IN THE TRIAL CHAMBER
Before: Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 2 March 1999
DECISION ON THE JOINT DEFENCE MOTION TO DISMISS FOR LACK OF JURISDICTION
PORTIONS OF THE AMENDED INDICTMENT ALLEGING "FAILURE TO PUNISH" LIABILITY
The Office of the Prosecutor
Mr. Geoffrey Nice
Mr. Rodney Dixon
Counsel for the Accused
Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr.,
and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez
Pending before this Trial Chamber of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991 ("the
International Tribunal"), is the "Joint Defence Motion to dismiss for lack of
jurisdiction portions of amended indictment alleging failure to punish
liability" filed by counsel for the two accused, Dario Kordic and Mario Cerkez
(together "the Defence") on 22 January 1999 ("the Motion"), pursuant
to Rule 72 of the Rules of Procedure and Evidence of the International Tribunal ("the
Rules"), together with the "Prosecutors Response to Defence motion to
strike portions of the amended indictment alleging failure to punish
liability", filed by the Office of the Prosecutor ("Prosecution") on 5
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the
parties and their oral arguments heard on 16 February 1999,
HEREBY ISSUES ITS WRITTEN DECISION.
Arguments of the Defence
- The Defence seeks to have the words "or to punish the perpetrators thereof"
removed from the Amended Indictment filed on 30 September 1998. According to the Defence,
the Trial Chamber should decline to hold a commander responsible solely on the ground of
failure to punish subordinates guilty of committing crimes against humanity, grave
breaches of the Geneva Conventions of 12 August 1949 and violations of the laws and
customs of war, particularly in the absence of evidence that the failure to punish
resulted in the failure to prevent subsequent violations. Alternatively, the Defence asks
the Trial Chamber to set out the role that claims of failure to punish will play during
the trial, arguing that, as a matter of fairness, the accused should be advised of the
"core legal principles" upon which the Trial Chamber will rely in its
consideration of this matter.
- The Defence argues that in both the civil-law and common-law traditions a person cannot
be held criminally liable in the absence of personal guilt, thus a military commander
should not be held criminally responsible for atrocities committed by his troops solely on
the ground that he failed to punish them. The Defence argues that "failure to
punish" can be compared with the now largely defunct offence in the common-law of an
"accessory after the fact", who neither caused the primary crime nor formed the
requisite mens rea to commit it.
- The Defence also asserts that criminal responsibility for "failure to punish"
has no basis in customary international law, nor is it supported in international
conventions. The Defence notes that Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of International Armed Conflicts
("Additional Protocol I") was not listed in paragraph 35 of the Report of the
Secretary-General1 as within the competence ratione
materiae of the International Tribunal. The Defence also asserts that in any event,
Article 86 of Additional Protocol I does not provide an independent basis for liability
for failure to punish distinct from liability for failure to prevent.
- Turning to the practice of the International Tribunal, the Defence states that neither
Trial Chamber I in its Decision in Prosecutor v. Tihomir Blaskic2
("Blaskic Decision"), nor Trial Chamber II in its Judgement in Prosecutor
v. Delalic et al.3 ("Celebici Judgement"),
considered "failure to punish" to be a distinct offence from failure to prevent.
- Finally, the Defence asserts that a civilian superior should not be held responsible for
failing to punish unless it is demonstrated that he exercised disciplinary power
equivalent to that of "an effective" military commander. Consequently, if he
lacks these powers, he would lack both the legal competence and the ability to impose
B. Arguments of the Prosecution
- The Prosecution, on the other hand, argues that failure to punish is an offence distinct
from failure to prevent. To support this view, the Prosecution relies primarily on the Blaskic
Decision, the findings of which it interprets in the opposite way to the Defence.
The Prosecutor asserts that the Trial Chamber in the Celebici Judgement imposed
criminal responsibility responsible both for failure to prevent and for failure to punish.
The Prosecution notes that this view is supported in international case law as well as
international conventions such as in Articles 86 and 87 of Additional Protocol I. The
Prosecutor also notes that Article 21 of the Regulations Concerning the Application of the
International Law of War of the armed forces of the Socialist Federal Republic of
Yugoslavia incorporated failure to punish as a distinct form of responsibility.
- As to the Defence request for guidance as to the interpretation of Article 7, paragraph
3, of the Statute, the Prosecution submits that this is a matter to be determined at trial
on the merits of the case.
- The Prosecution also argues that Article 7, paragraph 3, applies to all superiors,
including civilians, and that in any event the accused Dario Kordic is also charged as a
military superior. According to the Prosecution, civilian superiors do not need to have
military-style powers to be held responsible for the acts of their subordinates. Both
military and civilians superiors are required to take such steps as are within their power
to punish the perpetrators, which may include conducting investigations or initiating
A. Applicable law
- Article 7, paragraph 3, of the Statute provides as follows:
The fact that any of the acts referred to in articles 2 to 5 of the
present Statute was committed by a subordinate does not relieve his superior of criminal
responsability 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.
- The relevant paragraphs of the Amended Indictment (paragraphs 20, 22) from which the
Defence seeks to have struck the words "or to punish the perpetrators thereof"
are identical and read as follows:
A superior is criminally responsible for the acts of his subordinates
if the superior knew or had reason to know that his subordinate was about to commit such
acts or had done so and the superior failed to take necessary and reasonable measures to
prevent further such acts or to punish his subordinate. As to each charge in the
indictment, [Dario Kordic or Mario Cerkez], in addition to being individually responsible,
knew or had reason to know, and it was foreseeable, that persons subordinate to him were
about to commit various crimes, persecutions and illegal acts, or had done so, and failed
to take necessary and reasonable measures to prevent such crimes, persecutions and acts or
punish the perpetrators thereof.
- This language replicates the wording of Article 7, paragraph 3, of the Statute, which is
discussed in the Report of the Secretary-General at paragraph 56:
This imputed responsibility or criminal negligence is engaged if the
person in superior authority knew or had reason to know that his subordinates were about
to commit or had committed crimes and yet failed to take the necessary and reasonable
steps to prevent or repress the commission of such crimes or to punish the perpetrators
- Dealing first with the argument that responsibility for failure to punish has no basis
in customary international law, the Trial Chamber notes that, in the Celebici Judgement5, that Trial Chamber found that the principle of individual
criminal responsibility of superiors for failure to prevent or repress the crimes
committed by subordinates can be considered a part of customary international law6. The same conclusion has also been reached by another
Trial Chamber in the Blaskic Decision.7
- Turning next to the argument that there is no independent basis for liability for
failure to punish distinct from liability for failure to prevent crimes committed by
subordinates, Article 86 of Additional Protocol I is entitled "Failure to Act"
and imposes "penal or disciplinary responsibility" on superiors who
knew, or had information which should have enabled them to conclude in
the circumstances at the time, that [a subordinate] was committing or was going to commit
such a breach [of the Conventions or of this Protocol] and if they did not take all
feasible measures within their powers to prevent or repress the breach. (Emphasis
Article 87, entitled "Duty of Commanders", provides that
the High Contracting Parties and the Parties to the conflict shall
require that any commander who is aware that subordinates or other persons under his
control are going to commit or have committed a breach of the Conventions or of this
Protocol, to initiate such steps as are necessary to prevent such violations of the
Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal
action against violators thereof. (Emphasis added.)
As noted in the Blaskic Decision, both the Republic of
Croatia and Bosnia and Herzegovina are bound by Additional Protocol I as successor States
of the Socialist Federal Republic of Yugoslavia, which had ratified the Protocol on 11
- The Trial Chamber further notes that Article 7, paragraph 3, of the Statute has been
reaffirmed, inter alia, by Article 6 of the Draft Code of Crimes Against Peace and
Security of Mankind8. As noted by the International
Law Commission, in its Commentary:
Article 6 provides two criteria for determining whether a superior is
to be held criminally responsible for the wrongful conduct of a subordinate. First, a
superior must have known or had reason to know in the circumstances at the time that a
subordinate was committing or was going to commit a crime. This criterion indicates that a
superior may have the mens rea required to incur criminal responsibility in two
different situations . . . The second criterion requires that a superior failed to take
all necessary measures within his power to prevent or repress the criminal conduct of his
subordinate. This second criterion is based on the duty of a superior to command and to
exercise control over his subordinates. A superior incurs criminal responsibility only if
he could have taken the necessary measures to prevent or to repress the unlawful conduct
of his subordinates and he fails to do so.
- As to the alternative request that the Trial Chamber set out the role that claims of
failure to punish will play in the trial, the Trial Chamber notes that it is for the
parties to decide how to present the case and declines to rule further on this point.
- Finally, when considering the degree of control required, the Trial Chamber notes that
in the Celebici Judgement it was found that the non-exclusive language of Article
7, paragraph 3, permitted charges to be brought against both military and civilian
superiors and that: "It is necessary that the superior have effective control over
the person committing the underlying violations of international humanitarian law, in the
sense that they have the material ability to prevent and punish the commission of the
offences"9. This matter involves mixed questions
of fact and law which should be dealt with during trial.
For the foregoing reasons
PURSUANT TO Rule 72 of the Rules of Procedure and Evidence of the International
THE TRIAL CHAMBER DISMISSES the Motion.
Done in both English and French, the English text being authoritative.
Dated this second day of March 1999
At The Hague
[Seal of the Tribunal]
1. Report of the Secretary-General pursuant to paragraph 2 of
Security Council resolution 808 (1993) and Annex thereto, U.N. Doc. S/25704 ("Report
of the Secretary-General") at paragraph 35.
2. Decision on the Defence Motion to Strike Portions of the
Amended Indictment Alleging "Failure to Punish" Liability, Prosecutor v.
Blaskic, IT-95-14-PT, T.Ch. I, 4 Apr. 1997 ("Blaskic Decision").
3. Judgement, Prosecutor v. Delalic et al., IT-96-21-T,
T.Ch. II, 16 Nov. 1998 ("Celebici Judgement").
4. Report of the Secretary-General, supra n. 1.
5. Celebici Judgement, supra n. 3,
6. Celebici Judgement, supra n. 3. See also
United States v. Tojo, Tokyo War Crimes Trials, Vol. XX, p. 49845-49846: "He
[Tojo] took no adequate steps to punish offenders (who ill-treated prisoners and
internees) and to prevent the commission of similar offences in the future";
United States v. Wilhem List and others, Trials of War Criminals, Vol. XI, p.1272:
"His [Field Marshall Wilhelm List] failure to terminate these unlawful killings and
to take adequate steps to prevent their recurrence constitutes a serious breach of duty
and imposes criminal responsibility".
7. Blaskic Decision, supra n. 2.
8. Report of the International Law Commission on the Work of
its Forty-eighth Session, (1996), G.A.O.R., 51st sess., Supp. No.10, U.N.
Doc. A/51/10, pp.37-38.
9. Celebici Judgement, supra n. 3, at para. 378.