility under the ICTY Statute, which are captured in Articles 7(1) and 7(3) of the Statute. These are:
A. Planning;
B. Instigating;
C. Ordering;
D. Committing (which includes joint criminal enterprise (JCE));
E. Aiding and Abetting;
F. Command or superior responsibility.
I will briefly look at planning, instigating, ordering and commission and then discuss some of the more complex issues of interpretation in relation to JCE, aiding and abetting and command or superior responsibility.
Article 7(1) of the Statute sets out all of the forms of liability, save command or superior responsibility.
Liability for planning a crime refers to the design of commission of a crime at preparatory and execution phases.[31] The person who committed the crime cannot also be held responsible for planning it.[32] Planning is not an inchoate crime. For liability to ensue, the planned criminal activity must have been carried out.[33] In this way, planning liability contrasts genocide and conspiracy to genocide.
In terms of the mens rea (mental state), the person planning the crime must intend that the crime be committed or have awareness of the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.
Instigating a crime is essentially prompting another person to commit an offense.[34] It is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[35]
The mens rea is intent to provoke or induce the commission of a crime, or awareness of the substantial likelihood that a criminal act or omission will occur as a consequence of the conduct.
Ordering liability occurs when a person in a position of authority uses that position to instruct another to commit a crime.[36] No formal superior-subordinate relationship is required for a finding of ‘ordering’ so long as it is demonstrated that the accused possessed the authority to order.[37] In fact, the authority to order may be informal or purely temporary.[38] The order may be explicit or implicit, and may be proven through circumstantial evidence. The order need not be in writing or given directly to the person who performs the offence.[39] It must, however, have a direct and substantial effect on the commission of the illegal act.[40] There is, therefore, a higher threshold for causation than for planning and instigating. An order from a superior to an accused to perpetrate a crime does not mean that an accused cannot be held responsible for ordering the crime if in the excution of the order he in turn instructed other persons to commit the crime.[41] As for planning and instigating, liability for ordering cannot be inchoate.[42] It does not appear that a person can order by omission. In Galić, the Appeals Chamber stated that it could not conceive of a situation in which an order would be given by an omission, in the absence of a prior positive act.[43]
In terms of mens rea, ordering requires an intent (of the superior) that the crime be committed or awareness of the substantial likelihood that a crime will be committed in execution of that order.
Commission of a crime covers both physically perpetrating a crime and engendering a culpable omission in violation of criminal law.[44] With regard to commission by omission, at a minimum the actus reus requires an elevated degree of ‘concrete influence’.[45] If the superior’s intentional omission to prevent a crime takes place at a time when the crime has already become more concrete or currently occurs, his responsibility would also fall under Article 7(1) of the Statute.[46]
The mens rea of committing requires an awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of the conduct.
Through the notion of ‘committing’ in Article 7(1), the Statute implicitly includes liability where persons having a common purpose embark on activity that is then carried out by one or more members.[47] The notion encompasses three distinct categories of collective criminality: (i) JCE-I – where all co-defendants, acting pursuant to a common design, possess the same criminal intention; (ii) JCE-II – the so-called ‘concentration camp’ cases, applying to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps; and (iii) JCE-III – involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose.[48]
The three categories of JCE share three common objective (actus reus) elements.[49] The first is a plurality of persons. The second is the existence of a common plan, design or purpose that amounts to or involves the commission of a crime provided for in the Statute. The third common element is the participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute.
In Đorđević, which concerned the Head of the Serbian police forces in respect to the events of the armed conflict in Kosovo in 1999, the Accused did not personally commit any of the crimes charged. The crimes were committed by members of the Serbian armed forces, comprised of police and army, the former of which were under his command. The Trial Chamber found that Đorđević participated in a JCE, i.e. a common plan, which had the purpose of changing the ethnic balance in Kosovo. This objective – not criminal in and of itself – was to be achieved through criminal means consisting of a widespread or systematic campaign of terror and violence against Kosovo Albanians.[50]
How did the Trial Chamber arrive at the conclusion that there was a JCE? Unlike Popović et al, where there was documentary evidence of a plan in the form of Directive 7, which set out the goal of the Serbian army to ‘create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica,’ in Đorđević there was no written order or document setting out a plan to rid Kosovo of the Kosovo Albanian population. Instead, the Trial Chamber relied a on a number of factors that satisfied it beyond reasonable doubt that there was a JCE. The predominant factor it considered was the nature of the crimes that were established and the circumstances in which they were committed, which in its view clearly demonstrated that the target of the campaign was the Kosovo Albanian population. In the finding of the Chamber, the operations were typically aimed at terrorising the Kosovo Albanian civilian population in cities, towns and villages. This was achieved by a variety of means, including: shelling of populated areas with heavy weapons; terrorizing the people there by threats, violence and killings; setting on fire Kosovo Albanian civilian property; and the destruction of villages. The Trial Chamber then considered that the scale and coordination of the actions of Serb forces confirmed that a common plan existed.[51]
The Trial Chamber found that Đorđević’s participation in the JCE was crucial to its success. Specifically, as Head of the police force and as an Assistant Minister of Interior, he had lawful powers and exercised effective control over the police in Kosovo and played a key role in coordinating the work of the police forces in Kosovo in 1998 and 1999. It also found that Đorđević was personally and directly involved in the engagement of a paramilitary unit, the Scorpions, into the police reserve force, in 1999. This unit was directly involved in the shooting of 19 Kosovo Albanian women and children in one town, killing 14 of them. Đorđević was informed of these killings almost immediately after they occurred. The unit was withdrawn from Kosovo but no effective investigation followed. Đorđević was aware of the lack of investigation but nonetheless authorised the re-deployment of members of the same unit back to Kosovo a few days later. The Trial Chamber further found that Đorđević was instrumental in police efforts to conceal the murders of Kosovo Albanians, organising the covert transportation of hundreds of bodies of murdered Kosovo Albanians into Serbia in refrigerated trucks and clandestine burial on police property.[52]
In respect of the common element of the plurality of persons, these may be the physical perpetrators of the crimes but need not be.[53] The individuals may be named but it may suffice for a Trial Chamber to identify categories or groups of persons.[54] The group may be organised in a military, political or administrative structure but need not be.[55]
With regard to the element of the existence of a common purpose, there is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.
The participants in a joint criminal enterprise need not physically participate in any element of any crime, nor do they need to be physically present when and where the crime is committed.[56] Participation may take the form of assistance in, or contribution to, the execution of the common purpose. It does not necessarily involve the commission of a crime provided for in the Statute (eg, murder, extermination, torture or rape). The contribution to the common purpose does not need to be necessary or substantial but it should at least be a significant contribution to the crimes for which the accused is to be found responsible.
Where the physical perpetrator of the crimes that fall within the common plan (JCE-1, JCE-2) or that are foreseeable (JCE-3) is not a JCE member, to hold JCE members responsible it must be shown that the crime can be imputed to one member of the JCE, and that this member – when using the physical perpetrator – acted in accordance with the common plan.[57]
The mens rea for each category of JCE differs. For JCE-I, all the co-defendants must possess the same criminal intention.[58] Even if the accused is not personally effecting the crime, he or she must nevertheless intend this result. Knowledge combined with continuing participation can be conclusive as to a person’s intent. For JCE-II, personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment.[59] In these cases, the requisite intent could also be inferred from the position of authority held by the camp personnel. For JCE-III, there are three elements to the mens rea: (i) the intention to take part in a joint criminal enterprise and to further – individually and jointly – the criminal purposes of that enterprise; (ii) the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose; and (iii) a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but nevertheless willingly took that risk. It should be noted that more than negligence is required. In other words, the so-called dolus eventualis is required (also called ‘advertent recklessness’ in some national legal systems). An accused convicted of a crime under the third category of joint criminal enterprise need not be shown to have intended to commit the crime or even to have known with certainty that the crime was to be committed. With regard to the crime of genocide – the Prosecution is required to establish that it was reasonably foreseeable to the accused that a genocidal act would be committed and that it would be committed with genocidal intent. The accused need not share the genocidal intent.[60]
Whether one is an aider and abettor or co-perpetrator of JCE depends on the accused’s level of participation and mental state. The mental state is higher for a JCE participant.
Aiding and abetting is a form of accessory liability,[61] consisting of rendering substantial contribution to the commission of a crime.[62] Aiding refers to the giving of assistance, while abetting is the facilitating of crime through sympathy.[63] This form of liability attaches to all acts of assistance that lend encouragement if the requisite intent is present.[64] The actus reus for aiding and abetting may be satisfied by a commander permitting the use of resources under his control, including personnel, to facilitate the commission of the crimes.[65] The act must have a substantial effect on perpetration of the crime.[66] Aiding and abetting can also occur by omission. The omission must be directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime (actus reus).[67]
Tacit approval and encouragement can also be a means of aiding and abetting a crime, provided such conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.[68] This form of aiding and abetting is not, strictly speaking, criminal responsibility for omission. In cases where this category was applied, the accused held a position of authority, he was physically present on the scene of the crime, and his non-intervention was seen as tacit approval and encouragement. The relevant act of aiding and abetting may be before, during or after the crime is committed.[69] Actual physical presence at the scene of crime is not necessary. An accused can be considered to have participated in the commission of a crime if he is found to be ‘concerned with the killing’.[70]
One area of recent controversy in the jurisprudence of the ICTY is whether the actus reus of aiding and abetting liability requires the acts to be specifically directed to assist, encourage or lend moral support to the perpetration of a specific crime. The language of ‘specific direction’ originally came from the Tadić Appeal Judgement.[71] While in judgements of 2008 and 2012, the Appeals Chamber found that specific direction was not a part of the actus reus of aiding and abetting,[72] this holding was overturned in 2013. In Perisić, the Appeals Chamber found that specific direction is an element of the actus reus of aiding and abetting liability.[73] In its view, specific direction provides a culpable link between the assistance provided by an accused individual and the crimes of the principal perpetrators.[74] The Appeals Chamber found that the assistance must be ‘specifically’ – rather than ‘in some way’ – directed towards relevant crimes.[75] It held that where the accused’s acts are geographically or otherwise proximate to the crimes of the principal perpetrator, specific direction may be demonstrated implicitly through discussion of other elements of aiding and abetting liability, such as substantial contribution.[76] In cases where an accused individual’s assistance is remote from the actions of principal perpetrators, specific direction must be explicitly established.[77]
Perisić was the chief of the General Staff of the Yugoslav Army (‘VJ’) – that is, the most senior officer in the VJ. The Trial Chamber found that, from September 1992 to November 1995, the Army of Republika Srpska (‘VRS’) conducted a lengthy campaign of shelling and sniping in Sarajevo which resulted in the deaths of hundreds of civilians and the wounding of thousands of others. In the summer of 1995, the VRS invaded the town of Srebrenica, and proceeded to forcibly remove and massacre thousands of Muslim civilians and persons not taking an active part in hostilities. The Trial Chamber determined that the Army of Serbian Krjina (‘SVK’) fired rockets on the city of Zagreb on 2 May 1995, killing five people and injuring 146. The SVK again fired rockets on Zagreb on the next day, killing two persons and injuring 54. The Chamber found that the SVK perpetrated the crimes of murder as a crime against humanity, murder as a war crime, inhumane acts as a crime against humanity, and attacks on civilians as a war crime.[78]
The Trial Chamber found that Perišić oversaw the Yugoslav Army’s provision of extensive logistic assistance to the VRS and the SVK. Logistic assistance included vast quantities of infantry and artillery ammunition, fuel, spare parts, training and technical assistance. The Chamber found that Perišić knew that the VRS’ operations encompassed grave crimes against civilians. In particular, Perišić was alerted to the fact that the VRS was conducting a campaign of sniping and shelling against civilians during its siege of Sarajevo. Perišić knew of the likelihood that the VRS would perpetrate the crimes of murder, inhumane acts and persecution in Srebrenica. However, the Trial Chamber unanimously found that the evidence did not establish beyond a reasonable doubt that Perišić could reasonably have foreseen, based on his knowledge of the VRS’ prior conduct, that the VRS would engage in the radical, systematic extermination of thousands of Muslims in Srebrenica.[79] The Trial Chamber did find, however, that Perišić made a substantial contribution to these crimes. Perišić knew that his aid assisted the crimes in Sarajevo and Srebrenica, and was aware of the general nature of the crimes. Based on these findings, the Trial Chamber found him guilty of aiding and abetting VRS crimes in Sarajevo and Srebrenica. He was sentenced to 27 years imprisonment.[80]
On appeal, Perišić was fully acquitted. Why? The Trial Chamber concluded that specific direction was not an element of the actus reus of aiding and abetting and, accordingly, declined to consider whether Perišić specifically directed aid towards charged crimes by the VRS. The Appeals Chamber disagreed, considering that specific direction remained an element of aiding and abetting.[81] It held that the Trial Chamber committed an error of law by not considering whether specific direction was proved in this case. The Appeals Chamber thus proceeded to assess the evidence relating to Perišić’s convictions for aiding and abetting de novo under the correct legal standard, considering whether his actions were specifically directed to aid and abet the VRS Crimes in Sarajevo and Srebrenica. The Trial Chamber did not find that all VRS activities in Sarajevo or Srebrenica were criminal in nature, and limited its findings to characterising certain actions of the VRS as criminal in the context of the operations in Sarajevo and Srebrenica. In these circumstances, the Appeals Chamber considered that a policy of providing assistance to the VRS’ general war effort did not, in itself, demonstrate that aid facilitated by Perišić was specifically directed aid to the VRS crimes in Sarajevo and Srebrenica.[82]
In 2014, the Appeals Chamber again reversed its position on specific direction in Sainovic et al, finding that the requirement of specific direction in the actus reus of aiding and abetting liability was not established in customary international law.[83] Having exhaustively examined the relevant sources of customary international law, the Appeals Chamber came to the ‘compelling’ conclusion that the actus reus of aiding and abetting ‘consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’.[84]
For its part, the Special Court for Sierra Leone has rejected specific direction as a component of the actus reus of aiding and abetting under customary international law in the Taylor case.[85] The International Criminal Court is unlikely to adopt the specific direction element either, since the Rome Statute of the International Criminal Court, in Article 25(3)(c) and Article 30, instead makes the mental element an intent-based (rather than knowledge-based) mens rea to facilitate the commission of international crimes. As explained below, since the ICTY has always held that knowledge rather than intent is the mens rea for aiding and abetting, this explains to some extent the impetus in the ICTY jurisprudence to limit liability for aiding and abetting in the actus reus component.
The mental element for aiding and abetting liability requires intent to assist and the knowledge that the actions will assist.[86] The aider and abettor need not share the principal’s intent, but must be aware of the essential elements of the crime, including the principal’s mental state.[87] Furthermore, the aider and abettor need not know the precise crime that was committed, but must be aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed.[88]
Superior responsibility is an original creation of international criminal law for which there are no paradigms in national legal systems. A number of WWI and WWII military commanders and superiors were held responsible under the command responsibility doctrine (such as Yamashita and High Command). It may act as a safety net for prosecution of a commander when there is insufficient evidence to show direct responsibility on the commander’s part. This type of liability is ultimately predicated upon the power of the superior to control the acts of his subordinates. It is not, however, a form of strict liability.[89]
Three elements must be proved before a person may incur superior responsibility for the crimes committed by subordinates: (i) the existence of a superior-subordinate relationship between the accused and the perpetrator of the crime; (ii) the accused knew or had reason to know that the crime was about to be or had been committed; and (iii) the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator.
Formal appointment is not necessary to be commander or superior,[90] and the authority may be de jure or de facto.[91] The relationship to the subordinate may be direct or indirect,[92] and need not be immediate in the hierarchy.[93] Coordination (eg, between soldiers and civilians) is insufficient to establish a superior-subordinate relationship.[94]
For a person to be held responsible under command responsibility, it must be shown that he or she had effective control over his or her subordinates, defined as the ‘material ability’ to prevent or punish the crimes.[95] ‘Actual ability’ is not necessary, for example, if one can submit reports to the competent authorities to take the appropriate action.[96] The indicators of effective control are more a matter of evidence than of substantive law.[97] A civilian is a ‘superior’ if the position in the hierarchy imposes a duty to report crimes and makes it likely to trigger an investigation.[98] Merely being an influential person is not sufficient. A civilian superior may, under some circumstances, discharge his obligation to punish an offending subordinate by reporting to the competent authorities when a crime has been committed, provided that this report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.[99]
An accused cannot be held liable under Article 7(3) of the Statute for failure to punish crimes that were committed by a subordinate before the accused assumed control over the subordinate.[100] However, this position is controversial as a number of ICTY judges have expressed their disagreement with it.[101] The issue was recently raised in the Appeal Hearing of Popović et al in relation to Vinko Pandurević, the commander of the Zvornik Brigade.[102] From 4-15 July 1995, he was away from the Zvornik Brigade tasked with commanding a separate group. On 14 July, the Zvornik Brigade participated in the aiding and abetting of murder by guarding some 500 Bosnian Muslim men detained in the Pilica Cultural Centre. The men were subsequently executed by a special police force. The Zvornik Brigade then helped to dig the pit and to bury the bodies there. The next day, Pandurević resumed command of the Zvornik Brigade. The first thing he was informed of was that his forces had been involved in the murder and burial of a large number of prisoners. Did Pandurević have a responsibility to investigate this crime and punish his subordinates who participated in it despite the fact that he might not have had effective control over them at the time? The current ICTY jurisprudence says no. On the other hand, it may seem contrary to the purposes of IHL to allow such a gap in protection.
‘Knowledge’ means the awareness that crimes have been committed or are about to be committed.[103] This can encompass actual knowledge, which may not be presumed, although knowledge may be proved through either direct or circumstantial evidence. Knowledge may also be imputed (reason to know) if the information available put the superior on notice of crimes.[104] Absence of knowledge is not a defence where it results from negligence in duty – the superior must exercise due diligence.[105] If a superior has the means to obtain knowledge but deliberately refrains from doing so, it may be presumed.[106] The relevant information only needs to have been provided or available to the superior, or in his or her possession. It is not required that he or she actually acquainted himself or herself with the information.
The duty to prevent arises for a superior from the moment he knows or has reason to know that his subordinate is about to commit a crime, while the duty to punish arises after the commission of the crime.[107] The duty arises when a superior has reasonable grounds to suspect their subordinate of crimes.[108] A superior is not obliged to perform the impossible, but must use every means in his powers to prevent or punish.[109] The degree of effective control will determine what is required of the commander.[110] This implies that, under some circumstances, a commander may discharge his obligation to prevent or punish by reporting the matter to the competent authorities. Where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards.[111]
The duty to punish includes an obligation to investigate, establish the facts and report them if the superior does not have the power to sanction himself. Disciplinary measures might also be sufficient to discharge a superior of his duty to punish crimes under Article 7(3) of the Statute under certain circumstances.[112] A report to the appropriate authorities may be sufficient to discharge the obligation to punish offending subordinates: whether it is indeed sufficient depends on the circumstances of each case. If, for instance, the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, such a report would not be sufficient to fulfil the obligation to punish offending subordinates.[113] The theoretical possibility of submitting reports to the same authorities who were actively organizing and ordering the crimes is not sufficient to establish criminal responsibility.[114] There is no causation requirement – the prosecution need not prove that a superior’s failure to prevent caused commission of the crime.[115]
I started this lecture by saying that judicial interpretation of words in the concisely drafted ICTY Statute can and does have a massive impact. With the jurisprudence of the ICTY – arguably the most successful of the international community’s post-Nuremberg efforts to try war criminals – the impact does not end with the one judgement and the conviction or acquittal of the concerned accused. As we have seen, the impact is made not only on other cases in the Tribunal, but also on the cases before other international or hybrid courts and tribunals, even sometimes on cases before regional and national courts.
For all the controversy and criticism that can be expected of an institution with such lofty goals as providing justice for the worst crimes imaginable, and for an institution required to decide on complex legal challenges that arise in attempting to achieve such outcomes, the ICTY after 20 years has left an indelible legacy of a fully-functioning international criminal court. With 161 persons indicted by the Tribunal, 74 persons convicted, 18 acquitted, and 23 people in various stages of proceedings, the Tribunal has shown that international criminal justice is not the pipedream of victims and international lawyers, but a current reality. Its long-term effects on the countries of the former Yugoslavia cannot yet be judged, but there is little doubt that, at the very least, the judgements of the ICTY – together with the national cases in the region that have followed – have made it very difficult for anyone to deny the crimes that occurred in the region since 1991. That in itself may in the long run contribute to a historical truth that can assist victims to rebuild their lives and lay a foundation for lasting peace.
[∗] Legal Officer, Chambers Legal Support Section, International Criminal Tribunal for the former Yugoslavia (‘ICTY’). The views expressed herein are those of the author alone and do not necessarily reflect the views of the ICTY or the United Nations in general.
[1] Statute of the International Criminal Tribunal for the former Yugoslavia, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/827 (25 May 1993) (‘Statute’).
[2] Ibid Articles 1–5, 7.
[3] Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No IT-94-1, 2 October 1995) [70] (‘Tadić Jurisdiction Decision’).
[4] Prosecutor v Boškoski and Tarčulovksi (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-04-82-T, 10 July 2008) [239]–[249] (‘Boškoski and Tarčulovksi Trial’).
[5] Ibid [286]–[291].
[6] Prosecutor v Boškoski and Tarčulovksi (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-82-A, 19 May 2010) [26] (‘Boškoski and Tarčulovksi Appeal’).
[7] See, e.g., the arguments brought by the US Government in the Hamdan case before the United States Supreme Court, arguing that Hamdan was not entitled to protections under IHL because the war between the US and Al-Qaeda could not be qualified as a international armed conflict (requiring two States involvement) or a non-international armed conflict (requiring a civil war type scenario); Salim Ahmed Hamdan v. Donald H. Rumsfeld, Secretary of Defense et al., 548 US 557, 126 SCt 2749 (2006) 630–631.
[8] Boškoski and Tarčulovksi Appeal, (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-82-A, 19 May 2010) [31].
[9] Prosecutor v Tadić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-94-1-A, 15 July 1999) [80] (‘Tadić Appeal’).
[10] Prosecutor v Tadić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-94-1-T, 7 May 1997) [607] (‘Tadić Trial’).
[11] Tadić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-94-1-A, 15 July 1999) [115]–[145]. Notably, the International Court of Justice’s test of ‘effective control’ was for the purpose of determining State responsibility (for the actions of a non-State group) not for qualifying the conflict. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 [115].
[12] Ibid [166]–[169].
[13] Prosecution v Blaškić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14-A, 29 July 2004) [172]–[182] (‘Blaškić Appeal’).
[14] Prosecutor v Delalić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Case No. IT-96-21-T, 16 November 1998) [440], [494]–[496].
[15] Prosecutor v Furundžija (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-95-17/1-T, 10 December 1998) [163] (‘Furundžija Trial’).
[16] Ibid [172].
[17] Tadić Jurisdiction Decision (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No IT-94-1, 2 October 1995) [89]–[93]; Prosecutor v Delalić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001) [125],[131],[133] (‘Čelebići Appeal’).
[18] Tadić Jurisdiction Decision (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No IT-94-1, 2 October 1995) [94].
[19] Prosecutor v Galić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-98-29-A, 30 November 2006) [81]–[98] (‘Galić Appeal’).
[20] Prosecutor v Popović (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-05-88-T, 10 June 2010) [841]–[847], [856]–[863] (‘Popović et al. Trial’).
[21] Ibid [862].
[22] Prosecutor v Tolimir (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-05-88/2-T, 12 December 2012) [753]–[766] (‘Tolimir Trial’).
[23] Popović et al. Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-05-88-T, 10 June 2010) [2123]–[2127].
[24] Tolimir Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-05-88/2-T, 12 December 2012) [1206]–[1207].
[25] Prosecutor v Gatete (Judgement) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-00-61-A, 9 October 2012) [261].
[26] Blaškić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14-A, 29 July 2004) [66].
[27] Tadić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-94-1-A, 15 July 1999) [248].
[28] Prosecutor v. Kunarac (Judgement) (International Criminal Tribunal for the former Yugoslavia, Case No. IT-96-23-T&IT-96-23/1-T, 22 February 2001) [543] (‘Kunarac et al. Trial’).
[29] Popović et al. Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-05-88-T, 10 June 2010) [976]–[981].
[30] Tolimir Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-05-88/2-T, 12 December 2012) [802]–[803].
[31] Prosecution v Blaškić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14-T, 3 March 2000) [279] (‘Blaškić Trial’).
[32] Prosecutor v Kordić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-14/2-T, 26 February 2001) [386] (‘Kordić and Čerkez Trial’).
[33] Prosecutor v Kordić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14/2-A, 17 December 2004) [26] (‘Kordić and Čerkez Appeal’).
[34] Prosecutor v Krstić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Case No. IT-98-33-T, 2 August 2001) [601] (‘Krstić Trial’).
[35] Ferdinand Nahimana v The Prosecutor (Judgement) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-99-52-A, 28 November 2007) [480].
[36] Prosecutor v Milošević (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-98-29/1-A, 12 November 2009) [289].
[37] Kordić and Čerkez Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14/2-A, 17 December 2004) [388].
[38] Setako v The Prosecutor (Judgement) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-04-81-A, 28 September 2011) [240] (‘Setako Appeal’).
[39] Blaškić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14-T, 3 March 2000) [281]–[282].
[40] Setako Appeal (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-04-81-A, 28 September 2011) [240].
[41] Boškoski and Tarčulovksi Appeal, (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-82-A, 19 May 2010) [167].
[42] Prosecutor v Brđanin (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-99-36-T, 1 September 2004) [267] (‘Brđanin Appeal’).
[43] Galić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-98-29-A, 30 November 2006) [176].
[44] Krstić Trial (International Criminal Tribunal for the former Yugoslavia, Case No. IT-98-33-T, 2 August 2001) [601].
[45] Prosecutor v. Naser Orić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-03-68-A, 3 July 2008) [41] (‘Orić Appeal’).
[46] Blaškić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14-A, 29 July 2004) [664].
[47] Tadić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-94-1-A, 15 July 1999) [190].
[48] Ibid [195]–[196], [202]–[204].
[49] Ibid [227].
[50] Prosecutor v Đorđević (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-05-87/1-T, 23 February 2011) [2129]–[2130] (‘Đorđević Trial’).
[51] Ibid [2003]–[2128].
[52] Ibid [2154]–[2158].
[53] Brđanin Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-99-36-T, 1 September 2004) [410].
[54] Prosecutor v Krajišnik (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-00-39-A, 17 March 2009) [156] (‘Krajišnik Appeal’).
[55] Tadić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-94-1-A, 15 July 1999) [227], referring to the Essen Lynching and the Kurt Goebell cases.
[56] Prosecutor v Kvočka (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-98-30/1-A, 28 February 2005) [112] (‘Kvočka et al. Appeal’).
[57] Brđanin Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-99-36-T, 1 September 2004) [413], [430].
[58] Tadić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-94-1-A, 15 July 1999) [228].
[59] Ibid.
[60] Prosecutor v Brđanin (Decision on Interlocutory Appeal) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-99-36-A, March 2004) [5]–[6].
[61] Kunarac et al. Trial Judgement (International Criminal Tribunal for the former Yugoslavia, Case No. IT-96-23-T&IT-96-23/1-T, 22 February 2001) [391].
[62] Krstić Trial (International Criminal Tribunal for the former Yugoslavia, Case No. IT-98-33-T, 2 August 2001) [601].
[63] Prosecutor v Kvočka (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-98-30/1-T, 20 November 2001) [254] (‘Kvočka et al. Appeal’).
[64] Tadić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-94-1-T, 7 May 1997) [689].
[65] Prosecutor v Blagojević (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No. IT-02-60-A, 9 May 2007) [127].
[66] Furundžija Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-95-17/1-T, 10 December 1998) [249]; Prosecutor v Vasiljević (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-98-32-T, 29 November 2002) [70] (‘Vasiljević Trial’).
[67] Orić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-03-68-A, 3 July 2008) [43].
[68] Brđanin Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-99-36-T, 1 September 2004) [273].
[69] Blaškić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14-T, 3 March 2000) [285]; Prosecutor v Aleksovski (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14/1-T, 25 June 1999) [62]. Prosecutor v Blagojević and Jokić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No IT-02-60, 9 May 2007) [127]; Blaškić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14-A, 29 July 2004) [48]; Prosecutor v Simić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-9-A, 28 November 2006) [85]; Prosecutor v Vasiljević (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-98-32-A, 25 February 2004) [102].
[70] Tadić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-94-1-T, 7 May 1997) [691].
[71] Tadić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-94-1-A, 15 July 1999) [229].
[72] Prosecutor v Mrkšić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-13/1-A, 5 May 2009) [159]; Prosecutor v Lukić and Lukić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-98-32/1-A, 4 December 2012) [424].
[73] Prosecutor v Perišić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-81-A, 28 February 2013) [73] (‘Perišić Appeal’).
[74] Ibid [37].
[75] Ibid [27].
[76] Ibid [38].
[77] Ibid [73].
[78] Prosecutor v Perišić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No. IT-04-81-T, 6 September 2011) [729]–[759] (‘Perišić Trial’).
[79] Ibid [1442]–[1579].
[80] Ibid [1588]–[1650], [1840].
[81] Perišić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-81-A, 28 February 2013) [73].
[82] Ibid [42]–[72].
[83] Prosecutor v Šainović (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-05-87-A, 23 January 2014) [1650]–[1651] (‘Šainović et al. Appeal’).
[84] Ibid [1649], quoting Furundžija Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-95-17/1-T, 10 December 1998) [249] and Blaškić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14-A, 29 July 2004) [283].
[85] Prosecutor v Charles Ghankay Taylor (Judgement) (Special Court for Sierra Leone, Trial Chamber II, Case No. SCSL-03-01-A, 26 September 2013) [475]–[480].
[86] Blaškić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14-T, 3 March 2000) [286]; Vasiljević Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-98-32-T, 29 November 2002) [71]; Furundžija Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-95-17/1-T, 10 December 1998) [245], [249].
[87] Prosecutor v Aleksovski (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14/1-A, 24 March 2000) [162].
[88] Blaškić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14-A, 29 July 2004) [50].
[89] Čelebići Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001) [197], [239].
[90] Kunarac et al. Trial (International Criminal Tribunal for the former Yugoslavia, Case No. IT-96-23-T&IT-96-23/1-T, 22 February 2001) [396].
[91] Čelebići Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001) [192]–[194].
[92] Ibid [193], [248]–[268].
[93] Prosecutor v Strugar (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-01-42-T, 31 January 2005) [363]; see also Orić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-03-68-A, 3 July 2008) [20].
[94] Prosecutor v Bagosora (Judgement) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-98-41-A, 14 December 2011) [295] (‘Bagosora and Nsengiyumva Appeal’).
[95] Čelebići Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001) [256].
[96] Blaškić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14-T, 3 March 2000) [300]–[302].
[97] Perišić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-81-A, 28 February 2013) [87].
[98] Kordić and Čerkez Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-95-14/2-A, 17 December 2004) [446].
[99] Boškoski and Tarčulovksi Appeal, (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-82-A, 19 May 2010) [231].
[100] Perišić Appeal Judgement (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-81-A, 28 February 2013) [87], [110], [117].
[101] Prosecutor v. Enver Hadžihasanović et al. (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-01-47-AR72, 16 July 2003) (Judge Shahabuddeen) (partially dissenting); (Judge Hunt) (partially dissenting); Prosecutor v Orić (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No IT-03-68T, 30 June 2006) [335]; Orić Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-03-68-A, 3 July 2008) [3] (Declaration of Judge Shahabuddeen); (Separate and Partially Dissenting Opinion of Judge Schomburg); (Partially Dissenting Opinion and Declaration of Judge Liu).
[102] Prosecutor v Popović (Judgement) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-05-88-A, T. 508-512, 6 December 2013).
[103] Kordić and Čerkez Trial (International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-14/2-T, 26 February 2001) [427].
[104] Čelebići Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001) [222]–[241].
[105] Blaškić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14-T, 3 March 2000) [332].
[106] Čelebići Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001) [226].
[107] Bagosora and Nsengiyumva Appeal (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-98-41-A, 14 December 2011) [642].
[108] Kordić and Čerkez Trial (International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-14/2-T, 26 February 2001) [445]–[446]; Prosecutor v Kvočka (Judgement) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Case No IT-98-30/1-T, 2 November 2001) [317].
[109] The Prosecutor v Krnojelac (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-97-25-T, 15 March 2002) [95]; Kordić and Čerkez Trial (International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-14/2-T, 26 February 2001) [441], [445].
[110] Blaškić Trial (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I Case No. IT-95-14-T, 3 March 2000) [335].
[111] Ibid [336].
[112] Prosecutor v Hadžihasanović (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-01-47-A, 22 April 2008) [33].
[113] Boškoski and Tarčulovksi Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-04-82-A, 19 May 2010) [234].
[114] Prosecutor v Ntagerura (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No. ICTR-99-46-A, 7 July 2006) [345].
[115] Čelebići Appeal (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Case No. IT-96-21-A, 20 February 2001) [398]; Kordić and Čerkez Trial (International Criminal Tribunal for the former Yugoslavia, Case No. IT-95-14/2-T, 26 February 2001) [447].
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