BEFORE THE APPEALS CHAMBER

Registrar:
Mr. Hans Holthuis

Date filed:
27 November 2002

The Office of the Prosecutor

Mr. Ekkehard Withopf

Counsel for the Accused

Ms. Edina Rešidovic and Mr. Stéphane Bourgon for Enver Hadzihasanovic
Ms. Vasvija Vidovic and Mr. John Jones for Mehmed Alagic
Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura

Further to the Decision on Joint Challenge to Jurisdiction (the “Decision”) rendered by Trial Chamber II on 12 November 2002, Counsel for Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura (the “Accused” or “Defence”) hereby file this “INTERLOCUTORY APPEAL ON DECISION ON JOINT CHALLENGE TO JURISDICTION.”

I. INTERLOCUTORY APPEAL AS OF RIGHT

1. This interlocutory appeal is filed “as of right” pursuant to Rule 72 (B) (i ) of the Rules of Procedure and Evidence of the International Tribunal, IT/32/Rev.24, (the “Rules”).

2. It is submitted that Rule 72 (B) (i) applies, since the Joint Challenge to Jurisdiction Arising from the Amended Indictment (the “Motion”) filed on 21 February 2002 challenges the Amended Indictment on the ground that in accordance with Rule 72 (D) (iv), it does not relate to “any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute”.

3. The Accused have been charged exclusively under Articles 3 and 7(3) of the Statute. If, as the Defence argues, “[i]nternational law at the time relevant to the present indictment [did not] provide for criminal responsibility of superiors (…) in the context of non international conflicts” (the question posed by the Trial Chamber at para. 7 of its Decision on Challenge to Jurisdiction issued on 7 December 2001), then all counts in the Amended Indictment fall outside of the jurisdiction of the International Tribunal.

4. This was recognized by the Trial Chamber at para. 7 in fine of the Decision : “This Trial Chamber interprets the current Joint Challenge as one that negates jurisdiction under Article 7(3) ex initio and submits that the Amended Indictment cannot be based on a violation of Article 7(3) of the Statute (Rule 72(A) and 72 (D) (iv).”

5. Indeed, if the Defence are correct in their assertions, the Amended Indictment will be rejected in its entirety and no trial will take place. It is difficult to imagine a situation which is more essentially a challenge to jurisdiction and which falls within the purpose of the adoption of a rule permitting interlocutory appeals on jurisdiction. As the Appeals Chamber stated in the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 (“Tadic Jurisdiction Appeal”), paragraph 5, citing the words of the Prosecutor:

   “[…] So it is really a rule of fairness for both sides in a way, but particularly in favour of the accused in order that somebody should not be put to the terrible inconvenience of having to sit through a trial which should not take place.” (emphasis added)

6. If the present appeal was not considered as falling within Rule 72(D), and the trial was then to proceed, only for the Defence submissions to be upheld by the Appeals Chamber in a final Appeal, a whole trial would have been held for nothing, which would represent an enormous waste of time and expense, not to mention a gross violation of the rights of the Accused.

7. Should the Appeals Chamber nevertheless determine that this interlocutory appeal cannot be filed “as of right” pursuant to Rule 72 (B) (i), the Defence hereby reserve the right to seek leave to obtain certification of the Decision from Trial Chamber II pursuant to Rule 72 (B) (ii).

   II. SUMMARY OF PROCEEDINGS

8. The Motion giving rise to the Decision was filed by the Defence on 21 February 2002.¹ In the Prosecution’s Response to Joint Challenge in the Amended Indictment filed on 27 February (the “Prosecution’s Response”), the Prosecution agreed “that these issues should be resolved before the trial and that a timetable for the filing of detailed submissions is needed”.

9. On 25 March 2002, the Trial Chamber issued a Scheduling Order in which the parties were ordered to file concurrently written submissions by 10 May 2002, written responses by 24 May 2002 and written replies by 31 May 2002. On 11 April 2002, the Pre-Trial Judge authorised the Parties to file written submissions not exceeding 20 pages and the parties submitted their filings accordingly².

10. On 5 June 2002, the Defence filed a Joint Motion Seeking Leave to Reply to the Prosecution’s Reply to Defence Responses to the Prosecution’s Brief Concerning Issues Raised in the Joint Challenge to Jurisdiction Arising from the Amended Indictment on the basis that in its Reply, the Prosecution addressed a number of issues raised by the Defence in their written submissions filed on 10 May 2002 and that since these issues had not been raised in the Prosecution’s Response filed on 24 May 2002, the Defence was pre-empted from replying to these arguments raised in extremis by the Prosecution. Upon leave being granted, the Defence filed its Additional Joint Defence Reply to Issues Raised by the Prosecution’s Reply to the Defence Challenge to Jurisdiction on 17 June 2002.

11. The Defence had suggested that amicus curiae submissions be sought pursuant to Rule 74, in particular from the permanent members of the Security Council (see para. 21, Motion). The Trial Chamber did not, however, adopt this suggestion.³

    III. GROUNDS OF APPEAL

12. This interlocutory appeal is filed on the following three grounds:

    First Ground of Appeal: The Trial Chamber erred in law when it concluded that “the doctrine of command responsibility already in – and since – 1991 was applicable in the context of an internal armed conflict under customary international law”;

    Second Ground of Appeal: The Trial Chamber erred in law when it concluded that “in principle a commander can be liable under the doctrine of command responsibility for crimes committed prior to the moment that the commander assumed command”; and

    Third Ground of Appeal: The Trial Chamber erred in law when it concluded that “the inclusion of the words “were about to”, “plan”, and “prepare” before “execute” in paragraphs 61 and 66 of the Amended Indictment are related to the superior’s knowledge that subordinates were allegedly “about to commit such acts” and therefore falls within the scope of Article 7(3) of the Statute.

    IV. FIRST GROUND OF APPEAL

13. The Trial Chamber found that:

    a. No codification in an international agreement or treaty exists for the doctrine of command responsibility applying to internal conflict (para. 93);

    b. No international judicial organ has ruled that the doctrine of command responsibility applies to internal conflicts, and since the 1950s no international judicial organ has applied the doctrine of command responsibility in internal or international conflict until the ICTY was established (paras. 77, 93, and 155);

    c. As the conflicts in relation to which the various international judicial bodies after the Second World War had been established were of an international character, obviously the principle of command responsibility was only used against persons who had acted in such international conflicts (para. 151);

    d. Additional Protocol II (“APII”) did not include a provision on command responsibility similar to Additional Protocol I (“API”) (paras. 157 and 164);

    e. There is practically no national legislation or military manual touching upon command responsibility in the context of internal conflicts (para. 165); and

    f. The issue of command responsibility in an internal conflict has not been extensively discussed in any of the works of highly qualified publicists on this subject (footnote 278).

14. Despite these findings, the Trial Chamber ruled that “the doctrine of command responsibility already in – and since – 1991 was applicable in the context of an internal conflict under customary international law.” In so doing, the Trial Chamber erred in two respects:

    A. Failed to respect the principle of legality in reaching its conclusion that it had jurisdiction in the present case; and

    B. Wrongly found that there was a basis in customary international law for the applicability of the doctrine of command responsibility in internal conflict at the material time of the indictment.

    A. THE TRIAL CHAMBER FAILED TO RESPECT THE PRINCIPLE OF LEGALITY

    (1) Definition and application of the principle

15. It is well-established under international criminal law that the principle of legality requires that the crime charged be set out in a law that is accessible and that it be foreseeable that the conduct in question may be criminally sanctioned at the time when the crime was allegedly committed. Furthermore, the principle of legality prohibits the extension of crimes by analogy to new factual circumstances, albeit the elements of existing crimes may be clarified and interpreted by the courts over time⁴.

16. In this regard, the Trial Chamber did not answer the question posed in the Defence filings that, as highlighted in the Secretary-General’s Report, a conventional as well as a customary basis for an incrimination is required in order fully to respect the principle of legality.⁵ The Chamber failed to identify any conventional basis for punishing Command responsibility in internal conflict.

17. Article 22 of the ICC Statute provides:

    “1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.

    2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In the case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”

18. Under international law the overriding guarantee is that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law at the time when it was committed” (Article 7(1) of the European Convention of Human Rights). The case law of the European Court of Human Rights confirms that:

    (a) “[O]nly the law can define a crime and prescribe a penalty … and … the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it, what acts and omissions will make him liable” (Kokkinakis v. Greece, Eur. Court HR, 25 May 1993, para. 52).

    (b) The principle of legality requires the law to be accessible and any change in the law to be reasonably foreseeable (S.W. v. United Kingdom, Eur. Court HR, 22 November 1995, para. 35).

    (c) The “constituent elements of an offence such as e.g. the particular form of culpability required for its completion may not be essentially changed, at least not to the detriment of the accused, by the case-law of the courts” (X Ltd and Y v. United Kingdom, Eur. Court HR, 1 January 1982, para. 9).

19. The Trial Chamber held that the principle of legality requires that “it must only be foreseeable and accessible to a possible perpetrator that his conduct was punishable at the time of commission”, and that it matters not whether the conduct “was punishable as an act or an omission, or whether the conduct may lead to criminal responsibility, disciplinary responsibility or other sanctions ” (paras. 62 and 165).

20. For the purposes of deciding the issue at hand - whether command responsibility ⁶ in internal conflict was part of international law at the relevant time - the Trial Chamber’s definition of the principle of legality is inadequate and unclear in the following respects:

    (a) It is unclear whether it is the conduct of the subordinate or of the superior that must be examined for the purposes of ensuring respect for the principle of legality. The conduct of the subordinate may well be clearly punishable (e.g. the crime of murder for the killings committed by a subordinate in armed conflict, regardless of classification), but that of the commander may not be proscribed by the law, i.e. as argued by the Defence it is not a crime for a commander in an internal conflict to fail to prevent or punish the killings committed by his subordinates.

    (b) The definition fails to make clear that, for the purposes of respecting the principle of legality, the conduct must have been punishable under the law applicable to internal conflict. The legality or illegality of a particular conduct has to be viewed in the context of some body of law. In the case of the Tribunal, there are indisputably two bodies of law (see paras. 36-38 below): that applicable to international and that applicable to internal conflict. Whether conduct is punishable must be seen in the context of this fundamental distinction between the two bodies of law. The fact that the conduct may be prohibited by the law applicable in international conflict does not ipso facto make the same conduct unlawful in internal conflict. If it were not necessary to consider the alleged conduct of the accused within the context of one or other of these specific bodies of law, then there would have been nothing preventing the Tribunal from applying the Article 2 grave breach provisions in internal conflict. Given the historical distinction between the bodies of law applicable to each kind of conflict, it cannot be said that it is foreseeable that conduct is unlawful in internal conflict on the basis that it is was prohibited in international conflict.

    (c) It is not sufficient that the conduct merely be punishable in any form, including by "other sanctions" (which is so broad that it could cover non-criminal sanctions, such as, the imposition of awards for civil damages in negligence claims). The applicable law must provide that the conduct entails individual criminal responsibility.⁷ As a matter of fairness, it must be clear to the accused at the time of the commission of the alleged crime that he could face a criminal charge before a criminal court as a consequence of his conduct. The principle of legality must prohibit imputing criminal responsibility to a commander for the illegal actions of his subordinates when the law did not clearly provide at the time for such a crime in internal conflict.

    (d) The Trial Chamber’s definition does not accord with the fundamental aim of the principle of legality: “to provide effective safeguards against arbitrary prosecution, conviction and punishment” (S.W. v. United Kingdom (1996) 21 EHRR 363, para. 34). The effect of the Trial Chamber’s definition would be to permit ex post facto extension of existing offences to cover facts that previously did not attract criminal liability whenever it is deemed in the interests of international humanitarian law (“IHL”) to do so. This results in arbitrariness. Law, like equity, must not “vary with the length of the Chancellor’s foot”, but be clearly laid down at the time of the offences.

21. As a result of the flawed definition adopted by the Trial Chamber, the Chamber failed to answer whether it was a crime at the time of the charges in the Amended Indictment to fail to prevent or punish the actions of subordinates in internal conflict in the terms set out in Article 7(3), namely that the criminal conduct of the subordinates could be imputed to the commander, rendering him criminally liable for the offences committed by his subordinates in internal conflict.

22. That is the question that should have been addressed for the Trial Chamber to satisfy itself that the principle of legality would not be violated by proceeding with this case. Instead, the Trial Chamber avoided the critical issue of determining whether the crime under Article 7(3) existed or not in 1993 for internal conflict, thereby failing to respect the principle of legality.

23. It may be permissible to clarify the precise elements of command responsibility. Indeed the elements of Article 7(3) have been interpreted and clarified since 1993 in the Tribunal’s jurisprudence. As was held by the Appeals Chamber in its Judgment in the Prosecutor v. Aleksovski, the principle of legality does not prevent a court “from determining an issue through a process of interpretation and clarification as to the elements of a particular crime” (para. 126). However, the elements of the doctrine of command responsibility do not form the subject matter of the present motion, and the Trial Chamber need not have considered them. The issue is whether command responsibility in internal conflict was law at the relevant time.

24. If the principle of legality is to have any teeth, it must mean that where there is no basis under international law (i.e. no international convention and no customary international law) for prosecuting persons under Article 7(3) for imputed criminal responsibility in internal conflict, then the prosecution must be stopped in its tracks, irrespective of the consequences and no matter how unpopular such a decision may be.

25. The lack of a clear basis in international law for the present prosecution cannot be side-stepped by drawing upon the object and purpose of IHL, in general, and the Statute of the ICTY. The Trial Chamber was bound to decide whether the law existed at the time. It matters not how the Statute is worded, or whether the provisions of Article 7(3) can be interpreted to cover internal conflicts. The protection of humanity and preservation of world order as the overriding aims of IHL cannot serve as a basis to criminalise behaviour beyond the existing law. There would be no limits on the scope of IHL if the only guiding criterion was whether the prosecution was broadly in the interests of the spirit of IHL. Where the rights of the accused in a criminal trial are concerned, utmost respect for legality, for certainty and foreseeability of the law is required.

26. The Trial Chamber has in effect elucidated the law as it is now in 2002 with the adoption of the Statute of the International Criminal Court (“ICC”), which provides for command responsibility in internal conflict from the time of the adoption of the Statute. The ICTY Statute, on the other hand, provided the Tribunal with jurisdiction over existing offences under IHL in 1991, thereby requiring the Tribunal to determine and apply only the law in existence at the time of the alleged offences.

27. It might be that the Trial Chamber has accurately described how the law should have been in 1993 (given that it has subsequently developed), but the Chamber was instead obliged to ascertain what the law was in 1993. As set out below, there is no basis in international law to support the lawfulness of the charges in the present case.

    (2) The Trial Chamber failed to distinguish between individual criminal responsibility pursuant to Article 7(1) versus Article 7(3)

28. In seeking to determine whether the principle of legality is respected or violated by prosecuting a commander for failure to prevent or punish the crimes of his subordinates in internal conflict, it is essential to bear in mind the distinction between this form of liability and liability pursuant to Article 7(1). Command responsibility has its own mens rea requirements (“knew or had reason to know”) and actus reus requirements (see paras. 18-19, Written Submissions of Alagic). Thus it is different from all forms of participation found in Article 7(1).

29. Given this difference, in order to satisfy legality, the Trial Chamber would have to find evidence of liability for omissions in conventional and customary law (see paras. 31-34, Alagic Response).

30. In error, however, the Trial Chamber had recourse to evidence of liability Spursuant to Article 7(1)C to support its findings in relation to command responsibility :

    (a) “ …The Nuremberg Charter contained a provision for criminal responsibility upon which the case law related to command responsibility was based”(para. 70 ), referring to Article 6 of the I.M.T. Charter. Yet this provision refers to “ Leaders, organizers, instigators and accomplices”, i.e. persons who would come within Article 7(1), not commanders being held responsible by omission for the crimes of their subordinates. Indeed Article 6 of the I.M.T. Charter is a forerunner of Article 7(1) of the Statute, not Article 7(3);

    (b) The Chamber referred to “Article 2 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity according to which criminal responsibility also exists for those who ‘tolerate’ the commission of war crimes and crimes against humanity”(para. 83). “Toleration” consists of deliberate acquiescence in the crimes and differs, therefore, from liability for pure omission, which may not be deliberate (see paras. 36-37, Hadzihasanovic Response; footnote 25, Alagic Response);

    (c) The Chamber refers to Security Council resolution 787, which referred to the criminal responsibility of “those who commit or order the commission of such acts” (para. 97- emphasis added). Committing or ordering a crime is clearly Article 7(1)-type liability, not liability for omissions. Indeed, as pointed out at paras. 106-107 herein, the Security Council resolutions on the former Yugoslavia, before 1996, only ever referred to these very direct forms of criminal responsibility. The Trial Chamber further erred, at para. 100, where it suggested that the phrase, “commit or order” was intended to cover all acts “whether omissions or commissions”. Yet omissions are nowhere mentioned in these resolutions and omissions have nothing to do with “committing or ordering”. The Chamber made the same error at para. 110.

31. Thus it is clear from the above that the Trial Chamber confused liability which is dealt with under Article 7(1) which form of criminal responsibility none of the accused are charged with the very special form of liability for omissions provided for in Article 7(3). As a result it wrongly found evidence of the customary nature of the latter in the prevalence of the former.

    (3) The Trial Chamber failed to distinguish between “Responsible Command” and “Command Responsibility”

32. To give full effect to the principle of legality in this case, a clear distinction must also be made between the principle of ‘responsible command’ and ‘ command responsibility’. Although the Trial Chamber appeared to appreciate the distinction (see para. 65, Decision), it in fact confused the two, in particular when it concluded that the inclusion of the principle of responsible command in APII connoted command responsibility.

33. As evidenced by Article 7(3) of the Statute, the responsibility of superiors for ‘failing’ to prevent or punish is a form of liability through omission which requires, as a condition sine qua non, the existence of a positive duty at law to prevent or punish. This duty, referred to as the principle of responsible command, ‘may’ under certain circumstances entail the individual criminal responsibility of a superior, if he is bound by such a duty and fails to perform it. The latter is known as command responsibility. API – applicable to international conflict – best illustrates this, where the principle of responsible command refers to Article 87 (duty of commanders) and command responsibility is found in Article 86(2) (failure to act).

34. The operation of the doctrine of command responsibility requires that both components exist in law and be proved (See para. 25, Written Submissions of Hadzihasanovic - para. 6, Hadzihasanovic Response – para. 13, Hadzihasanovic Reply).

35. Moreover, contrary to the Trial Chamber’s assertion, the doctrine of command responsibility is a novel concept under international criminal law and in many cases a new undertaking by States even with regard to international conflicts.⁸ This is evidenced in part by the ‘travaux préparatoires’ leading up to the adoption of API as well as by the difficulties encountered by States – coming long after the time relevant to the Amended Indictment – to include command responsibility in their national criminal law as a necessary step leading to the ratification of the Rome Statute for an ICC. The example of Canada is typical in this respect (See Written Submissions of Hadzihasanovic – para. 68). Many States found themselves in the same position, including Belgium, the first State to recognize the applicability of the doctrine of command responsibility in non-international conflicts on 16 June 1993 (See Written Submissions of Hadzihasanovic – paras. 74-76). Yet, both Canada and Belgium had long recognized the importance of the principle of responsible command. This shows that the two do not invariably exist together and that command responsibility is not a logical concomitant of responsible command.

    (4) The Trial Chamber failed to draw on the historical differences between the law applicable to international conflicts and the law applicable to non-international conflicts

36. It is essential to the correct determination of the Motion for the following indisputable fact to be appropriately taken into consideration: that there are, to this day, two bodies of the law of armed conflict. There is the law applicable to international conflict and that applicable to internal conflict. This was clearly pointed out in the Defence filings⁹, noting – among other things – Article 8 of the Rome Statute for an ICC and the Appeals Chamber’s dictum in the Tadic Jurisdiction Appeal (para. 126):

    “The emergence of the aforementioned general rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts, and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal armed conflicts. …” (emphasis added)

37. There is copious authority for these propositions.¹⁰ See, among other authorities, the final Report of the Commission of Experts:

    “It is necessary to distinguish between customary international law applicable to international armed conflict and to internal armed conflict. The treaty-based law applicable to internal armed conflicts is relatively recent and is contained in common article 3 of the Geneva Conventions, Additional Protocol II, and article 19 of the 1954 Convention on Cultural Property. It is unlikely that there is any body of customary international law applicable to internal armed conflict which does not find its root in these treaty provisions.”( footnote 11 ) (emphasis added)

38. The significance of this statement cannot be overstated. First, it confirms that the Chamber is obliged to pay regard to the distinction between international conflicts and internal conflicts. Second, it means that it is likely that there is no customary basis for command responsibility in internal conflict, because command responsibility is not found in common Article 3, Article 19 of the 1954 Hague Convention nor in APII.

39. In fact, the law applicable to international conflict and that applicable to internal conflict have evolved separately and from distinct concerns. The law applicable to international conflict grew out of the traditional international law system of reciprocal obligations on pairs of States.¹² In the case of IHL, it was a matter of mutual of self-interest on the part of States to ensure that their troops and civilians were not grossly mistreated during war. Hence the Hague Conventions of 1899¹³ and 1907¹⁴ were based on the notion of reciprocity and applied only between High Contracting Parties, and not to Non-Contracting Parties (si omnes clause). By the time the 1949 Geneva Conventions were adopted, the emphasis on reciprocity was still present,¹⁵ but there had been a “progression” insofar as the participation of a Non-Contracting Party in the armed conflict did not prevent the Conventions from applying altogether, as the Parties would then “remain bound by Sthe ConventionC in their mutual relations” and “bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof”.¹⁶ The notion of reciprocity nonetheless remained key.

40. In these circumstances, States may have agreed to hold commanders criminally liable in an international conflict for failure to prevent their subordinates from committing war crimes, as they sometimes did in the post-World War II trials and as indicated in Articles 86 and 87 of API. This is a way of ensuring reciprocal enforcement of the laws of war. It is not a consideration, however, which applied in internal conflict, where the Party to the Conflict waging war against the State was not a Party to any the Conventions and therefore not obliged to apply the laws of war.

41. The development of the law in relation to internal conflicts has quite a different pedigree and history, being influenced by the post-World War II human rights movement to ensure respect of human rights of all, including victims of internal conflicts. Hence common Article 3, which is often described as a “mini-Convention” encapsulating basic human rights protections in armed conflict, was adopted out of basic humanitarian concerns which had little to do with traditional concerns of reciprocity.

42. In the post-Second World War period, international human rights law – of which common Article 3 may be seen as a part - became embodied in a large number of instruments : the 1948 Universal Declaration of Human Rights, the 1950 European Convention on Human Rights, the 1948 Genocide Convention, the 1966 International Covenant on Civil and Political Rights, the 1984 Convention against Torture. This parallel movement, taking place alongside the development of IHL applicable to international conflict, had its own logic: namely by requiring States to make punishable intentional acts of abuse of human rights, e.g. torture, genocide, killing, rape, etc.. This was achieved through these Conventions. Yet the command responsibility principle, as a principle of criminal liability, was never part of this process.

43. The Genocide Convention of 1948, for example, does not enumerate as a form of genocide (Article 2) or as any of the other punishable acts (Article 3), anything approaching command responsibility. Nowhere does it suggest that there might be liability for non-intentional conduct on the part of a commander who does not prevent or punish his subordinates for committing genocide. Indeed the leitmotif of the Genocide Convention is the intent requirement that is specific to genocide, namely the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

44. Equally, the Torture Convention of 1984 defines torture as:

    "any act whereby pain or severe suffering, be it mental or physical, is intentionally inflicted on a person, with the aim of obtaining information or confessions from him or from a third person, punishing him for an act which he or a third person has committed or is suspected of having committed, intimidating him or applying pressure on a third person, or for any other reason based on any form of discrimination whatsoever, when such pain or suffering is inflicted by a public official or by any other person acting in an official capacity or at his instigation or with his explicit or implicit consent." (emphasis added).

    There is no suggestion in the Torture Convention that the Contracting Parties wished to criminalise, in addition to torture as defined above, non-intentional acts of failing to prevent or punish torture. As Article 4 of the Convention makes clear, the concern was to criminalise torture, attempt to commit torture and “ complicity or participation in torture”. As pointed out, command responsibility does not amount to such conduct¹⁷.

45. Thus the concomitant development of international human rights law in the last half-century had the effect of providing protections to persons in peacetime, as well as during internal or international conflict. But this parallel development to the law applicable to international conflict, which was based primarily on reciprocity rather than humanitarian concerns, did not carry with it an elaboration of command responsibility, which therefore remained a doctrine confined to the law of international conflict.

46. This partly explains why the state of the law in 1993 was such that a commander could be held responsible for war crimes committed by his subordinates in international conflict (States had made this law out of concerns for reciprocal protection) but not in internal conflict (the development of international human rights law had not gone so far as to deal with responsibility by omission for non-intentional acts ).

47. The reasoning of the Appeals Chamber in the Tadic Jurisdiction Appeal fits in with these developments. According to the Appeals Chamber, international law does permit punishment of perpetrators of intentional violations of the laws of war in internal conflict because that is the only way to make this body of (international human rights) law effective. No such extension is, however, permissible insofar as command responsibility is concerned. Any such extension could only be carried out by analogy, in violation of the principle of legality.

48. Indeed, the position with respect to Article 7(3) is essentially the same as that with respect to Article 2 of the ICTY Statute. Neither provision explicitly refers to the requirement of international conflict. Yet when one refers these articles back to their conventional sources – the grave breaches provisions of the 1949 Geneva Conventions, in the case of Article 2,¹⁸ and Article 86(2) of API, in the case of Article 7(3) - it is clear that internationality is required, since the 1949 Geneva Conventions and API only apply to international conflict.

    B. INTERNATIONAL LAW AT THE TIME RELEVANT TO THE PRESENT INDICTMENT DID NOT PROVIDE FOR CRIMINAL RESPONSIBILITY OF SUPERIORS PURSUANT TO THE DOCTRINE OF COMMAND RESPONSIBILITY IN THE CONTEXT OF NON-INTERNATIONAL CONFLICTS

    (1) Establishing the existence of a norm under customary international law

49. The Trial Chamber rightfully noted, as a fact, that the doctrine of command responsibility in the context of an internal conflict has never been explicitly codified in an international agreement or treaty (para. 93). This in itself should be sufficient to uphold the appeal on the basis of the Defence argument that international crimes cannot have a foundation in customary law alone.

50. Should the Appeals Chamber nevertheless conclude that a customary international law basis is sufficient, the Defence contends that the Trial Chamber erred in finding that “the doctrine of command responsibility already in – and since – 1991 was applicable in the context of an internal conflict under customary international law”.

51. First, in its analysis the Trial Chamber did not specify what it considered to be relevant evidence of customary law nor what it considered to be the applicable methodology to identify the same.

52. This is significant considering that the Trial Chamber appears to have drawn its conclusion to a large extent from an analysis of ICTY case law as well as from its interpretation of the Statute and of the intent of the Security Council in adopting the same. As set out below, the usefulness of these sources as evidence of customary international law is at best, limited.

53. The Defence on the other hand, has highlighted both the methodology generally accepted for the identification of norms of customary international law as well the sources of ‘state practice’ considered appropriate for this purpose (See paras. 21-22, Written submissions of Amir Kubura, and paras. 42-45, Written submissions of Enver Hadzihasanovic). Neither issue was addressed by the Trial Chamber.

54. Relying on Article 38 of its Statute, the ICJ formulated the requirements of customary international law in the Asylum Case as follows:

    “The party which relies on custom (…) must prove that this custom is established in such a manner that it has become binding on the other party (…) that the rule invoked (…) is in accordance with a constant and uniform usage, practised by the States in question (…)"¹⁹

55. Having recognized that there is practically no national legislation or military manual touching upon command responsibility in the context of internal conflicts²⁰, the Trial Chamber refused to draw the appropriate and logical conclusion that this was evidence of the ‘absence’ of a norm of customary international law.

56. Hence, the Trial Chamber failed to comply with the traditional twin requirements (state practice and opinio juris) for the formation of customary international law adopted by the ICJ.

57. The Defence submits, in agreement with at least one distinguished author²¹ that to determine opinio juris or acceptance as law in the field of IHL, it is necessary to look at both physical behaviour and statements, which is the approach privileged by the ICRC in its major study on customary international law (see paras. 42-43, Written submissions of Hadzihasanovic).

58. The International Tribunal has not often had the opportunity to rule on the contents of customary international law. The Defence submits that when doing so, it is bound to follow the rigorous and restrictive approach of the International Court of Justice²².

59. As highlighted by Judge Hunt in the ICRC Witness Decision²³:

    “It may be accepted that the Tribunal is bound by customary international law, as is the United Nations itself. But that acceptance does not answer the question as to what the content of that customary international law is. One of the fundamental elements of customary international law is opinio juris – that is, a general acceptance of the existence of a legal obligation, and not merely an obligation of courtesy, fairness or morality. In this case, what must be established is a general acceptance of the legal obligation upon all judicial bodies, national and international, to recognise the ICRC’s protection against disclosure as absolute”.

60. Applying the above principles to the issue under consideration, the Defence submit that what must be established is a general acceptance by States that commanders who have the duty to ‘prevent or punish’ crimes committed by their subordinates in the context of a non-international conflict and fail to do so, thereby commit a crime and are individually responsible.

61. Lastly, the Defence submits that three additional factors must be considered in the ‘search’ for the existence of a customary international law norm, at the relevant time, in this case:

    (a) the Accused should not have the burden of proving that a rule does not exist under customary international law²⁴;

    (b) as expressed in the Secretary General’s Report, in light of the importance of the principle of legality, the standard to be applied is ‘beyond any doubt’; and

    (c) the norm of customary international law, if it exists, must take into consideration the historical differences – still relevant today - between the SinternationalC law applicable to international conflicts and that applicable to non-international conflicts and include the following two features, namely:

    (i) command responsibility is an exceptional form of ‘imputed liability’ whereby, on the basis of an omission, a superior may be guilty of an offence committed by others even though he neither possessed the applicable mens rea nor had any involvement whatsoever in its actus reus;

    (ii) command responsibility requires that both the duty ‘to prevent or punish’ and the ‘imputed criminal liability’ for failing in this duty exist in law.

    (2) Sources Examined by the Trial Chamber as Evidence of Relevant State Practice

    (a) Official State Declarations

62. The Defence agree that statements made by official agents of the State may a relevant source of state practice. Statements may also be, in some cases, evidence of the opinio juris of States, which is paramount in identifying norms of customary international law. Statements can take many forms including official correspondence with the Secretary General of the United Nations and declarations made before the Security Council such as those relied upon by the Trial Chamber. The weight to be attached to this form of state practice however, will depend on the way in which States express their belief that they are bound by a specific norm.

63. The Defence contend that the correspondence between States and the Secretary General discussed in the Decision - in relation to the creation of the International Tribunal - does not support the conclusion of the Trial Chamber. The letter from Italy for one²⁵ does not specify whether individual criminal responsibility exists in the context of non-international conflict (Annex 1, article 4). There is however an express mention (Annex 2, article 5) that the principle of superior liability is derived specifically from Article 86 of API, applicable to international conflicts. The United States Letter²⁶ even though this letter includes a provision on command responsibility is of no assistance as it is based on the assumption that the conflict be ‘deemed’ international. The Canadian Letter²⁷ also supports the principal of command responsibility but confines its application to international conflicts through its restrictive interpretation of violations of the laws or customs of war as including grave breaches of the Geneva Conventions and API. The Netherlands Letter²⁸ expresses the same view in that it supports command responsibility but limits war crimes to those committed during an international conflict. Finally, the Russian Letter²⁹, as the Trial Chamber correctly pointed out, does not include any provision on command responsibility. Moreover, the fact that it includes a provision stating that official position cannot be used as a defence to prosecution is beside the point.

64. It must be noted however, that one principle of law is commonly accepted in all of the above letters, namely the significance of respecting the principle of nullum crimen sine lege and the importance for the ICTY to apply substantive and procedural law that is internationally accepted.

65. A further letter addressed to the Secretary General which is referred to in the Security Council resolution 827 adopting the Statute of the Tribunal seems to have been overlooked³⁰ by the Trial Chamber. In this letter which includes a detailed commentary as well as possible provisions for the Statute of the Tribunal, the Permanent Representative of France states that the “ratione materiae jurisdiction must be limited to grave breaches of the Geneva Conventions of 1949 as these crimes already constitute international crimes according to existing customary and conventional rules of international law…and could in no way violate the principle of nullum crimen sine lege ”. More importantly, in article VII of the proposed statute dealing with ‘persons responsible’, command responsibility is not included.

66. The Trial Chamber also relies on declarations made by members of the Security Council when the Statute of the Tribunal was adopted (paras. 116-118). The Defence contends that the Trial Chamber failed to draw the proper inferences from these statements³¹. The comments (para.117 ) made by the Representative of the United Kingdom refer to those ‘who commit such acts’ and not to command responsibility. The comment made by the Representative of Hungary to the effect that ‘the official status of the individual brought to court, whatever it might be, does not immunise him from his criminal liability’ does not refer to command responsibility. This member did say however, that “Hungary is convinced that persons who commit or order the commission of grave and systematic violations of that law should not escape the hand of justice, and their acts cannot enjoy impunity”. Further observations made by the Representatives from France, Morocco and Russia (not referred to by the Trial Chamber) also concern persons who commit and not command responsibility. As for the Representative of the United States of America, she may be the only one to have offered conclusions relevant to the issue under consideration although this is not clear. Once again, it must be noted that all members who spoke on that day stressed the importance for the Tribunal to apply existing law.

    (b) Military Manuals

67. In the decision, some importance is attached to national military manuals adopted or amended which included provisions on command responsibility. As the Trial Chamber rightfully pointed out (para. 82), these manuals will normally have been elaborated in order to regulate the functioning of the army in the context of international conflicts. In fact, these manuals always stress the difference between the law applicable to international conflict and that applicable to non-international conflict³². Accordingly, these manuals can be considered neither as state practice nor as opinio juris of States that the doctrine of command responsibility was applicable at the relevant time in the context of an internal conflict under customary international law.

68. At best, military manuals, which include such provisions, may be considered as expressing the opinio juris of States with respect to command responsibility in the context of international conflict. However, unless accompanied by confirming state practice in the form of penal legislation or prosecutions of commanders pursuant to the doctrine of command responsibility, these manuals would likely not be sufficient for that purpose. Canada for example, did not have any legislation to enforce the provision in its military manual on command responsibility in the context of international conflict until it adopted the Crimes Against Humanity Act in 2000.³³

69. More specifically with respect to the US Army Field Manual 1956, paragraph 11(a) quoted by the Trial Chamber “the customary law of war becomes applicable to civil war upon recognition of the rebels as belligerents” is of no assistance here. As stated by Professor Lauterpacht³⁴, the essence of the principle of recognition of belligerency is that it is a duty imposed by the facts of the situation which result in the contesting parties being legally entitled to be treated as if they were engaged in a war waged by two sovereign States (para. 19, Hadzihasanovic Response).

70. It should be also noted that all “war crimes” listed in the US Army Field Manual of 1956 are derived exclusively from Conventions and other treaties applicable only in time of international conflicts. The same holds for the JNA Manual quoted by the Trial Chamber (para. 78 and footnote 152) despite the reference to armed conflict. Furthermore, the Criminal Code of the Socialist Federal Republic of Yugoslavia did not include a provision to enforce this command responsibility provision (See reference to Art. 22, SFRY Criminal Code in footnote 152).

71. That military manuals did not address command responsibility in the context of non-international conflict is also true for the other military manuals surveyed including (in alphabetical order): Argentina, Australia, Belgium, Bosnia and Herzegovina, Canada, Colombia, Den mark, Egypt, El Salvador, Finland, France, Germany, Hungary, Italy, Nigeria, Netherlands, Norway, Portugal, Russia, Spain and United Kingdom (paras. 65-67, Written submissions of Enver Hadzihasanovic and para. 23 d, Written submissions of Amir Kubura). The Trial Chamber does not appear to have examined these sources.

72. In many cases, although it has not been possible to verify with certainty due to the availability of the documents, States do not have military manuals and when they do, they do not have ‘any’ provisions on command responsibility. As for the British Manual of Military Law of 1958, interestingly, the “different line” quoted by the Trial Chamber omits the failure to punish, which is evidence that States did not all have the same approach concerning the doctrine of command responsibility in the context of international conflict. Finally, it must be noted that the German manual addresses the responsibility of superiors but not the liability for failing in this duty (paras. 69-72, Written Submissions of Enver Hadzihasanovic).

    (c) National Legislation

73. State legislation can be regarded as a manifestation of its practice.³⁵ The absence of national legislation with respect to command responsibility in the context of internal conflict - at the relevant time - with the exception of Belgium was previously addressed by the Defence³⁶. Some States have since adopted such legislation with a view to ratifying the Rome Treaty for an ICC. Even more significant however, is the absence of national legislation in relation to command responsibility in international conflict despite the undertaking by States to respect and ensure respect for API.³⁷

    (d) National Judicial Decisions

74. Domestic courts are organs of the state and their decisions should be treated as part of the practice of the state.³⁸ As noted by the Trial Chamber, from the 1950s until the 1970s, no national decisions on command responsibility were taken. In fact, as highlighted by the Defence filings, until the relevant time to the amended indictment, there are no national judicial precedents on command responsibility in the context of internal conflict.

75. The Trial Chamber attributes this ‘standstill’ situation to the Cold War between East and West. The real issue however, is what did States did during this period. While there has been ample opportunity for States to adopt the necessary legislation and to try their own commanders pursuant to the command responsibility doctrine, this has not taken place.

    (3) Other sources relied upon by the Trial Chamber

    (a) Conventional law as evidence of customary law

76. The Trial Chamber relied on a number of provisions from treaties – adopted both before and after the time relevant to the Amended Indictment - to find a customary basis for command responsibility in internal conflict.

    (i) Treaties in force before

77. First, with the exception of API, none of these treaties contain any provision on command responsibility.³⁹ Second, API only applies to international conflict. Third, to the extent that some of these treaties deal with “responsible command”, this does not throw light on command responsibility in the sense of Article 7(3) of the Statute (see paras. 22-31).⁴⁰ Fourth, to the extent that these treaties deal with the criminal responsibility of commanders for ordering, committing, instigating or other forms of accomplice liability, they could be considered as evidence of the customary nature of individual criminal responsibility pursuant to Article 7(1) of the Statute but not of command responsibility. Indeed, these examples indicate that States have always placed primary emphasis on prosecuting those who have committed or ordered crimes to be committed, not on imputing liability to those who have omitted to prevent or punish crimes committed by others. Thus, the “grave breaches” provisions of the Geneva Conventions of 1949 all refer to “persons alleged to have committed, or to have ordered to be committed, such grave breaches".⁴¹

78. The Defence’s arguments do not undermine the importance of either API or the doctrine of command responsibility. This doctrine is certainly evolving on the international scene and the travaux préparatoires highlight the importance of the doctrine for some states. However, bearing in mind the difficulties encountered on this issue during the Diplomatic Conference and the number of ratifications of API in the early years, it is doubtful whether this instrument codified customary law. Moreover, as highlighted by the Defence, States voluntarily opted not to add a similar provision in APII and it cannot be assumed that this omission is meaningless. The omission of the command responsibility doctrine in APII is significant and highly relevant.

79. The Trial Chamber rejected the Defence's reliance on the difference between the Additional Protocols, finding that it would be "misleading to jump too easily to conclusions … as to the relevance of the principle of command responsibility for international and non-international armed conflicts" (para. 158). Four reasons for rejecting the Defence argument were offered by the Trial Chamber:

    (i) States were reluctant to develop humanitarian norms in relation to internal conflict as opposed to international conflict – "Consequently, the elaboration of APII would, by definition, lead to a much less developed and detailed set of norms than those included in API" (para. 158).

    (ii) It must be taken into account that APII constitutes a body of minimum rules developed and accepted by the international community as a whole (para. 160).

    (iii) APII contains the principle of responsible command, thereby placing a duty on commanders to oversee and control their subordinates (para. 161).

    (iv) In view of the fair trial guarantees contained in Article 6 of APII, the Protocol retains the right of established authorities to prosecute members of armed forces and civilians for offences committed during armed conflict.

80. Each of these reasons, in fact, entirely support the position of the Defence : States were reluctant to include the same rules in APII as had been included in API, and specifically did not include the provisions on command responsibility in APII. The only conclusion that can be drawn from this omission is that the doctrine was not included in the body of law applicable to internal conflict, and that it does not apply in internal conflict. None of the reasons put forward by the Trial Chamber alters this situation. The Trial Chamber offers no proper justification for rejecting the Defence argument that the difference between Protocols I and II in respect of command responsibility is decisive in determining the applicability of Article 7(3) in the present case.

81. In particular, the notion of responsible command referred to in APII serves as a jurisdictional prerequisite for the applicability of the Protocol, namely that it will only apply to armed forces in internal conflict who are subject to responsible command, and not disorganised groups who are not commanded. A prerequisite for a convention to apply cannot, without circularity, be construed at the same time as a duty imposed by the convention, i.e. the convention only applies if the prerequisite is fulfilled, so it cannot impose the duty unless the prerequisite is met. Straightforwardly, if States had intended command responsibility to be applicable in internal conflict, they would have included the doctrine in APII, as they did for international conflict in API. If the intention of States in making international law is to be given any weight, the distinction between the Protocols on command responsibility cannot be brushed aside. It must be wrong to find that because APII fails explicitly to state that command responsibility does not apply in internal armed conflict, it can thus be concluded that the doctrine is applicable.

82. The Trial Chamber cannot rely on the Martens Clause to justify its reasoning. In essence, the Martens Clause says that if a certain conduct is not prohibited by the law in force, this does not mean that the same conduct is necessarily permitted because persons remain under the protection of the principles of humanity and the dictates of public conscience. The Martens Clause does not, however, purport to criminalise any given conduct.

83. As pointed out by the Trial Chamber, the Martens clause is present under various forms in most if not every IHL treaty. It must be noted however that in the case of APII, for the first time no reference was made to “usages established among civilized peoples” when introducing the Martens Clause. This was due to the belief of States that there was no such thing as customary law in the field of IHL applicable to internal conflict.⁴²

84. Further, the Trial Chamber acknowledged that the fair trial guarantees of Article 6 of APII do not and were not drafted for the purpose of clarifying or supplementing the basis for individual criminal responsibility.⁴³

85. The Trial Chamber’s conclusion that the absence of command responsibility in APII did not in any way put into question the existence of such individual criminal responsibility under international law, is, first, question-begging, in that the question remains whether command responsibility applies in internal conflict. More importantly, however, the Defence submits that this omission – as an expression of state practice - is crucial in determining whether a customary international law basis exists for command responsibility in non-international conflict.

    (ii) Treaties in force after 1993

86. The Defence agrees with the Trial Chamber that its review of developments subsequent to the events covered by the indictment “is not for the purpose of determining the issue before it” (para. 67, Decision). Thus there is no need for these developments to be considered at the appeals stage, as post-indictment developments do not aid in the determination of the issue.

87. In any event, only two of the treaties adopted or modified after 1993⁴⁴ could have any relevance to the present issue. First, the 1996 modifications to Protocol II of the 1980 Conventional Weapons Convention – making inter alia the provisions of the Protocol applicable to internal conflicts – highlight the reluctance of States to extend the application of rules applicable to international armed conflicts to internal conflicts. It also confirms the intention of States to maintain the existing dichotomy between the two bodies of law⁴⁵. Second, the Rome Treaty adopted in 1998 has codified for the first time command responsibility in the context of non-international conflict.

88. The ICC was established half a decade after the events in the Amended Indictment. Accordingly, the Rome Statute cannot have been accessible to the Accused and therefore cannot satisfy the principle of legality as a text. Second, the framers of the Statute were astute to ensure respect for the principle of legality by providing that the Statute is forward-looking (ICC Statute Art. 11(1)).

89. It may be argued that the Rome Statute is nonetheless evidence of customary law prior to the coming into force of the Statute.

90. It is generally assumed that the provisions of a multilateral treaty are to be treated as authoritative statements of customary international law in two cases :

    a. when they codify principles which already formed part of customary international law prior to the conclusion of the treaty;

    b. when, although they go beyond the existing customary law the principles which they lay down come to be accepted as generally applicable and thus become part of a new customary international law.⁴⁶

91. The International Court of Justice has laid down three requirements which have to be met if a treaty provision which was substantially innovative was to be deemed to have become binding as part of the general law:

    a. the provision must be of a norm – creating character;

    b. state practice, particularly that of the States whose interests are most specially affected, must indicate a widespread acceptance of the principle and;

    c. that practice must be based upon opinio juris.⁴⁷

92. The Court warned, moreover, that such a result was “not lightly to be regarded as having been attained” (para.71).

93. In other words, provisions of the ICC Statute may have codified some norms, provided there was state practice and opinio juris. However, with respect to command responsibility in internal conflict, as demonstrated herein, there exists no state practice or generally accepted opinio juris leading to the conclusion that the ICC Statute codified pre-existing customary international law. On the contrary based on the evidence, the Defence contend that in relation to command responsibility in internal conflict, the ICC Statute is new customary international law in the making.

    (b) The ICTY Statute

94. The Chamber also reached its negative answer to the Question by considering itself as being “bound” (para. 63) to interpret the ICTY Statute in accordance with the Vienna Convention on the Law of Treaties (see also para. 120 ). For this purpose, the Chamber undertook a teleological analysis of the Statute (paras. 63-66) and examined the creation of the Tribunal (paras. 94–120) as well as its jurisprudence (paras. 121-141).

95. A plain reading of Article 7(3) may lead to the inference that it could apply in internal conflict, since it appears to cover all violations in the Statute, some of which may be committed in internal conflict.⁴⁸ This however, is the wrong question. As the Secretary-General recognised and as was acknowledged on countless occasions, the Statute does not create new law. The Tribunal has to apply existing IHL.⁴⁹ The question, therefore, is what the existing IHL applicable in internal armed conflict was in 1993.

96. It follows that the object and purpose of the Statute cannot be relied upon to determine whether command responsibility in the context of internal armed conflicts was law in 1993. The intent of the Security Council in creating the Tribunal is not pertinent on this issue.

97. Finally, the ICTY Statute was adopted in May 1993 and therefore statutory interpretation cannot answer the Question of what the position was under international law before that date. As a matter of respect for legality, ICTY case-law was not accessible in 1993, and hence cannot satisfy the requirement of accessibility of the law.

98. Turning to the case-law of the Tribunal, as the Chamber itself admits, “ the nature of the conflict vis-à-vis command responsibility has never been discussed, challenged or commented upon by the Prosecution, Defence, Trial Chamber or Appeals Chamber” (para. 121). The Defence submit that, had the matter been raised , the case-law might well have been different. Moreover, Tribunal decisions dealing with command responsibility focused mainly on the elements and the operation of the doctrine. The Tribunal interpretations of ‘de facto or de jure superior’, ‘superior as including both military and civilian persons’ or ‘had reason to know’ are not relevant to the present debate. Hence, reliance on the case -law is misguided and ex post facto debate.

99. One last point must be raised in relation to the creation of the Tribunal. The following comments made by the Commission of Experts,⁵⁰ heavily relied upon by the Trial Chamber, are highly significant here:

    “The treaty law designed for internal armed conflicts…. These legal sources do not use the terms of “grave breaches” or “war crimes”. Further, the content of customary law applicable to internal armed conflict is debatable. As a result, in general, unless the parties to an internal armed conflict agree otherwise, the only offences committed in internal armed conflict for which universal jurisdiction exists are zcrimes against humanityz and genocide, which apply irrespective of the conflicts classification.”

    (c) The United Nations General Assembly Resolutions

100. The Trial Chamber also drew upon various General Assembly Resolutions to arrive at its conclusion. As stated by the International Court of Justice in the Nuclear Weapons Advisory Opinion⁵¹, General Assembly resolutions can be of assistance towards the determination of the existence of norms of customary international law. To have any weight resolutions must clearly express legal obligations which are considered as binding on all States rather than expressing the intent of a majority of States. Resolutions adopted unanimously are more likely to have influence and the voting pattern, including the position taken by States especially affected is important.

101. In this case, the Trial Chamber refers to General Assembly resolutions 46/242 of 25 August 1992 and 47/121 of 18 December 1992. The Trial Chamber use both resolutions to highlight the fact that the General Assembly did not pronounce itself with respect to the character of the armed conflict and to show that it condemns the widespread violations of IHL occurring within the territory of the former Yugoslavia. However, what is most significant here, is that no reference whatsoever was made concerning the applicable law and more importantly, the issue at hand, command responsibility. Moreover, the General Assembly is specifically concerned in these resolutions with all those who ‘commit or order to commit’ and not with superiors who would be responsible for crimes committed by others. In fact, in numerous resolutions adopted between 1992 and 1994, the General Assembly affirmed what it considered to be the law with respect to individual responsibility for violations of IHL namely that “those who commit or order the commission of such violations are individually responsible”⁵². In these resolutions, the General Assembly did not state its view of the law on superior responsibility.

102. On 20 December 1993, for the first time, the General Assembly expressed in a resolution dealing with human rights (rape and abuse of women)⁵³, that in addition to those “who perpetrate or authorise violations” that “ those in positions of authority who have failed adequately to ensure that persons under their control comply with the relevant international instruments are accountable together with the perpetrators”. This statement was reiterated in three further resolutions in 1994, 1995, 1996⁵⁴. This highlights first, the belief of the General Assembly that there is a difference between the responsibility of perpetrators and command responsibility and second, that the latter became a concern for the General Assembly - in the context of the conflict of former Yugoslavia - at the end of 1993, and then in the specific context of mistreatment of women. It should be noted that this happened after the creation of the ICTY which for the first time in history, included in its statute the concept of command responsibility. It should also be noted that this concern of the General Assembly was not mentioned in other resolutions dealing with individual responsibility in the context of the conflict in the former Yugoslavia.

103. Finally, the views of the General Assembly concerning the law applicable in non international armed conflicts must also be recalled. In resolution 2444 adopted in 1968 “[r]ecognising the necessity of applying basic humanitarian principles in all armed conflicts”, and resolution 2675 adopted in 1970 on “Basic principles for the protection of civilian population in armed conflicts”, the General Assembly unanimously stated what it considered to be the fundamental principles which applied during armed conflicts including non-international armed conflicts. The issue of command responsibility was not mentioned in these resolutions.

     (d) The United Nations Security Council Resolutions

104. The Trial Chamber used various resolutions adopted by the Security Council to reach its conclusion that command responsibility applied in internal conflicts in 1993 as a matter of customary law. While Security Council resolutions may have more weight than those adopted by the General Assembly, especially if adopted pursuant to Chapter VII of the United Nations Charter, these resolutions will be of assistance only when the Council affirms existing positive law rather than it states desired ends, such as desiring that persons be brought to justice. The Security Council has no law-making powers under the United Nations Charter.

105. Regarding the present issue, the fact that the Security Council did not pronounce itself on the character of the conflict - in accordance with the Secretary General’s report and the report of the UN Commission of experts – is not relevant. This was understood as being a question to be determined by the Tribunal based on facts. The expression of the determination of the Council in creating the Tribunal “ to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them” is not of assistance here as it is not an expression of what the Council believes the law to be. It leaves open the question of what the crimes are and who may be held responsible for them under existing positive law.

106. What is important with respect to Security Council resolutions in the context of the creation of the Tribunal is that it approved the report of the Secretary General which clearly stated that the Tribunal was to apply “rules of existing humanitarian law which have beyond any doubt become part of customary law” ( para. 34 of the Secretary-General’s Report).

107. More importantly, in a number of resolutions the Security Council did affirm its view of existing law through the following statement “Reaffirms that all parties to the conflict are bound to comply with their obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949 and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches”⁵⁵. Such a statement was also included in Security Council resolutions concerning the conflict in Rwanda. The Security Council did not in these statements even mention command responsibility, much less express its view of the law applicable to command responsibility in the context of non-international conflicts. For this reason, the weight of Security Council resolutions in determining the issue at hand is limited.

     (e) International Law Commission

108. Another source relied upon by the Trial Chamber to determine the existence under customary international law of command responsibility in the context of non -international armed conflicts is the works of the International Law Commission (ILC). Between 1950 and 1996, the ILC has done extensive work initially with respect to the draft Code of Crimes against the Peace and Security of Mankind (‘ Draft Code of Crimes’) and subsequently on the elaboration of a draft Statute for an international criminal court⁵⁶.

109. Since its creation in 1947 the ILC has played and continues to play a significant role towards the development of international law. While the work of the ILC can indeed be highly valuable to identify trends in the evolution and development of the law, with respect to customary international law, it can be considered neither as state practice nor as opinio juris of States. In other words, unless the conclusions drawn by the ILC in relation to developing law are followed by States either through the adoption of legislation, judicial decisions or official statements, the weight they carry towards the determination of norms of customary international law must be considered in the general context of the development of international law. Moreover, the impact of the works of the ILC in this field will depend on the uniformity of the conclusions drawn over time.

110. In this particular case, a survey of the works of the ILC reveals the following. First, different conclusions have been adopted with respect to the definition of war crimes inter alia on the issue whether such crimes can be committed in both international and non-international armed conflicts. Changes in the draft articles adopted were brought about by problems of terminology (war in a traditional sense v. armed conflict), the appearance of new types of armed conflict and the controversial issue as to whether crimes in the Code would be specifically enumerated or included by reference to existing treaties. It should be noted that in the revised report of the working group on the draft Statute for an international criminal court ⁵⁷ adopted in July 1993 (having considered inter alia the 1991 draft Articles on the draft Code of Crimes, the Report of the Secretary General pursuant to paragraph 2 c) of Security Council resolution 808 in 1993, and a compilation prepared by the Secretariat of draft statutes for an international criminal court elaborated in the past) war crimes have been listed by reference to existing treaties and there is no mention of individual criminal responsibility in the context of non international armed conflict. Secondly, different conclusions have also been adopted in relation to command responsibility both in form and in substance.

111. Two further issues must be noted. First, the Rapporteur included in its 1986 Report⁵⁸ a section concerning the complicity of “leaders” for having “organized, tolerated or even conceived a crime”, complicity thereby being extended to cover the originator (paras.106 -112). Secondly, the commentary to draft Article 9 (Responsibility of the superior ) mentions that this “hypothesis” could either be covered by the general theory of complicity or - on the basis that offences are committed within the framework of the hierarchy almost always involving the power of command – that it may therefore be useful to provide a separate basis and an independent written source to cover the responsibility of the leader (p. 83).

112. The above highlights that even though the works of the ILC discuss the idea that crimes could take place during a non-international armed conflict as well as the concept of command responsibility – under various forms - there was by no means a consensus on these issues at the relevant time to the Amended Indictment.

     (6) War crimes cases

113. The Defence agrees with the Trial Chamber that the Yamashita Case may be of relevance with respect to the principle of responsible command and the doctrine of command responsibility. As the Trial Chamber pointed out, however, no firm conclusions on the applicability or the non-applicability of the same to non-international armed conflicts can be drawn from this case alone. The legal soundness of the Yamashita Case was also harshly debated then and now.⁵⁹

114. Moreover, the Defence underlined in its filings that the Nuremberg “Hostage Case” and “High Command Case” are not precedents of command responsibility. Rather these cases deal with individual criminal responsibility in the sense of Article 7(1) of the ICTY Statute (see paras. 7-10, Hadzihasanovic Response).

115. The fact that all World War II war crimes cases deal with international armed conflict is indeed significant. Moreover, all these cases are of U.S. military tribunals or commissions; yet the U.S. has failed to apply the standards set out in the Yamashita case when judging their own troops in Vietnam.⁶⁰ It has to be acknowledged that States apply different rules to their own conduct than they apply in their inter-State relations, which, hypocritical though it may be, has been significant in the development of international law. Thus it is that States, on the issue of superior orders, applied a more stringent standard with respect to enemy troops than they do with their own troops.

     (7) The International Criminal Tribunal for Rwanda

116. The relevance of the creation and work of the ICTR in relation to the present issue has already been addressed by the Defence in their filings (See paras. 54- 56, Written Submissions of Alagic and paras. 45-46, Hadzihasanovic Response). Three points deserve to be made with respect to the Chamber’s comments on the ICTR. First, rulings of the ICTR come within the scope of “subsequent developments” which, on the Chamber’s own admission, are not relevant to “determining the issue before it” (para. 67). Second, the Chamber admits that the Secretary-General was not concerned to ensure a customary basis for the crimes falling within the ICTR’s subject-matter jurisdiction. Yet the Chamber states that this does not apply to command responsibility. This would mean that command responsibility is not part of the subject-matter jurisdiction of the ICTY and ICTR. This is in contradiction to Rule 72(D)(iv), which implicitly recognises that Article 7 of the ICTY Statute (and thus Article 6 of the ICTR Statute) is part of subject-matter jurisdiction. Third, the Chamber recognised that the point raised in this challenge has not been raised before the ICTR. Hence, it has not been ruled upon and it affords no precedent in support of the Trial Chamber’s decision. Should the Appeals Chamber nevertheless consider that trials and ensuing convictions under Article 6(3) are precedents, it should be noted that all accused found guilty pursuant this provision were also found guilty pursuant to Article 6(1). In fact, the applicability of article 6(3) to crimes committed by subordinates during non-international conflicts has never been challenged. For these reasons, the ICTR Statute is at best, evidence of an evolution in the opinio juris of States which took place later than all times relevant to the present Indictment.

     Conclusion and Relief Sought

117. In the Asylum Case, having assessed the evidence before it, the ICJ concluded that:

     "The facts disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum (…) there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible in all this any inconsistent and uniform usage, accepted as law…"⁶¹

118. The Defence contends that this ruling by the ICJ is entirely on point. As set out above, the absence of relevant state practice is significant and the inconsistencies highlighted by the various other sources examined make it impossible to conclude that there existed, at the relevant time, a general acceptance that command responsibility in the context of an internal conflict was law. Hence, the principle of legality has not been satisfied and the Trial Chamber’s conclusions are unsustainable.

119. Accordingly, the Defence requests the Appeals Chamber to uphold the appeal and declare that the Tribunal has no jurisdiction to try the Accused pursuant to the Amended Indictment.

     Second Ground of Appeal

120. The only reason given by the Trial Chamber for holding that the doctrine of command responsibility can apply to commanders who assume command of the subordinates after they committed the offences is that "the object and purpose of the doctrine … under international criminal law" supports this conclusion (para. 200). No other authority is cited in favour of the Trial Chamber's finding. As already set out above, the "object and purpose" argument cannot be relied upon in the face of authorities to the contrary, or as a means of overcoming inconsistencies in conventional or customary international law. Uncertainty in the law must be interpreted in favour of the accused.

121. Despite setting out the Defence's arguments in detail, the Trial Chamber did not address whether they had any merit or not. The Appeals Chamber is referred to all the arguments set out by the Defence in its filings before the Trial Chamber as summarised by the Chamber at paras. 181-190.

122. Article 7(3) permits commanders to be held criminally responsible for unlawful acts when the commander discovers after the event of the acts, but all the authorities cited by the Defence require that the commander must have been the superior of the subordinate when the acts were committed. The plain wording of Article 7(3), which was not referenced by the Trial Chamber, provides that "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" (emphasis added). The Chamber's reference to the Final Report of the Commission of Experts does not in any way support the Chamber's conclusion (para. 199). The standards and indicia set out by the Commission of Experts (such as, "the time during which the illegal acts occurred", "tactical tempo of operations", and the "location of the commander at the time") indicate that the commander must have been the superior at the time of the commission of the alleged crimes. Geographical distance from where the crime was committed on the part of the superior, or the time and circumstances in which information was received by a superior are distinct considerations from whether the superior was indeed in command of the subordinates when the crimes where committed.

123. Accordingly, the Trial Chamber erred in concluding that the matter of whether Kubura can be found criminally liable for the allegedly unlawful acts committed by persons who were not his subordinates at the time, can be left for trial. As a matter of principle, there is no basis in conventional or customary law for holding a commander criminally responsible for the acts of persons who were not his subordinates when they committed the acts.

     Third Ground of Appeal

124. The Trial Chamber effectively agreed with the Defence’s assertions on this point. The Chamber held that, “criminal liability under the Statute cannot attach because subordinates “were about to plan, prepare” crimes within the jurisdiction of the Statute” (para. 210). On this basis, it should have upheld the Defence’s objection. Instead it permitted the allegations to remain in the indictment on the basis that “evidence of acts of planning or preparation may be relevant for a Trial Chamber to make its finding of whether a superior “knew or should have a known”” (emphasis added) that a subordinate was about to commit crimes. As has been confirmed on countless occasions, however, including by the Chamber itself, the indictment should not contain a catalogue of evidence, but only allegations. The Prosecutor may bring whatever relevant and admissible evidence he wishes at trial; that has no bearing on what the indictment may permissibly contain. The Defence therefore submit that the Trial Chamber erred in law and requests the Appeals Chamber to uphold this third objection to jurisdiction.

     THE NEED FOR AN ORAL HEARING

125. On numerous occasions, the Defence highlighted the need for and requested an oral hearing before the Trial Chamber (para.82, Written Submissions of Hadzihasanovic and paras. 28-30, Hadzihasanovic Reply).

126. Considering the complexity of the issued raised and the potential consequence for both the Accused and the Tribunal, the Defence hereby reiterate their request for an oral hearing before the Appeals Chamber. This would in conformity with the Appeals Chamber Judgement in Prosecutor v. Jelisic in relation to the corresponding ground of appeal raised by the Prosecution.

DATED THIS TWENTY SEVENTH DAY OF NOVEMBER 2002

COUNSEL FOR THE ACCUSED

Ms. Edina Residovic and Mr. Stéphane Bourgon for Enver Hadzihasanovic

Ms. Vasvija Vidovic and Mr. John Jones for Mehmed Alagic

Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura