59. Both the case-law of the Tribunal and the arguments of the parties show that a close legal connection exists between Articles 2, 3, 4 and 5 of the Statute and in particular between Articles 2 and 3. As the Appeals Chamber concluded in the Tadic Appeal Decision 122 , under certain conditions Article 3 operates as a residual clause covering all those violations of international humanitarian law which do not fall under Article 2 or are not covered by Articles 4 and 5:
Article 3 may be taken to cover all violations of international humanitarian law other than the "grave breaches" of the four Geneva Conventions falling under Article 2 [and as conferring] on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5 123 .
60. In addition, the existence of an armed conflict is one of the conditions for Articles 2, 3 and 5 of the Statute to apply. Application varies, however, depending on whether in question are Articles 2 and 3 of the Statute or Article 5 thereof.
61. Lastly, the Prosecutor puts forward the criminal responsibility of the accused on the basis of Articles 7(1) and 7(3) of the Statute.
62. Consequently, the Trial Chamber will deal briefly with the question of the armed conflict in relation to the relevant articles of the Statute before reviewing Articles 2 and 3 of the Statute and addressing separately crimes against humanity and individual criminal responsibility.
A. The requirement that there be an armed conflict
63. According to the Tadic Appeal Decision:
an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State 124 .
64. This criterion applies to all conflicts whether international or internal. It is not necessary to establish the existence of an armed conflict within each municipality concerned. It suffices to establish the existence of the conflict within the whole region of which the municipalities are a part. Like the Appeals Chamber, the Trial Chamber asserts that:
International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved . Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there 125 .
a) A condition for charging under Articles 2 and 3 of the Statute
65. The requirement that an armed conflict exist and that there be a nexus between the crimes alleged and that conflict was presented in detail in the Judgement of the case The Prosecutor v. Zejnil Delalic et al126. The Trial Chamber accepts that reasoning. None of these conditions has been challenged in the case in point. The Trial Chamber will therefore limit itself to setting forth its opinion in brief after having shown the specificity of Article 5.
b) A condition for jurisdiction under Article 5 of the Statute
66. An armed conflict is not a condition for a crime against humanity but is for its punishment by the Tribunal. Based on an analysis of the international instruments in force 127 , the Appeals Chamber affirmed 128 the autonomy of that charge in relation to the conflict since it considered that the condition of belligerence had "no logical or legal basis" and ran contrary to customary international law 129 .
67. Neither Articles 3 or 7 of the Statutes of the ICTR and the International Criminal Court nor a fortiori the case law of the Tribunal for Rwanda require the existence of an armed conflict as an element of the definition of a crime against humanity 130 . In his Report to the Security Council on the adoption of the Statute of the future Court, the Secretary -General also explicitly refused to make this condition an ingredient of the crime :
Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character. 131
68. Nonetheless, the Appeals Chamber stated that whether internal or international, the existence of an armed conflict was a condition which gave the Tribunal jurisdiction over the offence. In its analysis of Article 5 of the Statute in the Tadic Appeal Decision, the Appeals Chamber concluded that:
[…] Article 5 may be invoked as a basis of jurisdiction over crimes committed in either internal or international armed conflicts 132
This position was reasserted in the Tadic Appeal Judgement:
The Prosecution is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not "a substantive element of the mens rea of crimes against humanity" (i.e. not a legal ingredient of the subjective element of the crime)." 133
3. Nexus between the crimes imputed to the accused and the armed conflict
69. In addition to the existence of an armed conflict, it is imperative to find an evident nexus between the alleged crimes and the armed conflict as a whole. This does not mean that the crimes must all be committed in the precise geographical region where an armed conflict is taking place at a given moment. To show that a link exists, it is sufficient that:
the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict 134 .
70. The foregoing observations demonstrate that a given municipality need not be prey to armed confrontation for the standards of international humanitarian law to apply there. It is also appropriate to note, as did the Tadic and Celebici Judgements, that a crime need not:
be part of a policy or practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of the war or in the actual interest of a party to the conflict 135 .
71. With particular regard to Article 5 of the Statute, the terms of that Article 136 , the Tadic Appeal Judgement 137 , the Decision of the Trial Chamber hearing the Tadiccase138and the statements of the representatives of the United States, France, Great Britain and the Russian Federation to the United Nations Security Council 139 all point out that crimes against humanity must be perpetrated during an armed conflict . Thus, provided that the perpetrator’s act fits into the geographical and temporal context of the conflict, he need not have the intent to participate actively in the armed conflict.
72. In addition, the Defence does not challenge that crimes were committed during the armed conflict in question but rather that the conflict was international and that the crimes are ascribable to the accused.
B. Article 2 of the Statute: Grave breaches of the Geneva Conventions
73. Article 2 of the Statute "grave breaches of the Geneva Conventions" stipulates that :
The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Convention of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or civilian to serve in the forces of a hostile power ;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.
74. Within the terms of the Tadic Appeal Decision and Tadic Appeal Judgement , Article 2 applies only when the conflict is international. Moreover, the grave breaches must be perpetrated against persons or property covered by the "protection " of any of the Geneva Conventions of 1949. Neither party challenged these two conditions . The Defence, however, refuted that these two conditions were met in the instance . The Trial Chamber will now address the issue of the nature of the armed conflict and that of the status of the victims as protected persons by relying on the Tadic Appeal Judgement and on other applicable sources of law.
a) International nature of the armed conflict
75. The legal criteria which allow the international nature of an armed conflict to be demonstrated were set out in great detail by the Appeals Chamber in its Judgement of 15 July 1999 in the Tadic case. The Trial Chamber, which agrees with the conclusions in that Judgement, does not intend to reproduce the lengthy analysis set forth therein. It prefers to limit itself to drawing on those essential elements necessary for ruling on the present case.
76. An armed conflict which erupts in the territory of a single State and which is thus at first sight internal may be deemed international where the troops of another State intervene in the conflict or even where some participants in the internal armed conflict act on behalf of this other State 140 . The intervention of a foreign State may be proved factually. Analysing this second hypothesis is more complex. In this instance, the legal criteria allowing armed forces to be linked to a foreign power must be determined. This link confers an international nature upon an armed conflict which initially appears internal.
77. The Prosecution put forward that the direct military intervention of Croatia and the involvement of its armed forces (hereinafter the "HV") alongside those of the Croatian Defence Council (hereinafter the "HVO") in the armed conflict against the Bosnian Muslims conferred on it an international nature by January 1993 at the latest . The Prosecution pointed out however that the engagement of the HV had extended to central Bosnia even before the date marking the start of the period covered by the indictment charging the accused with having committed grave breaches 141 .
78. The Defence maintained that the conflict pitting the HVO against the Muslim element of the Bosnia-Herzegovina army (hereinafter the "ABiH") 142 in central Bosnia was internal.
79. The Defence stated first that the HVO had been organised to fight the Serbian aggression in Bosnia. After a conflict pitting Croats against Serbs in Ravno, President Izetbegovi c allegedly stated: "this was not our war" 143 . This was a reaction to the statement that the Bosnian Croats were allegedly attempting to organise their own defence against the Serbian threat. Fighting the Muslims was allegedly never the HVO’s objective.
80. The Defence therefore referred to the agreement signed in May 1992 under the auspices of the ICRC between the Croatian Democratic Community (hereinafter the "HDZ"), the Serbian Democratic Party (hereinafter the "SDS") and the Party of Democratic Action (hereinafter the "SDA" – Muslim), according to which, it claimed, the latter were committed to honouring the provisions regarding internal armed conflicts as covered in Article 3 common to the Geneva Conventions and to observing certain rules applicable to international armed conflicts. The Defence considered that the agreement demonstrated the conviction of the ICRC that the conflict was internal 144 .
81. On this point, the Trial Chamber does not consider that the cited agreement clearly showed a conviction on the part of the ICRC that the conflict was internal. The preamble of the agreement 145 stipulates that:
The parties agree that, without any prejudice to the legal status of the parties to the conflict or to the international law of armed conflict in force , they will apply the following rules… 146
82. Whatever the case, the parties to the conflict may not agree between themselves to change the nature of the conflict, which is established by the facts whose interpretation , where applicable, falls to the Judge. In May 1992, the ICRC was certainly responsible for fulfilling its mandate to provide the best possible protection to civilians and persons placed hors de combat whilst the war unfolded around them. Nonetheless , it is this Trial Chamber which is responsible for evaluating the facts before it and determining the true nature of the conflict.
83. The first issue to be resolved is whether Croatian HV troops intervened in the conflict in question. The Prosecutor’s assertion that the HV was allegedly present in the territory of the Central Bosnia Operative Zone (hereinafter the "CBOZ") which the accused commanded, in particular in the Lasva Valley, was contested by the Defence . The Defence relied inter alia on testimony stating that some units of the Croatian army were present and engaged in an armed conflict not in the Lasva Valley but in other parts of Bosnian territory (in Herzegovina and in the border regions between Bosnia and Herzegovina) 147 .
84. The presence of HV soldiers or units in Bosnia-Herzegovina (hereinafter "BH") has been amply demonstrated and, indeed, the Defence acknowledged that the Prosecutor established the presence of HV soldiers or units in BH but not in the CBOZ 148 . The Trial Chamber heard the testimony of several witnesses on the subject of which it took especial note of the following.
85. One witness stated that he heard from a high-ranking Croatian government official that HV soldiers had been sent to BH in 1993 to combat the Muslim forces 149 . Another witness spoke of HV soldiers who had been dismissed from their positions because they did not want to got to Bosnia and of other soldiers who had to exchange their HV insignia for HVO insignia while they were in Bosnia 150 . One Defence witness, Admiral Domazet, confirmed that, along with other Croatian army personnel, he was in Bosnia-Herzegovina in April 1993 when he was "head of personnel" of the HV intelligence service 151 . He also testified that General Bobetko could never have defended and liberated the southern portion of the territory of Croatia without entering the territory of Bosnia -Herzegovina 152 . The presence of the HV in BH was even confirmed by one witness who discussed the nature of the intervention of the HV 153 and another who was of the view that the Croatian troops in Bosnia between 1992 and 1994 were not there lawfully given that such a decision had never been taken in the Sabor (parliament of the Republic of Croatia) 154 . Other evidence also demonstrated a general HV presence in Bosnia 155 .
86. Those places where the presence of HV soldiers was noted have been specified. The Croatian army penetrated into BH territory at least as far as Livno 156 and Tomislavgrad 157 . In October 1992 , when he was Deputy Minister of Defence of the Republic of Croatia, General Praljak was seen in Mostar 158 . Other witnesses spoke of the presence of the HV in the Mostar region 159 and in the Prozor and Gornji Vakuf regions from mid-January to February 1993 160 . In July 1993, UNPROFOR noted that the HVO in Mostar was being supported by HV soldiers "in great numbers" 161 . Other written evidence attesting to the HV presence was detailed in the Prosecutor’s brief. Some documents recall the HV’s "massive presence" in Bosnia in Jablanica, Prozor and Gornji Vakuf 162 and provide clarification as to who the troops involved were and what materiel and weapons these troops had 163 .
87. On 13 May 1993, the government of Bosnia-Herzegovina brought a complaint against the armed aggression upon its territory:
The government of Bosnia and Herzegovina states, once again, that it wishes to develop all encompassing relations in co-operation with the Republic of Croatia on the basis of mutual trust and respect; however, unless the attacks are immediately stopped and the units of the state of Croatia are withdrawn immediately from the territory of Bosnia and Herzegovina, the government of the Republic of Bosnia and Herzegovina will be forced to turn to the international community and request protection from the aggression 164 .
88. In a letter dated 4 September 1993 addressed to the UNPROFOR commander in Bosnia -Herzegovina, the Presidency of Bosnia-Herzegovina described the attack on certain towns by HVO and Croatian army forces 165 . Another letter, dated 28 January 1994 from the Permanent Representative of Bosnia -Herzegovina to the United Nations addressed to the Security Council President, contained an annex which included a description of the military intervention by the armed forces of the Republic of Croatia against Bosnia-Herzegovina 166 .
89. The Trial Chamber also points to the existence of United Nations documents (hereinafter the "UN") confirming the presence of the HV in BH. United Nations Security Council resolutions 752 of 15 May 1992 167 and 787 of 16 November 1992 168 demanded that the elements of the HV respect the territorial integrity of the BH and withdraw 169 . In correspondence dated 1 February 1994 and 17 February 1994, the Secretary-General informed the Security Council of the support lent to the HVO by Croatia 170 . In particular, the United Nations Secretary-General wrote to the Security Council on 1 February 1994:
The Croatian army has directly supported the HVO in terms of manpower, equipment and weapons for some time. Initially the level of support was limited to individual and small sub-units, many of them volunteers. As the offensives of the Bosnia and Herzegovina Government forces against the HVO have become successful, the number of Croatian soldiers appears to have increased. It is assessed that in total there is the equivalent of three Croatian Brigades of regular army personnel in Bosnia and Herzegovina, approximately 3,000 to 5,000 (this is an estimation, as it is impossible with UNPROFOR’s assets to obtain the required information for a more accurate account).
90. Other United Nations reports and correspondence dealt with the same subject 171 In a letter dated 11 February 1994 addressed to the Secretary-General, the Croatian Vice-Prime Minister and Minister for Foreign Affairs explained inter alia that his government was prepared to withdraw some units from the Bosnia-Herzegovina border areas but simultaneously urged the government of that Republic "immediately to order its army to cease all hostilities and offensive actions against Croatian population centres, especially in the region of central Bosnia. Following the cessation of hostilities, we shall issue an appeal to all Croat volunteers in central Bosnia to lay down their arms and return to normal civilian lives" 172 .
91. The Trial Chamber is of the opinion that proof exists as to the presence of the HV within the CBOZ itself. Over the period in question, HV officers, in particular Colonel Vidosevic from the Split Brigade along with two other Croatian army officers , were "frequently" seen at the Hotel Vitez. In April 1993, representatives of the Croatian Defence Council, Dragan Curcic and Bozo Curcija, were seen there too 173 . Soldiers wearing insignia bearing the initials "HV" set up in a Dubravica school near the Hotel Vitez 174 . Soldiers from Croatia were also observed in Busovaca whilst the HVO forces were grouping between May 1992 and January 1993 175 and at the Vitez Health Centre in January 1993 176 . At the same time, soldiers wearing badges which identified them as members of the HV arrived in the Kiseljak zone 177 . The Muslim victims of the attacks launched against villages in the Vitez and Busova ca municipalities declared that they had seen members of HV units participating in the assaults 178 .
92. One example of the presence of the HV is particularly significant. HV Colonel Miro Andric and members of the 101st National Guards Brigade of the President of the Republic of Croatia were sent to the BH southern front by the Croatian Defence Minister , Gojko Susak 179 . They continued to operate in central Bosnia in 1993 180 . Miro Andric, along with Tihomir Blaskic and Milivoj Petkovic, represented the HVO at meetings in Vitez on 28 and 29 April 1993 and during negotiations with the ECMM and the ABiH on the establishment of a joint command 181 . Blaskic declared that "Miro Andric […] was the number two in the joint command of the armed forces of the Republic of Bosnia-Herzegovina on behalf of the HVO" 182 . Subsequently, Andric returned to the HV in Croatia.
93. In the CBOZ, several orders were given to the members of the HV serving in the HVO to remove their HV insignia so that observers would not detect their presence in BH 183 . Further, a helicopter from Croatia "frequently" landed at the quarry some two kilometres south of the UNPROFOR British battalion base (hereinafter "BRITBAT") during the summer of 1993 184 , apparently to provide direct communication between Croatia, in particular, and the HVO enclave in central Bosnia.
94. Ultimately, the evidence demonstrated that, although the HV soldiers were primarily in the Mostar, Prozor and Gornji Vakuf regions and in a region to the east of Capljina 185 , there is also proof of HV presence in the Lasva Valley. The Trial Chamber adds that the presence of the HV in the areas outside the CBOZ inevitably also had an impact on the conduct of the conflict in that zone. By engaging the ABiH in fighting outside the CBOZ, the HV weakened the ability of the ABiH to fight the HVO in central Bosnia. Based on Croatia’s direct intervention in BH, the Trial Chamber finds ample proof to characterise the conflict as international.
95. Aside from the direct intervention by HV forces, the Trial Chamber observes that Croatia exercised indirect control over the HVO and HZHB.
96. In order to establish whether some of the participants in the armed internal conflict acted on behalf of another State, the Appeals Chamber in the Tadic Appeal Judgement took as its starting point Article 4 of the Third Geneva Convention which defines those situations in which militia and paramilitary groups may be likened to legitimate combatants. The Appeals Chamber deemed that the condition of belonging to another Party to the conflict provided for in this Article constituted an implicit reference to a control criterion 186 . Therefore, some degree of control exercised by a Party to a conflict over the perpetrators of the breaches is needed for them to be held criminally responsible 187 on the basis of Article 2 of the Statute. The question of determining the degree of control required then arises.
97. In this respect, the Tadic Appeal Judgement contains a meticulous analysis of the notion of control. Upon examining the reasoning and control criteria set forth by the International Court of Justice in the Nicaragua case 188 , the majority of the Appeals Chamber ultimately rejected the position of the Court on the ground that the criteria in question agreed neither with "the logic of the law of State responsibility" nor with "judicial and State practice" 189 . The Defence contended that the Tadic Appeal Judgement wrongly dismissed the criterion of "effective control" set by the International Court of Justice in the Nicaragua case 190 . For the Defence, this is the appropriate criterion to apply in the instance, notwithstanding the conclusions of the Tadic Appeal Judgement. Nonetheless, this Trial Chamber is of the opinion that it is correct to follow the reasoning of the Appeals Chamber .
98. The Appeals Chamber concluded that although State and legal practice adopted the Nicaragua criterion for unorganised groups or individuals acting on behalf of a State, it applied another when military or paramilitary groups were at issue 191 . Thus:
the Appeals Chamber holds the view that international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having a status of a State official under internal legislation can be regarded as a de facto organ of the State. 192
99. The Appeals Chamber clearly laid out the three control criteria which allow the acts of individuals or groups to be ascribed to a foreign State, circumstances which transform what at first sight is an internal armed conflict into an international one. The first criterion is applicable to individuals or unorganised groups and demands the issuance of specific instructions for the acts at issue to be perpetrated or, in the alternative, proof that the foreign State endorsed a posteriori the said acts. 193 Another criterion relates to a situation wherein, even though no instructions are given by a State , individuals may be likened to State organs because of their effective behaviour within the structure of the said State 194 . Neither of these criteria is relevant in this case and this is why we will not analyse them here.
100. The matter is one of possibly imputing the acts of the HVO to the Republic of Croatia which would then confer an international nature upon the conflict played out in the Lasva Valley. It is the third criterion 195 which applies in this instance. This criterion allows the degree of State control required by international law to be determined in order to be able to ascribe to a foreign State the acts of armed forces, militia and paramilitary units (hereinafter "organised groups"). The Appeals Chamber characterised it as a criterion of overall control when it stated:
control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however , does not go as far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the party to the conflict ) has a role in organising, co-ordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group 196 .
101. How may it be established that a State exercises overall control over an organised military group? The Appeals Chamber stated numerous factors whose conjunction indicated that the Federal Republic of Yugoslavia (Serbia and Montenegro) (hereinafter "the FRY") exercised an overall control over the Army of Republika Srpska (hereinafter the "VRS"), i.e. the transfer of non-Bosnian Serb former officers of the old Yugoslav National Army (hereinafter the "JNA") to BH, the payment of the wages of Bosnian Serbs by the FRY administration, the fact that the reorganisation and change of name of the JNA in no way altered the military objectives and strategies, the fact that the VRS had structures and ranks identical to those of the army of the FRY (hereinafter "the VJ") and that the VJ continued to direct and supervise the VRS (well beyond the generous financial, logistical and other support which it lent) and the persistence of the VJ’s direct intervention 197 . However, for the Appeals Chamber, these factors do not define overall control but instead constitute indications thereof. Accordingly, the factors which permit the existence of overall control to be proved may vary depending on the circumstances .
102. In this instance, the direct intervention of the HV in Bosnia and in the CBOZ has already been demonstrated above. Mention may be made of several other indications of Croatia’s involvement in the conflict which rebut the Defence argument that the HV did indeed direct HVO operations, but only between March and June 1992 before the HVO became organised and prior to the outbreak of the conflict in central Bosnia between the Croatian and Muslim forces 198 . The Trial Chamber concurs that the involvement of the HV and Croatia may appear more clear-cut at the start of the period under consideration but deems that it persisted throughout the conflict.
103. This involvement does not seem to be the result only of the particular circumstances prevailing at the time. In fact, according to one Defence witness, Croatia had harboured ambitions in respect of the Croatian territory of Bosnia-Herzegovina for 150 years 199 . President Tudjman aspired to partitioning this neighbouring country. In his book entitled Nationalism in Contemporary Europe Franjo Tudjman argued that Bosnia-Herzegovina should form part of the federal Croatian unit because it was linked historically to Croatia. Moreover, Tudjman observed that from an ethnic and linguistic viewpoint most Muslims were of Croatian origin 200 . On the partitioning of Bosnia-Herzegovina, Tudjman wrote:
But large parts of Croatia had been incorporated into Bosnia by the Turks. Furthermore , Bosnia and Herzegovina were historically linked with Croatia and together they comprise an indivisible, geographic and economic entity. Bosnia and Herzegovina occupy the central part of this whole, separating southern (Dalmatian) from northern (Pannonian) Croatia. The creation of a separate Bosnia and Herzegovina makes the territorial and geographic position of Croatia extremely unnatural in the economic sense and therefore in the broadest nationalist political sense very unfavourable for life and development and in the narrower administrative sense unsuitable and disadvantageous. These factors largely explain why the 1939 agreement between Belgrade and Zagreb included the following areas of Bosnia into the Banovina of Croatia: the whole of Herzegovina and Mostar and those Bosnian districts where the Croats have a clear majority 201 .
104. Franjo Tudjman’s nationalism and his desire to annex a part of BH were apparent to Lord David Owen to whom President Tudjman staked his claim that 17.5% of Bosnian territory should revert to a republic with a Croatian majority 202 . Witness P also confirmed that Franjo Tudjman had in mind the partition of BH 203 .
105. These aspirations for a partition were furthermore displayed during the confidential talks between Franjo Tudjman and Slobodan Milosevic in Karadjordjevo on 30 March 1991 204 on the division of Bosnia -Herzegovina. No Muslim representative participated in these talks which were held bilaterally between the Serbs and Croats 205 . Following Karadjordjevo, Franjo Tudjman opined that it would be very difficult for Bosnia to survive and that the Croats were going to take over the Banovina plus Cazin, Kladusa and Bihac 206 . Preliminary secret negotiations were held using maps to come to an agreement with the Serbs on how to partition Bosnia 207 . An interview of the Defence witness Bilandzic published on 25 October 1996 by the Croatian weekly Nacional confirms that, following negotiations with Slobodan Milos evic, "it was agreed that two commissions should meet and discuss the division of Bosnia and Herzegovina" 208 . The agreement entered into by the Serbs and Croats on the partition of Bosnia was reportedly confirmed at a meeting between the Bosnian Serb and Bosnian Croat political leaders, Radovan Karadzic and Mate Boban, in Graz in Austria on 6 May 1992. They allegedly agreed to resort to arbitration to determine whether certain zones would fall within Serbian or Croatian "constituent entities" 209 .
106. The aspirations of Franjo Tudjman to annex "Croatian" regions of Bosnia persisted throughout the conflict. On 6 May 1995, during a dinner at which he was sitting beside Mr. Paddy Ashdown, leader of the Liberal Democrat Party in the United Kingdom , who was called as a witness by the Prosecutor, President Tudjman clearly confirmed that Croatia had aspirations to territory in Bosnia. Having sketched on the back of a menu 210 a rough map of the former Yugoslavia showing the situation in ten years time, Franjo Tudjman explained to Mr. Ashdown that one part of Bosnia would belong to Croatia and the other part to Serbia. He also said that there would no longer be a Muslim region within the former Yugoslavia, that it would constitute only a "small element of the Croat State". Franjo Tudjman was convinced that the Serbs would ultimately exchange Banja Luka for Tuzla 211 . President Tudjman also said that he intended to retake Knin and the Krajina region 212 which Croatia did indeed subsequently do. According to the witness, Franjo Tudjman and Slobodan Milosevic seemed to have reached an agreement on some territories 213 .
107. The Defence claimed, however, that the opinions expressed by President Tudjman were purely personal and did not reflect the official position of the Republic of Croatia 214 . Admittedly, the distinction in principle between President Tudjman’s personal comments and Croatia’s official policy is justified. The Trial Chamber notes nonetheless that President Tudjman was so dominant in the government of Croatia that his personal opinions in fact represented the position of the official authorities. According to Witness P, President Tudjman exercised his responsibilities within an authoritarian regime where only he held the power 215 . For this reason , the distinction cannot apply in the case in point.
108. Furthermore, it appears that the HVO and Croatia shared the same goals. The HVO and some paramilitary or assimilated forces fought for Croatia, defended the "Croatian " people and territory and wanted the territory which they regarded as Croatian to be annexed to the Republic of Croatia 216 . The members of these armed forces saw Tudjman as their President 217 . Mate Boban, President of Herceg-Bosna, rejected the constitution of Bosnia-Herzegovina which he thought protected only the rights of the Muslims in Bosnia. According to Mate Boban, Herceg-Bosna was culturally, spiritually and economically part of Croatia and had only been separated from it for regrettable reasons 218 . For him, the HDZ was the Bosnian branch of the party founded by Franjo Tudjman 219 .
109. The minutes of a meeting held on 12 November 1991 in Grude between the representatives of the regional communities of the Herzegovina and Travnik HDZ regional communities are particularly revealing. The two communities declared that they "have unanimously decided that the Croatian people in Bosnia and Herzegovina must finally embrace a determined and active policy which will realise our eternal dream – a common Croatian state" and that they must "show … which territories in BH are Croatian territories […]. Our people will not accept, under any conditions, any other solution except within the borders of a free Croatia" 220 .
110. These common goals did indeed have consequences on the decision-making mechanism of the Croatian Community of Herceg-Bosna (hereinafter "the HZHB"). Croatia was able to control the decisions either through Croatian officers detached from the HV so as to serve in the HVO or through Bosnian Croats who shared the same goals as Croatia and who effectively followed the instructions issued by the Croatian government.
111. On 21 March 1992, Pasko Ljubicic, commander of the "HB Defence", requested the Defence Minister of the Republic of Croatia, Gojko Susak, for a meeting inter alia "to receive your instructions for further actions Sin central BosniaC" 221 . President Tudjman announced that Croatia officially recognised the independence of BH on 7 April 1992 222 . For this reason, any involvement of Croatia in the setting up of the HVO after that date was intervention in the internal affairs of BH. The Trial Chamber notes, however , that although Croatia’s action in BH was less obvious after that date, it did not stop.
112. Croatia was thus directly involved in the control of the HVO forces which were created on 8 April by the HZHB presidency 223 . On 10 April 1992, President Tudjman appointed General Bobetko of the HV as commander of the "Southern Front" 224 . His duties included commanding HV and HVO units in Croatia and Bosnia-Herzegovina. Three of General Bobetko’s subordinates, officers in the HV, subsequently took command of HVO units. On 21 April 1992, General Bobetko ordered General Ante Roso to take responsibility for the Livno region in BH 225 . By 19 May, General Bobetko had already established a forward command post in Gornji Vakuf in BH 226 . On 14 June 1992, General Bobetko ordered offensive activities to commence, HVO forces to manoeuvre in a certain direction and specific operations to be launched as part of a military campaign 227 . On 27 June 1992 while still an HV General, Ante Roso promoted Tihomir Blaskic to the rank of HVO Colonel and made him commander of the CBOZ 228 . General Petkovic was replaced in his post as Chief-of-Staff by General Praljak, the former Croatian national Deputy Minister of Defence in Zagreb 229 . In October 1993, General Praljak was replaced by General Roso. The decisions to make these replacements were taken by the Croatian government 230 and affected an army in principle answering to a distinct sovereign State.
113. The HDZ in Croatia had overall control of the HDZ in Bosnia:
formally the HDZ in Croatia was separate from the HDZ in Bosnia-Herzegovina – that is formally, but, in reality, all decisions are made in Zagreb and I think that there is no doubt about it. I do not think that – there is no question of the HDZ in Bosnia being an independent party in Bosnia-Herzegovina – formally yes, but not in reality. 231
114. The Defence furthermore did not challenge the fact that the HVO shared personnel , often from BH, with the HV. According to Admiral Domazet, officers in the army of the Republic of Croatia voluntarily resigned from the HV in order to serve in Bosnia-Herzegovina. These officers needed official authorisation and were regarded as temporarily detached officers. It appears that these officers continued to receive their wage from Croatia 232 . Those who wished to rejoin the ranks of the Croatian army could do so if they obtained the official approval of the HV authorities which, bearing in mind how the Trial Chamber interpreted the elements of the case, was but a formality.
115. The Trial Chamber heard evidence indicating that Milivoj Petkovic, Ante Roso, Slobodan Praljak and General Tolj, all high-ranking officers within the Croatian army, went to serve in the HVO for a time before returning to the Croatian army 233 . Before becoming HVO Chief-of-Staff, General Milivoj Petkovic was a senior officer in the army of the Republic of Croatia. Slobodan Praljak left the army of the Republic of Croatia and became an HVO General. He then returned to the armed forces of the Republic of Croatia, was promoted to the rank of General and pensioned off 234 . It was only on 15 October 1993 that General Roso resigned from the HV to "leave for Bosnia-Herzegovina" and become the HVO Chief-of-Staff. On 23 February 1995, he requested to be taken back into the HV, a request which was granted 235 . Ivan Tolj was a deputy of the Sabor, a general, chief of the Croatian army’s political department and also a member of the HVO 236 . The aforementioned HV Colonel, Miro Andric, also belonged to the HVO. Even at junior levels, the HVO was in part made up of Croats who had returned from Croatia after having fought in the Croatian army 237 .
116. President Tudjman also ordered the replacement of Bosnian Croats who did not agree with him. Stepan Kljujic was President of the HDZ in Bosnia but was replaced because he was fighting for a united Bosnia. Lastly, Mate Boban was appointed President of Herceg-Bosna. Before taking an important decision related to Herceg-Bosna, Mate Boban always consulted Franjo Tudjman 238 and effectively followed his instructions. Delegations from the Bosnian HDZ regularly went to consult President Tudjman 239 .
117. General Blaskic himself was appointed by a procedure which stressed the need to select loyal people prepared to implement the policy dictated by Zagreb. In order to implement the BH HDZ partisan policy, it was decided, during the meeting in Grude presided over by Mate Boban 240 , to "strengthen its membership, and select people who ScouldC see these tasks through to the end" and "to prepare better militarily for the struggle against all the forces trying to hinder the inevitable process of the creation of a free Croatian state " 241 . General Blaskic could not have been appointed to the post he held if he had not fully endorsed this policy .
118. The Bosnian Croat leaders followed the directions given by Zagreb or, at least, co-ordinated their decisions with the Croatian government 242 . Co-ordination was manifest at various levels. The day after the establishment of the Territorial Defence (hereinafter the "TO") on 9 April 1992 as the legitimate military organisation in Bosnia-Herzegovina, Mate Boban issued an order prohibiting the TO from entering HZHB territory 243 . The order was confirmed in a similar one issued by General Roso on 8 May 1992 244 . On 11 May 1992, in the municipality of Kiseljak, Tihomir Blaskic issued an order 245 to execute the one from Anto Roso by which the HVO became the sole legal military unit and which outlawed the TO. Dario Kordic allegedly issued a similar order in the municipality of Busovac a 246 . An order of HV General Anto Roso was therefore quickly put into effect. Even on the subject of control of the munitions factory in Vitez, President Tudjman and Tihomir Blaskic promoted the same policy by threatening to blow it up if the ABiH attacked 247 .
119. Accordingly, the evidence demonstrates that there were regular meetings with President Tudjman and that the Bosnian Croat leaders, appointed by Croatia or with its consent , continued to direct the HZHB and the HVO well after June 1992.
120. Apart from providing manpower, Croatia also lent substantial material assistance to the HVO in the form of financial and logistical support 248 . The person responsible for all the intelligence services in Croatia publicly declared that Croatia had spent a million German marks (DM) a day on providing aid to all of Herceg-Bosna’s structures including the HVO 249 . Croatia supplied the HVO with large quantities of arms and materiel in 1992, 1993 and 1994 250 . The presence of T-55 tanks and howitzers with the HV acronym was raised before the Trial Chamber. In September 1993, witness DX observed Croatian T-55 assault tanks in the Gornji Vakuf region being crewed by HV teams and that these tanks seemed to have been intended for participation in the hostilities between the HVO and the ABiH 251 . Equipment was also supplied to the ABiH but this ceased in 1993 during the conflict between the HVO and the ABiH 252 . HVO troops were trained in Croatia 253 .
121. Finally, in the Tadic Appeal Judgement, the Appeals Chamber also found that :
Where the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls , it may be easier to establish the threshold 254 .
122. In the light of all the foregoing and, in particular, the Croatian territorial ambitions in respect of Bosnia-Herzegovina detailed above, the Trial Chamber finds that Croatia , and more specifically former President Tudjman, was hoping to partition Bosnia and exercised such a degree of control over the Bosnian Croats and especially the HVO that it is justified to speak of overall control. Contrary to what the Defence asserted, the Trial Chamber concluded that the close ties between Croatia and the Bosnian Croats did not cease with the establishment of the HVO.
123. Croatia’s indirect intervention would therefore permit the conclusion that the conflict was international.
b) Protected persons and property
124. Once it has been established that a conflict is international, it becomes necessary to examine the last condition for Article 2 of the Statute to apply, namely, to determine whether the victims or property were protected under the Geneva Conventions .
125. Article 4(1) of the Fourth Geneva Convention states that:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or Occupying Power of which they are not nationals .
126. The Defence maintained that since the Bosnian Muslims and Bosnian Croats were nationals of the same country, they did not enjoy the protection accorded to the persons protected within the meaning of Article 4(1). The Defence argued that in the Tadic Appeal Judgement the Appeals Chamber incorrectly found that the criterion of nationality was not a decisive factor for this article to apply. Nevertheless, the Trial Chamber follows the conclusion arrived at by the Appeals Chamber which chose a "legal approach hinging more on substantial relations than on formal bonds" 255 , an approach which it deemed best adapted to contemporary international armed conflicts :
While previously wars were primarily between well-established States, in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance. Or, put another way, ethnicity may become determinative of national allegiance. Under these conditions, the requirement of nationality is even less adequate to define protected persons. In such conflicts, not only the text and the drafting history of the Convention but also, and more importantly, the Convention’s object and purpose suggest that allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test 256 .
127. Consequently, the Defence argument on this particular point is rejected and the principle put forward by the Prosecution 257 confirmed. In an inter-ethnic armed conflict, a person’s ethnic background may be regarded as a decisive factor in determining to which nation he owes his allegiance and may thus serve to establish the status of the victims as protected persons. The Trial Chamber considers that this is so in this instance.
128. Several of the explanations on the international nature of the conflict elaborated above by the Trial Chamber may be restated here. The disintegration of Yugoslavia occurred along "ethnic" lines. Ethnicity became more important than nationality in determining loyalties or commitments. One historian, a Defence witness, stated that Yugoslavia was a multi-ethnic State in which each of the nations that had formed had followed differing "ideologies": Orthodox, Catholic or Muslim 258 . The witness made reference to the ethnic principle and the historic principle whereby even 150 years ago Serbia and Croatia considered that they had a right to Bosnia . For their part, the Bosnians regarded themselves as a distinct people 259 .
129. These trends became manifest in 1990 during the first multi-party elections held in Yugoslavia. The parties with nationalist leanings won in each constitutive republic . In Bosnia-Herzegovina, the dominant parties were the SDS, the SDA and the HDZ 260 .
130. Croatia’s policy towards the Bosnian Croats placed more emphasis on their ethnic background than on their nationality. A provision adopted by the Republic of Croatia gave to all members of the Croatian nation the right to citizenship 261 . General Blaskic himself asked to take advantage of this measure 262 . Another law authorised all Croats to vote in the elections in Croatia, thus allowing the Bosnian Croats with Bosnian nationality to vote in the parliamentary elections in the Republic of Croatia. The "Agreement on Friendship and Co-operation between the Republic of Bosnia-Herzegovina and the Republic of Croatia" stipulated that the two republics would reciprocally authorise their citizens to obtain dual nationality 263 . The Trial Chamber deems that all these texts were used by Croatia to steer the Croats of Bosnia-Herzegovina towards Croatia 264 and contributed to the fact that the people identified more with ethnicity than formal nationality when expressing their loyalty. Approximately 10% of the representatives in the Sabor came from the diaspora. Two Bosnian Croat members of the HVO were elected to the Croatian parliament – Vice Vukojevic and Ivan Tolj 265 . UNPROFOR basically looked upon the HVO and the HV as being on the same side during the conflict against the ABiH and referred to them collectively as the "HV/HVO" 266 . The ECMM spoke of the need to put strong pressure on Croatia and the Bosnian Croats 267 .
131. President Tudjman himself thought that BH was comprised of different nations:
International recognition of Bosnia and Herzegovina shall imply that the Croatian people, as one of the three constituent nations in Bosnia and Herzegovina , shall be guaranteed their sovereign rights 268;
and the Bosnian Croat officials considered the Bosnian Muslims and Serbs to be people of another nationality or another people altogether:
The Croatian Defence Council of the Croatian Community of Herceg-Bosna shall respect the competence of the authorities in provinces where the other two nations are in the majority 269 .
In April 1993, the vice-president of the HVO, Anto Valenta, requested "a province for every of these three nations" 270 .
132. In the Lasva Valley, one observer saw flags symbolising the various ethnic groups 271 . General Blaskic himself announced that the BH authorities in Sarajevo had no legitimacy in Kiseljak, that Kiseljak would be part of a Croatian canton and would look more to the west than the east 272 . A report submitted to the Trial Chamber mentioned "separate schools, only for Croats, […] with new school books coming from Zagreb, using the ‘traditional Croat language’" 273 .
133. The supporters of the HVO were in no doubt that Croatia was their ally and that the Bosnian Muslims were their adversaries. They treated the Muslims as foreigners in Croatian territory. "Balija", a pejorative term for a Muslim, was commonly used. Keeping in mind the sense in which the notion of nationality was used in the former Yugoslavia and more specifically in central Bosnia, the Trial Chamber is of the opinion that the Bosnian Muslim victims in the hands of the HVO must be considered as protected persons within the meaning of the Geneva Conventions 274 .
134. The Prosecution considered that the Bosnian Muslim civilians were persons protected within the meaning of the Fourth Geneva Convention because Croatia and BH were not co-belligerent States and did not have normal diplomatic relations when the grave breaches were committed 275 .
135. The Defence contended that even if the conflict had been international, the Bosnian Muslim victims of acts imputed to the HVO still would not have had the status of "protected" persons since Croatia and Bosnia-Herzegovina were co-belligerent States united against the aggression of the Bosnian Serbs. It draws its argument from Article 4(2) of the Fourth Geneva Convention, which provides inter alia that:
nationals of a co-belligerent State shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
136. The Defence argument may be tested from three perspectives: co-belligerence, normal diplomatic relations and the reasoning underlying Article 4 of the Fourth Geneva Convention.
137. Firstly, the reasoning of the Defence may be upheld only if Croatia and Bosnia-Herzegovina were co-belligerent States or allies within the meaning of Article 4. The Defence first stated that none of these States had declared war on the other. It then suggested that the status of co-belligerent could be deduced from a review of the treaties signed between the two countries and whether or not there were diplomatic relations between the States in question. The Trial Chamber considers that it is important not to limit oneself to the formal or superficial elements but also to examine the actual relations between the two countries at the relevant time and region. It therefore comes down to deciding whether the Republic of Bosnia-Herzegovina and the Republic of Croatia were allies and acted as such in conducting operations in the Central Bosnia Operative Zone.
138. Granted, Croatia and Bosnia-Herzegovina did enter into agreements over the course of the conflict. One of these, dated 14 April 1992, stipulated that the diplomatic and consular missions of Croatia and Bosnia-Herzegovina abroad would be responsible for defending the interests of the nationals of the other State when there was only a mission of one of the two party-States in the territory of a given country 276 . On 21 July 1992, an agreement on friendship and co-operation was signed 277 and on 25 July the two States entered into an agreement establishing diplomatic relations.
139. However, the true situation was very different from that which these agreements might suggest. Bosnia-Herzegovina perceived Croatia as a co-belligerent to the extent that they were fighting alongside each other against the Serbs. Nonetheless, it is evident that Bosnia did not see Croatia as a co-belligerent insofar as Croatia was lending assistance to the HVO in its fight against the ABiH over the period at issue 278 .
140. The Croats had an ambivalent policy towards Bosnia-Herzegovina. The nationalist Croats benefited from the Serb aggression in Bosnia to expand the territory of Croatia into some regions of the newly independent Bosnia. Furthermore, the Serbian aggression forced the Croats and Muslims to form alliances, temporarily at least 279 . In fact, they were allies only when it served Croatian interests as for example in the Bihac pocket 280 . Following pressure exerted by the international community, the official declarations of the Croatian government admittedly tended to make it appear that Croatia was respecting the territorial integrity of Bosnia-Herzegovina 281 and sought to demonstrate that the Croats and Muslims were co-operating. Croatia thus always denied that its troops were in the territory of Bosnia-Herzegovina which the Security Council had nonetheless noted and deplored. At the same time, it supported gathering the Bosnian Croats into a distinct community parallel to the legitimate governmental authorities. To this end, during the conflict between the HVO and the ABiH in 1993, it stopped supplying the Bosnian Muslims 282 , behaviour which runs contrary to that of an ally.
141. On the Bosnian side there was no doubt as to what was unfolding in Bosnia. The commander of the ABiH, Arif Pasalic, said on the subject of the HVO-ABiH conflict: "This is not some local squabble. This is the implementation of a plan, a policy coming from Grude and Mate Boban" 283 . The division and conflict between the Bosnian Croats and Muslims were reproduced in Vitez, Novi Travnik and other locations in central Bosnia 284 . The intervention of the HV against the ABiH was characterised by a Defence witness as "unlawful armed intervention" 285 . On 8 May 1992, General Roso issued an order which outlawed the legitimate ABiH armed forces 286 , an act which is not one of a co-belligerent. The Bosnian Croats who wished to co-operate with the ABiH faced internal opposition. For example, in autumn 1992, in Vares, the local HVO attempted to co-operate with the Muslim army but Ivica Rajic, Tihomir Blaskic’s successor at the head of the Kiseljak HVO, sent troops to prevent the Croatian leaders from co-operating with the Muslims 287 . In Travnik, Colonel Filipovic of the HVO declared that Mate Boban and Colonel Bla skic had exerted considerable pressure on him not to ally with the Muslims 288 .
142. In any case, it seems obvious if only from the number of casualties they inflicted on each other that the ABiH and the HVO did not act towards each other within the CBOZ in the manner that co-belligerent States should 289 .
143. In summary, the Trial Chamber deems it established that, in the conflict in central Bosnia, Croatia and Bosnia-Herzegovina were not co-belligerent States within the meaning of the Fourth Geneva Convention.
144. The Trial Chamber adjudges a final observation appropriate. The Commentary of the Fourth Geneva Convention reaffirms that the nationals of co-belligerent States are not regarded as protected persons so long as the State of which they are nationals has normal diplomatic representation in the other co-belligerent State 290 . The reasoning which underlies this exception is revealing: "It is assumed in this provision that the nationals of co-belligerent States, that is to say, of allies , do not need protection under the Convention" 291 .
145. In those cases where this reasoning does not apply, one might reflect on whether the exception must nevertheless be strictly heeded. In this respect, it may be useful to refer to the analysis of the status of "protected person" which appears in the Tadic Appeal Judgement. The Appeals Chamber noted that in the instances contemplated by Article 4(2) of the Convention:
those nationals are not "protected persons" as long as they benefit from the normal diplomatic protection of their State; when they lose it or in any event do not enjoy it, the Convention automatically grants them the status of "protected persons" 292 .
Consequently, in those situations where civilians do not enjoy the normal diplomatic protection of their State, they should be accorded the status of protected person .
146. The legal approach taken in the Tadic Appeal Judgement to the matter of nationality hinges more on actual relations than formal ties. If one bears in mind the purpose and goal of the Convention, the Bosnian Muslims must be regarded as protected persons within the meaning of Article 4 of the Convention since, in practice, they did not enjoy any diplomatic protection.
147. In accordance with the Third Geneva Convention, those persons defined in Article 4 are protected "from the time they fall into the power of the enemy and until their final release and repatriation" 293 . The Prosecution contended that all the Bosnian Muslim combatants held by the HVO suffered inhumane treatment and were used as human shields as alleged in counts 15 and 19 of the indictment, had the status of protected persons within the meaning of the Third Geneva Convention 294 . The Trial Chamber is of the view that all the persons identified as prisoners of war did enjoy the protection accorded by the Third Geneva Convention and points out that those who did not enjoy this protection were civilians and thereby enjoyed the protection accorded by the Fourth Geneva Convention. However, the Trial Chamber cannot envisage that the Third Geneva Convention may apply in respect of count 19 as the indictment specifies only Muslim civilians295. Nonetheless, the provisions of the Fourth Convention still remain applicable .
148. Pursuant to Article 53 of the Fourth Geneva Convention, the extensive destruction of property by an occupying Power not justified by military necessity is prohibited . According to the Commentary on the Fourth Geneva Convention, this protection is restricted to property within occupied territories:
In order to dissipate any misconception in regard to the scope of Article 53 it must be pointed out that the property referred to is not accorded general protection ; the Convention merely provides here for its protection in occupied territory 296 .
149. The Prosecution maintained that the property of the Bosnian Muslims was protected because it was in the hands of an occupying Power 297 . The occupied territory was the part of BH territory within the enclaves dominated by the HVO, namely Vitez, Busovaca and Kiseljak. In these enclaves, Croatia played the role of occupying Power through the overall control it exercised over the HVO , the support it lent it and the close ties it maintained with it. Thus, by using the same reasoning which applies to establish the international nature of the conflict , the overall control exercised by Croatia over the HVO means that at the time of its destruction, the property of the Bosnian Muslims was under the control of Croatia and was in occupied territory. The Defence did not specifically address this issue .
150. Following to a large extent the reasoning of the Trial Chamber in the Rajic Decision 298 , this Trial Chamber subscribes to the reasoning set out by the Prosecution.
c) The elements of the grave breaches
151. Once it has been established that Article 2 of the Statute is applicable in general , it becomes necessary to prove the ingredients of the various crimes alleged. The indictment contains six counts of grave breaches of the Geneva Conventions which refer to five sub-headings of Article 2 of the Statute.
152. The Defence claimed that it is not sufficient to prove that an offence was the result of reckless acts. However, according to the Trial Chamber, the mens rea constituting all the violations of Article 2 of the Statute includes both guilty intent and recklessness which may be likened to serious criminal negligence. The elements of the offences are set out below.
153. The Trial Chamber hearing the Celebici case 299 defined the offence of wilful killing in its Judgement. For the material element of the offence, it must be proved that the death of the victim was the result of the actions of the accused as a commander. The intent, or mens rea, needed to establish the offence of wilful killing exists once it has been demonstrated that the accused intended to cause death or serious bodily injury which, as it is reasonable to assume, he had to understand was likely to lead to death.
154. Article 27 of the Fourth Geneva Convention states that protected persons "shall at all times be humanely treated". The Celebici Judgement analysed in great detail the offence of "inhuman treatment" 300 . The Trial Chamber hearing the case summarised its conclusions in the following manner :
inhuman treatment is an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity […]. Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed "grave breaches" in the Conventions fall. Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment. 301
155. The Trial Chamber further concluded that the category "inhuman treatment" included not only acts such as torture and intentionally causing great suffering or inflicting serious injury to body, mind or health but also extended to other acts contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity. In the final analysis, deciding whether an act constitutes inhuman treatment is a question of fact to be ruled on with all the circumstances of the case in mind 302 .
iii) Article 2(c) – wilfully causing great suffering or serious injury to body or health (count 8)
156. This offence is an intentional act or omission consisting of causing great suffering or serious injury to body or health, including mental health. This category of offences includes those acts which do not fulfil the conditions set for the characterisation of torture, even though acts of torture may also fit the definition given 303 . An analysis of the expression "wilfully causing great suffering or serious injury to body or health" indicates that it is a single offence whose elements are set out as alternative options 304 .
iv) Article 2(d) – extensive destruction of property (count 11)
157. An occupying Power is prohibited from destroying movable and non-movable property except where such destruction is made absolutely necessary by military operations . To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton. The notion of "extensive" is evaluated according to the facts of the case – a single act, such as the destruction of a hospital, may suffice to characterise an offence under this count 305 .
158. Within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death 306 . However, as asserted by the Defence 307 , detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel. The Prosecution must establish that, at the time of the supposed detention , the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage. The elements of the offence are similar to those of Article 3 (b) of the Geneva Conventions covered under Article 3 of the Statute.
C. Article 3 of the Statute – Violations of the Laws or Customs of War
159. Article 3 of the Statute states that:
The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings , or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion , charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
160. The two parties acknowledged that the existence of an armed conflict and a nexus between the alleged acts or omissions and that armed conflict set conditions for the implementation of Article 3 of the Statute. The Trial Chamber has set out its position on the matter above 308 . Nonetheless, the parties did not agree upon the nature of the conflict and the scope of Article 3 is contested. The Trial Chamber must therefore rule on the issue before examining the elements of the offences under this Article of the Statute 309 .
a) Scope and conditions of applicability of Article 3 of the Statute
161. At the outset, it is appropriate to note that Article 3 of the Statute applies to both internal and international conflicts. This conclusion was reached in the Tadic Appeal Decision and was not challenged by the parties:
In the light of the intent of the Security Council and the logical and systematic interpretation of Article 3 as well as customary international law, the Appeals Chamber concludes that, under Article 3, the International Tribunal has jurisdiction over the acts alleged in the indictment, regardless of whether they occurred within an internal or an international armed conflict 310.
162. The Prosecution asserted that the enumeration of the laws or customs of war appearing in Article 3 of the Statute is illustrative and not exhaustive 311 . It also contended that Additional Protocol I bound the parties pursuant to a series of special agreements which they signed under the auspices of the ICRC and to customary international law which prohibits unlawful attacks upon civilians and civilian property whatever the nature of the conflict 312 .
163. The Defence nevertheless maintained that Article 3 represented a limited body of customary and conventional law. It contested inter alia that some of the provisions of the Hague Convention of 1907 are contained therein 313 as the Convention allegedly acquires a customary aspect only in international armed conflicts. The Defence moreover deemed that Additional Protocol I did not apply to counts 3 and 4 because it did not constitute part of established customary international law 314 . It also challenged the applicability of Additional Protocol II to count 3 of the indictment since the HVO and the HZHB never formally agreed to the application of the whole of Additional Protocol II as conventional law and were not bound by the agreement that the Croatian and Bosnian authorities might have given to the said Protocol 315 .
164. In interpreting Article 3, it is appropriate to refer to the Report of the Secretary - General316. According to this Report , the Statute of the Tribunal should apply the rules of international humanitarian law which form part of customary law in order to account for the principle of nullum crimen sine lege317. The Report sets out that the part of conventional international humanitarian law which has "beyond doubt" become part of customary international law is:
the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) respecting the Laws and Customs of War on Land and the regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945 318 .
165. The Security Council subsequently approved the Report and, thereby, the term adopted by the Secretary-General to define those rules which constitute international customary humanitarian law. That law allows perpetrators of violations of the rules to be prosecuted without risking infringing the principle of nullum crimen sine lege .
166. Common Article 3 must be considered a rule of customary international law 319 . The Celebici Judgement points this out very explicitly and sets forth inter alia that:
While in 1949 the insertion of a provision concerning internal armed conflicts into the Geneva Conventions may have been innovative, there can be no question that the protections and prohibitions enunciated in that provision have come to form part of customary international law 320 .
The Akayesu Judgement rendered by the International Criminal Tribunal for Rwanda, expresses the same viewpoint:
It is today clear that the norms of Common Article 3 have acquired the status of customary law in that most States, by their domestic penal codes, have criminalized acts which if committed during internal armed conflict, would constitute violations of Common Article 3 321 .
167. It is important to note that Common Article 3 lays down minimum criteria that the parties must respect during a conflict, expressing "the fundamental principle underlying the four Geneva Conventions", that is, humane treatment 322 .
168. Further, the Trial Chamber must take note of the very explicit terms of Article 3 of the Statute in which violations of the laws or customs of war are in no manner enumerated as a closed list. The Trial Chamber is of the opinion that it is the Hague Convention (IV) of 1907 respecting the Laws and Customs of War on Land (hereinafter "the Regulations of The Hague"), as interpreted and applied by the Nuremberg Tribunal , which is the basis for Article 3 of the Statute 323 . Hence, although Article 3 of the Statute subsumes Common Article 3 324 , it nevertheless remains a broader provision inasmuch as it is also based on the Regulations of The Hague which, in the opinion of the Trial Chamber, also undoubtedly form part of customary international law. As the Secretary-General noted in his Report:
The Hague Regulations cover aspects of international humanitarian law which are also covered by the 1949 Geneva Conventions. However, the Hague Regulations also recognise that the right of belligerents to conduct warfare is not unlimited and that resort to certain methods of waging war is prohibited under the rules of land warfare 325 .
169. The Report of the Secretary-General also states that the law applied by the Tribunal must be customary international law so that "the problem of adherence of some but not all States to specific conventions does not arise" 326 . In line with this reasoning, the Trial Chamber is also empowered to apply any agreement which incontestably bound the parties at the date the crime was perpetrated. Thus , the risk would not be run of infringing the principle of nullum crimen sine lege where a belligerent did not adhere to a particular treaty 327 .
170. Taking into account the effect of the application of the fundamental principles of Article 3 of the Statute in this case, the Trial Chamber considers that it should not be necessary to rule on the applicability of Protocol I. The specific provisions of Article 3 of the Statute satisfactorily cover the provision of the said Protocol relating to unlawful attacks upon civilian targets. The specific provisions of Common Article 3 also satisfactorily cover the prohibition on attacks against civilians as provided for by Protocols I and II.
171. Taking into account the arguments of the parties on this point, and in particular of the Defence, the Trial Chamber will nonetheless deal rapidly with the issue of the Additional Protocols.
172. conventional law, that is, which have not become customary international law 328 . The Trial Chamber is of the opinion that this applies to the Additional Protocols . There are at least two arguments for this. Firstly, Croatia ratified the two Protocols (and the four Geneva Conventions) on 11 May 1992. Bosnia-Herzegovina ratified them on 31 December 1992. Consequently, as of 1 January 1993, the two parties were bound by the provisions of the two Protocols, whatever their status within customary international law. Secondly, in an agreement signed on 22 May 1992 under the auspices of the ICRC , the two parties expressly agreed that they would be bound during the conflict by provisions 51 and 52 of Additional Protocol I 329 .
173. The Defence’s argument that Additional Protocol I is not part of customary international law is therefore not relevant. Finally, once it has been established that Protocol I applies, the application of Additional Protocol II is excluded pursuant to Article 1 of this Protocol 330 .
174. Lastly, a violation of the laws or customs of war within the meaning of Article 3 of the Statute is a serious violation of international humanitarian law within the meaning of the Statute which the Tribunal was ipso facto established to prosecute and punish. Still to be verified is whether the violation in question entails individual criminal responsibility and whether, as regards the counts based on Common Article 3, the violations were committed against persons protected by the said article.
175. The Prosecution contended that the provisions of the Regulations annexed to the Hague Convention IV of 1907 constitute international customary rules which were restated in Article 6(b) of the Nuremberg Statute. Violations of these provisions incur the individual criminal responsibility of the person violating the rule 331 . Conversely, the Defence did not acknowledge that violations of the laws or customs of war within the meaning of Common Article 3 of the Geneva Conventions had ever been upheld to impose criminal sanctions upon individuals 332 .
176. The Trial Chamber recalls that violations of Article 3 of the Statute which include violations of the Regulations of The Hague and those of Common Article 3 are by definition serious violations of international humanitarian law within the meaning of the Statute. They are thus likely to incur individual criminal responsibility in accordance with Article 7 of the Statute. The Trial Chamber observes moreover that the provisions of the criminal code of the SFRY 333 , adopted 334 by Bosnia-Herzegovina in April 1992, provide that war crimes committed during internal or international conflicts incur individual criminal responsibility 335 . The Trial Chamber is of the opinion that, as was concluded in the Tadic Appeal Decision, customary international law imposes criminal responsibility for serious violations of Common Article 3 336 .
177. Where the charges are specifically based on Common Article 3 337 , it is necessary to show that the violations were committed against persons not directly involved in the hostilities 338 . The criterion applied in the Tadic Judgement comes down to asking:
whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being those hostilities in the context of which the alleged offences are said to have been committed. If the answer to that question is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3 339 .
178. The conclusions grounded on this criterion will depend on an analysis of the facts rather than the law.
b) The elements of the offences
179. Having determined that Article 3 is applicable, it must still be proved that one of the particular offences enumerated therein has occurred. The indictment alleges nine offences under Article 3 in ten counts. The Prosecutor maintained that the mens rea which characterises all the violations of Article 3 of the Statute , as well as the violations of Article 2, is the intentionality of the acts or omissions , a concept containing both guilty intent and recklessness likeable to serious criminal negligence 340 . The elements of the offences which must be proved are set forth below.
i) Unlawful attack against civilians (count 3); attack upon civilian property (count 4)
180. As proposed by the Prosecution 341 , the Trial Chamber deems that the attack must have caused deaths and/or serious bodily injury within the civilian population or damage to civilian property. The parties to the conflict are obliged to attempt to distinguish between military targets and civilian persons or property. Targeting civilians or civilian property is an offence when not justified by military necessity. Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the armed forces. Civilian property covers any property that could not be legitimately considered a military objective . Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity.
181. The content of the offence of murder under Article 3 is the same as for wilful killing under Article 2 342 .
182. This offence appears in Article 3(1)(a) common to the Geneva Conventions. It is a broad offence which, at first glance, encompasses murder, mutilation, cruel treatment and torture and which is accordingly defined by the cumulation of the elements of these specific offences. The offence is to be linked to those of Article 2(a) (wilful killing), Article 2(b) (inhuman treatment) and Article 2(c) (causing serious injury to body) of the Statute. The Defence contended that the specific intent to commit violence to life and person must be demonstrated. The Trial Chamber considers that the mens rea is characterised once it has been established that the accused intended to commit violence to the life or person of the victims deliberately or through recklessness.
183. Similar to the grave breach constituting part of Article 2(d) of the Statute , the devastation of property is prohibited except where it may be justified by military necessity. So as to be punishable, the devastation must have been perpetrated intentionally or have been the foreseeable consequence of the acts of the accused .
184. The prohibition on the wanton appropriation of enemy public or private property extends to both isolated acts of plunder for private interest and to the "organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory". Plunder "should be understood to embrace all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as ‘pillage’" 343 .
vi) Destruction or wilful damage to institutions dedicated to religion or education (count 14)
185. The damage or destruction must have been committed intentionally to institutions which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts. In addition, the institutions must not have been in the immediate vicinity of military objectives .
186. The Defence asserted inter alia that using human shields and trench digging constituted cruel treatment only if the victims were foreigners in enemy territory , inhabitants of an occupied territory or detainees 344 . The Trial Chamber is of the view that treatment may be cruel whatever the status of the person concerned. The Trial Chamber entirely concurs with the Celebici Trial Chamber which arrived at the conclusion that cruel treatment constitutes an intentional act or omission "which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of Common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Convention" 345 .
187. The taking of hostages is prohibited by Article 3(b) common to the Geneva Conventions which is covered by Article 3 of the Statute. The commentary defines hostages as follows:
hostages are nationals of a belligerent State who of their own free will or through compulsion are in the hands of the enemy and are answerable with their freedom or their life for the execution of his orders and the security of his armed forces 346 .
Consonant with the spirit of the Fourth Convention, the Commentary sets out that the term "hostage" must be understood in the broadest sense 347 . The definition of hostages must be understood as being similar to that of civilians taken as hostages within the meaning of grave breaches under Article 2 of the Statute , that is - persons unlawfully deprived of their freedom, often wantonly and sometimes under threat of death. The parties did not contest that to be characterised as hostages the detainees must have been used to obtain some advantage or to ensure that a belligerent , other person or other group of persons enter into some undertaking. In this respect , the Trial Chamber will examine the evidence as to whether the victims were detained or otherwise deprived of their freedom by the Croatian forces (HVO or others).
D. Article 5 of the Statute: crimes against humanity
188. The provisions of Article 5 of the Statute, entitled "Crimes against humanity ", grant the Tribunal jurisdiction to:
"[..] prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder
(b) extermination
(c) enslavement
(d) deportation
(e) imprisonment
(f) torture
(g) rape
(h) persecutions on political, racial and religious grounds
(i) other inhumane acts.
This text primarily draws on Article 6(c) of the Statute of the Nuremberg Tribunal of 8 August 1945 348 which constitutes the benchmark definition of a crime against humanity and is also the source of the provisions of Article 3 of the Statute of the Tribunal for Rwanda (hereinafter the "ICTR") and Article 7 of the Statute of the International Criminal Court.
1. The Arguments of the Parties
189. The Trial Chamber will present in brief the legal arguments of the Prosecutor and the Defence as they appear in their respective final briefs.
190. Firstly, the Prosecutor contended that a crime against humanity must be committed within the context of a widespread or systematic operation 349 . She also considered that for the crime to be ascribed to the accused he must be aware of this context 350 . Finally , she asserted that it must be committed as part of an armed conflict 351 .
191. The Prosecutor alleged first that the two characteristics "widespread nature " and "systematic nature" of the "widespread or systematic attack against a civilian population" are not cumulative 352 . She noted that the first characteristic relates to the scale of the criminal acts and to the number of victims 353 . She then stated that the second refers to the plan or policy according to which the crimes are committed 354 which must not necessarily be expressly set out and may be inferred from the factual circumstances particular to the case in hand 355 .
192. Moreover, the Prosecutor was of the view that the notion of "civilian population " must be defined broadly and include, inter alia, persons taking no active part in the hostilities 356 or who are not fit for combat 357 . She drew attention in this respect to the fact that the presence of resistance fighters or soldiers amongst the civilian population does not alter the civilian nature of that population 358 .
193. As regards the mens rea, the Prosecutor deemed it sufficient to demonstrate that the perpetrator of a crime against humanity is aware of the general context within which his act is framed at the instant that he commits the crimes 359 . Moreover, the Prosecutor argued that it need not be proved that the perpetrator was motivated by discriminatory intent except, however, for the crime of persecution 360 . To be found guilty of persecution the accused must know that his act forms part of a discriminatory attack against a civilian population 361 . She noted in this respect that persecution may encompass acts enumerated in the Statute under Articles 2, 3 and 5 and all other violations of fundamental human rights 362 .
194. The Defence did not accept the same interpretation of either the material elements or the mens rea of a crime against humanity.
195. It considered that the two criteria of the "widespread or systematic attack against a civilian population" are cumulative 363 . It also noted that a crime against humanity must be committed as part of an official policy of a State or organisation 364 .
196. In addition, the Defence asserted that the population targeted by the perpetrator of the crime must be civilian 365 . It noted in this respect that the criterion which allows a distinction to be made between a civilian population and an "organised defence" is not the number of civilians involved but the objective of the organised defence 366 .
197. In respect of the mens rea, the Defence maintained that the perpetrator of the crime must intend to implement the official policy of the State or organisation concerned 367 . It submitted in this regard that persecution requires proof of a clearly defined mens rea, that is, the intent to carry out the discriminatory State policy 368 . More specifically, it put forth that the accused may not be found guilty of persecution for crimes such as the forcible transfer of civilians or the plunder of property 369 .
198. A preliminary comment is appropriate before examining the constituent elements of a crime against humanity as they stood in customary international law prevailing at the time the crimes imputed to the accused were allegedly committed 370 and, more specifically, in both texts and international and national case-law. The sub-characterisations specified in the indictment brought against General Blaskic – that is murder, persecutions and other inhumane acts – will be integrated into the examination of the legal and factual elements of a crime against humanity. However , for the "underlying crimes", each with its own characteristics, to be characterised as a crime against humanity, they must be part of a single category - that of a widespread or systematic attack against a civilian population - which gives this offence its specificity and distinguishes it fundamentally from other violations of humanitarian law defined by the Statute 371 . As stated by the International Law Commission (hereinafter the "ILC"),
"[t]he particular forms of unlawful act (murder, enslavement, deportation, torture , rape, imprisonment etc.) are less crucial to the definition than the factors of scale and deliberate policy, as well as in their being targeted against the civilian population in whole or in part" 372 .
a) The legal and factual elements
199. Two essential elements derive from the definition of a crime against humanity - firstly, a material criterion, which consists of the commission of one of the enumerated crimes as part of a widespread or systematic attack against a civilian population and, secondly, a mental criterion, that is, awareness of participating in this attack .
200. Having presented the general conditions of the offence, the Trial Chamber will define the three sub-characterisations imputed to General Blaskic.
a. The widespread or systematic attack against any civilian population
201. A crime against humanity is made special by the methods employed in its perpetration (the widespread character) or by the context in which these methods must be framed (the systematic character) as well as by the status of the victims (any civilian population).
i. A widespread or systematic attack
202. The "widespread or systematic" character of the offence does not feature in the provisions of Article 5 of the Statute which mention only acts "directed against any civilian population". It is appropriate, however, to note that the words "directed against any civilian population" 373 and some of the sub-characterisations set out in the text of the Statute imply, both by their very nature and by law, an element of being widespread or organised , whether as regards the acts or the victims. "Extermination", "enslavement" and "persecutions" do not refer to single events.
Moreover, the assertion that the "widespread or systematic" character is a constituent element of a crime against humanity is found in Article 3 of the Statute of the ICTR 374 and Article 7 of the Statute of the International Criminal Court 375 . The Appeals Chamber in the Tadic Appeal Judgement 376 rendered consequent to the Judgement of Trial Chamber II of the ICTY dated 7 May 1997 and Trial Chambers I and II of the ICTR in their Judgements pronounced on 2 September 1998 and 21 May 1999 in the cases The Prosecutor v. Jean-Paul Akayesu 377 and The Prosecutor v. Clément Kayishema and Obed Ruzindana378 respectively all made the widespread or systematic characteristic an essential element of the offence. That being the case, there can be no doubt that inhumane acts constituting a crime against humanity must be part of a systematic or widespread attack against civilians.
203. The systematic character refers to four elements which for the purposes of this case may be expressed as follows:
- the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community 379 ;
- the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another 380;
- the preparation and use of significant public or private resources, whether military or other381 ;
- the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.
204. This plan, however, need not necessarily be declared expressly or even stated clearly and precisely 382 . It may be surmised from the occurrence of a series of events 383 , inter alia:
- the general historical circumstances and the overall political background against which the criminal acts are set;
- the establishment and implementation of autonomous political structures at any level of authority in a given territory;
- the general content of a political programme, as it appears in the writings and speeches of its authors;
- media propaganda;
- the establishment and implementation of autonomous military structures;
- the mobilisation of armed forces;
- temporally and geographically repeated and co-ordinated military offensives;
- links between the military hierarchy and the political structure and its political programme
- alterations to the "ethnic" composition of populations;
- discriminatory measures, whether administrative or other (banking restrictions, laissez-passer,…)
- the scale of the acts of violence perpetrated – in particular, murders and other physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions or the destruction of non-military property, in particular, sacral sites.205. Nor must the plan necessarily be conceived at the highest level of the State machinery . Trial Chambers I and II of both this Tribunal 384 and the ICTR 385 have constantly refused to characterise a crime against humanity as an "act of criminal sovereignty" 386 . To support the argument they relied inter alia upon the opinion of the ILC on the work of its 43rd session according to which individuals "with de facto power or organized in criminal gangs" are just as capable as State leaders of implementing a large-scale policy of terror and committing mass acts of violence 387 . As pointed out by Advocate-General Dontenwille at the end of his application to the French Cour de Cassation in the case Fédération nationale des déportés et internés résistants et patriotes et autres v. Barbie (hereinafter the "Barbie Case"),
"Are there not forces and organizations whose powers might be greater and whose actions might be more extensive than those of certain countries represented institutionally at the United Nations? Care is required because other methods of total abuse of the human condition could equal in horror, albeit from other aspects, those of which we have just spoken." 388
Moreover, Article 18 of the Draft ILC Code defined a crime against humanity as committing crimes "in a systematic manner or on a large scale and instigated or directed by a government or by any organization or group" 389 .
The texts of the Statute of the International Criminal Court adopted by 120 States of the international community confirm this interpretation. They hold that criminal acts must be committed "pursuant to or in furtherance of a State or organizational policy [ …]". 390
206. The widespread characteristic refers to the scale of the acts perpetrated and to the number of victims. According to the draft Code of the ILC, to which Trial Chamber II explicitly refer in the case The Prosecutor v. Dusko Tadic,
"inhumane acts [must] be committed on a large scale meaning that the acts are directed 391 against a multiplicity of victims . This requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim" 392 .
A crime may be widespread or committed on a large-scale by "the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude" 393 .
207. As asserted by Trial Chambers I and II of the ICTY and ICTR in the cases The Prosecutor v. Mile Mrksic, Miroslav Radic and Veselin Sljivancanin394, Tadic395, Akayesu396 and Kayishema and Ruzindana397 and as it appears in the Report of the Secretary-General 398 , the Statute of the International Criminal Court 399 and the work of the ILC 400 , the conditions of scale and "systematicity" are not necessarily cumulative. This means that for inhumane acts to be characterised as crimes against humanity it is sufficient that one of the conditions be met. The fact still remains however that, in practice, these two criteria will often be difficult to separate since a widespread attack targeting a large number of victims generally relies on some form of planning or organisation. The quantitative criterion is not objectively definable as witnessed by the fact that neither international texts nor international and national case -law set any threshold starting with which a crime against humanity is constituted .
208. The contention that acts of violence perpetrated systematically or on a widespread basis against a population must not be characterised as a crime against humanity on the sole ground that the victims were soldiers and regardless of the fact that they were not combatants when the crimes were perpetrated is not in conformity with either the letter or spirit of Article 5 of the Statute. The terms of this provision are in no manner restrictive in this respect since a crime against humanity applies to acts "directed 401 against any civilian population". As far as the spirit of the text is concerned, it must be remembered that the specificity of a crime against humanity results not from the status of the victim but the scale and organisation in which it must be committed .
209. In this spirit, it is appropriate to state that Article 3 common to the Geneva Conventions , whose customary nature was recognised, in particular, by the Appeals Chamber in the Tadic Appeal Decision, protects not only persons taking no active part in the hostilities but also members of armed forces who have laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other cause. Moreover, Trial Chamber I of the ICTR which heard the Akayesu case 402 relied on this provision to classify as civilians within the meaning of Article 3 of the ICTR Statute persons who for one reason or another were no longer directly involved in fighting.
210. The case-law of this Tribunal in the cases Mrksic, Radic and Sljivancanin 403and Tadic404has also interpreted broadly the notion of a civilian population, adjudging that it must include persons involved in resistance movements 405 .
211. Moreover, relying on the provisions of paragraph 3 of Article 50(3) of Protocol I, Trial Chamber II of this Tribunal 406 and Trial Chambers I 407 and II 408 of the ICTR stated that "[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character". Very recently, Trial Chamber II hearing the Kupreskic case also considered that:
[…] the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity. 409
212. In the Barbie case, the Criminal Chamber of the French Cour de Cassation also maintained that resistance fighters could rely on the judicial regime relating to the provisions for crimes against humanity 410 . Following this line of reasoning, French law recently incorporated under crimes against humanity inhumane acts committed as part of a concerted plan against those fighting the regime in whose name the said crimes were perpetrated 411 .
213. Lastly, the Commission of Experts established pursuant to Security Council resolution 780 (hereinafter the "Commission of Experts") extended the status of civilian to persons who strictly speaking did not carry out military operations although they did bear arms.
"It seems obvious that article 5 applies first and foremost to civilians, meaning people who are not combatants. This, however, should not lead to any quick conclusions concerning people who at one particular point in time did bear arms. A head of family who under such circumstances tries to protect his family gun-in-hand does not thereby lose his status as a civilian. Maybe the same is the case for the sole policeman or local defence guard doing the same, even if they joined hands to try to prevent the cataclysm" 412 .
214. Crimes against humanity therefore do not mean only acts committed against civilians in the strict sense of the term but include also crimes against two categories of people: those who were members of a resistance movement and former combatants - regardless of whether they wore wear uniform or not – but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained. It also follows that the specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian. Finally, it can be concluded that the presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.
215. The sub-characterisations with which the accused is charged, that is, murder , persecutions and other inhumane acts 413 , must be defined individually because, beyond any possible common link with a widespread or systematic attack, each has its own nature and specificity.
216. It is appropriate to point out first that the French version of the Statute uses the term "assassinat" – a crime with a very precise meaning in French national law 414 - whilst the English version adopts the word "murder" which translates in French as "meurtre". Relying on Article 7(1)(a) of the Statute of the International Criminal Court, Article 18 of the ILC Code of Crimes Against the Peace and Security of Mankind 415 and the assertions of Trial Chamber I of the ICTR in the Akayesu case 416which all refer to murder ("meurtre"), the Trial Chamber is of the view that it is murder ("meurtre") and not premeditated murder ("assassinat ") which must be the underlying offence of a crime against humanity.
217. Guided by the work of the ILC 417 , the Trial Chamber will refer to the legal and factual elements of the offence as commonly recognised in national law to define murder, that is:
- the death of the victim;
- the death must have resulted from an act of the accused or his subordinate
- the accused or his subordinate must have been motivated by the intent to kill the victim or to cause grievous bodily harm in the reasonable knowledge that the attack was likely to result in death 418 .218. Unlike the sub-characterisation of murder which represents only one crime, that of "persecution" may assume several different criminal forms. The indictment against General Blaskic specifies physical and mental injury (murders and other forms of bodily harm 419 including the use of civilians as human shields 420 and forcing them to dig trenches 421 ), infringements upon individual freedom (arbitrary arrest and detention 422 and forcible transfer of civilians 423 ) and attacks against property (destruction and plunder of property 424 ), all directed against the "Bosnian Muslim civilian population" 425 .
219. Although the Statute of the Nuremberg Tribunal and those of the Tribunals for the former Yugoslavia and Rwanda all sanction persecutions on political, racial and religious grounds under crimes against humanity, none defines this sub-characterisation or states which forms it may take. The Trial Chamber will therefore refer to customary international law to determine whether the violations covered in the indictment may constitute persecution and under what condition they may be characterised as such.
iii. Serious bodily and mental harm, infringements upon freedom and attacks against property as forms of persecution
220. There is no doubt that serious bodily and mental harm and infringements upon individual freedom may be characterised as persecution when, as will be indicated below, they target the members of a group because they belong to a specific community. The Trial Chamber considers that infringements of the elementary and inalienable rights of man, which are "the right to life, liberty and the security of person", the right not to be "held in slavery or servitude", the right not to "be subjected to torture or to cruel, inhuman or degrading treatment or punishment" and the right not to be "subjected to arbitrary arrest, detention or exile" as affirmed in Articles 3 , 4, 5 and 9 of the Universal Declaration of Human Rights 426 , by their very essence may constitute persecution when committed on discriminatory grounds.
221. This interpretation is reaffirmed by the established case-law of the Nuremberg Tribunal , the tribunals acting in accordance with Law No. 10 promulgated by the Allied Control Council for Germany on 20 December 1945 (hereinafter "Law No. 10"), 427 the Supreme Court of Israel and the ILC reports.
222. In the part of the Judgement of the major war criminals specifically devoted to the persecution of the Jews, the Nuremberg Tribunal affirmed that the murder of the Jews, the brutal acts which they suffered, their confinement in ghettos and their being used to perform forced labour were all forms of persecution 428 . The Nuremberg Tribunal thus noted inter alia that:
"The Nazi persecution of Jews in Germany before the war, severe and repressive as it was, cannot compare, however, with the policy pursued during the war in the occupied territories […] 429 .
In the summer of 1941, however, plans were made for the "final solution" of the Jewish question in Europe. This "final solution" meant the extermination of the Jews […]" 430 .
"Beating, starvation, torture and killing were general. The inmates were subjected to cruel experiments […]" 431 .
In the paragraphs describing the role played by SS units in the persecution of the Jews, that Tribunal also brought out the fact that the units had participated in their deportation and extermination 432 . Furthermore, in its analysis of the individual responsibility of the accused Frank , it pointed out that:
"The persecution of the Jews was immediately begun in the General government. The area originally contained from 2½ million to 3½ million Jews. They were forced into ghettos, subjected to discriminatory laws, deprived of the food necessary to avoid starvation, and finally systematically and brutally exterminated " 433 .
As regards the accused Bormann, the Judges also stated that:
"Bormann was extremely active in the persecution of the Jews, not only in Germany but also in the absorbed and conquered countries. He took part in the discussions which led to the removal of 60,000 Jews from Vienna to Poland in co-operation with the SS and the Gestapo. He signed the decree of 31 May 1941 extending the Nuremberg Laws to the annexed Eastern territories. In an order of 9 October 1942 he declared that the permanent elimination of Jews in Greater German territory could no longer be solved by emigration, but only by applying "ruthless force " in the special camps in the East. On 1 July 1943 he signed an ordinance withdrawing Jews from the protection of the law courts and placing them under the exclusive jurisdiction of Himmler’s Gestapo" 434 .
223. In line with the Nuremberg Tribunal, the Supreme National Tribunal of Poland 435 and the Netherlands Special Court in Amsterdam 436 , both acting in accordance with Law No. 10, categorised physical and mental injury and infringements upon freedom, in particular, murder, wounding and deportations , as persecutions.
224. The Supreme Court of Israel found Eichmann guilty of persecution for inter alia the "murder, extermination, enslavement, starvation and deportation of the civilian Jewish population" 437 .
225. Lastly, the ILC report on the work of its 48th session explicitly specified that "persecution may take many forms with its common characteristic being the denial of the human rights and fundamental freedoms to which every individual is entitled without distinction" 438 and which by their very nature incorporate a person’s right to life and respect for his physical and mental well-being.
226. The Kupreskic Trial Chamber reached a similar conclusion when it considered that the crime of persecution could include attacks on persons such as murder, extermination or torture. 439
227. However, persecution may take forms other than injury to the human person, in particular those acts rendered serious not by their apparent cruelty but by the discrimination they seek to instil within humankind. As put forward by the Prosecutor in the indictment against the accused 440 , persecution may thus take the form of confiscation or destruction of private dwellings or businesses , symbolic buildings or means of subsistence belonging to the Muslim population of Bosnia-Herzegovina.
228. The Nuremberg International Tribunal expressly recognised that, as of autumn 1938 , the persecution of the Jews was designed to exclude them from German life and was particularly apparent in the "[p]ogroms [which] were organized, which included the burning and demolishing of synagogues, the looting of Jewish businesses, and the arrest of prominent Jewish business men" 441 and the imposition of a billion mark fine 442 . Furthermore, the Nuremberg Tribunal found Göring guilty of crimes against humanity , in particular, for being " […] the active authority in the spoliation of conquered territory" 443 and for having imposed the fine of a billion reichsmarks on the Jews 444 . It added that:
"Göring persecuted the Jews […] not only in Germany […] but in the conquered countries . His own utterances then and his testimony now shows this interest was primarily economic – how to get their property and how to force them out of the economic life of Europe" 445 .
Rosenberg too was convicted of war crimes and crimes against humanity for "a system of organised plunder of both public and private property throughout the invaded countries of Europe". The Judgement also noted in this respect that:
"[a]cting under Hitler’s orders of January 1940 to set up the "Hohe Schule", he organized and directed the "Einsatzstab Rosenberg", which plundered museums and libraries, confiscated art treasures and collections, and pillaged private houses " 446 .
In addition, the Nuremberg Tribunal found the accused Streicher guilty of crimes against humanity inter alia for the boycott on Jewish businesses and the fire at the Nuremberg synagogue 447 .
229. Although the Tribunals acting pursuant to Law No. 10 448 proved less definite on this matter, they explicitly declared that the collective fine of a billion marks was a "typical piece of the persecution to which German Jews were subjected" 449 . Lastly, they maintained that the confiscation and liquidation of property belonging to German Jews by the Reich comprised part of a programme to persecute the Jews in Germany 450 .
230. The Jerusalem District Court confirmed this interpretation. It stated in the Eichmann case that from the moment Hitler came to power 451 the persecution of the Jews became manifest in the systematic destruction of the synagogues 452 and the boycott of their businesses and shops 453 .
231. The 1991 and 1996 ILC reports similarly asserted that "persecution may take many forms" 454 . The first expressly cited the example of the "systematic destruction of monuments or buildings representative of a particular social, religious, cultural or other group" 455 .
232. Lastly, the Kupreskic Trial Chamber ruled that persecution includes a variety of other discriminatory acts involving attacks on political, social, and economic rights. 456
233. The Trial Chamber finds from this analysis that the crime of "persecution" encompasses not only bodily and mental harm and infringements upon individual freedom but also acts which appear less serious, such as those targeting property, so long as the victimised persons were specially selected on grounds linked to their belonging to a particular community.
iv. Legal and factual elements of the forms of persecution specified in the indictment
234. The Trial Chamber will now deal with the legal and factual elements of the forms of persecution specified in the indictment – the destruction and plunder of property , unlawful detention and the forcible transfer of civilians – except for murder and physical and mental injury which are defined in paragraphs 224 and 250 of this Judgement.
- The destruction and plunder of property. In the context of the crime of persecution , the destruction of property must be construed to mean the destruction of towns , villages and other public or private property belonging to a given civilian population or extensive devastation not justified by military necessity and carried out unlawfully , wantonly and discriminatorily 457 . In the same context, the plunder of property is defined as the unlawful, extensive and wanton appropriation of property 458 belonging to a particular population, whether it be the property of private individuals or of state or "quasi-state" public collectives 459 .
- The unlawful detention of civilians. The unlawful detention of civilians, as a form of the crime of persecution, means unlawfully depriving a group of discriminated civilians of their freedom.
- The deportation or forcible transfer of civilians. The deportation or forcible transfer of civilians means "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law" 460 .
235. The underlying offence of persecution requires the existence of a mens rea from which it obtains its specificity. As set down in Article 5 of the Statute, it must be committed for specific reasons whether these be linked to political views , racial background or religious convictions. It is the specific intent to cause injury to a human being because he belongs to a particular community or group 461 , rather than the means employed to achieve it, that bestows on it its individual nature and gravity and which justifies its being able to constitute criminal acts which might appear in themselves not to infringe directly upon the most elementary rights of a human being, for example, attacks on property 462 . In other words, the perpetrator of the acts of persecution does not initially target the individual but rather membership in a specific racial, religious or political group.
236. The Trial Chamber notes in this respect the negative definition of the persecution "victim group" provided by the Tadic Trial Chamber 463 , that is, the one of which the perpetrator of the crimes is not a member.
237. As with the underlying crime of "persecution" the sub-characterisation "other inhumane acts" laid down in Article 5(i) of the Statute is a generic charge which encompasses a series of criminal activities not explicitly enumerated. Indeed, as the commentary on Article 3 common to the Geneva Conventions states regarding the notion of "humane treatment",
"[…] it is always dangerous to try to go into too much detail – especially in this domain. However much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes" 464 .
238. The indictment characterises as inhumane acts under crimes against humanity the "assault causing injury", excluding murder, which the Muslim population of Bosnia -Herzegovina allegedly suffered - in this instance "the wilful infliction of serious injury and great suffering, both physically and mentally, to civilians" 465 .
vii. Serious physical and mental injury as "other inhumane acts"
239. As shown by the case-law of the ICTR, the provisions of Article 7 of the Statute of the International Criminal Court and the ILC Draft Code of Crimes Against the Peace and Security of Mankind, serious physical and mental injury – excluding murder – is without doubt an "inhumane act" within the meaning of Article 5 of the Statute and may, on this ground and if it fits into a widespread or systematic context, assume the characterisation of a crime against humanity.
240. Trial Chamber II of the ICTR expressly asserted in the Kayishema and Ruzindana case that inhumane acts were, inter alia, acts or omissions intended to cause deliberate mental or physical suffering to the individual 466 .
241. According to Article 7 of the Statute of the International Criminal Court "other inhumane acts" are those "of a similar nature intentionally causing great suffering , or serious injury to body or to mental or physical health". 467
242. Article 18(k) of the ILC Draft Code of Crimes Against the Peace and Security of Mankind also clearly permits this interpretation by making "other inhumane acts which severely damage physical or mental integrity, health or human dignity , such as mutilation or severe bodily harm" an offence under "crimes against humanity ." 468 The ILC adds in its commentary that:
"[…] the notion of other inhumane acts is circumscribed by two requirements. First , this category of acts is intended to include only additional acts that are similar in gravity to those listed in the preceding subparagraphs. Second, the act must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity" 469 .
Serious physical and mental injury not constituting murder obviously fulfils these conditions.
viii. Legal and factual elements of serious bodily or mental harm
243. In defining serious bodily and mental harm, the Trial Chamber will refer to the legal and factual elements of the offence as unanimously recognised in national law, that is:
- the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case by case basis with due regard for the individual circumstances ;
- the suffering must be the result of an act of the accused or his subordinate;
- when the offence was committed, the accused or his subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim.
244. For the underlying crimes to be constituted, a mental factor specific to crimes against humanity must be adjoined to the required criminal intent. The perpetrator must knowingly participate in a widespread or systematic attack against a civilian population. However, to be judged guilty of crimes against humanity, except in the case of persecution, he must not have had the intent of targeting civilians because of their race or their religious or political beliefs.
245. The provisions of Article 3 of the Statute of the Tribunal for Rwanda and of Article 5 of the Statute of the Tribunal for the former Yugoslavia do not state the nature of the mens rea of a crime against humanity. Only Article 7 of the Statute of the International Criminal Court provides that criminal acts must be perpetrated "in the knowledge" of the widespread or systematic attack 470 .
246. For this reason, for the purposes of this case, three aspects of the mens rea, as they derive from international and national case-law, must be borne in mind:
247. The accused must first have knowledge of the general context in which his acts occur and then of the nexus between his action and that context.
248. This contention relies on the Judgement rendered by the Trial Chamber hearing the Tadic case which stated that "the perpetrator must know of the broader context in which his act occurs" 471 , which relies in particular on the Decision of the Supreme Court of Canada in the case Regina v. Finta472.
249. It is also based upon the Decision rendered by the ICTR Trial Chamber hearing the Kayishema and Ruzindana case which considered that the mens rea contained two parts, that is, knowledge of the attack and its widespread or systematic character and awareness of the fact that the criminal activity constitutes part of the attack :
"[…] to be guilty of crimes against humanity the perpetrator must know that there is an attack on a civilian population and that his act is part of the attack" 473 .
The Trial Chamber thus stated that:
"[p]art of what transforms an individual’s act into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of theattack, meaning that the accused must know that his act is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan, is necessary to satisfy the requisite mens rea element of the accused" 474 .
250. This assertion relies on the Tadic Appeal Judgement which expressly recognises 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" 475 .
ii. Knowing participation in the context
251. The accused need not have sought all the elements of the context in which his acts were perpetrated; it suffices that, through the functions he willingly accepted, he knowingly took the risk of participating in the implementation of that context .
252. This is what emerges from the spirit of the Statute, from the case-law of both this Tribunal and the ICTR and from the Judgement of the French Cour de Cassation rejecting Maurice Papon’s appeal against the Judgement of the Indictments Chamber of the Bordeaux Appeals Court (hereinafter the "Papon case") 476 .
253. As concerns the spirit of the Statute, the Trial Chamber is of the view that an accused who, in his capacity as a commander, participates in the commission of a mass crime must question the malevolent intentions of those defining the ideology , policy or plan in whose name the crime is perpetrated.
254. Moreover, the nexus with the institutional or de facto regime, on the basis of which the perpetrator acted, and the knowledge of this link, as required by the case-law of the Tribunal and the ICTR and restated above, in no manner require proof that the agent had the intent to support the regime or the full and absolute intent to act as its intermediary so long as proof of the existence of direct or indirect malicious intent or recklessness is provided. Indeed, the Trial Chambers of this Tribunal 477 and the ICTR 478 as well as the Appeals Chamber 479 required only that the accused "knew" of the criminal policy or plan, which in itself does not necessarily require intent on his part or direct malicious intent ("… the agent seeks to commit the sanctioned act which is either his objective or at least the method of achieving his objective" 480 ). There may also be indirect malicious intent (the agent did not deliberately seek the outcome but knew that it would be the result 481 ) or recklessness, ("the outcome is foreseen by the perpetrator as only a probable or possible consequence" 482 ). In other words, knowledge also includes the conduct "of a person taking a deliberate risk in the hope that the risk does not cause injury" 483 .
255. The person who has "knowledge’ of the plan, policy or organisation as part of which the crimes take place is not only the one who fully supports it but also the one who, through the political or military functions which he willingly performed and which resulted in his periodic collaboration with the authors of the plan, policy or organisation and in his participation in its execution, implicitly accepted the context in which his functions, collaboration and participation must most probably have fit.
256. In the Papon case, the French Cour de Cassation confirmed this approach and maintained that Article 6 of the Nuremberg Statute did not require that an aider and abettor to a crime against humanity necessarily support the policy set by the principal perpetrators. The Criminal Chamber of the Court stated:
"the last sub-paragraph of Article 6 of the International Military Tribunal […] does not require that the accomplice to a crime against humanity support the policy of ideological hegemony of the principal perpetrators […]" 484 .
257. It follows that the mens rea specific to a crime against humanity does not require that the agent be identified with the ideology, policy or plan in whose name mass crimes were perpetrated nor even that he supported it. It suffices that he knowingly took the risk of participating in the implementation of the ideology , policy or plan. This specifically means that it must, for example, be proved that :
- the accused willingly agreed to carry out the functions he was performing;
- that these functions resulted in his collaboration with the political, military or civilian authorities defining the ideology, policy or plan at the root of the crimes;
- that he received orders relating to the ideology, policy or plan; and lastly
- that he contributed to its commission through intentional acts or by simply refusing of his own accord to take the measures necessary to prevent their perpetration.
258. The Judges will seek evidence of the mens rea required by the charges in the circumstances of the case.
259. As the Trial Chambers of this Tribunal and the ICTR have already asserted in respect of the mens rea of the crime of genocide in the Rule 61 Karadzic and Mladic proceedings485 and in the Akayesu case, 486 and as Trial Chamber II of this Tribunal stated regarding the mens rea of a crime against humanity in the Tadic 487case, knowledge of the political context in which the offence fits may be surmised from the concurrence of a number of concrete facts. Principally, these are:
- the historical and political circumstances in which the acts of violence occurred ;
- the functions of the accused when the crimes were committed;
- his responsibilities within the political or military hierarchy;
- the direct and indirect relationship between the political and military hierarchy ;
- the scope and gravity of the acts perpetrated;
- the nature of the crimes committed and the degree to which they are common knowledge .
b. Exclusion of discriminatory intent
260. It ensues from the Tadic Appeal Judgement that for a widespread or systematic attack and the resultant crimes – murder, extermination, enslavement, deportation , imprisonment, torture, rape or other inhumane acts with the exception of persecution – to be characterised as crimes against humanity they need not have been perpetrated with the deliberate intent to cause injury to a civilian population on the basis of specific characteristics 488 . In other words, to be found guilty of such an offence, those responsible for the attack need not necessarily have acted with a particular racial, national, religious or political intent in mind.
E. Article 7 of the Statute: Individual Criminal Responsibility
261. The accused Tihomir Blaskic was prosecuted under Article 7(1) and 7(3) of the Statute of the Tribunal. The Trial Chamber will review successively these provisions and their application to the case in point taking into account in particular the position of command authority held by the accused at the time of the facts. The Trial Chamber notes that at issue is the criminal responsibility of a military commander. In this respect, it is appropriate to distinguish between the charges based on Article 7 (1) of the Statute and those concurrently advanced by the Prosecution under Article 7(3). Whilst Article 7(1) deals with the commander’s participation in the commission of a crime, Article 7(3) enshrines the principle of command responsibility in the strict sense which entails the commander’s individual criminal responsibility if he did not prevent crimes from being committed by his subordinates or, where applicable , punish them.
1. Individual criminal responsibility under Article 7(1) of the Statute
262. The Prosecutor considers that all the crimes covered in the indictment entail the accused’s individual criminal responsibility under Article 7(1) of the Statute , which provides that:
[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
263. In this respect, the Trial Chamber hearing the Celebici case held that
[t]he principles of individual criminal responsibility enshrined in Article 7, paragraph 1, of the Statute reflect the basic understanding that individual criminal responsibility for the offences under the jurisdiction of the International Tribunal is not limited to persons who directly commit the crimes in question 489 .
264. The Trial Chamber concurs with the views deriving from the Tribunal’s case- law, that is, that individuals may be held responsible for their participation in the commission of offences under any of the heads of individual criminal responsibility in Article 7(1) of the Statute. This approach is consonant with the general principles of criminal law 490 and customary international law 491 .
265. In the case in point, the accused was not prosecuted for having personally committed any of the alleged crimes, that is, for being the actual perpetrator of the actus reus of any of the crimes. However, he was held criminally responsible for the crimes committed by others, on the ground that he "ordered, planned, instigated or otherwise aided and abetted in the planning, preparation, or execution of those crimes" 492 .
266. The Trial Chamber will therefore limit its analysis of Article 7(1) of the Statute to defining the legal elements of these particular modes of participation .
b) The arguments of the Parties
267. To establish that the accused "ordered", "planned" or "instigated" crimes within the meaning of Article 7(1) of the Statute, the Prosecution submitted that the following elements must be proved: (i) the actus reus of the crime was committed by a person other than the accused; (ii) the conduct of that other person was in execution of an order or plan of the accused, or instigated by him; and (iii) the accused had the mens rea of the crime. To establish the mens rea of the superior who orders, plans or instigates, requires direct or indirect intent, it is necessary to prove his direct or indirect intent, the latter corresponding to the notion of recklessness in common law and the notion of dolus eventualis in civil law 493 .
268. The Prosecution submits that "ordering" implies a superior-subordinate relationship between the person who orders and the one who carries it out. In other words, the person in authority uses that authority to cause another to commit an offence. This may be proved by circumstantial or direct evidence. There is no requirement as to the form of the order, which may be implied or express. Moreover, an order does not need to be issued by the accused directly to the person(s) who perform(s) the actus reus of the crime. Nor is it necessary that the order explicitly required the commission of the crime 494 .
269. "Planning" implies that one or several persons plan, design or organise the commission of the actus reus of a crime. This may be proved by circumstantial evidence. It is not required that the planners intervene in the execution of the crime 495 .
270. The essence of instigating is that the accused causes another person to commit a crime. Although it must be proved that the instigation was a clear contributing factor to the commission of the crime, it need not be a conditio sine qua non . Instigation can take many different forms; it can be express or implied, and entail both acts and omissions 496 .
271. The Prosecution contended that although aiding and abetting both constitute acts of complicity, they are two different concepts. "Aiding" means giving assistance to someone whereas "abetting" assumes facilitating the commission of an offence. The conduct of the person who aids or abets (hereinafter "the aider and abettor" 497 ) must have a "direct and substantial" effect on the commission of the crime, although the adjective "direct" adds little to the definition. The aiding and abetting need not have been a conditio sine qua non for the actual perpetration of the offence. Nor is a pre-existing plan between the aider and abettor and the perpetrator required. The assistance may be provided before, after (even without prior agreement ) or during the commission of the crime. Proof is not required that the aider and abettor actually participated in or that he was present during the physical perpetration of the crime. Both acts and omissions may constitute a form of aiding and abetting , at least in circumstances where the omission is in breach of a duty to act. The aiding and abetting need not assume the provision of tangible or practical assistance but may also consist in giving encouragement or moral or psychological support to the perpetrator of the crime through words or attitude or even by merely being present at the crime scene 498 .
272. As to the mens rea requirement for aiding and abetting, the Prosecution submitted that it suffices that the aider and abettor knew that his conduct would assist the principal in the commission of the offence. This may be inferred from the relevant circumstances. It is not necessary that he knew the precise crime that was intended and which in the event was committed 499 .
273. The Defence submitted that in order to establish the criminal responsibility of an accused within the meaning of Article 7(1) of the Statute, proof of the commission of a "deliberate act" by the accused is required, that is, proof that he planned , instigated, ordered or otherwise aided and abetted the planning, preparation or execution of crimes; proof of specific intent on the part of the accused to commit the deliberate act facilitating the commission of crimes; and, lastly proof that a causal link between the deliberate act and the crimes exists 500 .
274. In addition, the Defence submitted that according to the Tadic Appeals Chamber Judgement, individual criminal responsibility under Article 7(1) of the Statute may be established through the active participation in a common design. Three situations may be distinguished: (a) all participants in the common design share the same criminal intent to commit a crime, (b) the requisite mens rea comprises knowledge of the nature of a system of ill-treatment and intent to further the common design of ill-treatment, and (c) the accused intends to take part in a joint criminal enterprise and to further individually and jointly the criminal purposes of that enterprise, whereas other members of the group commit offences that do not constitute the object of the common criminal purpose but were nonetheless foreseeable by the accused. Therefore, any form of common design liability requires at least proof of a criminal common design and the accused’s intent to further this design 501 .
275. Finally, in the view of the Defence, the mens rea satisfying Article 7(1) is intent to commit an act facilitating offences. The deliberate act cannot be presumed even if the evidence were to satisfy the criminal omission element of Article 7(3) of the Statute 502 .
276. The Appeals Chamber in the Tadic case and the Trial Chambers in other cases brought before both this Tribunal and the ICTR, notably the Tadic, Akayesu , Celebici and Furundzija cases 503 , defined those legal elements which under customary international law refer to the various forms of individual criminal responsibility included in Article 7(1) of the Statute. This Trial Chamber will consider their findings in order to ascertain their applicability to the present case.
277. Following the approach taken by the Prosecution, the Trial Chamber will determine the actus reus and mens rea required for holding an accused individually criminally responsible for having "planned", "instigated", "ordered" or "aided and abetted" the offences alleged in the indictment.
278. The Trial Chamber holds that proof is required that whoever planned, instigated or ordered the commission of a crime possessed the criminal intent, that is, that he directly or indirectly intended that the crime in question be committed. However , in general, a person other than the person who planned, instigated or ordered is the one who perpetrated the actus reus of the offence. In so doing he must have acted in furtherance of a plan or order. In the case of instigating, as appears in the definition below, proof is required of a causal connection between the instigation and the fulfilment of the actus reus of the crime. In defining each of the forms of participation, the Trial Chamber concurs with the relevant findings of the Trial Chamber in the Akayesu case.
279. Accordingly, planning implies that "one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases" 504 . The Trial Chamber is of the view that circumstantial evidence may provide sufficient proof of the existence of a plan.
280. Instigating entails "prompting another to commit an offence" 505 . The wording is sufficiently broad to allow for the inference that both acts and omissions may constitute instigating and that this notion covers both express and implied conduct. The ordinary meaning of instigating, namely, "bring about" 506 the commission of an act by someone, corroborates the opinion that a causal relationship between the instigation and the physical perpetration of the crime is an element requiring proof.
281. The Akayesu Trial Chamber was of the opinion that ordering
implies a superior-subordinate relationship between the person giving the order and the one executing it. In other words, the person in a position of authority uses it to convince another to commit an offence 507 .There is no requirement that the order be in writing or in any particular form; it can be express or implied. That an order was issued may be proved by circumstantial evidence.
It is not necessary that an order be given in writing or in any particular form. It can be explicit or implicit. The fact that an order was given can be proved through circumstantial evidence.
282. The Trial Chamber agrees that an order does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence 508 . Furthermore, what is important is the commander’s mens rea, not that of the subordinate executing the order. Therefore, it is irrelevant whether the illegality of the order was apparent on its face.
283. As a starting point, the Trial Chamber concurs with the opinion of the Trial Chamber in the Furundzija case which states that
the legal ingredients of aiding and abetting in international criminal law to be the following: the actus reus consists of practical assistance, encouragement , or moral support which has a substantial effect on the perpetration of the crime . The mens rea required is the knowledge that these acts assist the commission of the offence 509 .
284. The Trial Chamber holds that the actus reus of aiding and abetting 510 may be perpetrated through an omission, provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea511. In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime 512 .
285. Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator is not required 513 . Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom 514 .
286. As to the mens rea requirement for aiding and abetting, a distinction is to be made between "knowledge" and "intent" 515 . As held earlier in this Judgement, the mens rea required for establishing the responsibility of an accused for one of the crimes in Articles 2, 3 and 5 of the Statute is "willingness", comprising both direct and indirect intent. In the case of aiding and abetting, the Prosecution relies on inter alia the Furundzija Judgement and argues that the applicable mens rea applicable to the aider and abettor is "knowledge" that his acts assist the commission of the offence. In the submission of the Defence, however, Article 7(1) of the Statute requires proof of the specific intent on the part of the accused to commit the deliberate act to facilitate the commission of a crime 516 . The Trial Chamber is of the view that in addition to knowledge that his acts assist the commission of the crime, the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct 517 .
287. Finally, the Trial Chamber concurs with the following finding in the Furund zija Judgement:
[I]t is not necessary that the aider and abettor should know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor 518 .
288. The Trial Chamber deems it appropriate to point out that a distinction is to be made between aiding and abetting and participation in pursuance of a purpose or common design to commit a crime 519 . In the case in point, it notes that the only question raised is the question of aiding and abetting.
2. Individual Criminal Responsibility Within the meaning of Article 7 (3)
289. The accused faces concurrent charges under Article 7(3) of the Statute, which provides that
[t]he 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.
290. As found by the Trial Chamber in the Celebici case 520 , the Trial Chamber first holds that the principle of command responsibility strictu sensu forms part of customary international law.
291. The Prosecution submitted that for an accused to be held criminally responsible within the meaning of Article 7(3) of the Statute, proof is required that: an offence was committed; the accused exercised superior authority over the perpetrator of the offence or over his or her superiors; the accused knew or had reason to know that the subordinate was about to commit a crime or had done so; and the accused failed to take the necessary and reasonable measures to prevent the offence or to punish the perpetrator 521 .
292. The Defence, however, submitted that Article 7(3) of the Statute requires fulfilment of the following conditions: the commission of crimes by direct subordinates of the accused; the accused knew or had reasons to know that his subordinates were going to commit such crimes or had done so; the accused had the legal authority and actual ability to prevent or punish the acts committed by his subordinates; and the accused failed to prevent or punish the acts of his subordinates 522 .
293. In the submission of the Defence, it needs to be additionally demonstrated that the commander’s failure to act caused the crime, that is, that the crime was the direct result of the commander’s omission, and that the commander foresaw or knew that the omission could reasonably and foreseeably lead to the crime 523 .
294. As to the essential elements of command responsibility under Article 7(3) of the Statute, the Trial Chamber concurs with the views of the Trial Chambers in the Celebici and Aleksovski cases 524 . Accordingly, for a conviction under Article 7(3) of the Statute in the present case , proof is required that:
(1) there existed a superior-subordinate relationship between the commander (the accused) and the perpetrator of the crime;
(2) the accused knew or had reason to know that the crime was about to be or had been committed; and
(3) the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator thereof.
b) The Superior-Subordinate Relationship
295. The Prosecution submitted that the term "superior" is not limited to commanders who are above the perpetrators of crimes in the regular chain of command. The determining factor in the case in point is whether or not the commander exercised control over the acts of his subordinates. Proof is required that the superior has effective control over the persons committing the violations of international humanitarian law in question, that is, has the material ability to prevent the crimes and to punish the perpetrators thereof.
296. In the view of the Prosecution, formal designation as a commander is not a necessary prerequisite for superior responsibility. Such responsibility may be imposed by virtue of a person’s de facto as well as de jure position of authority or power of control. A person may be a "superior" for the purpose of Article 7(3 ) on the basis of effective influence that person exercises which amounts to forms of control giving to him the ability to intervene to prevent a crime. The fact that the commander had de jure authority to take all the necessary measures to punish the subordinates in question is also not a necessary prerequisite to entail the commander’s responsibility. It suffices that he could have taken some measures . The fact that the commander is the only one who can take all the necessary measures to punish the subordinates in question is also not a necessary prerequisite incurring the commander’s responsibility.
297. On a factual note, the Prosecution submitted that this legal criterion when duly applied to the evidence can only lead to the conclusion that the accused was also the "superior" of some independent units such as the Vitezovi, the Dzokeri and the HVO Military Police Fourth Battalion 525 .
298. The Defence submitted that proof is required that the accused possessed the legal authority and the actual ability to impose measures to prevent or punish the commission of crimes by his subordinates. For a commander’s responsibility to apply not only to his direct subordinates but also to the local civilian population, the Prosecution must proof that the commander exercised executive or sovereign power in his area of command, and that there was a state of total occupation by his forces .
299. In the case in point, the Defence contended that the accused did not possess sovereign power within an occupied area during the relevant period of the indictment . Therefore, the accused’s responsibility is limited to the crimes committed by his direct subordinates whose conduct he had the legal authority and actual ability to prevent and punish. Furthermore, the Defence submitted that the accused did not have the legal authority to punish the criminal acts of any soldiers in the CBOZ and that he did not have the legal authority to impose disciplinary sanctions against members of certain autonomous units 526 .
300. The Trial Chamber in the Celebici case held that in order for Article 7(3) of the Statute to apply, the accused must be in a position of command. This principle is not limited to individuals formally designated commander but also encompasses both de facto and de jure command. 527 On the basis of judicial precedents and the concept of "indirect subordination" defined in Article 87 of the 1977 Additional Protocol I to the Geneva Conventions of 1949 528 , the Celebici Trial Chamber held that
in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences 529 .
301. The Trial Chamber concurs with this view. Accordingly, a commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates, insofar as he exercises effective control over them 530 .
302. Although the Trial Chamber agrees with the Defence that the "actual ability " of a commander is a relevant criterion, the commander need not have any legal authority to prevent or punish acts of his subordinates. What counts is his material ability 531 , which instead of issuing orders or taking disciplinary action may entail, for instance, submitting reports to the competent authorities in order for proper measures to be taken 532 .
303. Finally, as recognised in the Aleksovski Judgement 533 , the Trial Chamber holds that the test of effective control exercised by the commander implies that more than one person may be held responsible for the same crime committed by a subordinate.
c) Mens Rea: "Knew or Had Reason to Know"
304. Both Prosecution and Defence agreed that actual knowledge may be proved either through direct or circumstantial evidence. In respect of the latter, the Prosecution submitted a number of relevant factors, such as the number, type and scope of the illegal acts 534 .
305. In the Prosecution’s view a commander "had reason to know" if he had information putting him on notice or tending to suggest that subordinates were about to commit or had committed crimes or if the fact that he did not have this information stemmed from a serious dereliction of his duty to obtain information of a general nature concerning the conduct of his subordinates to which he could reasonably have had access 535 .
306. The Defence submitted that for a commander to know or have reason to know of a crime, the Prosecution must prove that the commander actually knew or wantonly disregarded information within his possession which could only lead to the conclusion that such an act was going to occur or had occurred 536 .
307. Knowledge may not be presumed 537 . However, the Trial Chamber agrees that "knowledge" may be proved through either direct or circumstantial evidence. With regard to circumstantial evidence, the Trial Chamber concurs with the view expressed by the Trial Chamber in the Celebici case and holds that in determining whether in fact a superior must have had the requisite knowledge it may consider inter alia the following indicia enumerated by the Commission of Experts in its Final Report: the number, type and scope of the illegal acts; the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the speed of the operations ; the modus operandi of similar illegal acts; the officers and staff involved ; and the location of the commander at the time 538 .
308. These indicia must be considered in light of the accused’s position of command , if established. Indeed, as was held by the Aleksovski Trial Chamber, an individual’s command position per se is a significant indicium that he knew about the crimes committed by his subordinates 539 .
309. In the Celebici case, the Trial Chamber conducted a survey of post-World War II jurisprudence and held that
the principle can be obtained that the absence of knowledge should not be considered a defence if, in the words of the Tokyo judgement, the superior was "at fault in having failed to acquire such knowledge" 540 .
310. However, the Celebici Trial Chamber went on to state that since it was bound to apply customary law as it stood at the time of the alleged offences 541 , it must in addition fully consider the standard established by Article 86 of Additional Protocol I 542 . It held that, read in accordance with its ordinary meaning, the provision reflects the following position of customary law at the relevant time:
a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates 543 .
311. The Celebici Trial Chamber added that this is without prejudice to the current state of customary international law. In this respect, it noted Article 28(1)(a) of the Statute of the International Criminal Court which imposes individual criminal responsibility on a military commander if he "either knew or, owing to the circumstances at the time, should have known" that his subordinates were committing or were about to commit crimes 544 .
312. Both parties disagreed with this finding in Celebici but for different reasons. The Prosecution argued that Article 86 of Additional Protocol I is complementary to Article 87 which requires that a superior supervise his subordinates and remain apprised of their acts. Accordingly, the knowledge requirement does not differ from the standard established in the case-law arising out of World War II, as reflected in Article 28(1)(a) of the Statute of the International Criminal Court. According to the Prosecution, as a minimum, a commander is required to rely on or to establish an effective reporting system to ensure that any violation is brought to his attention . Based on the Commentary to Article 86 of Additional Protocol I, the Prosecution listed a number of issues about which the commander must remain informed such as the tactical situation in general and the level of training of subordinate troops 545 .
313. The Defence, however, argued that the post-World War II jurisprudence focused on information compelling the conclusion that crimes had been committed. It submitted that the phrase "had reason to know" must not be interpreted as including "ordinary negligence" in the mens rea of the offence 546 .
314. The Trial Chamber will now state its own interpretation of the "had reason to know standard" in accordance with customary international law. It will first turn to the relevant jurisprudence issuing from the aftermath of the Second World War.
315. In dealing with the responsibility for war crimes against prisoners, the International Military Tribunal for the Far East (hereinafter the "IMTFE") stated that:
It is the duty of all those on whom responsibility rests to secure proper treatment of prisoners and to prevent their ill treatment by establishing and securing the continuous and efficient working of a system appropriate for these purposes. Such persons fail in this duty and become responsible for ill treatment of prisoners if:
(1) They fail to establish such a system.
(2) If having established such a system, they fail to secure its continued and efficient working.
Each of such persons has a duty to ascertain that the system is working and if he neglects to do so he is responsible. He does not discharge his duty by merely instituting an appropriate system and thereafter neglecting to learn of its application.
[…]
Nevertheless, such persons are not responsible if a proper system and its continuous efficient functioning be provided for and conventional war crimes be committed unless :
(1) They had knowledge that such crimes were being committed, and having such knowledge they failed to take such steps as were within their power to prevent the commission of such crimes in the future, or
(2) They are at fault in having failed to acquire such knowledge.
If such a person had, or should, but for negligence or supineness, have had such knowledge he is not excused for inaction if his office required or permitted him to take any action to prevent such crimes. On the other hand it is not enough for the exculpation of a person, otherwise responsible, for him to show that he accepted assurances from others more directly associated with the control of the prisoners if having regard to the position of those others, to the frequency of reports of such crimes, or to any other circumstances he should have been put upon further enquiry as to whether those assurances were true or untrue 547 .
The IMTFE further specified that:
Army or Navy commanders can, by order, secure proper treatment and prevent ill treatment of prisoners. So can Ministers of War and of the Navy. If crimes are committed against prisoners under their control, of the likely occurrence of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes 548 .
316. In the Toyoda case, the law member of the war crimes tribunal delivered the Tribunal’s opinion when he stated:
In the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates , immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and , by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.
In determining the guilt or innocence of an accused, charged with dereliction of his duty as a commander, consideration must be given to many factors. The theory is simple, its application is not. […] His guilt cannot be determined by whether he had operational command, administrative command, or both. If he knew, or should have known, by use of reasonable diligence, of the commission by his troops of atrocities and if he did not do everything within his power and capacity under the existing circumstances to prevent their occurrence and punish the offenders, he was derelict in his duties. Only the degree of his guilt would remain 549 .
317. One of the defendants in the Pohl case was Karl Mummenthey, an SS officer in control of concentration camp enterprises. In its Judgement, the military tribunal hearing the case held that "Mummenthey’s assertions that he did not know what was happening in the labor camps and enterprises under his jurisdiction does not exonerate him. It was his duty to know" 550 . It seems, however, that the tribunal held that in actual fact the accused must have known:
Mummenthey could not help knowing about concentration camp labor in the DEST enterprises . In Sachsenhausen-Oranienburg the inmate workers daily passed by the very building in which Mummenthey had his office. Their poor physical condition was obvious 551 .
318. The Roechling case dealt with the criminal responsibility of directors of the Roechling firm for ordering or consenting to the ill-treatment of forced labourers. Responding to the accused Hermann Roechling’s defence that he did not know of the conditions of the workers at the Voelklingen plant, the tribunal of first instance held that
it was his duty as the head to inquire into the treatment accorded to the foreign workers and to the prisoners of war whose employment in his war plants was , moreover, forbidden by the rules of warfare, of which fact he must have been aware ; that he cannot escape his responsibility by stating that the question had no interest for him 552 [.]
The appellate court affirmed the rejection of the defence of lack of knowledge, holding that
[n]o superior may prefer this defense indefinitely; for it is his duty to know what occurs in his organization, and lack of knowledge, therefore, can only be the result of criminal negligence 553.
319. In respect of the "duty to know", the military tribunal hearing the Hostage case stated the following when it rejected the defence of the accused General List that he had no knowledge of many unlawful killings committed by subordinates :
A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command. His responsibility is coextensive with his area of command. He is charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprize him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defense. Absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced 554 .
320. In the same way, the following extract of the opinion in the Hostage case was adopted by the military tribunal hearing the High Command case:
Want of knowledge of the contents of reports made to him is not a defense. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf 555 .
321. In clear rejection of the so-called concept of strict liability, the Tribunal in the High Command case further held the following:
Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence 556 .
322. From this analysis of jurisprudence, the Trial Chamber concludes that after World War II, a standard was established according to which a commander may be liable for crimes by his subordinates if "he failed to exercise the means available to him to learn of the offence and, under the circumstances, he should have known and such failure to know constitutes criminal dereliction" 557 .
323. This principle of command responsibility was further introduced in domestic legislation. For example, the Field Manual issued by the U.S. Department of Army provides as follows:
The commander is […] responsible, if he had actual knowledge, or should have had knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to use the means at his disposal to insure compliance with the law of war 558 .
324. The Trial Chamber now turns to codification at the international level, namely the adoption of Additional Protocol I in 1977. The pertinent question is this: was customary international law altered with the adoption of Additional Protocol I, in the sense that a commander can be held accountable for failure to act in response to crimes by his subordinates only if some specific information was in fact available to him which would provide notice of such offences? Based on the following analysis , the Trial Chamber is of the view that this is not so.
325. Article 86 ("failure to act"), paragraph 2, of Additional Protocol I reads as follows:
The 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 559 .
326. As a preliminary matter, a difference of meaning appears to exist between the English and the French version of Article 86(2). Whereas the English text reads "information which should have enabled them to conclude", the latter reads "des informations leur permettant de conclure", which literally means "information enabling them to conclude". In keeping with Article 33(4) of the Vienna Convention on the Law of Treaties (1969), the Trial Chamber deems that the French version is truer to the object and purpose of the text 560 .
327. The Trial Chamber will interpret Article 86(2) in accordance with Article 31 of the Vienna Convention, that is, "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". In this respect, the Trial Chamber considers fundamental the provision enshrined in Article 43(1) of Additional Protocol I according to which the armed forces are to be placed "under a command responsible […] for the conduct of its subordinates" 561 .
328. In the Trial Chamber’s view, the words "had information" in Article 86(2) must be interpreted broadly. In this respect, it is noted that on the basis of post-World War II jurisprudence, the Commentary on Additional Protocol I explains that the information includes "reports addressed to [the superior], […] the tactical situation , the level of training and instruction of subordinate officers and their troops , and their character traits" 562 .
329. Moreover, a commander "cannot claim to be ignorant" of this information 563 . The Trial Chamber considers instructive the Commentary’s guidance that Article 86 (2) should be read in conjunction with article 87 ("duty of commanders"), paragraph 1 564 , which provides as follows:
The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol .
Given the essential responsibilities of military commanders under international humanitarian law, the Trial Chamber holds, again in the words of the Commentary, that "[t]heir role obliges them to be constantly informed of the way in which their subordinates carry out the tasks entrusted them , and to take the necessary measures for this purpose" 565 .
330. The Trial Chamber also notes that according to the Commission of Experts, " a commander has a duty to do everything reasonable and practicable to prevent violations of the law. Failure to carry out such a duty carries with it responsibility" 566 . Apart from circumstances in which knowledge can be proved or deduced, the Commission considered "such serious personal dereliction on the part of the commander as to constitute wilful and wanton disregard of the possible consequences" 567 to satisfy the mens rea requirement under Article 7(3) of the Statute.
331. Lastly, the Trial Chamber considers that the findings of the Israeli Commission of Inquiry responsible for investigating the atrocities perpetrated in the Shatilla and Sabra refugee camps in Beirut in 1982 constitute further evidence of the state of customary international law 568 . With respect to the responsibility of the Chief of Staff of the Israel Defence Forces , the Commission held that his knowledge of the feelings of hatred of the particular forces involved towards the Palestinians did not justify the conclusion that the entry of those forces into the camps posed no danger. Accordingly,
The absence of a warning from experts cannot serve as an explanation for ignoring the danger of a massacre. The Chief of Staff should have known and foreseen – by virtue of common knowledge, as well as the special information at his disposal – that there was a possibility of harm to the population in the camps at the hands of the Phalangists. Even if the experts did not fulfil their obligation, this does not absolve the Chief of Staff of responsibility 569 .
The Commission clearly held that the applicable standard for imputing responsibility is negligence:
If the Chief of Staff did not imagine at all that the entry of the Phalangists into the camps posed a danger to the civilian population, his thinking on this matter constitutes a disregard of important considerations that he should have taken into account. […] We determine that the Chief of Staff’s inaction […] constitute(s( a breach of duty and dereliction of the duty incumbent upon the Chief of Staff 570 .
332. In conclusion, the Trial Chamber finds that if a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute.
d) Necessary and Reasonable Measures to Prevent or Punish
333. The Prosecution put forth several measures which a commander can take in order to discharge his obligation to prevent offences from being committed. Accordingly , the exercise of effective command and control through the proper and diligent application of discipline is a common thread. The duty to punish entails the obligation to establish the facts, to put an end to the offences and to punish. "Necessary measures" are those required to discharge the obligation to prevent or punish, in the circumstances prevailing at the time. "Reasonable" measures are those which the commander was in a position to take in the circumstances prevailing at the time . The lack of formal legal jurisdiction does not necessarily relieve the superior of his criminal responsibility. If subordinates act pursuant to criminal orders passed down from higher up in the chain of command the commander remains under an obligation to take all measures within his power 571 .
334. The Defence submitted that if the commander makes a reasonable effort to prevent or punish the crimes of his subordinates, command responsibility is entailed only if his effort is patently disproportionate to the crime committed. Hence, if the evidence demonstrates that a commander took reasonable steps to prevent or punish the commission of crimes, command responsibility cannot be imposed 572 .
335. The Trial Chamber has already characterised a "superior" as a person exercising "effective control" over his subordinates. In other words, the Trial Chamber holds that where a person has the material ability to prevent or punish crimes committed by others, that person must be considered a superior. Accordingly, it is a commander’s degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator 573 . As stated above in the discussion of the definition of "superior", this implies that, under some circumstances, a commander may discharge his obligation to prevent or punish by reporting the matter to the competent authorities.
336. Lastly, the Trial Chamber stresses that the obligation to "prevent or punish " does not provide the accused with two alternative and equally satisfying options . Obviously, 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.
e) Concurrent Application of Articles 7(1) and 7(3) of the Statute
337. It would be illogical to hold a commander criminally responsible for planning , instigating or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing them. However, as submitted by the Prosecution 574 , the failure to punish past crimes , which entails the commander’s responsibility under Article 7(3), may, pursuant to Article 7(1) and subject to the fulfilment of the respective mens rea and actus reus requirements, also be the basis for his liability for either aiding and abetting or instigating the commission of further crimes.
338. In this respect, it should be noted that the regulations concerning the application of the international law of war to the armed forces of the SFRY, under the heading "Responsibility for the acts of subordinates", provide the following:
The commander is personally responsible for violations of the law of war if he knew or could have known that his subordinate units or individuals are preparing to violate the law, and he does not take measures to prevent violations of the law of war. The commander who knows that the violations of the law of war took place and did not charge those responsible for the violations is personally responsible. In case he is not authorized to charge them, and he did not report them to the authorized military commander, he would also be personally responsible.
A military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units to continue to commit the acts 575 .
While the first paragraph corresponds to individual criminal responsibility under Article 7(3) of the Statute, the second supports the Trial Chamber’s view regarding the concurrent application of Articles 7(3) and 7(1) in cases of subsequent crimes being committed.
339. As stated earlier in this Judgement, in the case of instigation, proof is required of a causal connection between the instigation, which may entail an omission, and the perpetration of the act. In the scenario under discussion, this means it must be proved that the subordinates would not have committed the subsequent crimes if the commander had not failed to punish the earlier ones 576 . However, with respect to the Defence’s submission that under Article 7(3) of the Statute proof is required that the commander’s omission caused the commission of the crime by the subordinate, the Trial Chamber is of the view that such a causal link may be considered inherent in the requirement that the superior failed to prevent the crimes which were committed by the subordinate. In other words,
the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed 577 .
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340. After having set the legal framework for its considerations and established the international nature of the armed conflict in which the crimes covered in the indictment occurred, the Trial Chamber will examine the facts and the responsibility of the accused Tihomir Blaskic.