Case: IT-01-47-AR72

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

Registrar:
Mr. Hans Holthuis

Decision of:
16 July 2003

Counsel for the Prosecutor

Mr. Ekkehard Withopf

Counsel for the Defence

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

1. The Appeals Chamber is seised of an interlocutory appeal filed by Enver Hadzihasanovic, Mehmed Alagic, and Amir Kubura (“Appellants”). It recalls that, on 12 November 2002, a Trial Chamber rendered a “Decision on Joint Challenge to Jurisdiction”, dismissing a motion challenging jurisdiction in the present case. The motion had been brought by the Appellants. On 27 November 2002, the Appellants jointly filed, before the Appeals Chamber, an “Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction” (“interlocutory appeal”) pursuant to Rule 72 (B) (i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”). The Prosecution filed a response on 9 December 2002,¹ and an addendum on 20 December. The Appellants filed a joint reply on 13 December (“Reply”).

2. The Appellant Mehmed Alagic died on 7 March 2003. By its order of 21 March 2003, the Trial Chamber terminated the proceedings against him. However, for convenience, the Appeals Chamber would proceed with the present proceedings in the title under which they were filed.

3. This interlocutory appeal presents two issues. These concern challenges by the Appellants on:

(1) the responsibility of a superior for the acts of his subordinates in the course of an armed conflict which was not international in character (“internal”); and

(2) the responsibility of a superior for acts which were committed before he became the superior of the persons who committed them.

The Appellants’ challenges on these two points will be referred to as the first and second grounds, respectively, of their interlocutory appeal.

4. The interlocutory appeal included another matter. However, in a decision of 21 February 2003, a bench of three appellate Judges declared, under Rule 72 (E) of the Rules,² that the interlocutory appeal is valid insofar as it challenged (1) and (2) above.³ The decision dismissed the remainder of the interlocutory appeal.

5. As to (1) and (2), the Trial Chamber found (a) that “the doctrine of command responsibility already in --and since—1991 was applicable in the context of an internal armed conflict under customary international law”,⁴ and (b) that “in principle a commander can be liable under the doctrine of command responsibility for crimes committed prior to the moment that the commander assumed command.”⁵

6. The original indictment included counts under Articles 2 and 3 of the Statute of the International Tribunal (“Statute”). The armed conflict in that indictment was characterised as an international one. However, an amended indictment, of 11 January 2002, pleads only violations of the laws or customs of war, which are punishable under Article 3 of the Statute (“war crimes”).⁶ Paragraph 11 of the amended indictment alleges:

At all times relevant to this indictment, an armed conflict existed on the territory of Bosnia and Herzegovina.

7. The amended indictment does not describe the “armed conflict” to which it refers as international or internal. The Prosecution has since stated that it has pleaded the existence of an “unclassified” armed conflict in Bosnia and Herzegovina.⁷ The Appeals Chamber takes no position on whether the amended indictment should be treated as pleading only an internal armed conflict; it will proceed on the assumption that it can relate to such a conflict. Further, the amended indictment charges the Appellants with superior responsibility pursuant to Article 7(3) only.

8. In the interlocutory appeal, the Appellants request an oral hearing.⁸ On 12 December 2002, Mr. Ilias Bantekas of the School of Law, University of Westminster, England, filed an application for leave to submit to the Appeals Chamber an amicus brief on the issue of the application of Article 7(3) of the Statute to internal armed conflicts. The Appeals Chamber, in view of the extensive submissions filed by the parties before both the Trial Chamber and the Appeals Chamber (18 briefs in total) and the substantial discussion in the impugned decision of the issues now under appeal, does not consider it necessary to hold a hearing on the appeal or to call any amicus pursuant to Rule 74 of the Rules.⁹

9. The Appeals Chamber will now consider the two points on which the bench of three appellate Judges has found that the interlocutory appeal is valid. In doing so, it desires to affirm its conception that its decision has to bear a reasoned relationship to those points, that its reasoning has to take account of relevant arguments of the parties, but that it is not obliged to deal seriatim with each and every argument raised by either side.

II. COMMAND RESPONSIBILITY IN INTERNAL ARMED CONFLICTS

10. As regards the first point on which the bench of three appellate Judges found that the interlocutory appeal raised a valid issue, the Appellants make many arguments but submit in substance that the Trial Chamber erred in two respects, in that:¹⁰

a) it wrongly found that there was a basis in customary international law for the applicability of the doctrine of command responsibility in internal armed conflicts at the time material to the indictment; and

b) it failed to respect the principle of legality in reaching its conclusion that it had jurisdiction in the present case.

The Appeals Chamber will consider these issues in the order above-mentioned.

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

11. As to this issue, there are two uncontested points of law. The first is the principle that serious violations of international humanitarian law in an internal armed conflict incur individual criminal responsibility under customary international law;¹¹ the finding of the Appeals Chamber to this effect in the Tadic Jurisdiction Decision remains a leading authority.¹² The second point is that, at all times relevant to this case, the doctrine of command responsibility was part of customary international law relating to international armed conflict.¹³ Where the parties disagree is on the question whether the doctrine applies, as part of customary international law, in an internal armed conflict.¹⁴

12. In considering this question, the Appeals Chamber is aware that it is incorrect to assume that, under customary international law, all the rules applicable to an international armed conflict automatically apply to an internal armed conflict. More particularly, it appreciates that to hold that a principle was part of customary international law, it has to be satisfied that State practice recognized the principle on the basis of supporting opinio juris. However, it also considers that, where a principle can be shown to have been so established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle. Also, in determining whether a principle is part of customary international law and, if so, what are its parameters, the Appeals Chamber may follow in the usual way what the Tribunal has held in its previous decisions.

13. Prohibitions on the doing of certain acts in the course of an internal armed conflict are imposed by Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status.¹⁵ In the Tadic Jurisdiction Decision, the Appeals Chamber found that “customary international law imposes criminal responsibility for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife”.¹⁶ Likewise, at all times material to this case, customary international law included the concept of command responsibility in relation to war crimes committed in the course of an international armed conflict.¹⁷ Thus, the concept would have applied to war crimes corresponding to the prohibitions listed in common Article 3 when committed in the course of an international armed conflict. It is difficult to see why the concept would not equally apply to breaches of the same prohibitions when committed in the course of an internal armed conflict.

14. In the view of the Appeals Chamber, the matter rests on the dual principle of responsible command and its corollary command responsibility.¹⁸ The origin and interrelationship of these ideas merit much discussion. Here, however, it is sufficient to note that the principle of responsible command was incorporated by the provision in Article 1 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907 reading:

The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates …

Article 43(1) of the 1977 Additional Protocol I to the Geneva Conventions likewise provided that the “armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, …”

15. The position is no different as regards internal armed conflicts. Responsible command was an integral notion of the prohibition imposed by Article 3 common to the 1949 Geneva Conventions against the doing of certain things in the course of an internal armed conflict. Referring to the criteria for determining whether there was an “armed conflict not of an international character” within the meaning of that provision, the ICRC Commentary spoke, authoritatively, of a revolting party possessing “an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the” convention.¹⁹ Article 1(1) of Protocol II Additional to the Geneva Conventions likewise spoke of a Contracting Party’s “armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations …”.

16. Thus, whether Article 3 of the Statute is referring to war crimes committed in the course of international armed conflict or to war crimes committed in the course of internal armed conflict under Article 3 common to the Geneva Conventions, it assumes that there is an organized military force. It is evident that there cannot be an organized military force save on the basis of responsible command. It is also reasonable to hold that it is responsible command which leads to command responsibility. Command responsibility is the most effective method by which international criminal law can enforce responsible command.

17. It is true that, domestically, most States have not legislated for command responsibility to be the counterpart of responsible command in internal conflict. This, however, does not affect the fact that, at the international level, they have accepted that, as a matter of customary international law, relevant aspects of international law (including the concept of command responsibility) govern the conduct of an internal armed conflict, though of course not all aspects of international law apply. The relevant aspects of international law unquestionably regard a military force engaged in an internal armed conflict as organized and therefore as being under responsible command. In the absence of anything to the contrary, it is the task of a court to interpret the underlying State practice and opinio juris (relating to the requirement that such a military force be organized) as bearing its normal meaning that military organization implies responsible command and that responsible command in turn implies command responsibility.

18. In short, wherever customary international law recognizes that a war crime can be committed by a member of an organised military force, it also recognizes that a commander can be penally sanctioned if he knew or had reason to know that his subordinate was about to commit a prohibited act or had done so and the commander failed to take the necessary and reasonable measures to prevent such an act or to punish the subordinate. Customary international law recognizes that some war crimes can be committed by a member of an organised military force in the course of an internal armed conflict; it therefore also recognizes that there can be command responsibility in respect of such crimes.

19. The Appellants argue that international law developed to regulate the relations between States on the basis of reciprocity and that command responsibility for acts committed in the course of an internal conflict does not raise any questions of reciprocity.²⁰ The Appeals Chamber does not consider that the matter depends on notions of reciprocity. In the course of development, States have come to consider that they have a common interest in the observance of certain minimum standards of conduct in certain matters;²¹ this includes certain aspects of conduct in an internal armed conflict. To that extent, internal armed conflict is now the concern of international law without any question of reciprocity.

20. Thus, the fact that it was in the course of an internal armed conflict that a war crime was about to be committed or was committed is not relevant to the responsibility of the commander; that only goes to the characteristics of the particular crime and not to the responsibility of the commander. The basis of the commander’s responsibility lies in his obligations as commander of troops making up an organised military force under his command, and not in the particular theatre in which the act was committed by a member of that military force.

21. As against the foregoing, the Appellants argue that “a clear distinction must also be made between the principle of ‘responsible command’ and ‘command responsibility’.”²² They contend that the Trial Chamber confused the two concepts when it concluded that the inclusion of the principle of responsible command in Additional Protocol II connoted command responsibility.²³ The Prosecution responds that “the doctrine of command responsibility is a logical consequence of the imposition of individual criminal responsibility for serious violations of international humanitarian law committed by members of forces acting under a responsible command.”²⁴

22. The Appeals Chamber recognizes that there is a difference between the concepts of responsible command and command responsibility. The difference is due to the fact that the concept of responsible command looks to the duties comprised in the idea of command, whereas that of command responsibility looks at liability flowing from breach of those duties. But, as the foregoing shows, the elements of command responsibility are derived from the elements of responsible command.

23. The Appeals Chamber recalls the United States Supreme Court’s decision in the matter of Yamashita v. Styer, which, delivered by Chief Justice Stone, states :

The question is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war….

It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of the commander would almost certainly result in violations which it is the purpose of the law of war to prevent….Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.

This is recognized by the Annex to the Fourth Hague Convention of 1907, respecting the laws and customs of war on land...Similarly Article 19 of the Tenth Hague Convention …provides that commanders in chief of the belligerent vessels “must see that the above Articles are properly carried out”…And Article 26 of the Geneva Red Cross Convention of 1929…for the amelioration of the condition of the wounded and sick in armies in the field, makes it “the duty of the commander-in-chief of the belligerent armies to provide for the details of execution of the foregoing Articles, (of the convention( as well as for the unforeseen cases.”²⁵

The court then concluded that these provisions imposed on a commander an affirmative duty to take appropriate measures to protect prisoners of war and the civilian population, and that the duty of a commander “has heretofore been recognized, and its breach penalized by our own military tribunals”.²⁶ Thus, the duties comprised in responsible command are generally enforced through command responsibility. The latter flows from the former.

24. This view is consistent with Article 7(3) of the Statute in its application to Article 3 thereof. Article 7(3) provides:

The fact that any of the acts referred to in Article 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.²⁷

The Appellants accept that a “plain reading of Article 7(3) may lead to the inference that it could apply in internal conflict, since it appears to cover all violations in the Statute, some of which may be committed in internal conflict.”²⁸ That is right; the provision does cover violations in internal armed conflict. The effect of the Appellant’s submissions is that, to the extent that it does so, the provision is ultra vires; in their view, “internationality is required.”²⁹

25. For the reasons given, the Appeals Chamber does not consider that Article 7( 3) is ultra vires to the extent that it applies to internal armed conflicts . It will merely emphasise that, if the doctrine of command responsibility is inapplicable to the case of an internal armed conflict, Article 7(3) of the Statute, which clearly assumes such a hypothesis, is pro tanto defeated.

26. The applicability of command responsibility to internal armed conflict is not disputed in the cases of the tribunals established for Rwanda, Sierra Leone and East Timor. It is said that these tribunals were established after the ICTY. However, in the view of the Appeals Chamber, the establishment of these bodies was consistent with the proposition that customary international law previously included the principle that command responsibility applied in respect of an internal armed conflict.

27. Taken as a whole, the Appeals Chamber agrees with the survey and analysis made by the Trial Chamber of various sources (including decided cases) concerning the development of State practice and opinio juris on the question whether command responsibility forms part of customary international law in relation to war crimes committed in the course of an internal armed conflict, and rejects the submissions of the Appellants on these points. The Appeals Chamber will not therefore enter into such matters. It will diverge from this position only for the purpose of dealing with one argument.

28. The Appellants have placed reliance on the fact that the doctrine of command responsibility was referred to in Articles 86 and 87 of the 1977 Protocol I Additional to the Geneva Conventions of 1949³⁰ but was not referred to in Protocol II. The former being directed to international armed conflicts while the latter is directed to internal armed conflicts, the Appellants contend that the difference tends to support the view that State practice regarded command responsibility as part of customary international law relating to international armed conflicts and did not regard command responsibility as part of customary international law relating to internal armed conflicts.

29. The Appeals Chamber affirms the view of the Trial Chamber that command responsibility was part of customary international law relating to international armed conflicts before the adoption of Protocol I. Therefore, as the Trial Chamber considered, Articles 86 and 87 of Protocol I were in this respect only declaring the existing position, and not constituting it. In like manner, the non-reference in Protocol II to command responsibility in relation to internal armed conflicts did not necessarily affect the question whether command responsibility previously existed as part of customary international law relating to internal armed conflicts. The Appeals Chamber considers that, at the time relevant to this indictment, it was, and that this conclusion is not overthrown by the play of factors responsible for the silence which, for any of a number of reasons, sometimes occurs over the codification of an accepted point in the drafting of an international instrument.

30. Were it otherwise, the Appeals Chamber would have to uphold that, “as argued by the Defence, it is not a crime for a commander in an internal conflict to fail to prevent or punish the killings committed by his subordinates,”³¹ i.e., even if the commander knows or has reason to know of the killings. The Appeals Chamber does not consider that it is required to sustain so improbable a view in contemporary international law; more particularly, it finds that such a view is not consistent with its reasoning in the Tadic Jurisdiction Decision ³² and in the Celebici Appeal Judgment,³³ or with the reasoning of the Trial Chamber in Aleksovski.( footnote 34 )

31. In the opinion of the Appeals Chamber, the Trial Chamber was correct in holding, after a thorough examination of the matter, that command responsibility was at all times material to this case a part of customary international law in its application to war crimes committed in the course of an internal armed conflict.

(b) The principle of legality

32. As to this issue, the Appellants contend that, if command responsibility for war crimes committed in the course of an internal armed conflict was not part of customary international law at the time when the acts were allegedly done by the Appellants, the principle of legality was necessarily breached.³⁵ It being clear from the Secretary-General’s Report that the Statute was restricted to customary international law, it would follow that the Appellants were indicted for something that was not a crime under customary international law at the time when the relevant acts were allegedly committed.

33. It does not appear to the Appeals Chamber that this argument can stand if it is held, as the Appeals Chamber holds, that at all material times it was part of customary international law that there could be command responsibility in respect of war crimes committed in the course of an internal armed conflict. The argument assumes that such responsibility did not form part of customary international law at the material times. If the assumption goes, so does the argument which is based on it.

34. The Appellants argued before the Trial Chamber, and they seem to have retained the argument before the Appeals Chamber³⁶, that the principle of legality requires that the crime charged be set out in a law that is accessible and that it be foreseeable that the conduct in question may be criminally sanctioned at the time when the crime was allegedly committed. The Appeals Chamber agrees with the answers given by the Trial Chamber. As to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom.³⁷ The Tadic Jurisdiction Decision shows that individual criminal responsibility can attach to a breach of a customary prohibition of certain conduct.³⁸

35. The Appellants further argue that the principle of legality requires the existence of a conventional as well as a customary basis for an incrimination.³⁹ The Appeals Chamber also agrees with the Trial Chamber’s rejection of this argument. The obligation of the Tribunal to rely on customary international law excludes any necessity to cite conventional law where customary international law is relied on.⁴⁰ Contrary to the arguments of the Appellants, there is nothing in the Secretary-General’s Report, to which the Statute of the Tribunal was attached in draft, which requires both a customary basis and a conventional one for an incrimination.

36. Lastly, the Appellants argue that the Trial Chamber confused responsibility under Article 7(1) of the Statute with responsibility under Article 7(3).⁴¹ In the opinion of the Appeals Chamber, there is no basis for such a contention: the Trial Chamber was clear about the difference.

III. COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BEFORE THE SUPERIOR-SUBORDINATE RELATIONSHIP EXISTS

37. The Appeals Chamber will now consider the second point on which the interlocutory appeal has been found to be valid by the bench of three appellate Judges, namely, the responsibility of a superior for acts which were committed before he became the superior of the persons who committed them.

38. The amended indictment alleges that Amir Kubura took up his position as acting commander of the Bosnian Army, 3rd Corps, 7th Muslim Mountain Brigade on 1 April 1993. Paragraph 58 charges him with being “criminally responsible in relation to those crimes that were committed by troops of the ABiH 3rd Corps 7th Muslim Mountain Brigade prior to his assignment on 1 April 1993 (…) Amir Kubura knew or had reason to know about these crimes. After he assumed command, he was under the duty to punish the perpetrators.”⁴² In effect, he is charged with command responsibility in connection with offences committed or started more than two months before he became the commander of the troops on 1 April 1993.⁴³

39. Under count 1, he is charged with command responsibility for, among other events, the Dusina killings in the Zenica Municipality on 26 January 1993.⁴⁴ On count 4, he is charged with command responsibility in connection with cruel treatment of prisoners by his subordinates at the Zenica Music School between about 26 January 1993 to at least January 1994. Counts 5 and 6 charge him with command responsibility in connection with wanton destruction and plunder of property allegedly committed at, among others, Dusina in January 1993. With the exception of count 4, the rest of the charges concern events that started and ended before Kubura became the commander of the troops allegedly involved in those events. Count 4 includes a period of time commencing before but continuing after Kubura became the commander.

40. So, the issue is whether command responsibility extends to acts committed by subordinates prior to the assumption of command by the commander.

41. The Appellants argue that, as a matter of principle, there is no basis in conventional or customary law for holding a commander criminally responsible for the acts of persons who were not his subordinates when they committed the acts.⁴⁵ In their submission, the express terms of Article 7(3) of the Statute require that an accused be the superior when the subordinate commits the offence.⁴⁶ They submit that a finding to the contrary of what the practice shows would have far-reaching consequences, in that any superior who had effective control over the perpetrators months or years after the offences were committed could be held criminally liable for not punishing the perpetrators.⁴⁷ The proper person to be prosecuted is the commander who had effective control over the perpetrator at the time the offences were committed, and who failed to prevent or to punish the crimes.⁴⁸

42. The appellant Kubura also argues, first, that, if the liability of superiors for acts of perpetrators who subsequently become their subordinates had been envisaged, the Statute would have specifically provided for such liability in Article 7(3 ).⁴⁹ Secondly, Article 86 (2) of Additional Protocol I (as well as the Commentary of the International Committee of the Red Cross on that provision) does not provide for liability for offences committed before command was assumed; emphasis is placed on the coincidence of the superior-subordinate relationship and the commission of the offences.⁵⁰ Thirdly, the case law of the International Tribunal, as embodied in the ^elebi ci Trial and Appeal Judgements as well as in the Kordic Trial Judgement, supports the contention that the superior-subordinate relationship must exist at the time of the offence.⁵¹ Fourthly, Article 28 (a) of the Rome Statute of the International Criminal Court limits the responsibility of superiors to the time when the offences were committed.⁵² Lastly, there are no provisions in national legislation or military codes that hold a superior in internal armed conflicts criminally responsible for offences committed by persons who subsequently came under the superior’s command.⁵³

43. In its brief filed before the Trial Chamber, the Prosecution cites the Kordic Trial Judgement, which states:

The duty to punish naturally arises after a crime has been committed. Persons who assume command after the commission are under the same duty to punish. This duty includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself.⁵⁴

The Prosecution later submits that “the material fact for determination is therefore not who was in command at the time of the crime, but when a commander became aware of the crime, yet failed to take the ‘reasonable and necessary measures’ to punish the violation”.⁵⁵ Further, “the Prosecution case is that the troops commanded by Alagi (sic( from April 1993 had a history of unpunished criminality”.⁵⁶ The cruel treatment alleged in counts 3 and 4 of the amended indictment started before but continued after the appellant Kubura assumed command.⁵⁷ The Prosecution also submits that “the lack of a known precedent for a finding of guilt for failing to punish subordinates for offences committed before assuming command cannot prevent charging an accused in this manner”.⁵⁸

44. In considering the issue of whether command responsibility exists in relation to crimes committed by a subordinate prior to an accused’s assumption of command over that subordinate, the Appeals Chamber observes that it has always been the approach of this Tribunal not to rely merely on a construction of the Statute to establish the applicable law on criminal responsibility, but to ascertain the state of customary law in force at the time the crimes were committed.⁵⁹

45. In this particular case, no practice can be found, nor is there any evidence of opinio juris that would sustain the proposition that a commander can be held responsible for crimes committed by a subordinate prior to the commander’s assumption of command over that subordinate.

46. In fact, there are indications that militate against the existence of a customary rule establishing such criminal responsibility. For example, Article 28 of the Rome Statute of the International Criminal Court provides that:

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

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

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.⁶⁰

Under the Rome Statute, therefore, command responsibility can only exist if a commander knew or should have known that his subordinates were committing crimes, or were about to do so. This language necessarily excludes criminal liability on the basis of crimes committed by a subordinate prior to an individual’s assumption of command over that subordinate.

47. Another example can be found in the Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I). Article 86(2) of the Protocol states that “[t]he fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.” Again, the language of this article envisions a situation in which a breach was in the process of being committed, or was going to be committed; breaches committed before the superior assumed command over the perpetrator are not included within its scope.

48. The International Law Commission, in its Report on the work of its forty-eighth session (6 May–26 July 1996)⁶¹, stated that “[t]he principle of individual criminal responsibility under which a military commander is held responsible for his failure to prevent or repress the unlawful conduct of his subordinates is elaborated in article 86 of Protocol I.” Similarly, in the Celebici Appeal Judgment, the Appeals Chamber stated that the “criminal offence based on command responsibility is defined in Article 86(2) only.”⁶²

49. It should also be mentioned that Article 6 of the Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission at its forty-eighth session, reads as follows:

The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had reason to know, in the circumstances at the time, that the subordinate was committing or was going to commit such a crime and if they did not take all necessary measures within their power to prevent or repress the crime.⁶³

Once again, the emphasis is on the superior-subordinate relationship existing at the time the subordinate was committing or was going to commit a crime. Crimes committed by a subordinate in the past, prior to his superior’s assumption of command, are clearly excluded.

50. Consideration can also be given to the Kuntze case⁶⁴, before the Nuernberg Military Tribunals. The Appeals Chamber considers that this case also constitutes an indication that would run contrary to the existence of a customary rule establishing command responsibility for crimes committed before a superior’s assumption of command over the perpetrator,⁶⁵ and that it could certainly not be brought to support the opposite view.

51. Having examined the above authorities, the Appeals Chamber holds that an accused cannot be charged under Article 7(3) of the Statute for crimes committed by a subordinate before the said accused assumed command over that subordinate. The Appeals Chamber is aware that views on this issue may differ. However, the Appeals Chamber holds the view that this Tribunal can impose criminal responsibility only if the crime charged was clearly established under customary law at the time the events in issue occurred.⁶⁶ In case of doubt, criminal responsibility cannot be found to exist, thereby preserving full respect for the principle of legality.

52. The Appeals Chamber has carefully considered the thoughtful dissenting opinions of Judges Shahabuddeen and Hunt. Several of the general points Judge Hunt makes at the outset of his dissent about the nature of customary law rules – for example, that customary international law, like the common law, may change over time and that clearly established rules may be applied to new factual situations clearly falling within their ambit – are common ground between the Appeals Chamber and the dissenting Judges.⁶⁷ It is quite a different matter, however, to stretch an existing customary principle to establish criminal responsibility for conduct falling beyond the established principle. Whether the principle of command responsibility extends to crimes committed prior to the assumption of command is a difficult legal question, and reasonable minds may certainly debate the point. To assert, as the dissenting Judges do, that such a dereliction clearly carries individual criminal liability under existing principle seems indefensible. It is trite to observe that in international criminal law, imposition of criminal liability must rest on a positive and solid foundation of a customary law principle. It falls to the distinguished dissenting Judges to show that such a foundation exists; it does not fall to the Appeals Chamber to demonstrate that it does not.

53. It is telling that the dissenting opinions do not mention a single direct and explicit statement in a military manual, or in a commentary to a military manual, or in the case law, or in the abundant literature on command responsibility, suggesting that the customary law principle of command responsibility imposes on a military commander criminal responsibility for crimes committed by his subordinates before he has assumed command. In this respect, the dissents thus give added strength to the Appeals Chamber’s view. Though, as the dissents note, some manuals contain language which is broad enough to encompass responsibility for punishing both command and pre-command crimes, there is no textual support confirming direct support for the latter. And, of course, other manuals and other texts, especially Article 86 of Additional Protocol I and the Rome Statute of the ICC, go the other way. For example, the Canadian Defence Ministry’s Manual on the Law of Armed Conflict provides that “[s]uperiors are guilty of an offence if they knew, or had information which should have enabled them to conclude, in the circumstances ruling at the time, that the subordinate was committing or about to commit a breach of the [the law of armed conflict] and they did not take all feasible measures within their power to prevent or repress the breach.” ⁶⁸ The Manual cites and quotes Article 28 of the Rome Statute.⁶⁹ The U.S. Commander’s Manual on the Law of Naval Operations similarly imposes responsibility on a superior officer who “fail[s] to exercise properly his command authority or fail[s] otherwise to take reasonable measures to discover and correct violations that may occur.”⁷⁰ While the dissenting Judges make much of the need to read Article 86 of Additional Protocol I together with Article 87 of that Protocol, they do not acknowledge that it is Article 86, paragraph 2 – the paragraph embodying the Appeals Chamber’s view of the principle of command responsibility – that expressly addresses the individual responsibility of superiors for acts of their subordinates, while Article 87 speaks of the obligations of States parties. The fact that in 1998, the Rome Conference voted for the text embodied in Article 28, though by no means legally conclusive of the matter before us, at least casts a major doubt on the view embraced by the dissenting Judges. (That the Rome Statute embodied a number of compromises among the States parties that drafted and adopted it hardly undermines its significance.⁷¹ The same is true of most major multilateral conventions.)

54. The dissents assert that, for various reasons, the authorities mentioned in the opinion of the Appeals Chamber do not lend support to its conclusions. With all due respect, assuming arguendo that the criticisms advanced were correct, absence of authority suggesting that command responsibility does not apply to crimes committed before the assumption of command does not establish the conclusion that such criminal responsibility does exist. The Appeals Chamber would have reached the same conclusion even in the absence of a single text expressly pointing to the correctness of their position.

55. Unable to muster any significant evidence of State practice or opinio juris supporting their view, the dissenting Judges rely on a broad interpretation of treaty texts which do not address in terms the question of responsibility for crimes committed before the assumption of command. Their method is flawed. First, it represents a departure from our consistent jurisprudence requiring that criminal liability be grounded not only on statutory language but on firm foundations of customary law. Second, to interpret texts speaking of command responsibility as imposing a duty to punish, after the assumption of command, crimes committed before the assumption of command, is counterintuitive and contrary to the plain meaning of “command” responsibility. Although the duty to prevent and the duty to punish are separable, each is coterminous with the commander’s tenure. Third, an expansive reading of criminal texts violates the principle of legality, widely recognized as a peremptory norm of international law, and thus of the human rights of the accused.⁷²

56. Aware of these difficulties, the distinguished dissenting Judges seem to suggest that the criminal responsibility of a commander to punish crimes committed before his assumption of command is ab initio part and parcel of the customary law principle of command responsibility, and, that the rest is simple application of the law to the facts. But surely this claim of prior existence of such a broader principle of command responsibility is nothing more than a petitio principii. Relying on such a proposition, without any support in customary law, does not compensate for the failure of the dissents to carry the burden of demonstrating that such a principle exists in positive international law.

IV. DISPOSITION

57. For the foregoing reasons, the Appeals Chamber unanimously dismisses the appeal insofar as it relates to the first ground of appeal, and allows it, by majority (Judge Shahabuddeen and Judge Hunt dissenting), insofar as it relates to the second ground of appeal.

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

__________________
Judge Theodor Meron
Presiding

Judge Shahabuddeen appends a partial dissenting opinion. Judge Hunt appends a separate and partially dissenting opinion.

Dated 16 July 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]