1. In a motion dated 4 December 1996 (hereinafter "the motion"), General Blaskic (hereinafter "the accused") sought to have Trial Chamber I "strike portions of the amended indictment alleging ‘failure to punish’ liability pursuant to the provisions in Sub-rule 73(A) (i) and/or (ii) of the Rules of Procedure and Evidence (hereinafter "the Rules"). In opposition, the Prosecutor submitted a response to the motion on 20 January 1997 (hereinafter "the response"). In a brief dated 3 February 1997 (hereinafter "the reply") the accused’s Defence replied to the opposition. The Trial Chamber heard the parties during a hearing on 12 and 13 March 1997.

The Trial Chamber will review the claims and arguments of the parties and then discuss the points in dispute.

2. Paragraph 5.7 of the amended indictment reads as follows:

"The accused is also, or alternatively, criminally responsible as a superior for the acts of his subordinates, pursuant to Article 7(3) of the Statute of the Tribunal. This criminal responsibility involves the responsibility of a superior officer for the acts of his subordinate if the superior knew or had reason to know that his subordinate was about to commit such acts zor had done so and the superior failed to take necessary and reasonable measures to prevent such further acts or to punish the perpetrators thereof". (underlining added)

3. In his motion, the accused seeks to have the underlined wording ("or to punish the perpetrators thereof") struck from the indictment.

The accused pleads basically that the failure to punish subordinates guilty of crimes:

a) would be an offence not found in customary international humanitarian law and conventional international humanitarian law;

b) does not in itself involve the criminal responsibility of a commanding officer;

c) violates the rule nullum crimen sine lege; and accordingly

d) is not an offence falling within the Tribunal’s jurisdiction.

In support of these conclusions the accused provides a broad overview of case-law, law, and legal opinion. He discusses some 21 judgements, from Nuremberg, Tokyo, The Hague, Australia, the United States, and Israel. He mentions 11 international instruments and cites some 30 studies and miscellaneous documents.

4. In his response, the Prosecutor seeks to have the motion denied, and to that end argues that:

a) the principle of nullum crimen sine lege is not violated since the Defence incorrectly asserts that the Tribunal must apply established international customary law and ignores the correct formulation of the principle contained in Article 15 of the International Covenant on Civil and Political Rights; from which it follows that "an action or omission Smust constituteC, at the time when it was committed, a criminal offence under applicable national law or a criminal offence under any of the components of international law: custom, applicable treaty, or general principles of law";

b) the principle of personal criminal responsibility of the commander for his failure to punish is enshrined in customary international law; the doctrine of command responsibility is rooted in treaty law, in particular, in the Regulations respecting the laws and customs of war on land annexed to the Hague Convention IV, 18 October 1907; the principle was developed in case-law on the occasion of several war crimes trials after the Second World War; and, lastly, national law-of-war manuals constitute proof of state practice and support this assessment of customary international law;

c) the law of treaties, in particular, the provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (hereinafter "Protocol I") codified in part legal opinion and enshrined personal criminal command responsibility for failure to punish in Article 43, and especially in Articles 86(2) and 87(3); those texts apply to the case at hand insofar as Protocol I was ratified by the Socialist Federative Republic of Yugoslavia on 11 June 1979 and by Croatia and by Bosnia and Herzegovina which deposited a declaration of succession on, respectively, 11 May and 31 December 1992;

d) lastly, the Tribunal must apply the provisions in Article 7(3) of the Statute which clearly lays down the principle of such responsibility, a principle used by the Secretary-General of the United Nations in his report (para. 56) and by the ICRC in its commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949.

5. In its reply, the Defence further argues that:

a) the failure to punish the crimes of subordinates can be charged only insofar as it concurrently constitutes a failure to prevent the commission of similar criminal offences;

b) command responsibility based on "failure to punish" liability is a concept not found in customary international law - since it is enshrined only in two, British and United States, military manuals - and does not meet the superior requirement of the rule of law. The Defence excludes international case-law, the German military manual, and the provisions of Protocol I mentioned by the Prosecutor.

6. The indictment, from which the Defence seeks to have struck from paragraph 5.7 the words "or to punish the perpetrators thereof", replicates the wording of Article 7(3) of the Statute of the Tribunal (hereinafter "the Statute").

That wording, the primary basis for the Tribunal’s jurisdiction, sets forth very precisely the principle of personal criminal command responsibility, 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 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." (underlining added)

Command responsibility for failure to punish his subordinates who committed crimes referred to in Articles 2 to 5 of the Statute is thus expressly provided for.

7. In support of these provisions, the Secretary-General of the United Nations wrote the following in his Report to the Security Council (3 May 1993, S/25704) which the Defence acknowledged "should be considered highly persuasive as it is at the basis of the ICTY Statute" ( motion, p. 10):

"53. An important element in relation to the competence rationae personae (personal jurisdiction) of the International Tribunal is the principle of individual criminal responsibility. (...)

"54. The Secretary-General believes that all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violations and are, therefore, individually responsible.

"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 those who had committed them." (underlining added)

It should also be mentioned that the Secretary-General had just stated the following in paragraph 29 of his Report (which the Security Council approved by its Resolution 827 of 25 May 1993):

"29. It should be pointed out that, in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to "legislate" that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law." (underlining added)

8. It would therefore be wholly unfounded for the Tribunal to now declare unconstitutional and invalid part of its jurisdiction which the Security Council, with the Secretary-General’s assent, has asserted to be part of "existing international humanitarian law".

9. It should further be noted that the case-law and the international conventions which enshrine the principle of the command responsibility of whoever fails to punish subordinates who have committed crimes are fully adequate.

10. As regards international case-law, in the Tokyo trials, the Prime Minister of Japan, Hideki Tojo, was found guilty by the International Military Tribunal for the Far East on the following grounds:

"(He) took no adequate steps to punish offenders (who ill-treated prisoners and internees) and to prevent the commission of similar offences in the future. (...) He did not call for a report on the (Bataan death march). When in the Philippines in 1943 he made perfunctory inquiries about the march but took no action. No one was punished. (...) Thus the head of the Government of Japan knowingly and wilfully refused to perform the duty which lay upon that Government of enforcing performance of the laws of war." (20 Tokyo Trials, 49845-49846)

Although in its motion the Defence pleads that he "was found criminally responsible for both failure to prevent the recurrence of crimes and failure to punish; proof of both elements was required for criminal liability to attach." (p. 21), the reasoning underlying that decision in no way justifies this argument. The decision clearly held Tojo responsible for having failed to punish his subordinates and thus emphasised that "No one was punished.". That statement is based on the following reasoning: failing to punish subordinates inevitably means failing to prevent the recurrence of crimes, whereas by punishing subordinates, such recurrence is naturally prevented, with the result that failure to punish alone is sufficient grounds for command responsibility.

11. On the occasion of the trial of German generals after the Second World War, and particularly in the so-called Hostage case, it may be noted that the United States military tribunal found Field Marshal Wilhelm List guilty, primarily on the following grounds:

"Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts. His 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. (...) The primary responsibility for the prevention and punishment of crime lies with the commanding general; a responsibility which he cannot escape by denying his authority over the perpetrators." (U.S. v. Wilhelm List and others, "Hostage case", Trials of War Criminals, XI, p. 1272).

Although, here again, the Defence argues that "in finding liability, the tribunal relied on the commander’s failure to punish subordinates plus some other independent criminal act on the part of the commander" and that "with regard to List, the tribunal found the field marshal guilty because he both failed to prevent the crimes and failed to punish the perpetrators; criminal liability did not result from failure to punish alone." (motion, p. 17), the Trial Chamber, in order to reject this argument, will rely on the same assessment as that followed in respect of the judgement of the International Military Tribunal for the Far East in the Tojo case.

12. In respect of conventional law, it should be noted that the existence of such a principle of responsibility is also specified in the provisions of Protocol I. A review of the official record of the Geneva diplomatic conference which adopted the Protocol shows that Articles 86 and 87 were adopted by consensus by the delegations of more than 90 States present at the 45th plenary meeting¹. The Trial Chamber considers that reference to this text is valid in view of the guiding principle and the two conditions stipulated by the Appeals Chamber in the Decision in the case of the Prosecutor v. Dusko Tadic of 2 October 1995 (para. 143), since Croatia as well as Bosnia and Herzegovina are undisputedly bound by that convention as successors to the Socialist Federative Republic of Yugoslavia, which ratified it on 11 June 1979, and that the provisions of the latter in no way conflict with or waive the requisite standards of international law.

Thus Protocol I imposes, in Article 86(2), penal or disciplinary responsibility on the part of superiors who did not take all practicable measures within their competence "to prevent or repress the offence" committed by their subordinates. As sanctioning the perpetrator of the crime is the effective means of repressing the offence, the Protocol further considers that an omission to punish constitutes a failure to comply with an obligation which engages command responsibility. And as Article 87(3) provides that the high Contracting Parties and the Parties to the conflict must demand of any commander that he implement the penal and disciplinary measures against the perpetrators of violations, it demonstrates even more clearly and specifically that, according to the Protocol, any failure to punish an offence is grounds for command responsibility.

13. In conclusion, since in its motion the Defence failed to show that, according to international case-law, conventions and national military manuals - accepting that the United States manual places liability for war crimes on the shoulders of the commander who fails to punish the violators of the laws of war (motion, p. 15, footnote 9) - command responsibility is not ascribed to a commander who fails to punish his subordinates who committed crimes, the argument based on a violation of the principle of nullum crimen sine lege is likewise inoperative.

14. Lastly, the Defence’s argument shall be rejected for the following reasons:

The accused notes the use of the disjunctive "or" before the words "punish the perpetrators thereof" (motion, p. 5, footnote 2), which means that the indictment would make the "failure to punish" a wholly separate and distinct offence.

Everything hinges on the use of "or". The accused thus recognises only a charge composed of both failure to prevent and failure to punish, which are commonly linked by the conjunction "and" in case-law. (motion, pp. 17, 21, 22.)

15. In this instance, firstly, this Trial Chamber does not believe that the effect of bifurcating the two parts would necessarily so attenuate the latter that it should immediately be stricken from the indictment. On the contrary, going further still: even were the indictment limited to the offence "failure to punish", that would not necessarily mean it should be quashed.

16. Second, and even more important, the indictment is not restricted to a narrow charge of failing to punish. It covers rather, and essentially, the failure by the accused of preventing his subordinates from committing the alleged crimes in addition to having instigated, planned and ordered them himself.

The accused acknowledges that the charges of failing to prevent (before) and the failure to punish (after) often go hand in glove and have always been considered relevant and valid, either as related offences or as proof through the latter of the commission of the former (motion, pp. 16, 17, 18, 21, 22). The failure to punish subordinates who have committed crimes, in most cases, is also a failure to prevent the commission of other crimes and a failure to control the forces under one’s command.

17. Accordingly, at this stage of the proceedings, no grounds exist for striking from the indictment the six words "or to punish the perpetrators thereof" which the accused objects to. These words - which reflect a general principle of responsibility - permit the Prosecutor to provide evidence relevant to support the counts in the indictment; and also to characterise more adequately, as appropriate, a more independent source of responsibility insofar as it might fit into the logic of events. As things now stand, nothing justifies striking them.

18. FOR THE FOREGOING REASONS,

Trial Chamber I

Ruling inter partes and unanimously,

REJECTS the motion of the accused dated 4 December 1996 to strike portions of the amended indictment.

Done in French and English, the French version being authoritative.

Done this fourth day of April 1997
At The Hague
The Netherlands

___________________________
Claude Jorda
Presiding Judge, Trial Chamber I

1. Official records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva (1974-1977), published by the Federal Political Department, Bern, 1978, Volume VI, p. 307, CDDH/SR 45.