Kordic and Cerkez - Judgement - Part two: III and IV

III. INDIVIDUAL CRIMINAL RESPONSIBILITY

A. Introduction

Alongside the charges of individual criminal responsibility based on personal participation in criminal conduct, the Indictment charges Dario Kordic and Mario Cerkez with criminal responsibility on the basis of their alleged positions as superiors to the perpetrators of the crimes alleged in the Indictment. Article 7 of the Statute , entitled “Individual criminal responsibility”, provides:

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
…
3. 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.
Article 7 is clearly intended to assign individual criminal responsibility at different levels, both subordinate and superior, for the commission of crimes listed in Articles 2 to 5 of the Statute. Article 7 gives effect to a general principle of criminal law that an individual is responsible for his acts and omissions. It provides that an individual may be held criminally responsible for the direct commission of a crime, whether as an individual or jointly, or through his omissions for the crimes of his subordinates when under an obligation to act. Article 7(3) of the Statute sets forth the principle governing the responsibility of superiors commonly referred to as “command responsibility”.⁴⁹²
Some of the legal issues arising in connection with Article 7(1) and 7(3) were considered in depth in other cases before this International Tribunal. This Trial Chamber will not revisit them. In accordance with the Appeals Chamber’s finding in Aleksovski that “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers”,⁴⁹³ the Trial Chamber will follow the Appeals Chamber’s jurisprudence on those issues that were previously addressed on appeal.

1. Preliminary Observations on the Distinct Features of Article 7(1) and (3)
The distinct character of the liability envisaged in Article 7(1) and 7(3), particularly in relation to persons in positions of superior authority, should be emphasised.
Article 7(1) is concerned with persons directly responsible for planning, instigating , ordering, committing, or aiding and abetting in the planning, preparation or execution of a crime. Thus, both the individual who himself carries out the unlawful conduct and his superior who is involved in the conduct not by physical participation, but for example by ordering or instigating it, are covered by Article 7(1). For instance , a superior who orders the killing of a civilian may be held responsible under Article 7(1), as might a political leader who plans that certain civilians or groups of civilians should be executed, and passes these instructions on to a military commander. The criminal responsibility of such superiors, either military or civilian , in these circumstances is personal or direct, as a result of their direct link to the physical commission of the crime. The criminal responsibility of a superior for such positive acts, except where the superior orders the crime in which case he may be more appropriately referred to as primarily responsible for its commission , may be regarded as “follow(ing) from general principles of accomplice liability ”.⁴⁹⁴
In contrast, the Secretary-General in his report describes command responsibility as set out in paragraph 3 of Article 7 of the Statute thus:

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 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.⁴⁹⁵

The Appeals Chamber in Celebici held:

The literal meaning of Article 7(3) is not difficult to ascertain. A commander may be held criminally liable in respect of the acts of his subordinates in violation of Articles 2 to 5 of the Statute. Both the subordinates and the commander are individually responsible in relation to the impugned acts. The commander would be tried for failure to act in respect of the offences of his subordinates in the perpetration of which he did not directly participate.⁴⁹⁶
The type of responsibility provided for in Article 7(3) may be described as “indirect” as it does not stem from a “direct” involvement by the superior in the commission of a crime but rather from his omission to prevent or punish such offence , i.e., of his failure to act in spite of knowledge. This responsibility arises only where the superior is under a legal obligation to act. In the words of the Celebici Trial Chamber, as endorsed by the Appeals Chamber:

The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates. A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates, and a failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine .”⁴⁹⁷

The duty that rests on military commanders properly to supervise their subordinates is for instance expressed in Article 87 of Additional Protocol I, entitled “Duty of commanders”, which imposes an affirmative duty on them to prevent persons under their control from committing violations of international humanitarian law, and to punish the perpetrators if violations occur.⁴⁹⁸ Liability under Article 7(3) is based on an omission as opposed to positive conduct . It should be emphasised that the doctrine of command responsibility does not hold a superior responsible merely because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he “knew or had reason to know” of the offences and failed to act to prevent or punish their occurrence . Superior responsibility, which is a type of imputed responsibility, is therefore not a form of strict liability.⁴⁹⁹
The Prosecution contends that an accused may be convicted cumulatively for responsibility under Article 7(1) and 7(3). It is submitted that any additional responsibility under Article 7(3) increases the responsibility of the accused attracting “enhanced” punishment.⁵⁰⁰
The Trial Chamber is of the view that in cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates’ crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes , the type of criminal responsibility incurred may be better characterised by Article 7(1).⁵⁰¹ Where the omissions of an accused in a position of superior authority contribute (for instance by encouraging the perpetrator) to the commission of a crime by a subordinate, the conduct of the superior may constitute a basis for liability under Article 7(1).

B. Individual Criminal Responsibility Under Article 7(1)

1. Introduction
The accused Dario Kordic and Mario Cerkez are both charged under Article 7(1) of the Statute for “committing, planning, instigating, initiating, ordering or aiding and abetting the planning, preparation or execution” of the crimes alleged in the Indictment.⁵⁰² The Prosecution in its final arguments submits that both accused are primarily responsible for their “active participation” in the crimes charged in the Indictment.⁵⁰³
Article 7(1) provides that a person who “planned, instigated, ordered, committed , or otherwise aided and abetted in the planning, preparation or execution of a crime” shall be held individually responsible for the crime. The principle that an individual may be held criminally responsible for planning, assisting, participating or aiding and abetting in the commission of a crime is firmly based in customary international law.⁵⁰⁴ Article 7(1) reflects the principle of criminal law that criminal liability does not attach solely to individuals who physically commit a crime but may also extend to those who participate in and contribute to a crime in various ways, when such participation is sufficiently connected to the crime, following principles of accomplice liability . The various forms of participation listed in Article 7(1) may be divided between principal perpetrators and accomplices. Article 7(1) may thus be regarded as intending to ensure that all those who either engage directly in the perpetration of a crime under the Statute, or otherwise contribute to its perpetration, are held accountable .⁵⁰⁵ The Appeals Chamber in Tadi c found that

Any act falling under one of the five categories contained in the provision [Article 7(1)] may entail the criminal responsibility of the perpetrator or whoever has participated in the crime in one of the ways specified in the same provision of the Statute.⁵⁰⁶
The Statute does not specify the necessary degree of participation by the individual in the crime. Trial Chambers of this International Tribunal, and the Appeals Chamber in relation to some aspects, addressed the material and mental elements required by customary international law under the heads of direct criminal responsibility set forth in Article 7(1). The Trial Chamber will now turn to a consideration of the legal issues raised by the arguments of the parties.

2. Committing
The legal elements of “committing” as described in the submissions of the Prosecution ⁵⁰⁷ and the Defence⁵⁰⁸ do not appear to differ fundamentally. In relation to the requisite actus reus , it is submitted that to be held responsible for “committing” the accused should be found to have performed all of the material elements of a crime under the International Tribunal’s Statute. In the Prosecution’s submission the actus reus may be performed both through positive actions and omissions,⁵⁰⁹ or a combination thereof. The Kordic Defence submits that the accused may commit the act that constitutes a crime individually or jointly with others. The mens rea required is that the accused acted with the requisite intent for the crime under customary international law.⁵¹⁰ The Prosecution is of the view that this requirement is satisfied when the accused acted in the awareness of the substantial likelihood that a criminal act or omission would occur as a consequence of his conduct.
It is not controversial, in the Trial Chamber’s opinion, that any finding of direct commission requires the direct personal or physical participation of the accused in the actual acts which constitute a crime under the International Tribunal’s Statute with the requisite knowledge. The Appeals Chamber in Tadic found that Article 7(1) “covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.”⁵¹¹

3. Planning, Instigating, Ordering
(a) Arguments of the parties

(i) Planning
The Prosecution submits that the elements of the offence of “planning” are the following. The actus reus required is that: (a) the crime was committed by a person other than the accused, with or without the latter’s participation or that of the other planners; and (b) the criminal conduct of that other person was undertaken in execution of a plan devised by the accused alone or in conjunction with others. The accused had the mens rea of the crime, or was aware of the substantial likelihood that the commission of the crime would be a consequence of carrying out the plan.⁵¹² Responsibility for planning may involve different levels of command and, accordingly, different levels of planning, from persons holding the higher positions of “overall architects ” to field commanders. The existence of a plan may be proved through circumstantial evidence.⁵¹³
The Kordic Defence contends that “planning” is a form of indirect liability , and that the elements of that crime are the same as those of “aiding and abetting ”.⁵¹⁴ Further, “planning” is a form of complicity where criminal liability only arises upon the completion of the crime . The Defence thus argues that there is no precedent supporting the theory that “planning” alone of a crime under the Statute can be punished as a separate stage in the commission of such crimes. A person may be punished either for planning a crime, or for committing it, but not for both, as a perpetrator cannot be punished for planning as a separate stage in the commission of a crime.⁵¹⁵
The Prosecution disagrees with the Defence position that “planning” constitute a sub-species of “aiding and abetting” and submits that “planning” is an autonomous form of responsibility under Article 7(1).⁵¹⁶

(ii) Instigating
In the Prosecution’s submission, instigation is essentially defined by the fact that the accused prompted another person or persons to commit a crime, and may take a variety of forms,⁵¹⁷ including incitement (forms of promises of financial or other advantage). Any conduct by an accused intending to cause another person to act or omit to act in a particular way may qualify as instigation. The requisite actus reus is satisfied if it is shown that the accused provoked or induced the conduct of another person(s ) who committed a crime, in the sense that the conduct of the accused was a clear contributing factor to the conduct of the other person(s) (a causal connection between the instigation and the fulfillment of the actus reus of the crime needs to be proven). It is sufficient to prove that the accused’s conduct strengthened the resolve of the direct perpetrator who already had the intention to commit a crime.⁵¹⁸ The required mens rea is that (i) the accused intended to provoke or induce the commission of the crime, or was aware of the substantial likelihood that the commission of a crime would be a probable consequence of his acts; and (ii) he had all the elements of the mens rea of a crime within the jurisdiction of the International Tribunal which he meant to induce. The accused must have the full mens rea of the underlying offence which he seeks to instigate but there is no requirement that the direct perpetrator possess the full mens rea.⁵¹⁹
The Kordic Defence argues that “instigating” is a narrowly defined offence in which the instigation has to be very specific both as to the perpetrator and as to the offence to prevent the infringement of legitimate free speech. The requisite actus reus is that (1) the accused committed an act directly intended to provoke a particular perpetrator or identifiable group to which the perpetrator belongs to commit a specific crime; (2) there is a causal link between the act characterised as instigation and a specific offence – the criteria is the “but for ” standard of causation. There can be no instigation if the perpetrator has already formed his decision to commit the crime. The Defence also asserts a strict mens rea requirement for instigation: the instigator must have intended directly to prompt or provoke a particular perpetrator or identifiable group to which he belongs to commit a specific crime desired by the instigator himself. The instigator not only has to be aware of all the elements of the crime he is instigating, but has to possess the very same intent as is required for the perpetrator. It is further submitted that the instigator is liable only to the limits of his own intent, regardless of the guilt of the principal.⁵²⁰

(iii) Ordering
The Prosecution submits that the requisite actus reus is satisfied where : (a) the crime was performed by a person or persons other than the accused, with or without the latter’s participation; (b) the perpetrator acted in execution of an express or implied order given by the accused to a subordinate or other person over whom the accused was in a position of authority. In addition to orders given by regular military commanders, orders of “superiors” or “commanders” of “irregular ” bodies such as paramilitary forces or special units also fall within the scope of “ordering”.⁵²¹ What matters is the authority to give orders even in the absence of a formal superior-subordinate relationship. There is no requirement that the order be in writing or in any particular form, and it may be express or implied. The order need not be given directly to those who actually perform the actus reus of the crime. The Prosecution also stressed that the existence of an order may be proven circumstantially.
According to the Prosecution, the Blaskic Trial Judgement supports its position that the requisite mens rea for the crime of ordering encompasses both direct and indirect intent (i.e., awareness of the “substantial likelihood” that crimes will be committed as a consequence of carrying out the order).⁵²² It is not necessary to prove that the subordinates who execute the order share the mens rea of the accused.⁵²³
The Kordic Defence submits that there can be no “ordering” without a superior -subordinate relationship.⁵²⁴ It also disagrees with the Prosecution concerning the form that the order may take: it is submitted that either written or “spoken speech” are necessarily involved.⁵²⁵ Having the power to order in general does not suffice. Further the superior must have ordered a particular subordinate to commit a specific crime. Issuance of general orders or orders on general topics will not suffice. There is a causal link between the order and a specific offence – the criterion is the “but for” standard of causation . The Defence asserts a strict mens rea requirement to establish criminal responsibility for ordering: the superior must have been aware of the constitutive elements of the crime ordered, and must have desired a crime to be committed by the subordinate. In order for the superior to be held liable for ordering a crime he must possess the very same intent as that required for the guilty subordinate .⁵²⁶

(b) Discussion
In relation to the involvement of an accused in a crime other than through direct participation, the Trial Chamber in Tadic considered the connection sufficient for an individual to be held criminally liable. Based upon a review of Second World War case-law, the Tadic Trial Chamber concluded that, to hold an individual criminally responsible for his participation in the commission of a crime other than through direct commission, it should be demonstrated that he intended to participate in the commission of the crime and that his deliberate acts contributed directly and substantially to the commission of the crime:

In sum, the accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question.⁵²⁷
Referring to the Akayesu Trial Judgement, the Trial Chamber in Blaskic held that “planning implies that ‘one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases’”.⁵²⁸ The Blaskic Trial Chamber also found that the existence of a plan may be demonstrated through circumstantial evidence.⁵²⁹ The Trial Chamber finds that planning constitutes a discrete form of responsibility under Article 7(1) of the Statute, and thus agrees that an accused may be held criminally responsible for planning alone. However, a person found to have committed a crime will not be found responsible for planning the same crime. Moreover, an accused will only be held responsible for planning, instigating or ordering a crime if he directly or indirectly intended that the crime be committed.⁵³⁰
The Blaskic Trial Chamber held that instigating “entails ‘prompting another to commit an offence’.”⁵³¹ Both positive acts and omissions may constitute instigation,⁵³² but it must be proved that the accused directly intended to provoke the commission of the crime. Although a causal relationship between the instigation and the physical perpetration of the crime needs to be demonstrated (i.e., that the contribution of the accused in fact had an effect on the commission of the crime), it is not necessary to prove that the crime would not have been perpetrated without the accused’s involvement.
The Trial Chamber is of the view that no formal superior-subordinate relationship is required for a finding of “ordering” so long as it is demonstrated that the accused possessed the authority to order.⁵³³ The Trial Chamber agrees with the Blaskic finding that there is no requirement that an order be given in writing or in any particular form, and that the existence of an order may be proven through circumstantial evidence.⁵³⁴ In relation to ordering, the Blaskic Trial Chamber further held that the order “does not need to be given by the superior directly to the person(s) who perform (s) the actus reus of the offence. Furthermore, what is important is the commander’s mens rea, not that of the subordinate executing the order.”⁵³⁵

4. Aiding and Abetting and Participation in a Common Purpose or Design⁵³⁶
(a) Arguments of the parties

(i) Aiding and abetting
In the Prosecution’s opinion, these two concepts are distinct in that aiding means giving assistance to someone while abetting implies facilitating the commission of an offence. Either one suffices to render an accused criminally responsible under Article 7(1).⁵³⁷ The Prosecution submits⁵³⁸ that for an accused to be held responsible for aiding and abetting, his conduct must have directly and substantially contributed to the commission by another person of the material elements of a crime, i.e., his conduct constitutes assistance which facilitates the commission of the crime in some significant way.⁵³⁹ There is no requirement of a pre-existing plan. Where such a plan exists all those who knowingly participate in or contribute to it may be held responsible either as co-perpetrators or as aiders and abettors. It is submitted that aiding and abetting can take place before, during or after the event.⁵⁴⁰ Aiding and abetting may assume a variety of forms of assistance (including omissions when there is a legal obligation to intervene), including mere presence at the scene of the crime which encourages the perpetrators or gives them psychological support .⁵⁴¹ In the Prosecution’s opinion , an accused’s position of authority constitutes a relevant factor in determining whether his conduct lent encouragement or support (for instance through an acquiescing presence which may be understood as signaling approval and tolerance when or after the crime is committed).⁵⁴²
The Prosecution avers that the requisite mens rea is satisfied if the accused knew that his conduct would substantially contribute to the commission by another person of the actus reus of a crime, or was aware of the substantial likelihood that this would be a probable consequence of his conduct. The aider and abettor need not share the mens rea of the principal, and he does not need to know the precise crime committed. What is required is awareness of the essential elements of the crime committed by the principal. It is submitted that the existence of the mens rea need not be explicit and may be inferred from all the relevant circumstances.
The Kordic Defence contends⁵⁴³ that the requisite actus reus is satisfied where the accused assisted in the commission of the particular crime by another individual, and his assistance contributed directly and substantially to the commission of the specific crime in the sense that such crime most likely would not have occurred in the same way without the accused acting as he did. Although the accused’s conduct need not have been a conditio sine qua non of the commission of the crime, it must have made a difference.⁵⁴⁴ It is submitted that the accused’s presence is sufficient for establishing aiding and abetting when it made a direct and significant contribution to the actual crime. The Defence refers with approval to the Aleksovski Appeals Chamber’s findings (which referred to the Tadic Appeal Judgement) in support of its argument. It is also submitted that a finding of aiding and abetting may not be based solely on an accused’s status in a particular organisation or party.
In relation to the requisite mens rea, the Kordic Defence asserts that specific knowledge of the specific criminal act by the aider and abetter is essential .⁵⁴⁵ It is submitted that the Trial Chamber should reject the Prosecution’s argument that mere knowledge is sufficient to meet the mens rea requirement. In the Defence’s view, there should be a conscious decision to participate. The accused may be found to possess the requisite mens rea if he is aware of the nature and effect of his own acts and of the essential elements that constitute the offence.⁵⁴⁶

(ii) Participation in a common purpose or design
The Prosecution submits⁵⁴⁷ that “common purpose” as adopted by the Tadic Appeals Chamber is a theory of co -perpetration under the word “committing” in Article 7(1). A knowing participant in a common plan or design may be held liable as a principal perpetrator for all the acts that flow from the plan, irrespective of whether he was personally involved in the act. It is submitted that the actus reus involves a plurality of persons, and the existence of a common plan, design or purpose for the commission of a crime provided for in the Statute, in which the accused participated. Depending on the category of common design as set out in the Tadic Appeal Judgement , the mens rea will be different.
The Kordic Defence does not accept that the International Tribunal’s Statute permits reliance upon the common purpose doctrine because it has no statutory basis and there is no need for a common purpose doctrine. It is submitted that even if the elements set out in the Tadic Appeal Judgement are regarded as the correct legal test, the facts of the case do not show that Dario Kordic participated in any “common purpose or design”.⁵⁴⁸
(b) Discussion
The Appeals Chamber in Tadic considered the issue of “whether the acts of one person can give rise to the criminal culpability of another where both participate in the execution of a common criminal plan”.⁵⁴⁹ Having found that criminal responsibility for participating in a common purpose or design falls within the scope of Article 7(1) of the Statute,⁵⁵⁰ the Appeals Chamber went on to review three categories of cases.
The third category, in relation to cases where there is a “shared intention on the part of a group to forcibly remove members of one ethnicity from their town , village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed”,⁵⁵¹ seems particularly apposite to the issues in this case. In relation to this type of case, the Appeals Chamber held that the requirements were “that of a criminal intention to participate in a common criminal design and the foreseeability that criminal acts other than those envisaged in the common criminal design are likely to be committed by other participants in the common design.”⁵⁵²
The Appeals Chamber summarised its findings concerning the required elements in relation to criminal liability pursuant to the common purpose doctrine thus:

In sum, the objective elements (actus reus) of this mode of participation in one of the crimes provided for in the Statute (with regard to each of the three categories of cases) are as follows:

i. A plurality of persons. They need not be organised in a military, political , or administrative structure ... .

ii. The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute. There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

iii. Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example murder , extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.⁵⁵³
The Appeals Chamber found that the mens rea required was different depending upon the category of common design under consideration. In relation to the third category of cases, it held:

what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition , responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.⁵⁵⁴
The Appeals Chamber compared the forms of responsibility based on participation in a common purpose with aiding and abetting:

(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.

(ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the accomplice’s contribution.

(iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination , rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose.

(iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above. ⁵⁵⁵
Although the Appeals Chamber did not consider “aiding and abetting” in great detail in the context of the Tadic appeal, it set out its essential elements . In Aleksovski the Appeals Chamber accepted the Tadic Appeals Chamber’s findings and emphasised the importance of the “awareness by the aider and abetter of the essential elements of the crime committed by the principal”.⁵⁵⁶

C. Individual Criminal Responsibility Under Article 7(3)
It is clear from a reading of Article 7(3) that three elements must be proved before a person may incur superior responsibility for the crimes committed by subordinates : (1) the existence of a relationship of superiority and subordination between the accused and the perpetrator of the underlying offence; (2) the mental element , or knowledge of the superior that his subordinate had committed or was about to commit the crime; (3) the failure of the superior to prevent the commission of the crime or to punish the perpetrators.⁵⁵⁷ The Trial Chamber will consider these three elements in turn.

1. The Superior-Subordinate Relationship
(a) Arguments of the parties
The Prosecution argues⁵⁵⁸ that superior responsibility is not limited to military commanders or to situations arising under a military command, but also extends to “individuals in non-military positions of superior authority”, that is civilians.⁵⁵⁹ What is important is the degree of authority exercised by the superior. The Prosecution finds support for its position in the Aleksovski Appeals Chamber’s finding , which is binding on Trial Chambers, that it is immaterial whether an accused is a civilian or military superior if it can be established that he had the powers to prevent or punish. It submits that the superior need not be part of a regular chain of command.⁵⁶⁰ Superior responsibility may be imposed by virtue of a superior de facto as well as de jure position of authority. The factor that determines superior responsibility is the actual possession, or non-possession of effective powers of control, in the sense that the superior must be found to have the material ability to prevent and punish the commission of crimes by subordinates.⁵⁶¹
The Kordic Defence submits that the superior-subordinate relationship must be such that the subordinate was under the authority of the superior in an actual military chain of command, or its functional equivalent, and, if the superior was a civilian, he must have exercised a degree of control over the subordinate equivalent to that of a military commander.⁵⁶² The Defence quotes with approval the Celebici Trial Chamber’s finding that the principle of superior responsibility is only applicable to superiors who exercise effective control over subordinates, in the sense of having the material ability to prevent and punish the commission of the offences.
It is submitted that politicians usually have far less powers of control and prevention over subordinates than military commanders, which is why civilians in a position of de facto authority should be required to exercise “full military -style” control to be held responsible as superiors for the acts of their subordinates .⁵⁶³
(b) Discussion

(i) The nature of the superior-subordinate relationship
The Celebici Appeals Chamber defined a commander or superior as “one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.”⁵⁶⁴ It went on to conclude that “[t]he power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment .”⁵⁶⁵ The Appeals Chamber thus endorsed the Celebici Trial Chamber’s conclusion that de facto superiors may incur criminal responsibility if found to be in possession of actual and effective powers of control over the actions of their subordinates.⁵⁶⁶ It concluded:

In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. This would equally apply in the context of individual criminal responsibility. In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility , provided certain conditions are met.⁵⁶⁷
In other words, not only persons in formal positions of command but also persons found to be “effectively” in command of more informal structures, with the power to prevent and punish the commission of crimes of persons in fact under their control , may be held criminally responsible on the basis of their superior authority.⁵⁶⁸ In the absence of a formal appointment, it is the actual exercise of authority which is fundamental for the purpose of incurring criminal responsibility,⁵⁶⁹ and in particular a showing of effective control:

Effective control has been accepted, including in the jurisprudence of the Tribunal , as a standard for the purposes of determining superior responsibility. … The showing of effective control is required in cases involving both de jure and de facto superiors.⁵⁷⁰

Moreover, the Appeals Chamber defined effective control as “a material ability to prevent or punish criminal conduct, however that control is exercised”.⁵⁷¹
Analysing “command” as referring to “powers that attach to a military superior ”, and control as having a “wider meaning”, which also includes the reference to the “powers wielded by civilian leaders”,⁵⁷² the Appeals Chamber held that the rule that civilian leaders may incur responsibility in relation to acts committed by their subordinates or other persons under their effective control is not controversial.⁵⁷³
That a superior-subordinate relationship is needed before a person in a position of superior authority may be held liable under the doctrine of command responsibility may seem self-evident. The Trial Chamber in Celebici held that the “law does not know of a universal superior without a corresponding subordinate. The doctrine of command responsibility is clearly articulated and anchored on the relationship between superior and subordinate, and the responsibility of the commander for actions of members of his troops.”⁵⁷⁴ The type of relationship required, however, may vary. The Appeals Chamber in Celebi ci agreed with the Trial Chamber that the relationship of subordination may be direct or indirect. The Celebici Trial Chamber held:

The requirement of the existence of a “superior-subordinate relationship” which, in the words of the Commentary to Additional Protocol I, should be seen “in terms of a hierarchy encompassing the concept of control”, is particularly problematic in situations such as that of the former Yugoslavia during the period relevant to the present case – situations where previously existing formal structures have broken down and where, during an interim period, the new, possibly improvised, control and command structures may be ambiguous and ill-defined. It is the Trial Chamber’s conclusion [...] that persons effectively in command of such more informal structures , with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so.⁵⁷⁵

The Appeals Chamber summarised this holding in the following terms:

The Trial Chamber’s references to concepts of subordination, hierarchy and chains of command must be read in this context, which makes it apparent that they need not be established in the sense of formal organisational structures so long as the fundamental requirement of an effective power to control the subordinate, in the sense of preventing or punishing criminal conduct, is satisfied.⁵⁷⁶
Both Chambers relied upon Additional Protocol I and the ICRC Commentary thereto , which states in relation to the concept of superior:⁵⁷⁷

This is not a purely theoretical concept covering any superior in a line of command , but we are concerned only with the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter, being his subordinate, is under his control. The direct link which must exist between the superior and the subordinate clearly follows from the duty to act laid down in paragraph 1 [of Article 86]. Furthermore, only that superior is normally in the position of having information enabling him to conclude in the circumstances at the time that the subordinate has committed or is going to commit a breach. However, it should not be concluded from this that this provision only concerns the commander under whose direct orders the subordinate is placed. The role of commanders as such is dealt with in Article 87 (Duty of commanders). The concept of the superior is broader and should be seen in terms of a hierarchy encompassing the concept of control.⁵⁷⁸
Article 87(1) of Additional Protocol I further extends the legal duty of commanders to properly supervise their subordinates beyond troops under their command:

The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces and the Parties under their command and other persons under their control, to prevent, and, where necessary, to suppress and to report to competent authorities breaches of the [Geneva] Conventions and of this Protocol.
In relation to the meaning to be attached to the superior-subordinate relationship it is worth quoting the ICRC Commentary to Article 87 in full as it unambiguously sheds light on its intended scope:

This responsibility primarily applies with respect to “members of the armed forces under their command”. This term should be understood very specifically, if full practical meaning is to be given to the provision. A commander may, for a particular operation and for a limited period of time, be supplied with reinforcements consisting of troops who are not normally under his command. He must ensure that these members of the armed forces comply with the [Geneva] Conventions and the Protocol as long as they remain under his command. In addition, it is self-evident that the obligation applies in the context of the responsibilities as they have devolved over different levels of the hierarchy, and that the duties of a non-commissioned officer are not identical to those of a battalion commander, and the duties of the latter are not identical to those of a divisional commander. Within the confines of these areas of competence, the responsibility of each of these applies with respect to all the members of the armed forces under his command.

However, the text does not limit the obligation of commanders to apply only with respect to members of the armed forces under their command; it is further extended to apply with respect to “other persons under their control”. It is particularly , though not exclusively, in occupied territory that this concept of indirect subordination may arise, in contrast with the link of direct subordination which relates the tactical commander to his troops. Territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised. Consequently the commander on the spot must consider that the local population entrusted to him is subject to his authority in the sense of Article 87, for example, in the case where some of the inhabitants were to undertake some sort of pogrom against minority groups. He is responsible for restoring and ensuring public order and safety as far as possible, and shall take all measures in his power to achieve this, even with regard to troops which are not directly subordinate to him, if these are operating in his sector. A fortiori he must consider them to be under his authority if they commit, or threaten to commit, any breaches of the rules of the [Geneva] Conventions against persons for whom he is responsible. As regards the commander who, without being invested with responsibility in the sector concerned, discovers that breaches have been committed or are about to be committed, he is obliged to do everything in his power to deal with this, particularly by informing the responsible commander.⁵⁷⁹

It is therefore clear that Additional Protocol I envisages a superior-subordinate relationship wider than a strictly hierarchical one.
The Appeals Chamber in Celebici referred to the existing distinction in international law between the duties of a commander of occupied territories and the other commanders in general. Even though it acknowledged that commanders of occupied territories may be held responsible on the basis of the doctrine of superior responsibility in circumstances where the link of subordination is limited and very general, the Appeals Chamber found that “(t)his clearly does not apply to commanders in general.”⁵⁸⁰ The Prosecution’s argument in that case that a superior may be held criminally responsible based upon “powers of influence”, even if substantial, was rejected in the following terms:

The Appeals Chamber considers, therefore, that customary law has specified a standard of effective control, although it does not define precisely the means by which the control must be exercised. It is clear, however, that substantial influence as a means of control in any sense which falls short of the possession of effective control over subordinates, which requires the possession of material abilities to prevent subordinate offences or to punish subordinate offenders, lacks sufficient support in State practice and judicial decisions. Nothing relied on by the Prosecution indicates that there is sufficient evidence of State practice or judicial authority to support a theory that substantial influence as a means of exercising command responsibility has the standing of a rule of customary law, particularly a rule by which criminal liability would be imposed.⁵⁸¹
The Appeals Chamber endorsed the Celebici Trial Chamber’s finding that substantial influence would not be indicative of a sufficient degree of control to incur criminal responsibility on the basis of the command responsibility doctrine .⁵⁸² It did not disturb the Trial Chamber’s conclusion that Zejnil Delalic’s role at the municipal level in the defence effort and in the release of prisoners of war allowed him to be characterised as a highly influential individual but did not render him a superior.⁵⁸³
While civilians occupying positions of authority in relation to a portion of a territory may be held responsible under the principle of superior responsibility , they will incur criminal responsibility only if they are found to possess the necessary powers of control over the actual perpetrators. The Celebici Trial Chamber persuasively held:

While the Trial Chamber must at all times be alive to the realities of any given situation and be prepared to pierce such veils of formalism that may shield those individuals carrying the greatest responsibility for heinous acts, great care must be taken lest an injustice be committed in holding individuals responsible for the acts of others in situations where the link of control is absent or too remote.⁵⁸⁴
It follows that a government official will only be held liable under the doctrine of command responsibility if he was part of a superior-subordinate relationship, even if that relationship is an indirect one. Even though arguably effective control may be achieved through substantial influence, a demonstration of such powers of influence will not be sufficient in the absence of a showing that he had effective control over subordinates, in the sense of possessing the material ability to prevent subordinate offences or punish subordinate offenders after the commission of the crimes. For instance, a government official who knows that civilians are used to perform forced labour or as human shields will be held liable only if it is demonstrated that he has effective control over the persons who are subjecting the civilians to such treatment. A showing that the official merely was generally an influential person will not be sufficient. In contrast, a government official specifically in charge of the treatment of prisoners used for forced labour or as human shields , as well as a military commander in command of formations which are holding the prisoners, may be held liable on the basis of superior responsibility because of the existence of a chain of command.
In sum, only those superiors, either de jure or de facto, military or civilian, who are clearly part of a chain of command, either directly or indirectly , with the actual power to control or punish the acts of subordinates may incur criminal responsibility. The Appeals Chamber found that the degree of de facto authority or powers of control required under the doctrine of superior responsibility is equivalent to that required based upon de jure authority:

Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts.⁵⁸⁵
The Trial Chamber will thus consider the status of the accused as superiors on the basis of these findings, which must be taken to represent the correct interpretation of the applicable law. While it should be emphasised that such factual determinations will be based upon the specific circumstances of this case, the Trial Chamber will briefly turn to the question of which elements may be indicative of a position of authority and how means of effective control may be demonstrated.
(ii) Elements for a determination of superior authority
A starting point will be the official position held by the accused. Actual authority however will not be determined by looking at formal positions only. Whether de jure or de facto, military or civilian, the existence of a position of authority will have to be based upon an assessment of the reality of the authority of the accused.
A formal position of authority may be determined by reference to official appointment or formal grant of authority. Military positions will usually be strictly defined and the existence of a clear chain of command, based on a strict hierarchy, easier to demonstrate. Generally, a chain of command will comprise different hierarchical levels starting with the definition of policies at the highest level and going down the chain of command for implementation in the battlefield. At the top of the chain , political leaders may define the policy objectives. These objectives will then be translated into specific military plans by the strategic command in conjunction with senior government officials. At the next level the plan would be passed on to senior military officers in charge of operational zones. The last level in the chain of command would be that of the tactical commanders which exercise direct command over the troops.
In relation to military structure, the ICRC Commentary (Additional Protocol I) observes that “there is no part of the army which is not subordinated to a military commander at whatever level”. Consequently, “responsibility applies from the highest to the lowest level of the hierarchy, from the Commander-in-Chief down to the common soldier who takes over as head of the platoon to which he belongs at the moment his commanding officer has fallen and is no longer capable of fulfilling his task .”⁵⁸⁶
The capacity to sign orders will be indicative of some authority.⁵⁸⁷ The authority to issue orders, however, may be assumed de facto. Therefore in order to make a proper determination of the status and actual powers of control of a superior, it will be necessary to look to the substance of the documents signed and whether there is evidence of them being acted upon. For instance in the Ministries case, the court found that the mere appearance of an official’s name on a distribution list attached to an official document could simply provide evidence that it was intended that he be provided with the relevant information, and not that “those whose names appear on such distribution lists have responsibility for , or power and right of decision with respect to the subject matter of such document .”⁵⁸⁸ Similarly, direct signing of release orders would demonstrate authority to release. An accused’s signature on such a document, however, may not necessarily be indicative of actual authority to release as it may be purely formal or merely aimed at implementing a decision made by others.
In order to determine the formal powers and duties exercised by political and military superiors an analysis of the formal procedures for appointment to civilian and military offices (through national legislation and appointment orders for instance ) would be a starting point. This will not be sufficient, as it must be shown that the powers are “real” for criminal responsibility to be attached to them. Further , in situations such as that of the armed conflict in Bosnia and Herzegovina, it will often be the case that civilian leaders will assume powers more important than those with which they are officially vested. In these circumstances, de facto powers may exist alongside de jure authority, and may be more important than the de jure powers.
In order to assess the individual criminal responsibility of the accused, the Trial Chamber in Karadzic and Mladic turned to an examination “of the position of each of the accused in the overall [institutional, political and military] organisation described [whose purpose was to establish a territory with a homogeneous population] with a view to determining their institutional functions and how they exercised their powers.”⁵⁸⁹ After examining the official positions held by the accused, the Trial Chamber turned to a consideration of “the effective exercise of those powers”.⁵⁹⁰
A superior status, when not clearly spelled out in an appointment order, may be deduced though an analysis of the actual tasks performed by the accused in question . This was the approach taken by the Trial Chamber in Nikolic.⁵⁹¹Evidence that an accused is perceived as having a high public profile, manifested through public appearances and statements, and thus as exercising some authority , may be relevant to the overall assessment of his actual authority although not sufficient in itself to establish it, without evidence of the accused’s overall behaviour towards subordinates and his duties. Similarly, the participation of an accused in high-profile international negotiations would not be necessary in itself to demonstrate superior authority. While in the case of military commanders , the evidence of external observers such as international monitoring or humanitarian personnel may be relied upon, in the case of civilian leaders evidence of perceived authority may not be sufficient, as it may be indicative of mere powers of influence in the absence of a subordinate structure.

2. The Mental Element
The mental element set forth in Article 7(3) distinguishes between two different types of situation: (a) in the first situation the superior has actual knowledge that subordinates are committing or are about to commit a crime; (b) in the second situation he “has reason to know” that his subordinates are committing or about to commit a crime. The Trial Chamber will consider these two situations in turn after setting out the arguments of the parties.
(a) Actual knowledge
The Prosecution and the Kordic Defence agree that actual knowledge may be established either through direct evidence or through circumstantial evidence.⁵⁹² The Prosecution submits that an individual’s position of command is per se a significant indicium that he knew of the crimes committed by his subordinates .⁵⁹³ Referring to the Celebic i Trial Judgement, the Defence emphasises that actual knowledge cannot be presumed merely because the subordinates’ crimes are a matter of public notoriety, are numerous , occur over a prolonged period, or over a wide geographic area.⁵⁹⁴
In relation to the necessary mental element, the first situation where a superior “knew” does not appear to be controversial. Actual knowledge, which may be defined as the awareness that the relevant crimes were committed or were about to be committed , may be established through direct or circumstantial evidence.⁵⁹⁵ Circumstantial evidence will allow for an inference that the superior “must have known” of subordinates’ criminal acts. The Trial Chamber agrees with the Prosecution that the indicia listed by the United Nations Commission of Experts may be used when making such a determination: the number, type, and scope of illegal acts; the time during which they occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; their widespread occurrence ; the tactical tempo of operations; the modus operandi of similar illegal acts; the officers and staff involved and the location of the commander at that time.⁵⁹⁶
Depending on the position of authority held by a superior, whether military or civilian, de jure or de facto, and his level of responsibility in the chain of command, the evidence required to demonstrate actual knowledge may be different. For instance, the actual knowledge of a military commander may be easier to prove considering the fact that he will presumably be part of an organised structure with established reporting and monitoring systems. In the case of de facto commanders of more informal military structures, or of civilian leaders holding de facto positions of authority, the standard of proof will be higher .
(b) Imputed knowledge

(i) Arguments of the parties
The Prosecution submits that a commander should be regarded as “having reason to know” in two situations:

(1) Where he had some specific information which indicated the need for additional investigation in order to ascertain whether offences were being committed by his subordinates. Even if the information by itself was not sufficient to compel the conclusion that crimes were being committed, the superior may incur criminal responsibility if he fails to act by undertaking further inquiry.

(2) Where a military commander lacks any information putting him on notice of the possible commission of crimes as a result of a serious dereliction of his duty to obtain information of a general nature within his reasonable access relating to the conduct of his subordinates.⁵⁹⁷
In the Prosecution’s opinion, the correct interpretation of the “had reason to know” standard was set out in the Blaskic Trial Judgement.⁵⁹⁸ The knowledge requirement set out in Article 86(2) of Additional Protocol I does not differ, as concluded by the Celebici Trial Chamber, from the standard established in the post-Second World War case-law. In the Prosecution’s submission , this standard is now also reflected in Article 28 of the ICC Statute. The Prosecution argues that this standard requires commanders to establish an effective reporting system to ensure that crimes will be brought to their attention. It is finally submitted that no distinction should be made between the knowledge required in relation to military and civilian superiors.⁵⁹⁹
The Kordic Defence submits that “had reason to know” refers to the situation where a superior had actual information in his possession that, if reviewed, would have provided notice that subordinates were about to commit crimes or had done so .⁶⁰⁰ It is submitted that in the absence of available evidence of criminal behaviour of subordinates, a commander’s failure to inquire does not give rise to superior responsibility. In the Defence’s view, the Celebici Trial Chamber adopted the correct legal approach in rejecting a “should have known” standard. It thus rejects the Prosecution’s assertion that the “reason to know” standard encompasses a “should have known” negligence standard .⁶⁰¹ The Defence argues that the controlling standard is found in Article 86(2) of Additional Protocol I, as interpreted in the Celebici Trial Judgement. It is well established that command responsibility cannot be imposed on the basis that a commander should have done more to inform himself about the conduct of his subordinates.⁶⁰²

(ii) Discussion
The Appeals Chamber in Celebici pronounced on the mental element when it endorsed the Trial Chamber’s interpretation of the standard “had reason to know ”. In doing so, the Appeals Chamber rejected the Prosecution’s argument that a commander can be held responsible for the actions of his subordinates based solely on a failure to obtain information of general nature within his reasonable access due to a serious dereliction of duty.⁶⁰³
The Appeals Chamber considered whether commanders may be the subject of criminal responsibility for breach of a duty to know, i.e., to obtain relevant information about their subordinates’ conduct, in customary law.⁶⁰⁴ First on the basis of an analysis of Second World War case-law, it concluded “in the same way as did the United Nations War Crimes Commission, that the then customary law did not impose in the criminal context a general duty to know upon commanders or superiors”.⁶⁰⁵ The Appeals Chamber then turned to a consideration of Additional Protocol I, Article 86(2) of which provides:

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.⁶⁰⁶
It referred with approval to the following Trial Chamber’s finding interpreting Article 86 of Additional Protocol I:

An interpretation of the terms of this provision … in accordance with their ordinary meaning thus leads to the conclusion, confirmed by the travaux préparatoires , that a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates . This standard, which must be considered to reflect the position of customary law at the time of the offences alleged in the Indictment, is accordingly controlling for the construction of the mens rea standard established in Article 7(3). The Trial Chamber thus makes no finding as to the present content of customary law on this point.⁶⁰⁷
The Appeals Chamber concluded that the standard “had reason to know” set forth in Article 7(3) of the Statute should be interpreted as having the same meaning as the standard “having information enabling them to conclude” set out in Article 86.⁶⁰⁸ In adopting this interpretation it rejected a strict “should have known” standard, concluding that there was no duty to know, i.e., to remain apprised of the subordinates’ action, imposed on commanders resulting in criminal liability. The Appeals Chamber held that the position in relation to civilian superiors is similar:

As found by the Appeals Chamber, there is no criminal responsibility for breach of such a “duty” to know in customary law as far as military commanders are concerned . This applies equally to civilian superiors.⁶⁰⁹

The Appeals Chamber upheld the Trial Chamber’s finding that

a superior may possess the mens rea for command responsibility where (1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Articles 2 through 5 of the Statute; or (2) where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates.⁶¹⁰
The Appeals Chamber further elaborated on the meaning to be attached to the information which needs to be available to a superior for him to be considered as having the requisite mens rea:

Contrary to the Prosecution’s submission, the Trial Chamber did not hold that a superior needs to have information on subordinates offences in his actual possession for the purpose of ascribing criminal liability under the principle of command responsibility . A showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he “had reason to know”. The ICRC Commentary (Additional Protocol I) refers to “reports addressed to (the superior), … the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits” as potentially constituting the information referred to in Article 86(2) of Additional Protocol I. As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed . For instance, a military commander who would receive information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.

Finally, the relevant information only needs to have been provided or available to the superior, or in the Trial Chamber’s words, “in the possession of”. It is not required that he actually acquainted himself with the information. In the Appeals Chamber’s view, an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question .⁶¹¹
It appears clearly from the Appeals Chamber’s findings that a superior may be regarded as having “reason to know” if he is in possession of sufficient information to be on notice of the likelihood of subordinate illegal acts, i.e., if the information available is sufficient to justify further inquiry. The level of training, or the character traits or habits of the subordinates, are referred to by way of example as general factors which may put a superior on notice that subordinate crimes may be committed. The indicia listed in the United Nations Commission of Experts Report , referred to in the context of actual knowledge, could also be used in this context to determine whether knowledge of the underlying offences alleged could be imputed to an accused.

3. Failure to Take Necessary and Reasonable Measures to Prevent or Punish
(a) Arguments of the parties
The Prosecution refers to a number of measures which may be taken by a commander to prevent the commission of crimes by subordinates. The Prosecution submits that the duty to punish consists of the obligations to (1) establish the facts,⁶¹² (2) put an end to violations,⁶¹³ and (3) repress.⁶¹⁴ It is contended that the responsibility of the commander continues until all three obligations are properly discharged.
The Prosecution submits that necessary measures are those which are required in the circumstances prevailing at the time. Similarly, reasonable measures are those which the commander was in a position to take in the circumstances prevailing at the time.⁶¹⁵ Further, the lack of formal legal competence to take the measures does not necessarily preclude the criminal responsibility of the superior.⁶¹⁶ Both the Prosecution and the Defence agree that what constitute necessary and reasonable measures should be assessed in the particular circumstances of the case.
The Kordic Defence submits that the measures must be both necessary and reasonable , and must be evaluated based on the situation as it appeared to the commander at the time, and not in hindsight. Further, it must be shown that the superior possessed (a) the legal competence to take the measures in question, and (b) the actual material possibility to do so. In the Defence’s view, a causal nexus must exist between the superior’s failure to take the measures, and the commission of subsequent offences .⁶¹⁷
(b) Discussion
Article 7(3) of the Statute establishes a duty to prevent a crime that a subordinate was about to commit or to punish such a crime after it is committed, by taking “ necessary and reasonable measures”. Article 87(3) of Additional Protocol I contains a similar requirement and in addition refers to disciplinary or penal measures:

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.⁶¹⁸

The Appeals Chamber in Celebici held that this provision was “customary in nature” in 1992.⁶¹⁹ The ICRC Commentary explains that the rationale behind the provision is the nature of the position of military commanders on the field:

… military commanders [...] are on the spot and able to exercise control over the troops and the weapons which they use. They have the authority, and more than anyone else they can prevent breaches by creating the appropriate frame of mind, ensuring the rational use of the means of combat and by maintaining discipline [...] they are in a position to establish or ensure the establishment of the facts, which would be the starting point for any action to suppress or punish a breach.⁶²⁰
Trial Chambers in previous cases before the International Tribunal have interpreted “necessary and reasonable measures” for the purposes of Article 7(3). The Celebi ci Trial Chamber found that such measures are those that are practically within his powers and do not hang on his formal legal ability to take them:

It must, however, be recognised that international law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question then arises of what actions are to be considered to be within the superior’s powers in this sense. … we conclude that a superior should be held responsible for failing to take such measures that are within his material possibility. The Trial Chamber accordingly does not adopt the position taken by the ILC on this point, and finds that the lack of formal legal competence to take the necessary measures to prevent or repress the crime in question does not necessarily preclude the criminal responsibility of the superior.⁶²¹
As in relation to the determination of the subordination relationship, it is the actual ability, or effective capacity to take measures which is important. The reference to the lack of formal legal competence to take measures should be read in this context. When assessing whether a superior failed to act, the Trial Chamber will look beyond his formal competence to his actual capacity to take measures .
The Blaskic Trial Chamber emphasised that “the obligation “to prevent or punish” does not provide the accused with two alternative and equally satisfying options. Obviously, where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards.”⁶²² To prove a failure to prevent, it would be necessary to show that the superior failed to take any meaningful steps to prevent the commission of the subordinate crime.
This Trial Chamber finds these statements persuasive and will consider that a superior has discharged his duty to prevent or punish if he uses every means in his powers to do so. Such a determination will be based on the circumstances of each case. The Trial Chamber will however briefly comment on the duties to prevent or to punish. The duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate crime if he acquires knowledge that such a crime is being prepared or planned, or when he has reasonable grounds to suspect subordinate crimes.
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.⁶²³ Civilian superiors would be under similar obligations, depending upon the effective powers exercised and whether they include an ability to require the competent authorities to take action.
The Celebici Trial Chamber found that a requirement of causation as a separate element was not necessary:

Notwithstanding the central place assumed by the principle of causation in criminal law, causation has not traditionally been postulated as a conditio sine qua non for the imposition of criminal liability on superiors for their failure to prevent or punish offences committed by their subordinates. Accordingly, the Trial Chamber has found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formulation of the principle in existing treaty law, or, with one exception, in the abundant literature on this subject.⁶²⁴

The Trial Chamber finds no reason not to agree with this statement.

IV. SELF-DEFENCE AS A DEFENCE
In relation to many of the charges in the Indictment, the Defence argues that the Bosnian Croats were acting in self-defence. Thus, the Kordic Defence presented evidence of ABiH attacks and offensives in Central Bosnia and sought to demonstrate that the Bosnian Croats were victims of a policy of Muslim aggression in Central Bosnia.⁶²⁵ This argument raises the question whether defensive action or self-defence may amount to a ground for excluding criminal responsibility for the commission of serious violations of international humanitarian law.
The notion of ‘self-defence’ may be broadly defined as providing a defence to a person who acts to defend or protect himself or his property (or another person or person’s property) against attack, provided that the acts constitute a reasonable , necessary and proportionate reaction to the attack. The Trial Chamber notes that the Statute of the International Tribunal does not provide for self-defence as a ground for excluding criminal responsibility. “Defences” however form part of the general principles of criminal law which the International Tribunal must take into account in deciding the cases before it.
Paragraph (1)(c) of Article 31 of the Statute of the ICC, entitled “Grounds for excluding criminal responsibilty”, which provides for the exclusion of criminal liability in situations where a person acts reasonably to defend himself or another person, or certain types of property, reads:

1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

[...]

(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;
The principle of self-defence enshrined in this provision reflects provisions found in most national criminal codes and may be regarded as constituting a rule of customary international law. Article 31(1)(c) of the ICC Statute sets forth two conditions which must be met in order for self-defence to be accepted as a ground for excluding criminal liability: (a) the act must be in response to “an imminent and unlawful use of force” against an attack on a “protected” person or property ; (b) the act of defence must be “proportionate to the degree of danger”. In relation to the specific circumstances of war crimes, the provision takes into account the principle of military necessity.
Of particular relevance to this case is the last sentence of the above provision to the effect that the involvement of a person in a “defensive operation” does not “in itself” constitute a ground for excluding criminal responsibility. It is therefore clear that any argument raising self-defence must be assessed on its own facts and in the specific circumstances relating to each charge. The Trial Chamber will have regard to this condition when deciding whether the defence of self-defence applies to any of the charges. The Trial Chamber, however, would emphasise that military operations in self-defence do not provide a justification for serious violations of international humanitarian law.