PARTIAL DISSENTING OPINION OF JUDGE SHAHABUDDEEN

 

1. I agree with the decision of the Appeals Chamber that, at the time of the alleged acts of the accused, it was part of customary international law that the principle of command responsibility applied in internal armed conflicts. Regrettably, I am not able to support the decision insofar as it holds that the principle of command responsibility does not apply to a commander in respect of crimes committed by his subordinates before he assumed duty although he knew or had reason to know of the crimes. This opinion seeks to explain my inability.
   A. No available cases on the point, one way or another

2. Argument has been made to the effect that there is no known instance in which a commander was regarded as having command responsibility for acts of his subordinates committed before he assumed his command. And that is so. If that was determinative, the appeal would have to be allowed on the point, as it has been on the view taken by the majority. But perhaps the matter can be examined a little.

3. Speaking in The Hostage Case of acts committed by the 217th Infantry Division prior to the date on which the Division came under the command of Lieutenant General Kuntze in the course of World War II, United States Military Tribunal V, sitting under Control Council Law No. 10, said that he “is not chargeable with the acts.”¹ This remark may be thought to indicate that the mere fact that the crimes were committed before the new commander assumed duty was enough to exclude his being charged with command responsibility, i.e., even if he knew or had reason to know that the crimes were committed and failed to take corrective action. But the strength of the Kuntze remark is weakened by the circumstance that, as it seems to me, the accused was charged in the indictment with the equivalent of crimes under article 7(1) of the Statute of the Tribunal relating to matters other than command responsibility.²

4. The indictment against Kuntze was indeed wide. For example, count one charged him and others with having -

   unlawfully, wilfully, and knowingly committed war crimes and crimes against humanity, as defined in Article II of Control Council Law No. 10, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, were connected with plans and enterprises involving, and were members of organizations or groups connected with, the murder of hundreds of thousands of persons from the civilian populations of Greece, Yugoslavia, and Albania, by troops of the German armed forces under the command and jurisdiction of, responsible to, and acting pursuant to orders issued, executed, and distributed by, the defendants herein. …³

   But, wide as were these terms, and notwithstanding the reference to “command and jurisdiction”, they appeared to stop short of presenting a charge of command responsibility : they alleged that Kuntze did certain things (which could have occurred by omission or commission), not that he failed to discharge a certain responsibility to control his troops. By contrast, in Yamashita the accused was arraigned on a charge for a distinct offence of command responsibility, the text of which read that he “unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes … ; and he … thereby violated the law of war.” ⁴

5. The jurisprudence at the time of the case of Kuntze suggests a certain fluidity : there might be references to the idea of command responsibility, but only in aid of the fact that the proceedings would relate to some other crime involving direct responsibility.⁵ Thus, the judgment in Kuntze’s case spoke of reports having been made to him and of his having failed to take corrective action;⁶ indeed, findings were made on the point. But this was considered only as evidence of his acquiescence or other form of participation in the impugned action.

6. In the High Command Case, it was likewise held that acts of subordinates committed before General Hoth took command could not be charged against him; but the indictment charged him with having “committed crimes... Sin that heC participated in the commission of atrocities and offenses …”.⁷ Like Kuntze, Hoth was not charged with a distinct crime corresponding to a charge of command responsibility under article 7(3) of the ICTY Statute; although the judgment referred to elements of the idea of command responsibility,⁸ he was charged with other crimes.

7. In my opinion, the cases concerning Kuntze and Hoth cannot be safely relied on as providing authority for the view that a commander can in no circumstances have command responsibility for acts of his subordinates committed before he assumed his command. However, if there is no case in which it was held that command responsibility does not extend to acts committed by subordinates before the commander assumed his command, it has nevertheless to be recognised that there is no case which affirmed the opposite. What then is to be done?
   B. The matter has to be determined by interpreting the existing principle of command responsibility and asking whether it applies to the case in hand

8. There being no case on the point one way or another, one is left with the position that command responsibility was part of customary international law, having been established by State practice and opinio juris. The principle so established was not a naked one: it would include its implications. What prevents the Tribunal from considering those implications?

9. There is no question of the Tribunal having power to change customary international law, which depends on State practice and opinio juris. If State practice and opinio juris have thrown up a relevant principle of customary international law, the solution turns on the principle.⁹ But that does not bar all forward movement: a principle may need to be interpreted before it is applied. This is illustrated by acceptance by the jurisprudence of the Tribunal that the Tribunal may clarify the elements of a crime.¹⁰ In the process of clarification, the Tribunal has the competence, which any court of law inevitably has, to interpret an established principle of law and to consider whether, as so interpreted, the principle applies to the particular situation before it. This is so because a court called upon to apply a principle proceeds on the basis of a finding, express or implied, that the principle has a certain meaning, however self-evident that meaning may be.¹¹ In my view, customary international law in turn proceeds on the basis that, whenever a body is established on the international plane to exercise judicial power, that body corresponds to the central idea of a court as known to States generally; it therefore has competence to interpret a principle of law and to determine whether the particular situation before it falls within the principle as so interpreted. The competence is inseparable from the judicial function; it does not invite to open horizons, but, within disciplined limits, it has to be exercised.

10. In sum, the Tribunal has to take it that a principle of customary international law concerning command responsibility has been established by State practice and opinio juris. The particular question whether that responsibility extends to acts of a subordinate committed before the commander assumed duty has not fallen to be so far dealt with – at any rate, in any reported instance. That, however, does not mean that such a situation is not capable of being governed by the established principle. If it is capable of being governed by the established principle, that principle must be held to prevail. In acting accordingly, the Appeals Chamber will not be changing customary international law but will be carrying out its true intent by interpreting and applying one of its existing principles.

11. As to relevant principles of interpretation, I understand the appellants to be submitting that the doctrine of command responsibility is not to be interpreted ¹² in accordance with the object and purpose principle enjoined by the Vienna Convention on the Law of Treaties 1969. However, since the doctrine is set out in certain texts of a treaty nature, including articles 86 and 87 of Protocol I Additional to the Geneva Conventions, it is admissible to make any necessary interpretation by reference to the object and purpose of the provisions laying down the doctrine. It is to be noticed that the Vienna Convention has been used to construe article 86(2) of the Protocol.¹³

12. Paragraph 120 of the interlocutory appeal¹⁴ pleads that “(u(ncertainty in the law must be interpreted in favour of the accused ”. As I understand the injunctions of the maxim in dubio pro reo and of the associated principle of strict construction in criminal proceedings, those injunctions operate on the result produced by a particular method of interpretation but do not necessarily control the selection of the method. The selection of the method in this case is governed by the rules of interpretation laid down in the Vienna Convention on the Law of Treaties. It is only if the application of the method of interpretation prescribed by the Convention results in a doubt which cannot be resolved by recourse to the provisions of the Convention itself – an unlikely proposition - that the maxim applies so as to prefer the meaning which is more favourable to the accused.¹⁵ In my view, that is not the position here: there is no residual doubt.

13. I shall also consider a view that, in this field, a court of law may only make an inference by necessary implication. This test is appropriate to consideration of a question as to whether State practice and opinio juris have established a certain principle. But, once it is accepted that State practice and opinio juris have established a principle, any interpretation of a treaty document which sets out the principle is to be undertaken in conformity with the object and purpose criterion laid down in the Vienna Convention on the Law of Treaties. That is not the same thing as saying that the interpretation has to be made on the basis of necessary implication.

14. Thus approached, there appears to be force in the argument that the responsibilities of a new commander extend to dealing with crimes committed by subordinates before he assumes command if he knows or has reason to know of the crimes. Otherwise, such crimes could fall between two stools. The crimes might have been committed very shortly before the assumption of duty of the new commander - possibly, the day before, when all those in previous command authority disappeared; on the other hand, according to the appellants’ view, the new commander is not under an obligation to act, even if he knows that the old commander was thinking of initiating proceedings had he continued in office. That is at odds with the idea of responsible command on which the principle of command responsibility rests and with the associated idea that the power to punish should always be capable of being exercised.

15. These consequences collide with the object and purpose of the relevant provisions of Protocol I. Although, as mentioned in paragraph 16 below, causality does not have to be proved, the object and purpose of the provisions would include the avoidance of future crimes by the subordinates of a new commander arising from seeming encouragement ¹⁶ through inaction by him over crimes committed by the same subordinates before he assumed duty but of which he knows or had reason to know. I may add that, if it is said that someone else could act, an answer is that the doctrine of command responsibility could well apply to several persons at the same time.¹⁷

16. The appellants’ submission that it is necessary for an accused superior to be in command when the crime is committed by his subordinate presupposes that the superior was in a position to prevent the commission of the crime. The submission assumes that there is need for proof of a causal connection between the commander’s failure to exercise his powers and the commission of the particular crime by the subordinate. There is no such requirement, certainly not where the charge is for failure to punish for a crime already committed.¹⁸ In the latter case, there is not, because there cannot be, a causal connection between the commander’s failure to exercise his power to punish and the already committed crime.

17. The power to punish depends on whether the commander had effective control.¹⁹ As I understand it, the appellants do not question that. In effect, their argument is about who are the repositories of effective control. The answer cannot be ascertained by merely looking at the nature of effective control; the appellants say that State practice and opinio juris will have to be consulted. In their submission, State practice and opinio juris show that a new commander is not a repository of effective control in relation to a prior crime committed by his subordinate. For the reasons given and on the approach which I have taken, I disagree with the argument. A new commander can have effective control for the purpose of punishing a crime committed by his subordinate before the new commander assumed his command.
    C. On their true interpretation, relevant texts are not at variance with this conclusion; if they are, they do not prevail

18. The Report of the International Law Commission²⁰ on the work of its forty-eighth session, 6 May-26 July 1996, deals with the draft Code of Crimes Against the Peace and Security of Mankind. As is recalled in paragraph 49 of the decision of the Appeals Chamber, article 6 of the draft Code runs thus :

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

19. Then, there is article 28 of the 1998 Statute of the International Criminal Court, referred to in paragraph 46 of the Appeals Chamber’s decision. Paragraph 1 of that article refers to the command responsibility of a military commander where :

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

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

20. These texts may be thought to suggest that a new commander does not have command responsibility in relation to acts done by his subordinates before the commencement of his command: the suggestion may be based on the references to “the circumstances at the time”. On the other hand, notice needs to be taken of the words “that the subordinate was committing or was going to commit such a crime” and of the words “were committing or about to commit such crimes” appearing in article 6 of the draft Code and article 28(1)(a) of the Statute of the International Criminal Court, respectively. These words would seem to exclude crimes of subordinates even if committed after the commencement of the commander’s command where the commander knew, or should have known, of the commission of the crimes but only after they were committed; that is scarcely consistent with a theory the reasoning of which accepts that a commander has command responsibility at least in relation to acts committed by his subordinates after the commencement of his command. If that situation is omitted from the texts in question, it does not follow that it is not penalised under customary international law; it would remain to be caught by the general principle of command responsibility under customary international law. The point is, as is argued in paragraph 38 below, that the texts in question are not to be taken as exhaustive statements of customary international law on the subject.

21. Weight has of course to be given to the texts as indicative of the state of customary international law as it existed when they were adopted. But, as the texts were adopted subsequent both to the making of the Statute of the Tribunal and to the dates on which the alleged acts of the subordinates in this case were committed, on the question what was the state of customary international law on these occasions they do not seem to speak with the same authority as do the earlier provisions of articles 86 and 87 of the 1977 Additional Protocol I to the Geneva Conventions 1949. These provisions, which are referred to in part in paragraph 47 of the decision of the Appeals Chamber, read as follows:

    Article 86

    1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.

    2. 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.²¹

    Article 87

    1. 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 report to competent authorities breaches of the Conventions and of this Protocol.

    2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.

    3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.²²

22. Article 86(2) of Protocol I does use the words “in the circumstances at the time”. An argument could therefore be made that this excludes the responsibility of a new commander for prior acts of his subordinates. But article 87(3) has also to be considered: it speaks of “subordinates ?whog … have committed a breach …”. These words visualise a larger area of responsibility than that suggested by article 86(2) of Protocol I or the corresponding provisions of article 6 of the draft Code of Crimes Against the Peace and Security of Mankind or article 28 of the Statute of the International Criminal Court.

23. It may be argued that the words last referred to do not necessarily include a reference to “subordinates ?whog … have committed a breach” before the superior /subordinate relationship began; but literally and ordinarily that is not the correct meaning. In choosing the correct meaning of the words, recourse may be had to the object and purpose of the provision, or more particularly to the rule set out in article 31(1) of the Vienna Convention on the Law of Treaties, which says that a “treaty shall be interpreted 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.”²³ When that is done, there is not any doubt that a breach is included even if it was committed by a subordinate before the commander assumed his command, provided that the commander knew or had reason to know of the breach.

24. Otherwise, and as previously argued, there could be a gap in the line of responsibilities. The object and purpose of the relevant provisions of Protocol I must be to ensure that there is always someone who will have responsibility for ensuring that the commission of war crimes by a subordinate will not go unpunished. Reports of the commission of the crime might never have reached the previous commander and he might therefore have never been in a position to exercise power to punish the subordinate for it; the reports might only be received by the new commander. Responsible command, from which flows the concept of command responsibility, vests the new commander with power to punish the subordinate for the crime so disclosed.

25. Further, it appears to me that, in settling the general economy of article 86 of Protocol I, that provision has to be read with article 87 as integral parts of the same scheme. It is true that article 87 (like article 86(1)) was directed to States and to Parties to the conflict, but this does not affect the admissibility of using its provisions in interpreting the scope of article 86(2). Article 87 makes States responsible for enforcing certain rules of military conduct against their commanders and therefore constitutes an authoritative guide to the kind of conduct that is prescribed by article 86(2). In my view, the reference in article 87 (3) to “subordinates … under his control … [who] have committed a breach …” comprehends an obligation of a new commander to initiate such steps as are necessary to punish such a subordinate for a breach even if it was committed before the new commander assumed duty, provided of course that the new commander knows or has reason to know of the breach. This view has to be taken into account in determining the scope of article 86 (2).

26. It may be added that, in 1956, the United States Army, which was not alone in this respect, adopted in its Law of Land Warfare a provision making the commander responsible where “troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war.”²⁴ Possibly, there is material somewhere which shows that this provision excludes command responsibility for prior crimes, but I have not found it. Meanwhile, it appears to me that there is nothing in the provision which excludes the application of the words “have committed a war crime” to war crimes committed before the commander assumed his command if the offender later becomes the subordinate of the commander and the latter knows or has reason to know of the crimes.
    D. Article 7(3) of the Statute of the Tribunal

27. The appellants have also made argument on the basis of the wording of article 7(3) of the Statute of the Tribunal, which says:

    The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

    The argument of the appellants is founded on the reference in this provision to the “fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility …”. They submit that this requires that the accused be the superior when the subordinate commits the offence, and that therefore a new commander is excepted.

28. I accept the view of the Trial Chamber, as set out in paragraph 198 of its decision, that, on the wording of article 7(3) of the Statute, there are two scenarios. Insofar as the provision refers to a case in which the commander knew or had reason to know that the subordinate was committing or about to commit a crime, the superior /subordinate relationship obviously exists at the time of the commission of the act. However, there is no necessity for such coincidence where the crime has been committed: the provision speaks of a case in which the subordinate “had done” the act – words (including their equivalent) which do not occur in some of the texts previously examined. In such a case, there may but need not be a coincidence of the superior/subordinate relationship with the commission of the act. What, however, has to be simultaneous is the discovery by the commander and the existence of the superior/subordinate relationship.

29. The Trial Chamber’s view is supported by the Report of the Secretary-General, to which the Statute of the Tribunal was attached in draft and which was approved by the Security Council. Paragraph 56 of the report, commenting on article 7 of the Statute, said that the “imputed responsibility” of the superior “is engaged if the person in superior authority knew or had reason to know that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them”. This language suggests that, under article 7(3) of the Statute, the superior/subordinate relationship need exist only at the point of time when the superior knew or had reason to know; it is that combination which triggers command responsibility. This would let in cases in which the subordinate “had committed crimes” even before that relationship began; in other words, the commission of the crime need not be contemporaneous with the existence of the superior /subordinate relationship. It may be noticed that the language is in substance the same in the case of article 6(3) of the Statute of the ICTR, complete with the reference to a subordinate who “was about to commit such acts or had done so …”. The fact that on some matters that Statute comprehends obligations other than those based on customary international law²⁵ is not relevant in this context.

30. It may be said that the question is not what article 7(3) of the Statute of the Tribunal means on the point but whether it accurately represented customary international law at the time of its adoption. But, in judging this, it is not correct to exclude from consideration the understanding of customary international law as evidenced by the provisions of the Statute; it has to be recalled that the Security Council, in adopting the Statute, has to be taken as effectively speaking on behalf of practically all States – and with their consent given through adherence to the Charter of the United Nations.

31. As mentioned in paragraph 9 above, a question is not raised as to the competence of the Tribunal to change customary international law. The question is only what was the state of customary international law at the time when the Security Council adopted the Statute of the Tribunal. On this question, when the position taken by the Security Council (including that of the Secretary-General) is brought into account – as, in my view, it has to be - the Appeals Chamber can have little doubt that the provisions of article 7(3) of the Statute, as construed above, correctly represented customary international law on the point at the time when the Statute was adopted. To hold the opposite is to say that article 7(3) of the Statute was ultra vires, at least in part. The provision is clear enough. Beyond the language of argument, it has to be recognised that what is really in issue is the validity of the provision.²⁶ I am not persuaded that the provision lacked validity.

32. The position of the appellants seems to be influenced by their belief that article 7(3) of the Statute has the effect, as they say, of making the commander “guilty of an offence committed by others even though he neither possessed the applicable mens rea nor had any involvement whatsoever in the actus reus.”²⁷ No doubt, arguments can be made in support of that reading of the provision, but I prefer to interpret the provision as making the commander guilty for failing in his supervisory capacity to take the necessary corrective action after he knows or has reason to know that his subordinate was about to commit the act or had done so. Reading the provision reasonably, it could not have been designed to make the commander a party to the particular crime committed by his subordinate.

33. In this respect, reference may again be made to paragraph 56 of the Secretary -General’s report, mentioned in part in paragraph 29 above. Quoted more fully, that paragraph of the report said:

    A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute. But he should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew or had reason to know that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them.

    A careful distinction was drawn between cases in which the commander is criminally responsible as a party to the crime committed by his subordinates on his orders and cases in which the commander is criminally responsible for “failure to prevent a crime or to deter the unlawful behaviour of his subordinates”, i.e., command responsibility. Command responsibility imposes criminal responsibility on a commander for failure to take corrective action in respect of a crime committed by another; it does not make the commander a party to the crime committed by that other.²⁸ The nature of the responsibility is pertinent to its extent.

    E. Miscellaneous considerations

34. The tendency of these views is consistent with the meaning of the appellants’ resistance to the application of the object and purpose criterion: the appellants seem to recognise that the application of that criterion is not supportive of their claim that a new commander was not intended to have command responsibility in relation to crimes committed by his subordinates before he assumed command but of which he knew or of which he had reason to know.

35. The tendency of these views is also consistent with the appellants’ attitude to the Kordic statement. That statement reads:

    The duty to punish naturally arises after a crime has been committed. Persons who assume command after the commission are under the same duty to punish. This duty includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself.²⁹

    The statement was made by a Trial Chamber; also, it was obiter, as was conceded by the Prosecutor.³⁰ But the principle of the statement seems to accord with basic ideas on the subject. The defence of Hadzihasanovic seemed to recognise this.

36. Stating the substance of its stand, the defence of Hadzihasanovic submitted to the Trial Chamber that “the aim of the command responsibility doctrine is to ensure that commanders will ensure that troops, over which they have effective control, will conduct their operations in accordance with law, thus preventing violations from being committed. Their criminal liability will only arise if they fail to do so and a violation is committed, unless they punish the perpetrators after finding out about their crime.”³¹ But, as the Trial Chamber noted,³² the defence of Hadzihasanovic then added:

    In this sense, the obiter from the Kordic Judgement is partly right. A commander cannot turn a blind eye, if he finds out that a violation was committed by a subordinate before he assumed command. If he fails to punish this subordinate, the commander may be individually responsible for an offence, but not pursuant to the doctrine of command responsibility as he had no responsibility towards the perpetrator when the offence was committed.³³

37. The defence view that such a commander may be individually responsible for “an offence but not pursuant to the doctrine of command responsibility” is without satisfactory explanation of the nature of the offence for which the commander may be individually responsible or the basis on which his responsibility rests if this is not command responsibility. The responsibility is presumably under international criminal law; it is difficult to isolate the specific branch of that law which imposes criminal responsibility if it is not command responsibility. My interpretation of the concession made by the defence of Hadzihasanovic is that the concession correctly, if reluctantly, recognises the applicability of command responsibility to the case of a new commander in relation to crimes committed by his subordinates before the commencement of his command, being crimes of which he knows or has reason to know.

38. In the alternative, I hold that the texts relied upon for an interpretation that a commander has no command responsibility in relation to prior acts of his subordinate simply did not advert to the full implications of the principle of customary international law which they sought to codify. A codification does not necessarily exhaust the principle of customary international law sought to be codified.³⁴ The fullness of the principle, with its ordinary implications, can continue notwithstanding any narrower scope suggested by the codification.

39. One final matter. Making its central point in remarks of great learning, the majority feels able to say that it “is trite to observe that in international criminal law, imposition of criminal liability must rest on a positive and solid foundation of a customary law principle.”³⁵ The majority is right in describing that observation as trite; it is so trite that nobody has thought of challenging it. Consequently, the object of the observation is not understood. As I have stressed, there is no question of changing customary international law. What the dissenting judges seek to show is that the required foundation in customary international law lies in an existing principle of that same law when that principle is correctly construed.

40. On that question of construction, my approach is that the scope of command responsibility under customary international law can be gathered from the nature of the responsibility under that law, or from a provision setting out that law, including a provision concerning the obligation of States to ensure compliance by commanders with their responsibilities under that law. It should be unnecessary to point out that this does not mean that individual criminal responsibility and State responsibility are the same; that elementary distinction was implied and recognised in paragraph 25 above and does not have to be catechised.

41. The limits set by the moderation practised by traditional judicial discourse may have obscured my arguments. On the other hand, I admire the apparent confidence with which those arguments have been forcefully dismissed by the majority.
    F. Conclusion

42. A Trial Chamber has power to stay proceedings if it considers that it would be unfair to continue them in the light of any disadvantage suffered by the defence from lapse of time between the commission of the crimes by the subordinate and the time when the new commander assumed his command. In judging that question, the Trial Chamber may take account of the circumstances of the armed conflict and in particular of any rapidity in the turnover of personnel.

43. Subject to this consideration, I am of the view that, under customary international law relating to the doctrine of command responsibility, a commander can be held responsible in relation to crimes committed by his subordinates before he assumed command, provided that he knew or had reason to know of the crimes, and that accordingly the decision of the Trial Chamber to this effect was correct. The interlocutory appeal should be dismissed.

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

_______________________
Mohamed Shahabuddeen

Dated this 16th day of July 2003
At The Hague
The Netherlands