Delalic et al. - Judgement

A. General Principles of Interpretation

158. The question of interpretation of the provisions of the Statute and Rules has continuously arisen throughout the proceedings in the present case. The Trial Chamber is aware that the meaning of the word "interpretation" in the context of statutes, including the Statute of the Tribunal, may be explained both in a broad and in a narrow sense. In its broad sense, it involves the creative activities of the judge in extending, restricting or modifying a rule of law contained in its statutory form. In its narrow sense, it could be taken to denote the role of a judge in explaining the meaning of words or phrases used in a statute. Within the context of the provisions of the Rules, the meaning of "interpretation" assumes a special complexity. This is because of the approach adopted in the formulation of these provisions, which accommodate principles of law from the main legal systems of the world.

159. The Tribunal’s Statute and Rules consist of a fusion and synthesis of two dominant legal traditions, these being the common law system, which has influenced the English-speaking countries, and the civil law system, which is characteristic of continental Europe and most countries which depend on the Code system. It has thus become necessary, and not merely expedient, for the interpretation of their provisions, to have regard to the different approaches of these legal traditions. It is conceded that a particular legal system’s approach to statutory interpretation is shaped essentially by the particular history and traditions of that jurisdiction. However, since the essence of interpretation is to discover the true purpose and intent of the statute in question, invariably, the search of the judge interpreting a provision under whichever system, is necessarily the same. It is, therefore, useful at the outset to discuss some of the rules which could be usefully applied in the interpretation of our enabling provisions.

1. General Aids to Interpretation

160. It cannot be disputed that the cornerstone of the theory and practice of statutory interpretation is to ensure the accurate interpretation of the words used in the statute as the intention of the legislation in question. In all legal systems, the primary task of the court or judge interpreting a provision is to ascertain the meaning of that particular statutory provision.

161. In every legal system, whether common law or civil law, where the meaning of the words in a statute is clearly defined, the obligation of the judge is to give the words their clearly defined meaning and apply them strictly. This is the literal rule of interpretation²⁰⁶. If only one construction is possible, to which the clear, plain or unambiguous word is unequivocally susceptible, the word must be so construed. In cases of ambiguity, however, all legal systems consider methods for determining how to give effect to the legislative intention.

162. Where the use of a word or expression leads to absurdity or repugnance, both common law and civil law courts will disregard the literal or grammatical meaning. Under the golden rule of interpretation, the common law court as well as the civil law court will modify the grammatical sense of the word to avoid injustice, absurdity, anomaly or contradiction, as clearly not to have been intended by the legislature²⁰⁷. Where the grammatical meaning is ambiguous and suggests more than one meaning, the text of the provision in question may be construed under the logical interpretation approach of civil law jurisprudence, or the golden rule of common law jurisprudence. If the literal meaning of the provision does not resolve the issue, the civil law courts may resort to analogy to extract the meaning.

163. The ‘teleological approach’, also called the ‘progressive’ or ‘extensive’ approach, of the civilian jurisprudence, is in contrast with the legislative historical approach. The teleological approach plays the same role as the ‘mischief rule’ of common law jurisprudence. This approach enables interpretation of the subject matter of legislation within the context of contemporary conditions. The idea of the approach is to adapt the law to changed conditions, be they special, economic or technological, and attribute such change to the intention of the legislation.

164. The mischief rule (also known as the purposive approach), is said to have originated from Heydon’s case, decided by the ancient English Court of Exchequer in 1584. In Heydon’s case²⁰⁸, four questions were posed in order to discover the intention of the legislation in question: (a) what was the common law before the making of the Act; (b) what was the mischief and defect for which the common law did not provide; (c) what remedy has Parliament resolved and appointed to cure the disease; and (d) the true reason for the remedy. According to the approach taken, the court is enjoined to suppress the mischief and advance the remedy. This requires looking at the legislative history for the "mischief" which may not be obvious on the face of the statute. This approach to interpretation is generously relied upon in Continental and American courts. In the important case of AG v. Prince Ernest Augustus of Hanover²⁰⁹, Viscount Simonds spelled out what he regarded as the meaning of context in the construction of statutes, as follows:

(a) other enacting provisions of the same Statute;
(b) its preamble;
(c) the existing state of the law;
(d) other statutes in pari materia;
(e) the mischief which the statute was intended to remedy.

In addition, the object of a statute or treaty is to be taken into consideration in arriving at the ordinary meaning of its provisions. ²¹⁰

165. The method of judicial ‘gap-filling’, which may be adopted under the teleological interpretation of the civilian jurisprudence, would, under a common law approach, suggest two approaches. The first of these is to consider that, because the observation of the doctrine of the separation of powers preserves the judicial function to the judiciary, any judicial law-making would be an abuse of the legislative function by the judiciary²¹¹. The second view is that courts are established to ascertain and give effect to the intention of the legislature²¹². Filling any gap is also a means of securing this objective. The common law has rejected both views²¹³, despite an attempt to argue that the filling of gaps is part of the judicial role in the interpretation of statutes. The interpretative role of the judiciary is, however, never denied.

2. Other Canons of Interpretation

166. The Trial Chamber would here refer to some other canons of interpretation, as illustrative in the interpretation of statutes. The five most common canons are:

(a) reading the text as a whole;
(b) giving technical words their technical meaning;
(c) reading words in their context noscitur a sociis;
(d) the ejusdem generis rule and the rank rule;
(e) the expressio unius est exclusio alterius rule.

167. In addition to the above, there are presumptions and precedents which are valuable aids to interpretation. The proper status of decided cases as judicial precedents and aids to interpretation is still not settled. The question is whether previous decisions involving words judicially interpreted are binding as to interpretation of the same words in a different statute. The general rule is that they are not. This view is based on the fact that the ratio decidendi of each case will be specific and confined to the particular piece of legislation being considered. The reasoning on the interpretation of the words of a statute will apply to cases decided on the same legislation. It does not necessarily relate to another statute. It might thus seem that decisions from the Appeals Chamber of the Tribunal on the provisions of the Statute ought to be binding on Trial Chambers, this being the fundamental basis of the appellate process. However, decisions from the same or other jurisdictions which have not construed the same provisions in their decisions as the case being considered, are of merely "persuasive" value.

3. Differences in Statutory Interpretation Between Systems

168. Notwithstanding the similarity between the various systems, some of the significant differences in judicial attitudes towards the use of precedents as an aid to the interpretation of statutes ought to be mentioned. These are differences in:

(i) materials used in argument;
(ii) use of travaux préparatoires;
(iii) styles in judicial opinion;
(iv) styles of justification;
(v) levels of abstraction;
(vi) modes of rationality.

Materials used in argument consist of authoritative and non-authoritative materials, which correspond with the idea of binding and non-binding materials. Authoritative texts which are binding include the statute itself, related instruments, and general principles of law or customary law, whereas dictionaries, technical lexicons and other factors which might have led to the passing of the statute are non-authoritative.

169. It seems to the Trial Chamber that any travaux préparatoires, opinions expressed by members of the Security Council when voting on the relevant resolutions, and the views of the Secretary-General of the United Nations expressed in his Report, on the interpretation of the Articles of the Tribunal’s Statute cannot be ignored in the interpretation of provisions which might be deemed ambiguous. The vast majority of members of the international community rely upon such sources in construing international instruments.

4. Conclusion

170. The International Tribunal is an ad hoc international court, established with a specific, limited jurisdiction. It is sui generis, with its own appellate structure. The interpretation of the provisions of the Statute and Rules must, therefore, take into consideration the objects of the Statute and the social and political considerations which gave rise to its creation. The kinds of grave violations of international humanitarian law which were the motivating factors for the establishment of the Tribunal continue to occur in many other parts of the world, and continue to exhibit new forms and permutations. The international community can only come to grips with the hydra-headed elusiveness of human conduct through a reasonable as well as a purposive interpretation of the existing provisions of international customary law. Thus, the utilisation of the literal, golden and mischief rules of interpretation repays effort.

171. It is with these general observations on interpretation in mind that the Trial Chamber turns its attention to the particular provisions of the Tribunal’s Statute which are applicable in the present case.

B. Applicable Provisions of the Statute

172. The following Articles of the Statute of the International Tribunal are those which the Trial Chamber must consider in rendering its Judgement in the present case. Each of these is discussed in turn below.

Article 1
Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.

Article 2
Grave breaches of the Geneva Conventions of 1949

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.

Article 3
Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.

Article 7
I ndividual criminal responsibility

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.

2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

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.

4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

C. General Requirements for the Application of Articles 2 and 3 of the Statute

1. Provisions of Article

173. The terms of Article 1 provide the starting point for any discussion of the jurisdiction of the International Tribunal and constitute the basis for the more detailed provisions of the articles on jurisdiction which follow. The Tribunal is hereby confined to concerning itself with "serious violations of international humanitarian law" committed within a specific location and time-period. It is within this frame of reference that the Trial Chamber must consider the acts alleged in the Indictment and the applicability of Articles 2 and 3 of the Statute.

174. There is no question that the temporal and geographical requirements of Article 1 have been met in the present case. In their closing written submissions, however, each of the accused, with the exception of Mr. Mucic, challenge the jurisdiction of the Tribunal on the basis that the crimes charged in the Indictment cannot be regarded as "serious" violations of international humanitarian law²¹⁴. This argument was first raised by the Defence in their Motion to Dismiss, although it is unclear in that document whether it is being asserted by all of the accused (excluding Mr. Mucic, who filed a separate motion) or only by the Defence for Mr. Landzo.

175. The Defence²¹⁵ asserts that the International Tribunal was established by the United Nations Security Council to prosecute and punish only the most serious violators of international humanitarian law, that is, those persons in positions of political or military authority, responsible for the most heinous atrocities. The Defence states that the International Tribunal should not "become bogged down in trying lesser violators for lesser violations" as such persons are more appropriately the subjects of prosecution by national courts²¹⁶. In addition, it is argued on behalf of Mr. Landzo that he is but one of thousands of individuals who might be prosecuted for similar offences committed in the former Yugoslavia and this places him in the unfair position of being made into a kind of representative of all these other persons, who are not the subject of proceedings before the International Tribunal.

176. The provisions of Articles 2, 3, 4 and 5 of the Statute set out in some detail the offences over which the International Tribunal has jurisdiction and clearly all of these crimes were regarded by the Security Council as "serious violations of international humanitarian law". Article 7 further establishes that individual criminal responsibility attaches to the perpetrators of such offences and those who plan, instigate, order, or aid and abet the planning, preparation or execution of such offences, as well as, in certain situations, their superiors. It is clear from this latter article that the Tribunal was not intended to concern itself only with persons in positions of military or political authority. This was recognised previously by Trial Chamber I in its "Sentencing Judgement" in the case of Prosecutor v. Drazen Erdemovic, when it stated that "[t]he Trial Chamber considers that individual responsibility is based on Articles 1 and 7(1) of the Statute which grant the International Tribunal full jurisdiction not only over "great criminals" like in Nürnberg - as counsel for the accused maintains – but also over executors." ²¹⁷

177. Article 9 of the Statute enunciates the principle that the International Tribunal has concurrent jurisdiction with national courts for the prosecution of the crimes over which it has jurisdiction. This article also states that the International Tribunal has primacy over such national courts and thus several of the Rules are concerned with the matter of deferral of national prosecutions to the Tribunal. States are, indeed, obliged to comply with formal requests for deferral to the International Tribunal and, therefore, there can be no doubt that the question of forum is one solely to be decided first by the Prosecutor and then by the Judges of the Tribunal.²¹⁸

178. A mere cursory glance over the Indictment at issue in the present case provides a lasting impression of a catalogue of horrific events which are variously classified as crimes such as wilful killing, torture, inhuman acts, cruel treatment and plunder. To argue that these are not crimes of the most serious nature strains the bounds of credibility²¹⁹. While the fact that these acts are not alleged to have occurred on a widespread and systematic scale in this particular situation may have been of relevance had they been charged as crimes against humanity under Article 5 of the Statute, there is no such requirement incorporated in Articles 2 and 3, with which the Trial Chamber is here concerned.

179. The final argument of Mr. Landzo, that he is somehow being presented as a representative of countless others who are not in the custody of the Tribunal or named in any indictment, is also completely without merit. First, this contention is simply incorrect. The Prosecutor has at this time issued 20 public indictments against 58 individuals of various rank and position and several of these individuals have been, are currently being, or are soon to be, tried. There are many and varied reasons why the other indictees are not in the custody of the Tribunal and are, therefore, not subject also to its judicial process, but this is not an issue for the concern of this Trial Chamber in the current context.

180. In addition, it is preposterous to suggest that unless all potential indictees who are similarly situated are brought to justice, there should be no justice done in relation to a person who has been indicted and brought to trial. Furthermore, the decision of whom to indict is that of the Prosecutor alone and, once such an indictment has been confirmed, it is incumbent upon the Trial Chambers to perform their judicial function when such accused persons are brought before them.

181. In sum, the interpretation of Article 1 put forward by the Defence does not bear close scrutiny and is, therefore, dismissed. Accordingly, the Trial Chamber must turn its attention to the substance of Articles 2 and 3 and the requirements for their applicability.

2. Existence of an Armed Conflict

182. In order to apply the body of law termed "international humanitarian law" to a particular situation it must first be determined that there was, in fact, an "armed conflict", whether of an internal or international nature. Without a finding that there was such an armed conflict it is not possible for the Trial Chamber to progress further to its discussion of the nature of this conflict and how this impacts upon the applicability of Articles 2 and 3.

183. For this purpose, the Trial Chamber adopts the test formulated by the Appeals Chamber in its "Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction", in the case of The Prosecutor v. Dusko Tadic (hereafter "Tadic Jurisdiction Decision")²²⁰. According to the Appeals Chamber,

an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.²²¹

The Appeals Chamber continued by stating that,

[i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.²²²

184. Clearly, therefore, this test applies both to conflicts which are regarded as international in nature and to those which are regarded as internal to a State. In the former situation, the existence of armed force between States is sufficient of itself to trigger the application of international humanitarian law. In the latter situation, in order to distinguish from cases of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed violence and the extent of organisation of the parties involved. At this juncture, however, the Trial Chamber does not seek to discuss whether there was an international or an internal armed conflict for the purposes of the determination of the present case, as this will be dealt with in sub-section D below.

185. In addition, whether or not the conflict is deemed to be international or internal, there does not have to be actual combat activities in a particular location for the norms of international humanitarian law to be applicable. Thus, the Trial Chamber is not required to find that there existed an "armed conflict" in the Konjic municipality itself but, rather, in the larger territory of which it forms part.

186. The preceding background section has discussed in some detail the military and political situations in the States of the former SFRY leading up to 1992. Particular attention was focused upon the State of Bosnia and Herzegovina and there is no need for repetition of the relevant facts. Suffice it to say that in Bosnia and Herzegovina as a whole there was continuing armed violence at least from the date of its declaration of independence – 6 March 1992 – until the signing of the Dayton Peace Agreement in November 1995. Certainly involved in this armed violence, and relevant to the present case, were the JNA, the Bosnian Army (consisting of the TO and MUP), the HVO and the VRS.

187. The JNA was the official army of the SFRY and was, after the creation of the FRY, under that State’s authority until its division (the FRY claiming to be the sole legitimate successor State of the SFRY). However, the authorities of the so-called SRBH also announced the existence of their own army in May 1992 – the VSRBH (later the VRS) – which was comprised of former JNA units in Bosnia and Herzegovina. The remainder of the JNA became the VJ, the army of the FRY. The VRS was controlled from Pale by the leadership of the Bosnian Serb administration, headed by Radovan Karadzic, and throughout 1992, and thereafter, it occupied significant amounts of Bosnia and Herzegovina. The HVO was in a position similar to that of the VRS, in that it was established by the self-proclaimed para-State of the Bosnian Croats as its army and operated from territory under its control. The remaining participants, the Bosnian TO and MUP, were clearly acting on behalf of the authorities of Bosnia and Herzegovina.

188. As has been discussed at some length in Section II above, the Konjic municipality was indeed itself the site of some significant armed violence in 1992. In April of that year the municipal TO was mobilized and a War Presidency was formed. The JNA, which had occupied various military facilities and other locations throughout the municipality, was involved in the mobilization of Serb volunteers, in co-operation with the local SDS, and had distributed weapons among them. It also appears that the JNA itself participated in some of the military operations, at least until May 1992.²²³

189. The Trial Chamber has been presented with significant amounts of evidence regarding military attacks on and the shelling of Konjic town itself, as well as many of the villages in the municipality, including Borci, Ljubina, Dzajici and Gakici, by these Serb forces. It is further uncontested that military operations were mounted by the forces of the municipal authorities, incorporating the TO, MUP and, within the period of the Joint Command, the HVO, against the villages of, inter alia, Donje Selo, Bradina, Bjelovcina, Cerici, and Brdani. It was as a result of these operations that persons were detained in the Celebici prison-camp.

190. The level of the fighting in Bosnia and Herzegovina as a whole, as in Konjic itself, was clearly intense and consequently attracted the concern of the United Nations Security Council and General Assembly, along with other international organizations. Acting under Chapter VII of the United Nations Charter, the Security Council passed numerous resolutions in relation to the conflict and consistently called upon all of the parties involved to put an end to their military operations. ²²⁴

191. In Konjic, the TO and MUP were joined for a short period by the HVO as part of a Joint Command established and organized to fight the Serb forces. At the very least, these forces representing the "governmental authorities" were engaged against the forces of the Bosnian Serbs – the JNA and VRS joined by local volunteers and militias – who themselves constituted "governmental authorities" or "organized armed groups". This finding is without prejudice to the possibility that the conflict may in fact have been international and the parties involved States and their representatives.

192. The Trial Chamber must therefore conclude that there was an "armed conflict" in Bosnia and Herzegovina in the period relevant to the Indictment and notes that, regardless of whether or not this conflict is considered internal or international, it incorporated the municipality of Konjic. Thus, the first fundamental precondition is met for the application of international humanitarian law, including those norms of the law incorporated in Articles 2 and 3 of the Statute, to the present case, providing there is shown to be a sufficient nexus between the alleged acts of the accused and this armed conflict.

3. Nexus Between the Acts of the Accused and the Armed Conflict

193. It is axiomatic that not every serious crime committed during the armed conflict in Bosnia and Herzegovina can be regarded as a violation of international humanitarian law. There must be an obvious link between the criminal act and the armed conflict. Clearly, if a relevant crime was committed in the course of fighting or the take-over of a town during an armed conflict, for example, this would be sufficient to render the offence a violation of international humanitarian law. Such a direct connection to actual hostilities is not, however, required in every situation. Once again, the Appeals Chamber has stated a view on the nature of this nexus between the acts of the accused and the armed conflict. In its opinion,

[i]t is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.²²⁵

194. This re-emphasises the view expressed above that there need not have been actual armed hostilities in the Konjic municipality in order for the norms of international humanitarian law to have been applicable. Nor is it required that fighting was taking place in the exact time-period when the acts alleged in the Indictment occurred.

195. This Trial Chamber shares the view of Trial Chamber II in the Tadic Judgment, where it stated that it is not necessary that a crime "be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict.²²⁶" Such a requirement would indeed serve to detract from the force of the concept of individual criminal responsibility.

196. In the present case, all of the alleged acts of the accused took place within the confines of the Celebici prison-camp, a detention facility in the Konjic municipality operated by the forces of the governmental authorities of Bosnia and Herzegovina. The prisoners housed in the prison-camp were arrested and detained as a result of military operations conducted on behalf of the Government of Bosnia and Herzegovina and in the course of an armed conflict to which it was a party. Each of the accused is alleged to have been involved, in some capacity, in the operation of the camp and the acts for which they have been indicted are alleged to have been committed in the performance of their official duties as members of the Bosnian forces.

197. The Trial Chamber is, therefore, in no doubt that there is a clear nexus between the armed conflict in Bosnia and Herzegovina, including the military operations in Konjic, and the acts alleged in the Indictment to have been committed by the four accused in the present case.

198. Having satisfied these more general prerequisites for the applicability of international humanitarian law, it is now possible to turn to the more specific requirements of Articles 2 and 3 of the Statute.

D . Article 2 of the Statute

199. Article 2 of the Statute pertains to "grave breaches of the Geneva Conventions of 1949" and lists eight categories of criminal conduct which fall within the jurisdiction of the International Tribunal when committed against persons or property protected under the provisions of the relevant Geneva Convention. In considering this Article, it therefore falls to the Trial Chamber to determine whether the offences alleged in counts 1, 3, 5, 7, 11, 13, 15, 18, 21, 24, 27, 30, 33, 36, 38, 42, 44, 46 and 48 of the Indictment satisfy the requirements for its application.

200. The four Geneva Conventions of 1949²²⁷ (hereafter "Geneva Conventions" or "Conventions") provide the basis for the conventional and much of the customary international law for the protection of victims of armed conflict. Their provisions seek to guarantee the basic human rights to life, dignity and humane treatment of those taking no active part in armed conflicts and their enforcement by criminal prosecution is an integral part of their effectiveness. The system of mandatory universal jurisdiction over those offences described as "grave breaches" of the Conventions requires all States to prosecute or extradite alleged violators of the Conventions. Hence, this State jurisdiction is concurrent with that of the International Tribunal under Article 2 of the Statute.

201. It seems that both the Prosecution and the Defence are in broad agreement that the application of Article 2 requires the satisfaction of two conditions; first, that the alleged offences were committed in the context of an international armed conflict; and, secondly, that the alleged victims were "persons protected" by the Geneva Conventions. In closing arguments, Mr. Niemann for the Prosecution, stated the view that Article 2 could also be applied in situations of internal armed conflict, yet the Prosecution has consistently maintained that the conflict in Bosnia and Herzegovina must in fact be deemed international by the Trial Chamber.²²⁸

202. While Trial Chamber II in the Tadic case did not initially consider the nature of the armed conflict to be a relevant consideration in applying Article 2 of the Statute²²⁹, the majority of the Appeals Chamber in the Tadic Jurisdiction Decision did find that grave breaches of the Geneva Conventions could only be committed in international armed conflicts and this requirement was thus an integral part of Article 2 of the Statute²³⁰. In his Separate Opinion, however, Judge Abi-Saab opined that "a strong case can be made for the application of Article 2, even when the incriminated act takes place in an internal conflict"²³¹. The majority of the Appeals Chamber did indeed recognise that a change in the customary law scope of the "grave breaches regime" in this direction may be occurring. This Trial Chamber is also of the view that the possibility that customary law has developed the provisions of the Geneva Conventions since 1949 to constitute an extension of the system of "grave breaches" to internal armed conflicts should be recognised.

203. Nonetheless, in the adjudication of the present case, the Trial Chamber deems it apposite to consider the nature of the armed conflict within which the acts alleged in the Indictment occurred. The Defence has, on occasion, asserted that the conflict must be viewed as internal and, more forcefully, that the alleged victims cannot be regarded as "protected persons". The Prosecution, on the other hand, takes the view that the conflict was clearly international and the victims were persons protected under either Geneva Convention III (the Prisoners of War Convention) or Geneva Convention IV (the Civilians Convention). Each of these contentions is thus dealt with in turn.

1. Nature of the Armed Conflict

(a) Arguments of the Partie

204. In its Pre-Trial Brief, the Prosecution maintains that the conflict in Bosnia and Herzegovina must be regarded as international from the date of its independence in March 1992 and at least for the duration of that year²³². The Prosecution quotes the International Committee of the Red Cross²³³ Commentary to Geneva Convention IV²³⁴ (hereafter "Commentary" or "Commentary to Geneva Convention IV") in the view that the Convention applies as soon as de facto hostilities occur. Further, "[a]ny difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2 [of the Geneva Conventions], even if one of the parties denies the existence of a state of war²³⁵." According to the Prosecution, Bosnia and Herzegovina and its armed forces were one of the parties to this international conflict and the other parties were, first, the SFRY and its army, the JNA, and then the FRY and its army, the VJ, along with the SRBH (becoming the RS) and its army, the VSRBH (becoming, and here referred to as, the VRS). It contends that the military involvement of the SFRY and FRY in Bosnia and Herzegovina and the existence of de facto hostilities between them, along with the SRBH/RS whom they controlled, and the State of Bosnia and Herzegovina, was thus sufficient to render the conflict international. Armed hostilities, which did not have a separate status, occurred in the Konjic municipality as part of this international armed conflict.

205. In its Motion to Dismiss, the Defence²³⁶ argue that the Prosecution should not be permitted to posit the existence of an international armed conflict as this issue has already been decided by Trial Chamber II in the Tadic Judgment, a case to which the Prosecution was obviously a party. In that Judgement, Trial Chamber II found that the conditions necessary for the application of Article 2 were not satisfied. The Defence asserts that this was partly on the basis that they did not find there to have been an international armed conflict at the relevant time – the same time-period as concerns the present case. Thus, in the view of the Defence, the matter is res judicata and beyond further debate by the Prosecution. The Defence also points to a reference made by the Appeals Chamber in the Tadic Jurisdiction Decision to an agreement signed in May 1992 by the parties to the conflict in Bosnia and Herzegovina as evidence that they themselves considered the conflict to be internal, and concludes that the Appeals Chamber has thus also resolved the matter of the nature of the conflict contrary to the position taken by the Prosecution. The Defence additionally asserts that the evidence before the Trial Chamber does not reveal a sufficient degree of control by the FRY over the actions of the VRS to merit a finding different from that of Trial Chamber II in the Tadic Judgment.

206. In its Response to the Defence Motion to Dismiss, the Prosecution maintains once again that the evidence shows that there existed an international armed conflict in 1992 between Bosnia and Herzegovina on the one side and the SFRY, FRY and SRBH/RS on the other. It claims that there was clear, direct involvement of the JNA and VJ in the conflict, as well as a requisite level of linkage between these forces and those of the SRBH/RS, for the latter to be regarded as forming part of a party to this international armed conflict. The Defence Reply to this Response discusses the decision of the ICJ in the Nicaragua Case ²³⁷in support of its view that the FRY did not exercise a sufficient amount of command and control over the SRBH/RS and their forces in order to render them part of the FRY forces.²³⁸

207. In its Closing Brief, the Prosecution reiterates its previous arguments and emphasises that the conflict in Konjic cannot be viewed separately from that in Bosnia and Herzegovina as a whole²³⁹. In its view, if the latter was an international armed conflict, it is irrelevant whether or not the JNA or VJ were present in the Konjic municipality itself, or whether there were actual combat activities there, during the entire time-period relevant to the Indictment. The Prosecution also challenges the test of "effective control" adopted in the Nicaragua Case and utilised by the majority in the Tadic Judgment for determining whether the VRS was acting as an agent of the FRY, and urges the Trial Chamber to adopt a different standard. It maintains that it has adduced more than enough evidence to show that the VRS and Bosnian Serb militia were demonstrably linked to the FRY and VJ and has, in fact, also satisfied the stricter standard of "effective control" advocated by the Defence. The Closing Briefs of the Defence are confined to a restatement of their previous arguments on this issue.²⁴⁰

(b) Discussion

208. In its adjudication of the nature of the armed conflict with which it is concerned, the Trial Chamber is guided by the Commentary to the Fourth Geneva Convention, which considers that "[a]ny difference arising between two States and leading to the intervention of members of the armed forces" is an international armed conflict and "[i]t makes no difference how long the conflict lasts, or how much slaughter takes place."²⁴¹

209. Before proceeding any further, the Trial Chamber deems it necessary to address the possibility that there may be some confusion as to the parameters of this concept of an "international armed conflict". We are not here examining the Konjic municipality and the particular forces involved in the conflict in that area to determine whether it was international or internal. Rather, should the conflict in Bosnia and Herzegovina be international, the relevant norms of international humanitarian law apply throughout its territory until the general cessation of hostilities, unless it can be shown that the conflicts in some areas were separate internal conflicts, unrelated to the larger international armed conflict. Should the entire conflict in Bosnia and Herzegovina be considered internal, the provisions of international humanitarian law applicable in such internal conflicts apply throughout those areas controlled by the parties to the conflict, until a peaceful settlement is reached.

210. In the present case the Trial Chamber is concerned only with Geneva Conventions III and IV, as the Prosecution has asserted that the victims of the acts alleged were all either protected civilians or prisoners of war. Article 6 of the Fourth Geneva Convention provides for its immediate application at the outset of any armed conflict between two or more of the "High Contracting Parties" to the Convention, this ceasing only upon the general close of military operations. Article 5 of the Third Geneva Convention provides for its application to all prisoners of war from the time they fall into the power of the enemy and until their final release and repatriation – this may be either before or after the end of the conflict itself. It is, however, important to note that the issue of whether the conflict was international in nature is quite separate from that of whether the individual victims of the alleged criminal acts were protected persons, although, as is discussed later, they are obviously closely related.

211. The relevant question to be addressed by the Trial Chamber is, therefore: was there an international armed conflict in Bosnia and Herzegovina in May 1992 and did that conflict continue throughout the rest of that year, when the offences charged in the Indictment are alleged to have been committed?

212. There can be no question that the JNA strengthened its presence in Bosnia and Herzegovina throughout the latter half of 1991 and into 1992 and that, consequently, significant numbers of its troops were on the ground when the government declared the State’s independence on 6 March 1992. Witnesses for both the Prosecution and the Defence have testified that the initial aim of the JNA was to prevent the break-away of Bosnia and Herzegovina from the SFRY and that, by the time of Bosnia and Herzegovina’s declaration of independence, the JNA was dominated largely by Serbia and staffed mainly by Serb officers. In addition, the JNA had been providing arms and equipment to the Serb population of Bosnia and Herzegovina from 1991, who had, in turn, been organising themselves into various units and militia in preparation for combat. Similarly, the Bosnian Croat population had been receiving such support from the Government of Croatia and its armed forces.

213. As already noted in Section II above, there is substantial evidence that the JNA was openly involved in combat activities in Bosnia and Herzegovina from the beginning of March and into April and May of 1992, aided by various paramilitary groups. This offensive was accompanied by a campaign designed to drive non-Serbs out of desired territory, a practice gaining notoriety under the term "ethnic cleansing"²⁴². As a result, the Government of the newly independent State of Bosnia and Herzegovina found its authority limited to a core area, surrounded by regions controlled by hostile Serb forces. The United Nations Security Council and the European Community recognised the involvement of these and other outside forces in the conflict by calling for the Governments of Croatia and Serbia to "exert their undoubted influence" and demanding the cessation of all forms of outside interference. In early May 1992, however, the authorities in the FRY, clearly asserting control of the JNA, announced that all of its personnel who were not citizens of Bosnia and Herzegovina would be withdrawn by 19 May.²⁴³

214. On the basis of this evidence alone, the Trial Chamber can conclude that an international armed conflict existed in Bosnia and Herzegovina at the date of its recognition as an independent State on 6 April 1992. There is no evidence to indicate that the hostilities which occurred in the Konjic municipality at that time were part of a separate armed conflict and, indeed, there is some evidence of the involvement of the JNA in the fighting there.

215. It is evident that there was no general cessation of hostilities in Bosnia and Herzegovina until the signing of the Dayton Peace Agreement in November 1995. The Trial Chamber must, however, address the possibility that the nature of the armed conflict was changed by the withdrawal of the external forces involved, and hence the cessation of those hostilities, and the commencement of a distinct, self-contained, internal conflict between the Government of Bosnia and Herzegovina and organised armed groups within that State.

216. On 15 May 1992, the United Nations Security Council adopted resolution 752 which noted the decision of the Belgrade authorities to withdraw JNA personnel from Bosnia and Herzegovina and once again demanded that all forms of outside interference, including units of the JNA and elements of the Croatian army, cease immediately. The resolution demanded that those units of the JNA and Croatian army still present in Bosnia and Herzegovina be withdrawn, or be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed. This call echoed the demands of the European Community made in a Declaration on Bosnia and Herzegovina on 11 May²⁴⁴ and also of the Committee of Senior Officials of the CSCE in its Declaration on Bosnia and Herzegovina on 12 May, which noted the aggression against the Bosnian State and identified the JNA as participants in this aggression²⁴⁵. The Government of the FRY responded to the latter two Declarations by emphasising that the withdrawal of JNA personnel from Bosnia and Herzegovina was in progress and expressing its dismay at the "one-sided manner" in which the European Community was addressing the crisis in Bosnia.²⁴⁶

217. As has been previously noted, on 13 May 1992 the SRBH had announced its decision to form the army of the Serb Republic, comprised of units of the former JNA based in Bosnia and Herzegovina. The commander of this new army (the VRS) was General Ratko Mladic, of the JNA, and it answered to the authorities of the SRBH/RS in Pale. The remaining units of the JNA then became the army of the FRY, named the VJ.

218. The plan to divide the JNA into the VRS and the VJ, so as to disguise its presence in Bosnia and Herzegovina once that Republic became an independent State, was conceived several months earlier in Belgrade. On 5 December 1991, the Serbian president, Slobodan Milosevic, and Serbia’s representative in the Presidency of the SFRY, Borisav Jovic, met and discussed the issue of a future conflict in Bosnia. According to the diary which Jovic kept of the meeting that day:

When Bosnia-Herzegovina is recognised internationally, the JNA will be declared a foreign army and its withdrawal will be demanded, which is impossible to avoid. In that situation, the Serb population in Bosnia-Herzegovina, which has not created its own paramilitary units, will be left defenseless and under threat.

Sloba feels that we must withdraw all citizens of Serbia and Montenegro from the JNA in Bosnia-Herzegovina in a timely fashion and transfer citizens of Bosnia-Herzegovina to the JNA there in order to avoid general military chaos upon international recognition, caused by moving the military around from one part of the country to another. That will also create the possibility for the Serb leadership in Bosnia-Herzegovina to assume command over the Serb part of the JNA […]²⁴⁷

219. Clearly, this project had been put in motion well in advance and the JNA utilised to strengthen the local Serb forces in preparation for conflict. The military expert witness for the Defence, Brigadier Vejzagic, told the Trial Chamber that,

[t]he JNA was included into the process of forming, organising, training and equipping with arms as well as was the SDS party, they worked hand in hand to create Serbian forces, which might, once the JNA was withdrawn, make a new military power, a new military force of the Serbian republic. ²⁴⁸

220. In addition, General Veljko Kadijevic, former Federal Defence Minister of the SFRY, has stated that,

we had to orient ourselves toward concrete cooperation with representatives of the Serbs and with the Serb nation as such. … This had enabled us during the war in Croatia to manoeuvre and move JNA troops via Bosnia-Herzegovina, which was of vital significance for the JNA. ... This also enabled the mobilisation in the Serb parts of Bosnia-Herzegovina to be very successful.

Assessing the further development of events, we felt that after leaving Croatia we should have strong JNA forces in Bosnia-Herzegovina. […]

[…] The units and headquarters of the JNA formed the backbone of the army of the Serb Republic, complete with weaponry and equipment. That army, with the full support of the Serb people, which is required in any modern war, protected the Serb people and created the military conditions for an adequate political solution that would meet its national interests and goals, to the extent, of course, that present international circumstances allow. ²⁴⁹

221. Despite the attempt at camouflage by the authorities of the FRY and their insistence that all non-Bosnian JNA troops had been removed from Bosnia and Herzegovina by 19 May, and that they were, consequently, no longer taking any decisions which could affect the conflict there²⁵⁰, the United Nations Security Council recognised the continued influence and control that Belgrade exercised over the Serb forces in Bosnia and Herzegovina. In resolution 757, on 30 May 1992, the Security Council deplored the fact that its demands for the withdrawal of external armed forces, particularly units of the JNA, from Bosnia and Herzegovina, in resolution 752, had not been fully complied with. It condemned the failure of the authorities of the FRY to take effective measures to implement resolution 752 and also demanded that any elements of the Croatian Army still present in Bosnia and Herzegovina act in accordance with that resolution. The Security Council went further and imposed comprehensive trade sanctions on the FRY for its non-compliance, stating that these would remain in place until effective measures were taken to fulfil the requirements of resolution 752.

222. The United Nations General Assembly also issued a resolution in August 1992, which demanded the withdrawal of all remaining units of the JNA and the Croatian Army – a clear indication that it also believed these forces still to be involved in the conflict²⁵¹. Subsequently, in a report dated 3 December 1992, the United Nations Secretary-General emphasised that this resolution had not been complied with. He stated that the United Nations force (UNPROFOR) in Bosnia and Herzegovina had "received credible reports of extensive involvement of forces of the Croatian Army in Bosnia and Herzegovina." In addition, "[t]he Bosnian Serb forces allegedly continue to receive supplies and support from elements in the Federal Republic of Yugoslavia (Serbia and Montenegro)." Furthermore, "[t]hough [the] JNA has withdrawn completely from Bosnia and Herzegovina, former members of Bosnian Serb origin have been left behind with their equipment and constitute the Army of the Serb Republic."²⁵²

223. It further appears that those forces of the former JNA which had been transformed into the VJ continued to play an active role in the Bosnian conflict. The Prosecution expert witness, Dr Gow, testified that, after 19 May 1992 the VJ contributed in terms of personnel and supplies to the execution of the Serbian "new State project" in Bosnia and Herzegovina. It supported the VRS where additional support or special forces were required and it continued to act as one body with the VRS, albeit with a broad degree of operational authority given to the commander in Bosnia and Herzegovina, General Mladic, whose objectives were to execute the armed campaign without bringing Belgrade’s role into question. VJ troops were also specifically identified in a number of locations throughout the conflict, for example during the air operations in 1994 and in the Posavina region. Dr. Gow further stated that, while the Serbian authorities in Belgrade professed to having no more active role in the conflict, as well as conceiving of the plan to expand Serb controlled territory and participating in the execution of this plan through the VRS and VJ, their security service also organised Serbian paramilitary groups in Bosnia and Herzegovina. The continued involvement of those elements of the JNA which had become the VJ is supported also by the above-mentioned calls for the complete withdrawal of outside forces by, inter alia, the United Nations Security Council and General Assembly.

224. In October 1991, the Assembly of the Serbian people in Bosnia and Herzegovina had already issued a decision to remain in "the Joint State of Yugoslavia"²⁵³. It subsequently determined that various areas within Bosnia and Herzegovina would remain part of this State²⁵⁴. In March 1992 it proclaimed a Constitution for the SRBH, reaffirming this principle²⁵⁵. Thus, the conflict in which the forces of this purported Republic were involved, was fought primarily to further this aim and to expand the territory which would form part of the Republic. This does not display the existence of a separate armed conflict from 19 May 1992 with different aims and objectives from the conflict involving the FRY and JNA. Rather, it evinces a continuation of that conflict. The FRY, at the very least, despite the purported withdrawal of its forces, maintained its support of the Bosnian Serbs and their army and exerted substantial influence over their operations.

225. The Government of Bosnia and Herzegovina, for its part, undoubtedly considered itself to be involved in an armed conflict as a result of aggression against that State by Serbia and Montenegro, the Yugoslav Army and the SDS²⁵⁶. On 20 June 1992, it proclaimed a state of war, identifying these parties as the aggressors, despite the insistence of the FRY that it was no longer involved in the conflict. In addition, it clearly considered the Bosnian Serb forces organised by the SDS to be a party to that same armed conflict.²⁵⁷

226. It is clear that the "new" army belonging to the Bosnian Serbs constituted no more than a re-designation of the JNA units in Bosnia and Herzegovina. The expert witness, Brigadier Vejzagic, explained that,

[the w]ithdrawal of the JNA from B-H was done in such a way that formations numbering 60 to 80 thousand members of the former JNA were transformed into the Army of [the] self-proclaimed "Serb Republic of B-H". The JNA left all arms for the Army of Bosnian Serbs as well as ammunition and all other necessary military equipment.

227. Despite the formal change in status, the command structure of the new Bosnian Serb army was left largely unaltered from that of the JNA, from which the Bosnian Serbs received their arms and equipment as well as through local SDS organizations.

228. There can be no question that the issue of the nature of the armed conflict relevant to the present case is not res judicata²⁵⁹. The principle of res judicata only applies inter partes in a case where a matter has already been judicially determined within that case itself. As in national criminal systems which employ a public prosecutor in some form, the Prosecution is clearly always a party to cases before the International Tribunal. The doctrine of res judicata is limited, in criminal cases, to the question of whether, when the previous trial of a particular individual is followed by another of the same individual, a specific matter has already been fully litigated. In national systems where a public prosecutor appears in all criminal cases, the doctrine is clearly not applied so as to prevent the prosecutor from disputing a matter which the prosecutor has argued in a previous, different case. Moreover, this Trial Chamber is certainly not bound by the Decisions of other Trial Chambers in past cases and must make its findings based on the evidence presented to it and its own interpretation of the law applicable to the case at issue. The circumstances of each case differ significantly and thus also the evidence presented by the Prosecution. Even should the Prosecution bring evidence which is largely similar to that presented in a previous case, the Trial Chamber’s assessment of it may lead to entirely different results.

229. It is, further, incorrect to contend that the Appeals Chamber has already settled the matter of the nature of the conflict in Bosnia and Herzegovina. In the Tadic Jurisdiction Decision the Chamber found that "the conflicts in the former Yugoslavia have both internal and international aspects" ²⁶⁰and deliberately left the question of the nature of particular conflicts open for the Trial Chambers to determine. Its reference to an agreement made by representatives of Bosnia and Herzegovina, the Bosnian Serbs, and the Bosnian Croats in May 1992 merely demonstrates that some of the norms applicable to international armed conflicts were specifically brought into force by the parties to the conflict in Bosnia and Herzegovina, some of whom may have wished it to be considered internal, and does not show that the conflict must therefore have been internal in nature²⁶¹. Indeed, the subsequent Proclamation of a State of War by the Bosnian Government would tend to illustrate that that party, at least, took the view that it was international.

230. A lengthy discussion of the Nicaragua Case is also not merited in the present context. While this decision of the ICJ constitutes an important source of jurisprudence on various issues of international law, it is always important to note the dangers of relying upon the reasoning and findings of a very different judicial body concerned with rather different circumstances from the case in hand. The International Tribunal is a criminal judicial body, established to prosecute and punish individuals for violations of international humanitarian law, and not to determine State responsibility for acts of aggression or unlawful intervention. It is, therefore, inappropriate to transpose wholesale into the present context the test enunciated by the ICJ to determine the responsibility of the United States for the actions of the contras in Nicaragua. ²⁶²

231. With this in mind, we can consider a very important point of distinction between the Nicaragua Case and the one here at issue. In that case, the ICJ was charged with determining whether there had been a use of force in violation of customary international law and article 2(4) of the United Nations Charter by the United States against Nicaragua, as well as an unlawful intervention in the internal affairs of Nicaragua on the part of the United States. This issue rests on the predominant, traditional perception of States as bounded entities possessed of sovereignty which cannot be breached or interfered with. More specifically, what was in question was the incursion of the forces of one such distinct, bounded entity into another and the operation of agents of that entity within the boundaries of the other. In contrast, the situation with which we are here concerned, is characterised by the breakdown of previous State boundaries and the creation of new ones. Consequently, the question which arises is one of continuity of control of particular forces. The date which is consistently raised as the turning point in this matter is that of 19 May 1992, when the JNA apparently withdrew from Bosnia and Herzegovina.

232. The Trial Chamber must keep in mind that the forces constituting the VRS had a prior identity as an actual organ of the SFRY, as the JNA. When the FRY took control of this organ and subsequently severed the formal link between them, by creating the VJ and VRS, the presumption remains that these forces retained their link with it, unless demonstrated otherwise.²⁶³

233. The Trial Chamber’s position accords fully with that taken by Judge McDonald in her Dissent to the majority Judgment in the Tadic case. Judge McDonald found that:

[t]he evidence proves that the creation of the VRS was a legal fiction. The only changes made after the 15 May 1992 Security Council resolution were the transfer of troops, the establishment of a Main Staff of the VRS, a change in the name of the military organisation and individual units, and a change in the insignia. There remained the same weapons, the same equipment, the same officers, the same commanders, largely the same troops, the same logistics centres, the same suppliers, the same infrastructure, the same source of payments, the same goals and mission, the same tactics, and the same operations.²⁶⁴

[…]

… [i]t would perhaps be naïve not to recognize that the creation of the VRS, which coincided with the announced withdrawal by the JNA, was in fact nothing more than a ruse.²⁶⁵

234. In light of the above discussion, the Trial Chamber is in no doubt that the international armed conflict occurring in Bosnia and Herzegovina, at least from April 1992, continued throughout that year and did not alter fundamentally in its nature. The withdrawal of JNA troops who were not of Bosnian citizenship, and the creation of the VRS and VJ, constituted a deliberate attempt to mask the continued involvement of the FRY in the conflict while its Government remained in fact the controlling force behind the Bosnian Serbs. From the level of strategy to that of personnel and logistics the operations of the JNA persisted in all but name. It would be wholly artificial to sever the period before 19 May 1992 from the period thereafter in considering the nature of the conflict and applying international humanitarian law. ²⁶⁶

235. Having reached this conclusion, the Trial Chamber makes no finding on the question of whether Article 2 of the Statute can only be applied in a situation of international armed conflict, or whether this provision is also applicable in internal armed conflicts. The issue which remains to be decided is simply whether the victims of the acts alleged in the Indictment were "persons protected" by the Geneva Conventions of 1949.

2. Status of the Victims as "Protected Persons"

(a) Positions of the Partie

236. In its Pre-Trial Brief, the Prosecution asserts that all of the victims of the acts alleged in the Indictment were at all relevant times "persons protected" by either the Third Geneva Convention, on prisoners of war, or the Fourth Geneva Convention, on civilians. Article 4 of the Fourth Geneva Convention states:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

237. The provisions of the second paragraph of article 4 are, however, wider in application, as defined in article 13:

Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention.

238. Article 4(A) of the Third Geneva Convention defines those who are subject to its protection in the following terms:

Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognisable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

239. Thus, the Prosecution maintains that the victims of the acts alleged in the Indictment were either non-combatants linked to one side in an international armed conflict and in the hands of the other side to that conflict, or prisoners of war from one side in the conflict, detained by the other side. Due to the nature of the crimes charged, the Prosecution deems it irrelevant which of the two Conventions is applied, except in relation to the charge of unlawful confinement of civilians.²⁶⁷

240. In their Pre-Trial Briefs, the Defence for Mr. Landzo and Mr. Delic respond that the alleged victims do not satisfy the requirements of article 4(A) of Geneva Convention III or of article 4 of Geneva Convention IV and therefore cannot be "protected persons". In their view, the definition of "prisoners of war" is strict and the detainees in the Celebici prison-camp did not fit into any of the categories listed in article 4(A). In addition, the nationality of all of the detainees was Bosnian, the same as that of the party to the conflict detaining them and, thus, they are outwith the ambit of article 4 of Geneva Convention IV.

241. The Prosecution counters these arguments by contending that the victims in the present case were all Bosnian Serbs and, as such, should not be considered as nationals of Bosnia and Herzegovina. During its case it brought an expert witness on the question of nationality, Professor Constantine Economides, who discussed the concept of an "effective link" requirement between a State and its nationals, as well as the development of the right of an individual to opt for a particular nationality. In its Motion to Dismiss, the Defence maintains its position and considers the testimony of Professor Economides as confirming rather than refuting it.²⁶⁸

242. The Prosecution argues, in its Response to the Motion to Dismiss, that it is unnecessary to consider whether some of the victims were prisoners of war, unless it is found that they cannot qualify as protected civilians on account of their nationality. Its position remains that some of the detainees were civilians while others may have been prisoners of war and, in relation to the latter of these categories, if there was any doubt as to their status, article 5 of Geneva Convention III required that they should receive the protections of that Convention until a "competent tribunal" had made a proper determination. In any case, in its view, it does not matter whether it is unclear if some persons were civilians or prisoners of war, for there is no gap between the Conventions and their provisions on "grave breaches" are the same in relation to the offences alleged in the Indictment. While some individuals may indeed have been involved in activities "hostile to the security of the State", and thus they may have been legitimately detained, they were nevertheless protected by article 5 of the Fourth Geneva Convention, which requires their humane treatment.

243. In their Closing Briefs, the Prosecution and the Defence restate these positions and discuss the evidence which has been adduced in relation to the status of the detainees in the Celebici prison-camp. The Defence for Mr. Delalic, Mr. Mucic and Mr. Delic particularly argue that there can be no doubt that the relevant persons were not part of the armed forces of a party to the conflict, nor of an irregular militia or resistance movement satisfying the conditions of article 4(A)(2) of the Third Geneva Convention, nor of a levée en masse as envisaged in article 4(A)(6). The Prosecution focuses on the Fourth Geneva Convention and urges the Trial Chamber to take an approach which extends the protection of the Geneva Conventions equally and fairly to all victims on all sides of the conflict.

(b) Discussion

244. It is logical to deal in turn with the relevant provisions of the two Geneva Conventions with which we are here concerned. For the sake of clarity, the Trial Chamber deems it most appropriate first to address the question of protection under the Fourth Geneva Convention and to then consider the requirements of the Third Geneva Convention.

(i) Were the Victims Protected Civilians?

245. The operative part of article 4 of the Fourth Geneva Convention for the present purposes is clearly the first paragraph, in particular the requirement that persons be "in the hands of a party to the conflict or occupying power of which they are not nationals" in order to be considered "protected". It is this phrase which has engendered such intense discussion of the concept of nationality by the parties in this case, as well as in other cases, and in recent literature on this area of international humanitarian law. It is also here that there arises a connection with the issue of the nature of the armed conflict, for clearly a showing that individuals are "in the hands of" a party of foreign nationality would generally lead to the conclusion that the conflict is international in nature. Conversely, if individuals are deemed not to be protected by the Fourth Geneva Convention on the grounds that they are of the same nationality as their captors, it may well be, although it does not necessarily follow, that the relevant conflict is an internal one.²⁶⁹

246. It is necessary to note that the expression "in the hands of" is used in article 4 in a general sense. It is not to be understood merely in the physical sense of being held prisoner, but indicates that the civilian in question is in territory which is under the control of an opposing party to the conflict²⁷⁰. This issue clearly does not arise in the present case as there is no dispute that the victims of the alleged offences were, at all relevant times, detained in a prison-camp belonging to the Bosnian authorities, a party to the conflict. The Trial Chamber thus may proceed directly with a discussion of the question of nationality.

247. Traditional tenets of international legal theory maintained that States are the only real subjects of international law. Thus, individuals were only of concern to international law as part of the State to which they are linked by their nationality²⁷¹. In consequence, it is a matter for a State’s domestic jurisdiction who are to be considered its nationals. Jennings and Watts state this position thus:

In principle, and subject to any particular international obligations which might apply, it is not for international law but for the internal law of each State to determine who is, and who is not, to be considered its national.²⁷²

248. However, international law does have a role to play in placing limitations on States in the exercise of their discretion in the granting of nationality. Jennings and Watts concede,

although the grant of nationality is for each State to decide for itself in accordance with its own laws, the consequences as against other States of this unilateral act occur on the international plane and are to be determined by international law.

… the determination by each State of the grant of its own nationality is not necessarily to be accepted internationally without question.²⁷³

249. The Hague Convention of 1930 on Certain Questions Relating to the Conflict of Nationality Laws also reflects this position. In its first article, it provides that, while it is for each State to determine under its own law who are its nationals, such law must be recognised by other States only "in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality."²⁷⁴

250. It was in the spirit of the traditional view of the role of international law that article 4 of the Fourth Geneva Convention was phrased in the negative to exclude from that Convention’s protection persons who are considered "nationals" of the State in whose hands they are. As observed in the Commentary, "the Convention thus remains faithful to a recognised principle of international law: it does not interfere in a State’s relations with its own nationals²⁷⁵." The Commentary summarises the meaning of this first part of article 4 thus:

there are two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to the conflict and (2) the whole population of occupied territories (excluding the nationals of the Occupying Power).²⁷⁶

251. An analysis of the relevant laws on nationality in Bosnia and Herzegovina in 1992 does not, however, reveal a clear picture. At that time, as we have discussed, the State was struggling to achieve its independence and all the previous structures of the SFRY were dissolving. In addition, an international armed conflict was tearing Bosnia and Herzegovina apart and the very issue which was being fought over concerned the desire of certain groups within its population to separate themselves from that State and join with another.

252. According to the 1974 constitution of the SFRY, every citizen of one of its constituent republics was simultaneously a citizen of the SFRY. Thus, all citizens of Bosnia and Herzegovina were also considered citizens of the SFRY and remained so until its dissolution. Although Bosnia and Herzegovina declared its independence in March 1992, it did not pass any legislation on citizenship until October of that year, in the form of a decree which was subsequently supplemented by further decrees²⁷⁷. This provided that all people who had the citizenship of Bosnia and Herzegovina in accordance with previous regulations were to be considered citizens, and also allowed for the possibility of people holding another nationality simultaneously. In an additional decree of 23 April 1993, all those who had citizenship of the SFRY on 6 April 1992 and were domiciled in Bosnia and Herzegovina, were to be considered citizens of Bosnia and Herzegovina. ²⁷⁸

253. Despite this, the Bosnian Serbs, in their purported constitution of the SRBH, proclaimed that citizens of the Serb Republic were citizens of Yugoslavia.²⁷⁹ This was confirmed in a subsequent "Law on Serb Citizenship" passed by the National Assembly of Republika Srpska on 18 December 1992²⁸⁰. The constitution of the FRY of 27 April 1992, however, does not appear to allow for the extension of its citizenship beyond the citizens of Serbia and Montenegro.²⁸¹

254. In the context of these provisions, the Prosecution has urged the Trial Chamber to consider two principles in determining whether the Bosnian Serb victims of the alleged offences in the Indictment can be considered "protected persons" in relation to the Bosnian government authorities which were detaining them. These are the emerging doctrine of the right under international law to the nationality of one’s own choosing, and the requirement of an effective link between a State and its nationals in order for the grant of nationality to be recognised on the international plane. These are discussed here briefly.

255. In its consideration of the relevant international law on nationality, the Trial Chamber notes the evidence of Professor Economides on the work of the International Law Commission (hereafter "ILC") on nationality issues in cases of State succession. In addition, the Professor testified about the Declaration on the Consequences of State Succession for the Nationality of Natural Persons, prepared by the European Commission for Democracy through Law (hereafter "Venice Commission"). He explained that the conclusions of both of these bodies were that there existed certain fundamental principles, namely: that each individual involved in a case of State succession has the right to a nationality; that States must endeavour to avoid cases of statelessness; and that the will of the persons involved must be respected by a State conferring its nationality. The Professor also testified that it is a rule of customary international law that a successor State must grant its nationality to all nationals of the predecessor State habitually residing in its territory. He took the view that the will of the persons involved in a State succession was gaining ground as a criterion for the granting of nationality and, while a State may automatically confer its nationality on a person after a succession has taken place, after a period of time it must allow him or her to exercise their right to opt for another nationality.

256. It is not, however, altogether clear that the obligation on States to grant such a right is a settled rule of international law. The Draft Articles on Nationality in Relation to the Succession of States produced by the ILC²⁸², along with the Venice Commission Declaration, which refer to this right, probably cannot be said to yet reflect binding customary international law, on the basis of State practice and opinio juris²⁸³. In any case, whilst the Arbitration Commission established by the European Community (the Badinter Commission) expressed the opinion that the successor States of the SFRY must afford minorities and ethnic groups, such as the Serbian population in Bosnia and Herzegovina, the right to choose their nationality²⁸⁴, it is clear that no formal act was taken by Bosnia and Herzegovina to implement this right. It is, therefore, difficult for the Trial Chamber to conclude that the principle of a right of option is, of itself, determinative in viewing the Bosnian Serbs to be non-nationals of Bosnia and Herzegovina.

257. Professor Economides also referred to the doctrine of "effective link" as having a role to play in cases of armed conflict when there is some ambiguity concerning the nationality of the various groups involved. This doctrine gained currency after the Nottebohm Case, decided by the ICJ in 1955²⁸⁵. In that case, the ICJ stated that,

nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred … is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.²⁸⁶

Thus the Court found that Mr. Nottebohm could not be considered a national of Liechtenstein for the purposes of a claim against Guatemala, a State with which he had, in fact, a closer connection.

258. There has been a considerable amount of literature written on the Nottebohm Case and its implications and limitations. However, although the principle of effective link traditionally was recognised in the context of dual nationality, "the particular context of origin does not obscure its role as a general principle with a variety of possible applications²⁸⁷." Thus, operating on the international plane, the International Tribunal may choose to refuse to recognise (or give effect to) a State’s grant of its nationality to individuals for the purposes of applying international law. ²⁸⁸

259. Assuming that Bosnia and Herzegovina had granted its nationality to the Bosnian Serbs, Croats and Muslims in 1992, there may be an insufficient link between the Bosnian Serbs and that State for them to be considered Bosnian nationals by this Trial Chamber in the adjudication of the present case. The granting of nationality occurred within the context of the dissolution of a State and a consequent armed conflict. Furthermore, the Bosnian Serbs had clearly expressed their wish not to be nationals of Bosnia and Herzegovina by proclaiming a constitution rendering them part of Yugoslavia and engaging in this armed conflict in order to achieve that aim. Such a finding would naturally be limited to the issue of the application of international humanitarian law and would be for no wider purpose. It would also be in the spirit of that law by rendering it as widely applicable as possible.

260. Reference should also here be made to the concept of agency, discussed by Trial Chamber II in the Tadic Judgment. This approach to the issue of protection under the Fourth Geneva Convention considers whether the Bosnian Serbs should be regarded as the agents of the FRY on the basis of its control over them. Thus, persons "in the hands of" the forces of the Bosnian Serbs are constructively "in the hands of" the FRY, a foreign party to the conflict. In the Tadic Jurisdiction Decision, the Appeals Chamber addressed this possibility and reasoned that the outcome of the application of the agency concept would render Bosnian Serb civilians in the hands of Bosnian government forces unprotected by the Fourth Geneva Convention, while Bosnian Muslim and Croat civilians in the hands of Bosnian Serb forces would be protected persons. The Appeals Chamber labelled such an asymmetrical outcome as "absurd" and thus dismissed the Prosecution’s argument in that case that the Security Council had determined the conflict to be international in nature when it adopted the Statute of the International Tribunal. ²⁸⁹

261. However, it is the view here taken that such an outcome is not the inevitable consequence of the application of the doctrine. As has been discussed, it is not necessarily the case that Bosnian Serb civilians are to be viewed as Bosnian nationals for the purpose of applying the grave breaches regime of the Fourth Geneva Convention. Hence, it would be possible to regard Bosnian Serb civilians as protected when detained by Bosnian government forces. ²⁹⁰

262. Given the reasoning set out above in the discussion of the international nature of the conflict in Bosnia and Herzegovina in 1992, this Trial Chamber takes a different view to that of the majority in the Tadic Judgment. It has been found that the purported withdrawal of the JNA and severance of involvement of the FRY in the conflict after 19 May 1992 was merely a smokescreen and that there can be no doubt of their continued influence. There was a clear common purpose between the FRY and the Bosnian Serbs to execute a project conceived of in Belgrade – that of an expanded Serbian State – and it is, therefore, possible to regard the Bosnian Serbs as acting on behalf of the FRY in its continuing armed conflict against the authorities of Bosnia and Herzegovina.

263. Bearing in mind the relative merits of the "effective link" and the "agency" approaches, this Trial Chamber wishes to emphasise the necessity of considering the requirements of article 4 of the Fourth Geneva Convention in a more flexible manner. The provisions of domestic legislation on citizenship in a situation of violent State succession cannot be determinative of the protected status of persons caught up in conflicts which ensue from such events²⁹¹. The Commentary to the Fourth Geneva Convention charges us not to forget that "the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests"²⁹² and thus it is the view of this Trial Chamber that their protections should be applied to as broad a category of persons as possible. It would, indeed, be contrary to the intention of the Security Council, which was concerned with effectively addressing a situation that it had determined to be a threat to international peace and security, and with ending the suffering of all those caught up in the conflict, for the International Tribunal to deny the application of the Fourth Geneva Convention to any particular group of persons solely on the basis of their citizenship status under domestic law.

264. The law must be applied to the reality of the situation before us and thus, to reiterate, the relevant facts are as follows:

- Upon the dissolution of the SFRY, an international armed conflict between, at least, the FRY and its forces and the authorities of the independent State of Bosnia and Herzegovina took place;
- A segment of the population of Bosnia and Herzegovina, the Bosnian Serbs, declared their independence from that State and purported to establish their own Republic which would form part of the FRY;
- The FRY armed and equipped the Bosnian Serb population and created its army, the VRS;
- In the course of military operations in the Konjic municipality, being part of this international armed conflict, the Bosnian government forces detained Bosnian Serb men and women in the Celebici prison-camp.

265. Without yet entering the discussion of whether or not their detention was unlawful, it is clear that the victims of the acts alleged in the Indictment were arrested and detained mainly on the basis of their Serb identity. As such, and insofar as they were not protected by any of the other Geneva Conventions, they must be considered to have been "protected persons" within the meaning of the Fourth Geneva Convention, as they were clearly regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State.

266. This interpretation of the Convention is fully in accordance with the development of the human rights doctrine which has been increasing in force since the middle of this century. It would be incongruous with the whole concept of human rights, which protect individuals from the excesses of their own governments, to rigidly apply the nationality requirement of article 4, that was apparently inserted to prevent interference in a State’s relations with its own nationals²⁹³. Furthermore, the nature of the international armed conflict in Bosnia and Herzegovina reflects the complexity of many modern conflicts and not, perhaps, the paradigm envisaged in 1949. In order to retain the relevance and effectiveness of the norms of the Geneva Conventions, it is necessary to adopt the approach here taken. As was recently stated by Meron,

[i]n interpreting the law, our goal should be to avoid paralyzing the legal process as much as possible and, in the case of humanitarian conventions, to enable them to serve their protective goals.²⁹⁴

(ii) Were the Victims Prisoners of War?

267. Article 4(A) of the Third Geneva Convention sets rather stringent requirements for the achievement of prisoner of war status. Once again, this provision was drafted in light of the experience of the Second World War and reflects the conception of an international armed conflict current at that time. Thus, the various categories of persons who may be considered prisoners of war are narrowly framed.

268. In the present case, it does not appear to be contended that the victims of the acts alleged were members of the regular armed forces of one of the parties to the conflict, as defined in sub-paragraph 1 of the article. Neither, clearly, are sub-paragraphs 3, 4 or 5 applicable. Attention must, therefore, be focused on whether they were members of militias or volunteer corps belonging to a party which: (a) were commanded by a person responsible for his subordinates; (b) had a fixed distinctive sign recognisable at a distance; (c) carried arms openly; and (d) conducted their operations in accordance with the laws and customs of war. Alternatively, they could have constituted a levée en masse, that is, being inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously took up arms to resist the invading forces, without having had time to form themselves into regular armed units, and at all times they carried arms openly and respected the laws and customs of war.

269. The Prosecution seeks to invoke the provisions of Additional Protocol I ²⁹⁵to interpret and clarify those of article 4(A)(2) and wishes to take a liberal approach to the detailed requirements that the sub-paragraph contains. Even should this be accepted, and despite the discussion above of the need to take a broad and flexible approach to the interpretation of the Geneva Conventions, the Trial Chamber finds it difficult, on the evidence presented to it, to conclude that any of the victims of the acts alleged in the Indictment satisfied these requirements. While it is apparent that some of the persons detained in the Celebici prison-camp had been in possession of weapons and may be considered to have participated to some degree in ‘hostilities’, this is not sufficient to render them entitled to prisoner of war status. There was clearly a Military Investigating Commission established in Konjic, tasked with categorising the Celebici detainees, but this can be regarded as related to the question of exactly what activities each detainee had been engaged in prior to arrest and whether they posed a particular threat to the security of the Bosnian authorities. Having reached this conclusion, it is not even necessary to discuss the issue of whether the Bosnian Serbs detained in Celebici "belonged" to the forces of one of the parties to the conflict.

270. Similarly, the Trial Chamber is not convinced that the Bosnian Serb detainees constituted a levée en masse. This concept refers to a situation where territory has not yet been occupied, but is being invaded by an external force, and the local inhabitants of areas in the line of this invasion take up arms to resist and defend their homes. It is difficult to fit the circumstances of the present case, as described in Section II above, into this categorisation. The authorities in the Konjic municipality were clearly not an invading force from which the residents of certain towns and villages were compelled to resist and defend themselves. In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.

271. It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;

[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.²⁹⁶

272. This position is confirmed by article 50 of Additional Protocol I which regards as civilians all persons who are not combatants as defined in article 4(A) (1), (2), (3) and (6) of the Third Geneva Convention, and article 43 of the Protocol itself.

273. The Prosecution has further argued that article 5 of the Third Geneva Convention required that, where there was some doubt about the status of the Celebici detainees, they had to be granted the protections of the Convention until that status was determined by a competent tribunal²⁹⁷. On this basis, they were "protected persons" and subject to the grave breaches provisions of the Third Convention. While there may, on the basis of this article, have been a duty upon the Bosnian forces controlling the Celebici prison-camp to treat some of the detainees as protected by the Third Geneva Convention until their status was properly determined and thus treat them with appropriate humanity, the Trial Chamber has found that they were not, in fact, prisoners of war. They were, instead, all protected civilians under the Fourth Geneva Convention and the Trial Chamber thus bases its consideration of the existence of "grave breaches of the Geneva Conventions" on this latter Convention.

274. On the basis of the above discussion, the Trial Chamber concludes that all of the victims of the acts alleged in the Indictment were "persons protected" by the Fourth Geneva Convention of 1949. For the purposes of the application of Article 2 of the Statute, these victims must be regarded as having been in the hands of a party to the conflict of which they were not nationals, being Bosnian Serbs detained during an international armed conflict by a party to that conflict, the State of Bosnia and Herzegovina.

275. This finding is strengthened by the Trial Chamber’s fundamental conviction that the Security Council, in persistently condemning the widespread violations of international humanitarian law committed throughout the conflict in Bosnia and Herzegovina and, indeed, in establishing the International Tribunal to prosecute and punish such violations, did not consider that the protection of the whole corpus of international humanitarian law could be denied to particular groups of individuals on the basis of the provisions of domestic citizenship legislation. The International Tribunal must, therefore, take a broad and principled approach to the application of the basic norms of international humanitarian law, norms which are enunciated in the four Geneva Conventions. In particular, all of those individuals who took no active part in hostilities and yet found themselves engulfed in the horror and violence of war should not be denied the protection of the Fourth Geneva Convention, which constitutes the very basis of the law concerned with such persons.

276. The Trial Chamber does not consider it necessary to discuss at length in the present context the development of the law of the Third Geneva Convention relating to prisoners of war, for even if none of the victims can be viewed as prisoners of war, there is no gap between the Geneva Conventions and they must, therefore, be considered protected civilians, along with the other detainees. This finding does not prejudice the later discussion of whether the authorities of Bosnia and Herzegovina were legitimately entitled to detain all of these civilians.

277. Having decided that Article 2 of the Statute is applicable to the facts of the present case, the Trial Chamber now turns its attention to the application of Article 3, concerning violations of the laws or customs of war.

E. Article 3 of the Statute

1. Introduction

278. In addition to the charges of grave breaches of the Geneva Conventions, the Indictment also contains 26 counts of violations of the laws or customs of war, punishable under Article 3 of the Statute²⁹⁸. In the Tadic Jurisdiction Decision, the Appeals Chamber opined that Article 3 refers to a broad category of offences, namely all "violations of the laws or customs of war", and that the enumeration of some of these in the Article itself is merely illustrative, not exhaustive²⁹⁹. In particular, Article 3 is not limited to offences under "Hague law", being the law regulating the conduct of hostilities and most notably finding expression in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, (hereafter "Hague Convention IV") and annexed Regulations, but includes some violations of the Geneva Conventions.³⁰⁰

279. The Appeals Chamber, in its discussion of Article 3, proceeded further to enunciate four requirements that must be satisfied in order for an offence to be considered as within the scope of this Article. These requirements are the following:

(i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met (…);
(iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. (…);
(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.³⁰¹

280. This Trial Chamber finds no reason to depart from the position taken by the Appeals Chamber on this matter and considers that the first and third of these requirements have been dealt with by our discussion of the general requirements for the application of both Articles 2 and 3 of the Statute above. ³⁰²

281. With the exception of count 49 (plunder), the Indictment specifies that the offences charged as violations of the laws or customs of war are "recognised by" article 3 common to the four Geneva Conventions, which reads as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are, and shall remain, prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

282. Thus, the Trial Chamber, in its discussion of the applicability of Article 3 of the Statute to the present case, must perforce consider common article 3 of the Geneva Conventions. The Defence has challenged the nature of this provision and its place within the bounds of Article 3 of the Statute, on the basis that it does not form part of customary international law and that any violation thereof does not entail individual criminal responsibility.

283. In relation to the charge of plunder in count 49 of the Indictment, the Trial Chamber notes that Article 3(e) of the Statute specifically enumerates this offence as a violation of the laws or customs of war within the jurisdiction of the International Tribunal. Nonetheless, it must be established that the prohibition of plunder is a norm of customary international law which attracts individual criminal responsibility.

284. In order to proceed with its determination on the applicability of Article 3, the Trial Chamber deems it necessary, for the sake of clarity, to briefly set out the arguments of the parties in relation to these issues.

2. Arguments of the Parties

285. In the Tadic Jurisdiction Decision, the Appeals Chamber found that the International Tribunal may have jurisdiction over offences under Article 3 of the Statute whether the offences alleged were committed in an international or internal armed conflict³⁰³. In reaching this conclusion, it examined the customary nature of common article 3 of the Geneva Conventions, as well as other norms governing internal armed conflicts, and determined that their violation does entail individual criminal responsibility. The Prosecution contends that the findings of the Appeals Chamber on this matter should be applied in the present case. On this basis, the Prosecution takes the view that it is only required to prove that an armed conflict existed and that the alleged violations were related to this conflict in order for the Trial Chamber to apply Article 3 of the Statute in the present case.

286. In relation to violations of the substantive prohibitions contained in common article 3 of the Geneva Conventions, the Prosecution submits that these are clearly part of customary international law and that it must simply demonstrate that the victims of the alleged offences satisfy the requirements of sub-paragraph (1) (that is, that they be taking no active part in the hostilities). In sum, it is the view of the Prosecution that common article 3 of the Geneva Conventions can be applied by the International Tribunal when four conditions are met, namely, that:

1) the unlawful acts were committed in the context of an armed conflict;
2) the perpetrator was connected to one side involved in the armed conflict;
3) the victims were persons taking no active part in the hostilities, which includes civilians, members of the armed forces who have laid down their arms, and those placed hors de combat by sickness, wounds, detention, or any other cause; and
4) one of the enumerated acts listed in common article 3 of the Geneva Conventions was committed.³⁰⁴

287. In addition, the Prosecution contends that violations of article 75 of Additional Protocol I, which reflects customary international law, are covered by Article 3 of the Statute. It asserts that the offences charged under Article 3 in the Indictment, clearly also constitute violations of this provision.³⁰⁵

288. The Prosecution finally argues that the prohibition of plunder is a well-established principle in international law, recognised in the 1907 Hague Convention (IV) and annexed Regulations, as well as Geneva Convention IV.

289. The Defence concedes that its position on Article 3, which is that it cannot incorporate common article 3 of the Geneva Conventions, is contrary to that taken by the Appeals Chamber in the Tadic Jurisdiction Decision³⁰⁶. Nonetheless, it contends that the Appeals Chamber wrongly decided the issue of whether common article 3 of the Geneva Conventions is included in Article 3 of the Statute.

290. The first argument raised by the Defence in support of its position is that the Security Council, in establishing the International Tribunal, never intended it to have jurisdiction over violations of common article 3. By examining the provisions of the statute of the International Criminal Tribunal for Rwanda (hereafter "ICTR"), the Defence deduces that, without explicit reference to common article 3 in the Statute as is contained in the statute of the ICTR, the Security Council could not have intended to include it within the ambit of the jurisdiction of the International Tribunal.

291. The Defence further contends that the listed offences in Article 3 of the Statute are illustrative of offences under "Hague law" – that is the laws enunciated in the 1907 Hague Convention (IV) and annexed Regulations – which relates to the conduct of hostilities, not the protection of victims taking no active part in the fighting. In its view, had the Security Council intended to include certain provisions of "Geneva law" – such as common article 3 - within Article 3 of the Statute, it would have done so explicitly.

292. Responding to the Prosecution on this matter, the Defence examines the statements made by certain State representatives to the Security Council at the time of adoption of the Statute of the Tribunal. The Defence challenges the Prosecution’s interpretation of these statements and maintains that they cannot be regarded as an endorsement of the inclusion of common article 3 of the Geneva Conventions into Article 3 of the Statute.

293. Fundamentally, the Defence argues that the provisions of common article 3 of the Geneva Conventions do not constitute settled customary international law on the basis of State practice and opinio juris. The Report of the Secretary-General, adopted by the Security Council and containing the Statute, clearly states that the Tribunal is to apply "rules of international humanitarian law which are beyond doubt part of customary law"³⁰⁷ and it is the view of the Defence that common article 3 does not conform to this requirement.

294. The second leg of the Defence argument is that, even should the substantive prohibitions in common article 3 be regarded as customary international law, individual criminal responsibility does not necessarily flow from their violation. In support of this view, it discusses the historical development of international law and concludes that it is only recently that the concept of individual criminal responsibility has been introduced to this field. It notes that, in 1949, the States adopting the four Geneva Conventions did not include common article 3 in the system of "grave breaches" established to enforce the Conventions’ proscriptions. It then argues that there has been no development of customary international law since that time such as to attach individual criminal responsibility to violations of common article 3.

3. Discussion

295. Bearing in mind the findings made in sub-section C above concerning the relevant nexus between the alleged acts of the accused and the armed conflict, along with the position of the alleged victims as detainees in the Celebici prison-camp and of the accused in relation to that prison-camp, the Trial Chamber turns to the question of the customary nature of the prohibitions contained in common article 3 of the Geneva Conventions and their incorporation into Article 3 of the Statute.

296. The Trial Chamber is instructed in its consideration of Article 3 by the views expressed by the Appeals Chamber in the Tadic Jurisdiction Decision. In that Decision, the Appeals Chamber engages in a lengthy discussion of the nature of Article 3 and the incorporation of common article 3 of the Geneva Conventions therein, a discussion which this Trial Chamber finds unnecessary to revisit in whole.

297. Fundamentally, the Appeals Chamber describes the division of labour between Articles 2 and 3 of the Statute thus:

Article 3 may be taken to cover all violations of international humanitarian law other than "grave breaches" of the four Geneva Conventions falling under Article 2 (or, for that matter, the violations covered by Articles 4 and 5, to the extent that Articles 3, 4 and 5 overlap).³⁰⁸

Furthermore,

Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable.³⁰⁹

298. The Trial Chamber observes that the finding of the Appeals Chamber on the extent of application of Article 2 of the Statute, excluding internal armed conflicts from the ambit of the Tribunal’s jurisdiction over "grave breaches" of the Geneva Conventions, is such that its approach to Article 3 has to be rather broader, in order to achieve this goal of making our jurisdiction "watertight". Hence, violations of common article 3 of the Geneva Conventions find their place within Article 3 of the Statute.

299. In similar spirit, this Trial Chamber is in no doubt that the intention of the Security Council was to ensure that all serious violations of international humanitarian law, committed within the relevant geographical and temporal limits, were brought within the jurisdiction of the International Tribunal. Thus, if violations of common article 3 of the Geneva Conventions are not to be considered as having been incorporated into the "grave breaches" regime, and hence falling under Article 2 of the Statute, such violations must be considered as forming part of the more general provisions of Article 3.

300. It is noteworthy that the Appeals Chamber qualifies its discussion of the existence of customary rules of international humanitarian law relating to internal armed conflicts with the caveat that not all of the rules applicable in international armed conflicts have been extended to internal conflicts and that it is the essence of these rules that is important and not their detailed provisions³¹⁰. However, the prohibitions contained in the first paragraph of common article 3 of the Geneva Conventions express "the fundamental principle underlying the four Geneva Conventions" – that of humane treatment³¹¹. The perpetrators of violations of this article during internal conflicts cannot, on any level of reasoning, be treated more leniently than those who commit the same acts in international conflicts. It would, therefore, appear that the prohibitions contained in common article 3 are of precisely the nature which may be expected to apply in internal, as well as international, armed conflicts.

301. While in 1949 the insertion of a provision concerning internal armed conflicts into the Geneva Conventions may have been innovative, there can be no question that the protections and prohibitions enunciated in that provision have come to form part of customary international law. As discussed at length by the Appeals Chamber, a corpus of law concerning the regulation of hostilities and protection of victims in internal armed conflicts is now widely recognised³¹². This development is illustrative of the evolving nature of customary international law, which is its strength. Since at least the middle of this century, the prevalence of armed conflicts within the confines of one State or ensuing from the breakdown of previous State boundaries is apparent and absent the necessary conditions for the creation of a comprehensive new law by means of a multilateral treaty, the more fluid and adaptable concept of customary international law takes the fore.

302. The evidence of the existence of such customary law - State practice and opinio juris – may, in some situations, be extremely difficult to ascertain, particularly where there exists a prior multilateral treaty which has been adopted by the vast majority of States. The evidence of State practice outside of the treaty, providing evidence of separate customary norms or the passage of the conventional norms into the realms of custom, is rendered increasingly elusive, for it would appear that only the practice of non-parties to the treaty can be considered as relevant.³¹³ Such is the position of the four Geneva Conventions, which have been ratified or acceded to by most States.

303. Despite these difficulties, international tribunals do, on occasion, find that custom exists alongside conventional law, both having the same substantive content. This occurred, in relation to the prohibition on the use of force contained in the United Nations Charter, in the Nicaragua Case³¹⁴. Additionally, in that case, the ICJ’s discussion of the Geneva Conventions, particularly common articles 1 and 3 thereof, indicates that it considered these also to be part of customary international law³¹⁵. Furthermore, the ICJ found that common article 3 was not merely to be applied in internal armed conflicts, but that,

[t]here is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called "elementary considerations of humanity" (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22).³¹⁶

304. Additionally, in a recent Judgement, the ICTR also discussed the customary status of common article 3 in the context of its application of the provisions of its statute³¹⁷. The Trial Chamber adjudicating that case stated that,

[i]t is today clear that the norms of Common Article 3 have acquired the status of customary law in that most States, by their domestic penal codes, have criminalised acts which if committed during internal armed conflict, would constitute violations of Common Article 3.³¹⁸

305. It should be noted that the Secretary-General, in charging the International Tribunal to apply the customary rules of international humanitarian law, specified particular conventions as being incorporated in custom. Included in these are the four Geneva Conventions of 1949, with no mention of the exclusion of certain of their provisions, such as common article 3³¹⁹. That common article 3 was considered included in the law to be applied by the Tribunal is borne out by the statement of the representative of the United States upon the adoption of Security Council resolution 827, which was not contradicted by any other State representative, that

it is understood that the "laws or customs of war" referred to in Article 3 include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common Article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions.³²⁰

306. On the basis of these considerations, the Trial Chamber is in no doubt that the prohibitions contained within common article 3 of the Geneva Conventions are prohibitions of customary international law which may be considered to be within the scope of the jurisdiction of the International Tribunal under Article 3 of the Statute.

307. The Trial Chamber is thus led to the second argument of the Defence that, even if it should constitute custom in its prohibitions, there is no customary law to suggest that common article 3 attracts individual criminal responsibility in its violation. Once again, this is a matter which has been addressed by the Appeals Chamber in the Tadic Jurisdiction Decision and the Trial Chamber sees no reason to depart from its findings³²¹. In its Decision, the Appeals Chamber examines various national laws, as well as practice, to illustrate that there are many instances of penal provisions for violations of the laws applicable in internal armed conflicts³²². From these sources, the Appeals Chamber extrapolates that there is nothing inherently contrary to the concept of individual criminal responsibility for violations of common article 3 of the Geneva Conventions and that, indeed, such responsibility does ensue.

308. The fact that the Geneva Conventions themselves do not expressly mention that there shall be criminal liability for violations of common article 3 clearly does not in itself, preclude such liability. Furthermore, identification of the violation of certain provisions of the Conventions as constituting "grave breaches" and thus subject to mandatory universal jurisdiction, certainly cannot be interpreted as rendering all of the remaining provisions of the Conventions as without criminal sanction. While "grave breaches" must be prosecuted and punished by all States, "other" breaches of the Geneva Conventions may be so. Consequently, an international tribunal such as this must also be permitted to prosecute and punish such violations of the Conventions.

309. This conclusion finds support in the ILC Draft Code of Crimes Against the Peace and Security of Mankind (hereafter "ILC Draft Code")³²³. Article 20 of the ILC Draft Code, entitled "War Crimes", includes violations of international humanitarian law applicable in non-international armed conflicts, as well as those violations which constitute grave breaches of the Geneva Conventions. The crimes listed in this section mirror the provisions of common article 3 of the Geneva Conventions, along with article 4 of Additional Protocol II (hereafter "Additional Protocol II")³²⁴. Moreover, the final Statute of the International Criminal Court, adopted in Rome on 17 July 1998, specifically lists serious violations of common article 3 of the Geneva Conventions as war crimes, under its article 8³²⁵. Another recent instrument, the statute of the ICTR, also enumerates violations of common article 3 as offences within the jurisdiction of that tribunal. While recognising that these instruments were all drawn up after the acts alleged in the Indictment, they serve to illustrate the widespread conviction that the provisions of common article 3 are not incompatible with the attribution of individual criminal responsibility.

310. The statute of the ICTR and the Report of the Secretary-General relating to that statute cannot be interpreted so as to restrict the application of our Statute. While article 4 of the ICTR statute contains explicit reference to common article 3 of the Geneva Conventions and Additional Protocol II, the absence of such express reference in the Statute of the International Tribunal does not, by itself, preclude the application of these provisions. The Defence cites the Report of the Secretary-General relating to the ICTR, which states that article 4 of that statute "for the first time criminalizes common article 3 of the four Geneva Conventions"³²⁶ in support of its position. The Trial Chamber notes, however, that the United Nations cannot "criminalize" any of the provisions of international humanitarian law by the simple act of granting subject-matter jurisdiction to an international tribunal. The International Tribunal merely identifies and applies existing customary international law and, as stated above, this is not dependent upon an express recognition in the Statute of the content of that custom, although express reference may be made, as in the statute of the ICTR.

311. The Defence is extremely concerned to draw attention to the principle of nullum crimen sine lege and, from its application, concludes that none of the accused can be convicted of crimes under common article 3 of the Geneva Conventions. It maintains that for the Tribunal to attach individual criminal responsibility to violations of common article 3 would amount to the creation of ex post facto law. Such a practice is contrary to basic human rights, as enunciated, inter alia, in the International Covenant on Civil and Political Rights 1966 (hereafter "ICCPR"). Article 15 of the ICCPR states, in relevant part:

1. 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 national or international law, at the time when it was committed. […]
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.

312. In addition to what has been stated above concerning the customary nature of the prohibitions contained in common article 3 of the Geneva Conventions and the individual criminal responsibility which their violation entails, this Trial Chamber places particular emphasis on the provisions of the Criminal Code of the SFRY, which were adopted by Bosnia and Herzegovina in April 1992³²⁷. This legislation establishes the jurisdiction of the Bosnian courts over war crimes committed "at the time of war, armed conflict or occupation", drawing no distinction between internal and international armed conflicts. Thus, each of the accused in the present case could have been held individually criminally responsible under their own national law for the crimes alleged in the Indictment. Consequently, on this ground also there is no substance to the argument that applying the provisions of common article 3 of the Geneva Conventions under Article 3 of the Statute violates the principle of nullum crimen sine lege.

313. Moreover, the second paragraph of article 15 of the ICCPR is of further note, given the nature of the offences charged in the Indictment. It appears that this provision was inserted during the drafting of the Covenant in order to avoid the situation which had been faced by the International Military Tribunals at Nürnberg and Tokyo after the Second World War. These tribunals had applied the norms of the 1929 Geneva Conventions and 1907 Hague Conventions, among others, despite the fact that these instruments contained no reference to the possibility of their criminal sanction. It is undeniable that acts such as murder, torture, rape and inhuman treatment are criminal according to "general principles of law" recognised by all legal systems. Hence the caveat contained in Article 15, paragraph 2, of the ICCPR should be taken into account when considering the application of the principle of nullum crimen sine lege in the present case. The purpose of this principle is to prevent the prosecution and punishment of an individual for acts which he reasonably believed to be lawful at the time of their commission. It strains credibility to contend that the accused would not recognise the criminal nature of the acts alleged in the Indictment. The fact that they could not foresee the creation of an International Tribunal which would be the forum for prosecution is of no consequence.

314. While common article 3 of the Geneva Conventions was formulated to apply to internal armed conflicts, it is also clear from the above discussion that its substantive prohibitions apply equally in situations of international armed conflict. Similarly, and as stated by the Appeals Chamber, the crimes falling under Article 3 of the Statute of the International Tribunal may be committed in either kind of conflict. The Trial Chamber’s finding that the conflict in Bosnia and Herzegovina in 1992 was of an international nature does not, therefore, impact upon the application of Article 3. Nor is it necessary for the Trial Chamber to discuss the provisions of article 75 of Additional Protocol I, which apply in international armed conflicts. These provisions are clearly based upon the prohibitions contained in common article 3 and may also constitute customary international law. However, the Trial Chamber finds sufficient basis in the substance of common article 3 to apply Article 3 of the Statute to the acts alleged in the present case.

315. Finally, the Trial Chamber is in no doubt that the prohibition on plunder is also firmly rooted in customary international law. The Regulations attached to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land (hereafter "Hague Regulations") provide expression to the prohibition and it is reiterated in the Geneva Conventions³²⁹. The Hague Regulations have long been considered to be customary in nature, as was confirmed by the Nürnberg and Tokyo Tribunals. Moreover, the Report of the Secretary-General makes explicit mention of the Hague Regulations in its Commentary on Article 3 of the Statute, in the following terms:

The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto comprise a second important area of conventional humanitarian international law which has become part of the body of international customary law.

The Nürnberg Tribunal recognized that many of the provisions contained in the Hague Regulations, although innovative at the time of their adoption were, by 1939, recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war. The Nürnberg Tribunal also recognized that war crimes defined in article 6(b) of the Nürnberg Charter were already recognized as war crimes under international law, and covered in the Hague Regulations, for which guilty individuals were punishable.³³⁰

There is, on this basis, no need to expand further upon the applicability of Article 3 of the Statute in relation to the charge of plunder.

4. Findings

316. In conclusion, the Trial Chamber finds that both the substantive prohibitions in common article 3 of the Geneva Conventions, and the provisions of the Hague Regulations, constitute rules of customary international law which may be applied by the International Tribunal to impose individual criminal responsibility for the offences alleged in the Indictment. As a consequence of the division of labour between Articles 2 and 3 of the Statute thus far articulated by the Appeals Chamber, such violations have been considered as falling within the scope of Article 3.

317. Recognising that this would entail an extension of the concept of "grave breaches of the Geneva Conventions" in line with a more teleological interpretation, it is the view of this Trial Chamber that violations of common article 3 of the Geneva Conventions may fall more logically within Article 2 of the Statute. Nonetheless, for the present purposes, the more cautious approach has been followed. The Trial Chamber has determined that an international armed conflict existed in Bosnia and Herzegovina during the time-period relevant to the Indictment and that the victims of the alleged offences were "protected persons", rendering Article 2 applicable. In addition, Article 3 is applicable to each of the crimes charged on the basis that they also constitute violations of the laws or customs of war, substantively prohibited by common article 3 of the Geneva Conventions (with the exception of the charges of plunder and unlawful confinement of civilians).

318. Having thus found that the requirements for the applicability of Articles 2 and 3 of the Statute are satisfied in the present case, the Trial Chamber must turn its attention to the nature of individual criminal responsibility as recognised under Article 7 of the Statute.

F. Individual Criminal Responsibility Under Article 7(1)

1. Introduction

319. The principles of individual criminal responsibility enshrined in Article 7, paragraph 1, of the Statute reflect the basic understanding that individual criminal responsibility for the offences under the jurisdiction of the International Tribunal is not limited to persons who directly commit the crimes in question. Instead, as stated in the Report of the Secretary-General: "all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible". ³³¹

320. Article 7(1) accordingly provides as follows:

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.

321. This recognition that individuals may be held criminally responsible for their participation in the commission of offences in any of several capacities is in clear conformity with general principles of criminal law. As concluded by Trial Chamber II in the Tadic Judgment, there can further be no doubt that this corresponds to the position under international customary law³³². However, it is incumbent upon the Trial Chamber to set out more specifically the degree of participation which is necessary for an individual to be considered sufficiently connected with an offence under the Tribunal’s jurisdiction so as to be held criminally responsible under the present provision.

2. Arguments of the Parties

322. Citing the Tadic Judgment, the Prosecution submits that to demonstrate liability under Article 7(1) it is necessary to establish two factors: (i) intent, in the form of awareness of the act of participation and a conscious decision to participate in the commission of a crime; and (ii) participation, in the form of conduct which contributes to the illegal act. The Prosecution further relies on the "common purpose" doctrine, the gist of which is said to be that a person who knowingly participates in a criminal venture with others may be held criminally liable for illegal acts that are the natural and probable consequences of their common purpose.³³³

323. The Prosecution accordingly concludes that in order to incur criminal responsibility for unlawful killing, it is not necessary for the accused to have physically caused the death of the victim, or, in other words, to have "delivered the fatal blow"³³⁴. It is submitted that for criminal liability to attach, the accused’s act(s) of participation need not have been committed in the same place or at the same time as the acts that caused the victim’s death, nor that he be present when those same acts are perpetrated. Instead, the Prosecution argues, it must be shown that the accused through his act(s) either aided and abetted in the commission of the unlawful act, or that he participated in a common enterprise or transaction which resulted in the death of the victim. ³³⁵

324. The Defence, similarly relying on the Tadic Judgment, adopts the view that, for an accused to be criminally liable for the direct acts of another pursuant to Article 7(1), four criteria must be met. It is thus submitted that the accused must: (i) have intended to participate in an act; (ii) in violation of international humanitarian law; (iii) knowing that the act was unlawful; and (iv) that this participation directly and substantially aided the commission of the illegal act. It is noted that a direct contribution to the commission of the offence does not require the accused’s presence at the scene of the crime or his direct physical assistance in its commission and, conversely, that physical presence at the scene of the crime in itself is insufficient to prove that an accused is an aider and abetter. ³³⁶

3. Discussion and Findings

325. As noted above, the applicable standard for the imposition of individual criminal responsibility under Article 7(1) has previously been considered by Trial Chamber II in the Tadic Judgment. In reaching its findings, the Trial Chamber there carried out a detailed investigation of the parameters of individual responsibility under customary international law, considering at some length the existing body of precedents arising out of the war crimes trials conducted after the Second World War. The Trial Chamber, having considered the relevant material, adopts as sound the reasoning thus expressed, and concludes that the standard there adopted is applicable to the present case.

326. It is, accordingly, the view of the Trial Chamber that, in order for there to be individual criminal responsibility for degrees of involvement in a crime under the Tribunal’s jurisdiction which do not constitute a direct performance of the acts which make up the offence, a showing must be made of both a physical and a mental element. The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have "a direct and substantial effect on the commission of the illegal act"³³⁷.The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act. Thus, there must be "awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime". ³³⁸

327. More specifically, the Trial Chamber accepts as a correct statement of the law the determination that aiding and abetting includes all acts of assistance that lend encouragement or support to the perpetration of an offence and which are accompanied by the requisite mens rea. Subject to the caveat that it be found to have contributed to, or have had an effect on, the commission of the crime, the relevant act of assistance may be removed both in time and place from the actual commission of the offence. Furthermore, such assistance may consist not only of physical acts, but may also manifest itself in the form of psychological support given to the commission of an illegal act through words or again by physical presence at the scene of the perpetration of the offence.³³⁹

328. As regards the mental element of such participation, it is the Trial Chamber’s view that it is necessary that the act of participation be undertaken with knowledge that it will contribute to the criminal act of the principal. The Trial Chamber agrees that the existence of this mens rea need not have been explicitly expressed, but that it may be inferred from all relevant circumstances³⁴⁰. Nor is it required that the Trial Chamber find that there was a pre-existing plan to engage in the criminal conduct in question³⁴¹. However, where such a plan exists, or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and directly and substantially contribute to, the realisation of this purpose may be held criminally responsible under Article 7(1) for the resulting criminal conduct. Depending upon the facts of any given situation, the culpable individual may, under such circumstances, be held criminally responsible either as a direct perpetrator of, or as an aider and abetter to, the crime in question.

329. In conclusion, the following concise statement from the Tadic Judgment accurately reflects the view of the Trial Chamber on the scope of individual criminal responsibility under Article 7(1):

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.³⁴²

G. Individual Criminal Responsibility Under Article 7(3)

1. Introduction

330. Alongside the charges of individual criminal responsibility based on personal participation in criminal conduct, the Indictment charges three of the accused - Zejnil Delalic, Zdravko Mucic and Hazim Delic – with criminal responsibility on the basis of their alleged positions as superiors to the perpetrators of the crimes alleged in the Indictment. Through the operation of counts 13, 14, 33 to 35, 38, 39 and 44 to 49 of the Indictment, these three accused are thus charged with responsibility as superiors for all the criminal acts alleged in the Indictment, with the exception of count 49 (plunder of private property) where the charge of such responsibility is limited to the accused Zdravko Mucic and Hazim Delic.

331. The type of individual criminal responsibility for the illegal acts of subordinates which is alleged in this way against the three accused is commonly referred to as "command responsibility"³⁴³. Although no explicit reference is made to this concept in the Statute of the International Tribunal, its governing principles have been incorporated into Article 7(3), which, to reiterate, provides that:

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

332. It is, accordingly, to the construction of this provision, properly understood as a formulation of the principle of command responsibility, that the Trial Chamber now must direct its attention. However, it is first necessary to briefly consider the legal character of this species of criminal responsibility and its status under customary international law more generally.

2. Legal Character of Command Responsibility and its Status Under Customary International Law

333. That military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary and conventional international law. This criminal liability may arise either out of the positive acts of the superior (sometimes referred to as "direct" command responsibility) or from his culpable omissions ("indirect" command responsibility or command responsibility strictu sensu). Thus, a superior may be held criminally responsible not only for ordering, instigating or planning criminal acts carried out by his subordinates, but also for failing to take measures to prevent or repress the unlawful conduct of his subordinates. As noted in the Report of the Secretary-General on the establishment of the International Tribunal:

A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute. But he should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew, or had reason to know, that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them.³⁴⁴

334. The distinct legal character of the two types of superior responsibility must be noted. While the criminal liability of a superior for positive acts follows from general principles of accomplice liability, as set out in the discussion of Article 7(1) above, the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act³⁴⁵. As is most clearly evidenced in the case of military commanders by article 87 of Additional Protocol I, international law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility under Article 7(3) of the Statute.

335. Although historically not without recognition in domestic military law, it is often suggested that the roots of the modern doctrine of command responsibility may be found in the Hague Conventions of 1907. It was not until the end of the First World War, however, that the notion of individual criminal responsibility for failure to take the necessary measures to prevent or to repress breaches of the laws of armed conflict was given explicit expression in an international context³⁴⁶. In its report presented to the Preliminary Peace Conference in 1919, the International Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties recommended that a tribunal be established for the prosecution of, inter alia, all those who,

ordered, or with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing violations of the laws or customs of war.³⁴⁷

336. Such a tribunal was never realised, however, and it was only in the aftermath of the Second World War that the doctrine of command responsibility for failure to act received its first judicial recognition in an international context. Whilst not provided for in the Charters of the Nürnberg or Tokyo Tribunals, nor expressly addressed in Control Council Law No. 10, a number of States at this time enacted legislation recognising the principle. For example, article 4 of the French Ordinance of 28 August 1944, Concerning the Suppression of War Crimes, provided:

Where a subordinate is prosecuted as the actual perpetrator of a war crime, and his superiors cannot be indicted as being equally responsible, they shall be considered as accomplices in so far as they have organised or tolerated the criminal acts of their subordinates.³⁴⁸

337. Similarly, article IX of the Chinese Law of 24 October 1946, Governing the Trial of War Criminals, stated:

Persons who occupy a supervisory or commanding position in relation to war criminals and in their capacity as such have not fulfilled their duty to prevent crimes from being committed by their subordinates shall be treated as the accomplices of such war criminals.³⁴⁹

338. In a number of cases against German and Japanese war criminals following the Second World War, beginning with the trial of the Japanese General Tomoyuki Yamashita before a United States Military Commission in Manila³⁵⁰, the principle of command responsibility for failure to act was relied upon by military courts and tribunals as a valid basis for placing individual criminal responsibility on superiors for the criminal acts of their subordinates. Thus, the United States Supreme Court, in its well-known holding in In Re Yamashita, answered in the affirmative the question of whether the law of war imposed on an army commander a duty to take the appropriate measures within his power to control the troops under his command for the prevention of acts in violation of the laws of war, and whether he may be charged with personal responsibility for failure to take such measures when violations result³⁵¹. Similarly, the United States Military Tribunal at Nürnberg, in United States v. Karl Brandt and others (hereafter "Medical Case"), declared that "the law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war³⁵²." Likewise, in United States v Wilhelm List et al. (hereafter "Hostage Case") it was held that "a corps commander must be held responsible for the acts of his subordinate commanders in carrying out his orders and for acts which the corps commander knew or ought to have known about³⁵³. Again, in United States v Wilhelm von Leeb et al. (hereafter "High Command Case") the tribunal declared that:

[u]nder basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal violates a moral obligation under international law. By doing nothing he cannot wash his hands of international responsibility.³⁵⁴

339. While different aspects of this body of case law arising out of the Second World War will be considered in greater detail below as the Trial Chamber addresses the more specific content of the requisite elements of superior responsibility under Article 7(3), it is helpful here to further recall the finding made in the trial of the Japanese Admiral Soemu Toyoda before a military tribunal in Tokyo. Declaring that it had carefully studied, and followed, the precedents of other tribunals on the question of command responsibility, the tribunal, after setting out at some length what it considered to be the essential elements of this principle, concluded:

In the simplest language it may be said that this Tribunal believes that the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.³⁵⁵

340. In the period following the Second World War until the present time, the doctrine of command responsibility has not been applied by any international judicial organ. Nonetheless, there can be no doubt that the concept of the individual criminal responsibility of superiors for failure to act is today firmly placed within the corpus of international humanitarian law. Through the adoption of Additional Protocol I, the principle has now been codified and given a clear expression in international conventional law. Thus, article 87 of the Protocol gives expression to the duty of commanders to control the acts of their subordinates and to prevent or, where necessary, to repress violations of the Geneva Conventions or the Protocol. The concomitant principle under which a superior may be held criminally responsible for the crimes committed by his subordinates where the superior has failed to properly exercise this duty is formulated in article 86 of the Protocol. A survey of the travaux préparatoires of these provisions reveals that, while their inclusion was not uncontested during the drafting of the Protocol, a number of delegations clearly expressed the view that the principles expressed therein were in conformity with pre-existing law. Thus, the Swedish delegate declared that these articles reaffirmed the principles of international penal responsibility that were developed after the Second World War³⁵⁶.Similarly, the Yugoslav delegate expressed the view that the article on the duty of commanders contained provisions which had already been accepted in "military codes of all countries". ³⁵⁷

341. The Trial Chamber, while not determining the accuracy of this latter statement, notes the inclusion of provisions recognising the principle of command responsibility in two highly influential domestic military manuals: the United States Army Field Manual on the law of war, and the British Manual of Military Law³⁵⁸. Certainly, such a provision existed in the regulations concerning the application of the international law of war to the armed forces of the SFRY, which, under the heading "Responsibility for the acts of subordinates", provided as follows:

The commander is personally responsible for violations of the law of war if he knew or could have known that his subordinate units or individuals are preparing to violate the law, and he does not take measures to prevent violations of the law of war. The commander who knows that the violations of the law of war took place and did not charge those responsible for the violations is personally responsible. In case he is not authorized to charge them, and he did not report them to the authorized military commander, he would also be personally responsible.

A military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units to continue to commit the acts.³⁵⁹

342. The validity of the principle of superior responsibility for failure to act was further reaffirmed in the ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind, which contains a formulation of the doctrine very similar to that found in Article 7(3)³⁶⁰. Most recently, a provision recognising a superior’s failure to take all necessary and reasonable measures to prevent or repress the crimes of subordinates under the superior’s effective authority and control, where the superior either knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes, as a ground for individual criminal responsibility was made part of the Rome Statute of the International Criminal Court. ³⁶¹

343. On the basis of the foregoing, the Trial Chamber concludes that the principle of individual criminal responsibility of superiors for failure to prevent or repress the crimes committed by subordinates forms part of customary international law.

3. The Elements of Individual Criminal Responsibility Under Article 7(3)

(a) Introduction

344. In brief, the Prosecution avers that the recognised legal requirements of the doctrine of superior responsibility, as contained in Article 7(3) of the Statute, are the following:

(1) The superior must exercise direct and/or indirect command or control whether de jure and/or de facto, over the subordinates who commit serious violations of international humanitarian law, and/or their superiors.
(2) The superior must know or have reason to know, which includes ignorance resulting from the superior’s failure to properly supervise his subordinates, that these acts were about to be committed, or had been committed, even before he assumed command and control.
(3) The superior must fail to take the reasonable and necessary measures, that are within his power, or at his disposal in the circumstances, to prevent or punish these subordinates for these offences.³⁶²

345. In contrast, the Defence for the accused Zejnil Delalic and Hazim Delic³⁶³ assert that the Prosecution, in order to establish guilt under a command responsibility theory pursuant to Article 7(3), must prove the following five elements:

(1) The status of the accused as a commander or a civilian exercising the equivalent of military command authority over a person who committed a violation of the law of war.
(2) That a violation of the law of war actually occurred or was about to occur.
(3) That the commander had either actual knowledge of the commission of the violation of the law of war or that the commander had knowledge enabling him to conclude that the laws of war had been violated.
(4) That the commander failed to act reasonably in suppressing violations by investigating allegations and punishing perpetrators or by taking action to prevent future violations.
(5) And that the commander’s failure to act was the cause of the war crime which actually was committed.³⁶⁴

346. While it is evident that the commission of one or more of the crimes under Articles 2 to 5 of the Statute is a necessary prerequisite for the application of Article 7(3), the Trial Chamber agrees with the Prosecution’s proposition that the principle of superior responsibility properly is analysed as containing three constitutive parts. From the text of Article 7(3) it is thus possible to identify the essential elements of command responsibility for failure to act as follows:

(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.

347. The alleged separate requirement of causation, listed by the Defence under (5) above, is discussed by the Trial Chamber below, in connection with its consideration of the requirement that the superior take the necessary and reasonable measures to prevent or repress the illegal acts committed by his subordinate.

(b) The Superior–Subordinate Relationship

(i) Arguments of the Parties

348. The Prosecution asserts that the essential requirement of the doctrine of command responsibility is proof of the superior’s control over his subordinates and his ability to prevent them from committing violations or punish them for such violations. More specifically, it contends that although the more common situation in which the doctrine is applied is in relation to regular armed forces under the direct subordination of an officially designated military commander, the legal duties of a superior (and therefore the application of the doctrine of command responsibility) do not depend only on de jure (formal) authority, but can arise also as a result of de facto (informal) command and control, or a combination of both.

349. The Prosecution asserts that the degree of control necessary for the application of the doctrine can take different forms. Thus, it is maintained that command and control over subordinates can be exercised in a number of ways: operationally, tactically, administratively, executively in territories under the control of the superiors, and even through influence. It is submitted that the criminal responsibility of the superior will depend upon the degree and form of the control which he exercises and the means at his disposal to control his subordinates.³⁶⁵

350. The Defence for Zejnil Delalic and Hazim Delic contend that, in order to be found guilty on the basis of command responsibility, the accused must be either the commander of the person committing the violation of the law of war or in some other position allowing him to exercise the same type of authority as a military commander over the person who committed the violation.³⁶⁶

351. Although not absolutely unambiguous, it appears that the Defence for Mr. Delalic rejects the Prosecution’s assertion that command responsibility can be imposed on the basis of de facto authority. Thus, while it contends that the touchstone for such responsibility is the accused’s "actual ability to control" the person committing the offence³⁶⁷, it also asserts that a person charged under Article 7(3) with having superior authority must be shown to exercise authority over his subordinates which is "commensurate with" the authority to issue "binding orders" and to punish violations of those orders³⁶⁸. It is further submitted that the "lawful" authority of the accused is the key factor in determining liability under Article 7(3).³⁶⁹

352. The Defence emphasises that the crucial distinction in this context is that between military commanders and those with similar authority over subordinates on the one hand, and other types of superiors not exercising that type of authority on the other. Relying on this distinction, the Defence submits that the concept of "superior" in article 86 of Protocol I and Article 7(3) of the Statute does not extend criminal liability to non-commanders simply because they hold higher rank than the perpetrator of a war crime³⁷⁰. Instead, the Defence for Hazim Delic forcefully contends that customary international law places this type of liability only on individuals with authority to issue binding orders in their own name and the power to punish violations of those orders. It is submitted that in the military only a commander possesses such authority, and asserted that an application of vicarious criminal liability to persons other than commanders would have an ex post facto effect and would violate the principle of nullum crimen sine lege.³⁷¹

353. In response, the Prosecution explains that it does not in any way argue that the doctrine of command responsibility could apply to those who do not exercise command. Accordingly, it states that a position of strict liability, in the sense that any person of higher rank than the perpetrator is automatically responsible for the perpetrator’s crimes, is not being advocated. In contrast, it emphasises that, in order for command responsibility to attach, the perpetrator is required to be a subordinate of the person of higher rank, in that he must be under the direct or indirect control of the superior. However, it is the Prosecution’s position that those who are, in this sense, in command may occupy a variety of positions and that this category of persons is not limited to those formally designated as "commanders". ³⁷²

(ii) Discussion and Findings

354. 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"³⁷³, 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, the reasons for which are set out below, 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. Thus the Trial Chamber accepts the Prosecution’s proposition that individuals in positions of authority, whether civilian or within military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude the imposition of such responsibility.

a. The Responsibility of Non-Military Superiors

355. Before turning to the substance of the requisite superior-subordinate relationship, the Trial Chamber deems it appropriate first to set out its reasoning in relation to the question of the application of the principle enshrined in Article 7(3) to persons in non-military positions of authority.

356. It is apparent from the text of this provision that no express limitation is made restricting the scope of this type of responsibility to military commanders or situations arising under a military command. In contrast, the use of the generic term "superior" in this provision, together with its juxtaposition to the affirmation of the individual criminal responsibility of "Head[s] of State or Government" or "responsible Government official[s]" in Article 7(2), clearly indicates that its applicability extends beyond the responsibility of military commanders to also encompass political leaders and other civilian superiors in positions of authority. This interpretation is supported by the explanation of the vote made by the representative of the United States following the adoption of Security Council resolution 827 on the establishment of the International Tribunal. The understanding of the United States was expressed to be that individual criminal responsibility arises in the case of "the failure of a superior – whether political or military – to take reasonable steps to prevent or punish such crimes by persons under his or her authority"³⁷⁴. This statement was not contested. The same position was adopted by Trial Chamber I in its review of the Indictment pursuant to Rule 61 in Prosecutor v. Milan Martic, where it held that:

[t]he Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence ratione materiae or who knowingly refrain from preventing or punishing the perpetrators of such crimes.³⁷⁵

357. This interpretation of the scope of Article 7(3) is in accordance with the customary law doctrine of command responsibility. As observed by the Commission of Experts in its Final Report, while "[m]ost legal cases in which the doctrine of command responsibility has been considered have involved military or paramilitary accused, [p]olitical leaders and public officials have also been held liable under this doctrine in certain circumstances"³⁷⁶. Thus, the International Military Tribunal for the Far East (hereafter "Tokyo Tribunal") relied on this principle in making findings of guilt against a number of civilian political leaders charged with having deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance of the laws and customs of war and to prevent their breach. For example, while holding General Iwane Matsui criminally liable for the infamous "Rape of Nanking" by declaring that "[h]e had the power, as he had the duty, to control his troops and to protect the unfortunate citizens of Nanking. He must be held criminally responsible for his failure to discharge this duty"³⁷⁷, the tribunal was also prepared to place such responsibility upon the Japanese Foreign Minister at the time, Koki Hirota. In finding the latter guilty of having disregarded his legal duty to take adequate steps to secure the observance and prevent breaches of the laws of war, the tribunal thus declared:

As Foreign Minister he received reports of these atrocities immediately after the entry of the Japanese forces into Nanking. According to the Defence evidence credence was given to these reports and the matter was taken up with the War Ministry. Assurances were accepted from the War Ministry that the atrocities would be stopped. After these assurances had been given reports of atrocities continued to come in for at least a month. The Tribunal is of the opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence.³⁷⁸

358. Similarly, the tribunal found Prime Minister Hideki Tojo and Foreign Minister Mamoru Shigemitsu criminally liable for their omissions to prevent or punish the criminal acts of the Japanese troops. In respect of the latter the tribunal declared:

We do no injustice to SHIGEMITSU when we hold that the circumstances, as he knew them, made him suspicious that the treatment of the prisoners was not as it should have been. Indeed a witness gave evidence for him to that effect. Thereupon he took no adequate steps to have the matter investigated, although he, as a member of the government, bore overhead responsibility for the welfare of the prisoners. He should have pressed the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which he suspected was not being discharged.³⁷⁹

359. In United States v, Friedrich Flick and others³⁸⁰, the six accused, all leading civilian industrialists, were charged with the commission of war crimes and crimes against humanity in that they were said to have been principals in, accessories to, to have ordered, abetted, taken a consenting part in, or to have been connected with plans and enterprises involving the enslavement and deportation to slave labour of civilians from occupied territory, enslavement of concentration camp inmates and the use of prisoners of war in work having a direct relation to war operations. More specifically, it was alleged that the defendants sought and utilised such slave labour programmes by using tens of thousands of slave labourers in the industrial enterprises owned, controlled or influenced by them.³⁸¹

360. While acquitting four of the accused, the tribunal found the defendants Flick and Weiss guilty, as instances had been proved of Weiss’ voluntary participation in the slave labour programme. Concerning Flick, the person controlling the industrial enterprise in question, and Weiss’ superior, the judgement makes mention of no more than his "knowledge and approval" of Weiss’ acts³⁸². Noting this absence of explicit reasoning, the United Nations War Crimes Commission has commented that it "seems clear" that the tribunal’s finding of guilt was based on an application of the responsibility of a superior for the acts of his inferiors which he has a duty to prevent. ³⁸³

361. Similarly, civilian superiors were found criminally liable for the ill-treatment of forced labourers employed in the German industry in an appellate decision by the Superior Military Government Court of the French Occupation Zone in Germany, in the Roechling³⁸⁴ case. This case involved five accused, all holders of senior positions within the Roechling Iron and Steel Works in Voelklingen, four of whom were charged, inter alia, with having "employed under compulsion nationals of countries at that time occupied, prisoners of war, and deported persons, who were subjected to ill- treatment by [their] orders or with [their] consent"³⁸⁵. In its appeal judgement, the court clarified this charge by declaring that

Herman Roechling and the other accused members of the Directorate of the Voelklingen works are not accused of having ordered this horrible treatment, but of having permitted it; and indeed supported it, and in addition, of not having done their utmost to put an end to these abuses. ³⁸⁶

362. Finding that three of the defendants had possessed sufficient authority to intervene in order to ensure an improvement in the treatment accorded to the deportees, the court proceeded to register findings of guilt on the basis of the accused’s failure to act.

363. Thus, it must be concluded that the applicability of the principle of superior responsibility in Article 7(3) extends not only to military commanders but also to individuals in non-military positions of superior authority.

b. The Concept of Superior

364. The Trial Chamber now turns to the issue which lies at the very heart of the concept of command responsibility for failure to act, the requisite character of the superior–subordinate relationship.

365. As noted above, the Defence contends that the fundamental distinction to be drawn in this connection is that between commanders on the one hand, and other types of superiors (including non-commanders with higher rank than individuals committing the underlying offences) on the other. It explains this distinction by way of the following quotation:

"Commanders" are those who can issue orders on their own authority and over their own names to troops in the units they command, whether large (division, corps) or small (platoon, company). But except in very small units, a commander cannot function effectively without helpers, who bring him information about the condition of his troops, the whereabouts and intentions of the enemy, and other circumstances which together form the basis for his decisions and orders. These helping officers are a "staff", and if the unit is a large one and the staff correspondingly numerous, it is headed by a "Chief of Staff". This officer may be of high rank and his function very important, but he cannot issue orders (other than to his own staff subordinates) except by the authority and in the name of the unit commander.³⁸⁷

366. This may be compared with the definition of the position and duties of a chief of staff which was given in the High Command case:

Staff officers, except in limited fields, are not endowed with command authority. Subordinate staff officers normally function through the chiefs of staff. The chief of staff in any command is the closest officer, officially at least, to the commanding officer. It is his function to see that the wishes of his commanding officer are carried out. It is his duty to keep his commanding officer informed of the activities which take place within the field of his command. It is his function to see that the commanding officer is relieved of certain details and routine matters, that a policy having been announced, the methods and procedures for carrying out such policy are properly executed. His sphere and personal activities vary according to the nature and interests of his commanding officer and increase in scope dependent upon the position and responsibilities of such commander.³⁸⁸

367. Consistent with these views, the United States Military Tribunals in the Hostage and High Command cases adopted the position that, while chiefs of staff may be held criminally responsible for their own positive acts, they cannot be held criminally responsible on the basis of command responsibility³⁸⁹. Thus it was held in the High Command case that:

[s]taff officers are an indispensable link in the chain of their final execution. If the basic idea is criminal under international law, the staff officer who puts that idea into the form of a military order, either himself or through subordinates under him, or takes personal action to see that it is properly distributed to those units where it becomes effective, commits a criminal act under international law . . .

Since a Chief of Staff does not have command authority in the chain of command, an order over his signature does not have authority for subordinates in the chain of command […] A failure to properly exercise command authority is not the responsibility of a Chief of Staff. In the absence of participation in criminal orders or their execution within a command, a Chief of Staff does not become criminally responsible for criminal acts occurring therein. He has no command authority over subordinate units. All he can do in such cases is call those matters to the attention of his commanding general. Command authority and responsibility for its exercise rest definitively upon his commander.³⁹⁰

368. While these two cases offer support for the view that the possession of powers of command is a necessary prerequisite for the imposition of command responsibility, it may be thought that the legal position is rendered less clear when the Tokyo Tribunal’s conviction of Lieutenant General Akira Muto is taken into account. Muto had been a staff officer under General Iwane Matsui at the time of the "Rape of Nanking", and later served as Chief of Staff to General Yamashita in the Philippines. In discussing his responsibility in the former position, the tribunal held that, while there was no doubt that Muto knew of the atrocities, he could in his subordinate position take no steps to stop them, and could therefore not be held criminally liable for their commission. However, the tribunal took a different view of his responsibility in his position as Chief of Staff to Yamashita:

His position was now very different from that which he held during the so-called "Rape of Nanking". He was now in a position to influence policy. During his tenure of office as such Chief of Staff a campaign of massacre, torture and other atrocities was waged by the Japanese troops on the civilian population, and prisoners of war and civilian internees were starved, tortured and murdered. MUTO shares responsibility for these gross breaches of the Laws of War. We reject his defence that he knew nothing of these occurrences. It is wholly incredible.³⁹¹

369. In this case, then, a chief of staff, with no formal powers of command, was apparently held responsible on the basis of the doctrine of command responsibility. At least one prominent commentator on the subject relies on this case as support for the proposition that persons in non-command positions, such as advisers to a military unit, may be held criminally responsible on the basis of command responsibility. In this view, such a person, while lacking the authority to control the conduct of the forces in question, is still obliged to utilise all means available to prevent the perpetration of war crimes (such means may include protesting to the unit commander, notifying the next higher level of command, or, finally, seeking release from his position in the unit). ³⁹²

370. While the matter is, thus, not undisputed, it is the Trial Chamber’s opinion that a position of command is indeed a necessary precondition for the imposition of command responsibility. However, this statement must be qualified by the recognition that the existence of such a position cannot be determined by reference to formal status alone. Instead, the factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. Accordingly, formal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach, as such responsibility may be imposed by virtue of a person’s de facto, as well as de jure, position as a commander.

371. While the terms of the Statute offer little guidance in relation to this issue, it is clear that the term "superior" is sufficiently broad to encompass a position of authority based on the existence of de facto powers of control. The same term is employed in article 86 of Additional Protocol I, which, in article 87, further establishes that the duty of a military commander to prevent violations of the Geneva Conventions extends not only to his subordinates but also to "other persons under his control". This type of superior–subordinate relationship is described in the Commentary to the Additional Protocols by reference to the concept of "indirect subordination", in contrast to the link of "direct subordination" which is said to relate the tactical commander to his troops³⁹³. Among the examples offered of such indirect subordination, this Commentary notes that:

[i]f the civilian population in its own territory is hostile to prisoners of war and threatens them with ill-treatment, the military commander who is responsible for these prisoners has an obligation to intervene and to take the necessary measures, even though this population is not officially under his authority. ³⁹⁴

372. A survey of the existing judicial precedents demonstrates that commanders in regular armed forces have, on occasion, been held criminally responsible for their failure to prevent or punish criminal acts committed by persons not formally under their authority in the chain of command. Thus, in the Hostage and High Command trials it was accepted that commanders in charge of occupied territory may be held responsible for war crimes committed against civilians and prisoners of war in that area by troops not under their command³⁹⁵. As the tribunal in the Hostage case declared:

[t]he matter of subordination of units as a basis of fixing criminal responsibility becomes important in the case of a military commander having solely a tactical command. But as to the commanding general of occupied territory who is charged with maintaining peace and order, punishing crime and protecting lives and property, subordination are [sic] relatively unimportant. His responsibility is general and not limited to a control of units directly under his command.³⁹⁶

373. Likewise, the finding in the High Command case that a commander may be held criminally liable for failing to prevent the execution of an illegal order issued by his superiors, which has been passed down to his subordinates independent of him³⁹⁷, indicates that legal authority to direct the actions of subordinates is not seen as an absolute requirement for the imposition of command responsibility. Similarly, the finding in the Toyoda case, whereby the tribunal rejected the alleged importance of what it called the "theoretical" division between operational and administrative authority, may be seen as supporting the view that commanders are under an obligation to take action to prevent the commission of war crimes by troops under their control despite a lack of formal authority to do so. An officer with only operational and not administrative authority does not have formal authority to take administrative action to uphold discipline, yet in the view of the tribunal in the Toyoda case; "[t]he responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own".³⁹⁸

374. Again, in the Pohl trial³⁹⁹, the finding of guilt against the accused Karl Mummenthey, an officer of the Waffen SS and business manager of a large establishment of industries employing concentration camp labour, is best read as predicated upon his possession of de facto powers of control. Charged with responsibility for the conditions to which labourers were exposed, Mummenthey based his defence in part on the contention that any mistreatment of prisoners was caused by concentration camp guards over whom he had no control (and, by implication, for which he therefore could not be held responsible). In rejecting this assertion the tribunal held:

It has been Mummenthey’s plan to picture himself as a private businessman in no way associated with the sternness and rigour of SS discipline, and entirely detached from concentration camp routine. The picture fails to convince. Mummenthey was a definite integral and important figure in the whole concentration camp set-up, and, as an SS officer, wielded military power of command. If excesses occurred in the industries under his control he was in a position not only to know about them, but to do something. From time to time he attended meetings of the concentration camp commanders where all items pertaining to concentration camp routine such as labour assignment, rations, clothing, quarters, treatment of prisoners, punishment, etc., were discussed.⁴⁰⁰

375. Similarly, as noted above, the Tokyo Tribunal’s conviction of General Akiro Muto for acts occurring during his tenure as Chief of Staff to General Yamashita demonstrates that it considered powers of influence not amounting to formal powers of command to provide a sufficient basis for the imposition of command responsibility.⁴⁰¹

376. The cases imposing responsibility for failure to act on civilians occupying positions of authority, also indicate that such persons may be held liable for crimes committed by persons over whom their formal authority under national law is limited or non-existent. Thus, it has been noted that the Tokyo Tribunal convicted Foreign Minister Koki Hirota on the basis of command responsibility for war crimes although he lacked the domestic legal authority to repress the crimes in question⁴⁰². The tribunal found Hirota derelict in his duty in not "insisting" before the cabinet that immediate action be taken to put an end to the crimes, language indicating powers of persuasion rather than formal authority to order action to be taken⁴⁰³. Moreover, the Roechling case is best construed as an example of the imposition of superior responsibility on the basis of de facto powers of control possessed by civilian industrial leaders. While the accused in this case were found guilty, inter alia, of failing to take action against the abuse of forced labourers committed by the members of the Gestapo, it is nowhere suggested that the accused had any formal authority to issue orders to personnel under Gestapo command. Instead, the judgement employs the wording "sufficient" authority, a term not normally used in relation to formal powers of command, but rather one used to describe a degree of (informal) influence. This view is further supported by the reasoning employed in the judgement of the court of first instance in this case, which, in response to the claim of one of the accused that he could not give orders to the plant police and the personnel of a punishment camp, as these were under the orders of the Gestapo, makes reference to his status as Herman Roechling’s son-in-law - clearly a source of no more than de facto influence - as a factor affecting his authority to obtain an alleviation in the treatment of workers by the plant police.⁴⁰⁴

377. While it is, therefore, the Trial Chamber’s conclusion that a superior, whether military or civilian, may be held liable under the principle of superior responsibility on the basis of his de facto position of authority, the fundamental considerations underlying the imposition of such responsibility must be borne in mind. 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. It follows that there is a threshold at which persons cease to possess the necessary powers of control over the actual perpetrators of offences and, accordingly, cannot properly be considered their "superiors" within the meaning of Article 7(3) of the Statute. 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.

378. Accordingly, it is the Trial Chamber’s view that, in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.⁴⁰⁵

(i) Arguments of the Parties

379. The Prosecution asserts that the requisite mens rea under Article 7(3) may be established as follows:

(1) actual knowledge established through direct evidence; or
(2) actual knowledge established through circumstantial evidence, with a presumption of knowledge where the crimes of subordinates are a matter of public notoriety, are numerous, occur over a prolonged period, or in a wide geographical area; or
(3) wanton disregard of, or failure to obtain, information of a general nature within the reasonable access of a commander indicating the likelihood of actual or prospective criminal conduct on the part of his subordinates.

380. The Defence notes that Article 7(3) sets out a rather unclear "knew or had reason to know" mens rea standard, which it submits is substantially lower than that set out in article 86 of Additional Protocol I, and concludes that the latter standard should be used in construing the Statute. It is asserted that the French text of Additional Protocol I (which, it is claimed, should be considered to be governing rather than the English version) requires that a commander actually possessed information which allowed him to conclude that subordinates had committed violations of the law of war. It is contended that if the Trial Chamber was to use the lower burden of "knew or had reason to know", substantial issues of nullum crimen sine lege would be raised, in that criminal liability would be based on a knowledge component which is less demanding than what was required by the law at the time when the events alleged in the Indictment are said to have occurred. Thus, it is proposed that the two standards be harmonised by construing Article 7(3) to mean that a commander has "reason to know" only when he actually possesses knowledge allowing him to conclude that a violation has occurred.

381. The Defence further asserts that the type and extent of knowledge available to a commander must be weighed to determine whether the commander had information allowing him to conclude that war crimes had been committed. The Defence agrees that this may be proved by circumstantial evidence such as the fact that the commander had executive authority over an area where war crimes were frequent and widespread, or where reliable reports of the crimes were made to the commander’s headquarters. It is submitted that, in the absence of actual knowledge, there must be evidence that the commander encouraged the criminal misconduct of his subordinates through his failure to discover and intervene, and that for this to occur there must be a serious personal dereliction of duty on the part of the commander, sufficient to constitute wilful and wanton disregard of the crimes.⁴⁰⁷

382. In response to these assertions, the Prosecution rejects the contention that the application of the doctrine of superior responsibility, as it is enshrined in Article 7(3), compromises the principle of nullum crimen sine lege. It asserts that the Statute’s language of "knew or had reason to know" must be construed as having the same meaning as the applicable standard under existing humanitarian law, including Protocol I. It states, however, that, according to this standard, it is not necessary for the accused to have information in his actual possession which enables him to conclude that violations are about to be, or have been, committed. A superior is required to discover and obtain all information within his powers, which includes properly supervising his subordinates, and he cannot wantonly disregard information within his reasonable access. The Prosecution states that "[t]he information itself need not conclude, or the superior need not actually have concluded that violations will or have been committed. It is sufficient that the superior should have concluded in the circumstances, and the information need only disclose, a likelihood of prospective or past offences."⁴⁰⁸

(ii) Discussion and Findings

383. The doctrine of superior responsibility does not establish a standard of strict liability for superiors for failing to prevent or punish the crimes committed by their subordinates. Instead, Article 7(3) provides that a superior may be held responsible only where he knew or had reason to know that his subordinates were about to or had committed the acts referred to under Articles 2 to 5 of the Statute. A construction of this provision in light of the content of the doctrine under customary law leads the Trial Chamber to conclude that a superior may possess the mens rea required to incur criminal liability 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 Article 2 to 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.

a. Actual Knowledge

384. Regarding the standard of actual knowledge, the Prosecution asserts the existence of a rule of presumption where the crimes of subordinates are a matter of public notoriety, are numerous, occur over a prolonged period, or over a wide geographical area. However, the legal authorities cited by the Prosecution in this regard are insufficient to support the operation of such a rule. Among the cases relied upon by the Prosecution in this respect is that of General Yamashita. An examination of the findings of the Military Commission however, does not bear out this claim. In fact, the nature of the mens rea ascribed to General Yamashita in that case is not immediately apparent from the Commission’s decision. It has thus been commented by the United Nations War Crimes Commission that:

the crimes which were shown to have been committed by Yamashita’s troops were so widespread, both in space and in time, that they could be regarded as providing either prima facie evidence that the accused knew of their perpetration, or evidence that he must have failed to fulfil a duty to discover the standard of conduct of his troops.⁴⁰⁹

385. The Commentary to the Additional Protocols, on which the Prosecution relies, also cites the High Command case and the judgement of the Tokyo Tribunal⁴¹⁰, neither of which, however, make a clear ruling on the existence of any such general rule of presumption. While, in the High Command case, the tribunal held in relation to the accused von Kuechler that the numerous reports of illegal executions which were made to his headquarters "must be presumed" to have been brought to his attention⁴¹¹, this case offers no support for the existence of a more general rule of presumption such as that proposed by the Prosecution. In contrast, the tribunal in that case explicitly rejected the argument that, in view of the extent of the atrocities and the communications available to them, it could be held that all the accused must have had knowledge of the illegal activities carried out in their areas of command. The tribunal declared that no such general presumption could be made and held that the question of the knowledge of the commanders had to be determined on the basis of the evidence pertaining to each individual defendant.⁴¹²

386. It is, accordingly, the Trial Chamber’s view that, in the absence of direct evidence of the superior’s knowledge of the offences committed by his subordinates, such knowledge cannot be presumed, but must be established by way of circumstantial evidence. In determining whether a superior, despite pleas to the contrary, in fact must have possessed the requisite knowledge, the Trial Chamber may consider, inter alia, the following indicia, listed by the Commission of Experts in its Final Report:

(a) The number of illegal acts;
(b) The type of illegal acts;
(c) The scope of illegal acts;
(d) The time during which the illegal acts occurred;
(e) The number and type of troops involved;
(f) The logistics involved, if any;
(g) The geographical location of the acts;
(h) The widespread occurrence of the acts;
(i) The tactical tempo of operations;
(j) The modus operandi of similar illegal acts;
(k) The officers and staff involved;
(l) The location of the commander at the time.⁴¹³

b. "Had reason to know"

387. Regarding the mental standard of "had reason to know", the Trial Chamber takes as its point of departure the principle that a superior is not permitted to remain wilfully blind to the acts of his subordinates. There can be no doubt that a superior who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates commits a most serious dereliction of duty for which he may be held criminally responsible under the doctrine of superior responsibility. Instead, uncertainty arises in relation to situations where the superior lacks such information by virtue of his failure to properly supervise his subordinates.

388. In this respect, it is to be noted that the jurisprudence from the period immediately following the Second World War affirmed the existence of a duty of commanders to remain informed about the activities of their subordinates. Indeed, from a study of these decisions, the principle can be obtained that the absence of knowledge should not be considered a defence if, in the words of the Tokyo judgement, the superior was "at fault in having failed to acquire such knowledge".⁴¹⁴

389. For example, in the Hostage case the tribunal held that a commander of occupied territory is

charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence.⁴¹⁵

Likewise, in the trial against Admiral Toyoda, the tribunal declared that the principle of command responsibility applies to the commander who "knew, or should have known, by use of reasonable diligence" of the commission of atrocities by his subordinates⁴¹⁶. Similarly, the tribunal in the Pohl case, describing Mummenthey’s position as one of an "assumed or criminal naivete"⁴¹⁷, held that the latter’s assertions that he did not know what was happening in the labour camps and enterprises under his jurisdiction did not exonerate him, adding that "it was his duty to know"⁴¹⁸. Again, in the Roechling case, the court, under the heading of "The defence of lack of knowledge", declared that:

[n]o superior may prefer this defence indefinitely; for it is his duty to know what occurs in his organization, and lack of knowledge, therefore, can only be the result of criminal negligence.⁴¹⁹

390. While this body of precedent accordingly may be thought to support the position advocated by the Prosecution, the Trial Chamber is bound to apply customary law as it existed at the time of the commission of the alleged offences. Accordingly, the Trial Chamber must, in its construction of Article 7(3), give full consideration to the standard established by article 86 of Additional Protocol I, in addition to these precedents.

391. Article 86 underwent considerable change during the drafting of the Protocol, and the Trial Chamber notes that the drafters explicitly rejected the proposed inclusion of a mental standard according to which a superior would be criminally liable for the acts of his subordinates in situations where he should have had knowledge concerning their activities. Thus, not only was the proposed ICRC draft, according to which superiors would be held responsible for the illegal acts of a subordinate "if they knew or should have known that he was committing or would commit such a breach and if they did not take measures within their power to prevent or repress the breach"⁴²⁰, rejected, but an amended version put forward by the United States employing the formulation "if they knew or should reasonably have known in the circumstances at the time" was also not accepted.⁴²¹

392. When considering the language of this provision as finally adopted, problems of interpretation arise if the English and French texts are compared. While the English text contains the wording "information which should have enabled them to conclude", the French version, rather than the literal translation "des information qui auraient dû leur permettre de concluire", is rendered "des information leur permettant de concluire" (literally: information enabling them to conclude). The proposition has been made that this discrepancy amounts to a distinction between the English text, which is said to embrace two requirements, one objective (that the superior had certain information) and one subjective (from this information available to the superior he should have drawn certain conclusions), and the French text containing only the objective element⁴²². The Trial Chamber notes, however, that this discrepancy in language was considered during the drafting of the Protocol, when it was expressly declared by delegates that the difference was not to be considered one of substance. ⁴²³

393. 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. It may be noted, however, that the provision on the responsibility of military commanders in the Rome Statute of the International Criminal Court provides that a commander may be held criminally responsible for failure to act in situations where he knew or should have known of offences committed, or about to be committed, by forces under his effective command and control, or effective authority and control.⁴²⁴

(d) Necessary and Reasonable Measure

394. The legal duty which rests upon all individuals in positions of superior authority requires them to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators thereof. It is the view of the Trial Chamber that any evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful.

395. 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. As the corollary to the standard adopted by the Trial Chamber with respect to the concept of superior, 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.⁴²⁵

(e) Causation

396. As noted above in sub-section (a), the Defence asserts the existence of a separate requirement of causation. It is contended that, if the superior’s failure to act did not cause the commission of the offence, the commander cannot be held criminally liable for the acts of his subordinates. The Defence submits that this applies also to a commander’s failure to punish an offence, as it may be argued that inaction in the form of failure to punish is the cause of future offences.⁴²⁶

397. In response, the Prosecution rejects the contention that causation is an element of the doctrine of superior responsibility. It submits that superiors may be held responsible if they fail to adequately take the steps within their powers to prevent or punish violations, and explains that this requirement does not entail proving that the superior’s failure directly caused each violation. It argues that this point is reinforced by the fact that many superiors at different levels can be held responsible, within their spheres of competence, for the illegal acts of the same subordinates, irrespective of which superior’s omission may have resulted in the commission of the violations. It is further claimed that a causation requirement would undermine the "failure to punish" component of superior responsibility, which, it is pointed out, can only arise after the commission of the offence. It is noted that as a matter of logic a superior could not be held responsible for prior violations committed by subordinates if a causal nexus was required between such violations and the superior’s failure to punish those who committed them. ⁴²⁷

398. 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. ⁴²⁸

399. This is not to say that, conceptually, the principle of causality is without application to the doctrine of command responsibility insofar as it relates to the responsibility of superiors for their failure to prevent the crimes of their subordinates. In fact, a recognition of a necessary causal nexus may be considered to be inherent in the requirement of crimes committed by subordinates and the superior’s failure to take the measures within his powers to prevent them. In this situation, the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed.

400. In contrast, while a causal connection between the failure of a commander to punish past crimes committed by subordinates and the commission of any such future crimes is not only possible but likely, the Prosecution correctly notes that no such casual link can possibly exist between an offence committed by a subordinate and the subsequent failure of a superior to punish the perpetrator of that same offence. The very existence of the principle of superior responsibility for failure to punish, therefore, recognised under Article 7(3) and customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility.

____________________________

401. Having thus examined the applicable provisions of the Tribunal’s Statute, the Trial Chamber must analyse the individual offences with which the accused are charged, in the context of these provisions. Before proceeding with this analysis, a brief note is made here of various aspects of the construction of criminal statutes.

H. Construction of Criminal Statutes

402. The principles nullum crimen sine lege and nulla poena sine lege are well recognised in the world’s major criminal justice systems as being fundamental principles of criminality. Another such fundamental principle is the prohibition against ex post facto criminal laws with its derivative rule of non-retroactive application of criminal laws and criminal sanctions. Associated with these principles are the requirement of specificity and the prohibition of ambiguity in criminal legislation. These considerations are the solid pillars on which the principle of legality stands. Without the satisfaction of these principles no criminalisation process can be accomplished and recognised.

403. The above principles of legality exist and are recognised in all the world’s major criminal justice systems. It is not certain to what extent they have been admitted as part of international legal practice, separate and apart from the existence of the national legal systems. This is essentially because of the different methods of criminalisation of conduct in national and international criminal justice systems.

404. Whereas the criminalisation process in a national criminal justice system depends upon legislation which dictates the time when conduct is prohibited and the content of such prohibition, the international criminal justice system attains the same objective through treaties or conventions, or after a customary practice of the unilateral enforcement of a prohibition by States.

405. It could be postulated, therefore, that the principles of legality in international criminal law are different from their related national legal systems with respect to their application and standards. They appear to be distinctive, in the obvious objective of maintaining a balance between the preservation of justice and fairness towards the accused and taking into account the preservation of world order. To this end, the affected State or States must take into account the following factors, inter alia: the nature of international law; the absence of international legislative policies and standards; the ad hoc processes of technical drafting; and the basic assumption that international criminal law norms will be embodied into the national criminal law of the various States.

406. The result of this difference has been well expressed by Professor Bassiouni, expressing the view that,

[i]t is a well established truism in international law that if a given conduct is permitted by general or particular international law, that permissibility deprives the conduct of its criminal character under international criminal law. But if a given conduct is prohibited by general or particular international law it does not mean that it is criminal ipso iure. The problem thus lies in distinguishing between prohibited conduct which falls within the legally defined criminal category and that which does not. ⁴²⁹

407. This exercise being one of interpretation generally, and of the criminal law in particular, we now turn to general principles to consider the interpretation of the criminal provisions of the Tribunal’s Statute and Rules.

1. Aids to Construction of Criminal Statute

408. To put the meaning of the principle of legality beyond doubt, two important corollaries must be accepted. The first of these is that penal statutes must be strictly construed, this being a general rule which has stood the test of time. Secondly, they must not be given retroactive effect. This is in addition to the well-recognised paramount duty of the judicial interpreter, or judge, to read into the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object. This rule would appear to have been founded on the firm principle that it is for the legislature and not the court or judge to define a crime and prescribe its punishment.

409. A criminal statute is one in which the legislature intends to have the final result of inflicting suffering upon, or encroaching upon the liberty of, the individual. It is undoubtedly expected that, in such a situation, the intention to do so shall be clearly expressed and without ambiguity. The legislature will not allow such intention to be gathered from doubtful inferences from the words used. It will also not leave its intention to be inferred from unexpressed words. The intention should be manifest.

410. The rule of strict construction requires that the language of a particular provision shall be construed such that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. In the construction of a criminal statute no violence must be done to its language to include people within it who do not ordinarily fall within its express language. The accepted view is that if the legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which should naturally fall within the mischief intended to be prevented, the interpreter is not competent to extend them. The interpreter of a provision can only determine whether the case is within the intention of a criminal statute by construction of the express language of the provision.

411. A strict construction requires that no case shall fall within a penal statute which does not comprise all the elements which, whether morally material or not, are in fact made to constitute the offence as defined by the statute. In other words, a strict construction requires that an offence is made out in accordance with the statute creating it only when all the essential ingredients, as prescribed by the statute, have been established.

412. It has always been the practice of courts not to fill omissions in legislation when this can be said to have been deliberate. It would seem, however, that where the omission was accidental, it is usual to supply the missing words to give the legislation the meaning intended. The paramount object in the construction of a criminal provision, or any other statute, is to ascertain the legislative intent. The rule of strict construction is not violated by giving the expression its full meaning or the alternative meaning which is more consonant with the legislative intent and best effectuates such intent.

413. The effect of strict construction of the provisions of a criminal statute is that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself⁴³⁰. This is why ambiguous criminal statutes are to be construed contra proferentem.

2. Interpretation of the Statute and Rules

414. It is obvious that the subject matter jurisdiction of the Tribunal is constituted by provisions of international law⁴³¹. It follows, therefore, that recourse would be had to the various sources of international law as listed in Article 38 of the Statute of the ICJ, namely international conventions, custom, and general principles of law, as well as other subsidiary sources such as judicial decisions and the writings of jurists. Conversely, it is clear that the Tribunal is not mandated to apply the provisions of the national law of any particular legal system.

415. With respect to the content of the international humanitarian law to be applied by the Tribunal, the Secretary-General, in his Report, stated the position with unequivocal clarity, in paragraph 29, as follows:

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

416. Further, at paragraph 34, explaining the application of the principle of nullum crimen sine lege, the Secretary-General stated:

In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise. This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law.

417. It is clear, therefore, that the Secretary-General was in these paragraphs referring to the application of existing customary international humanitarian law. This position avoids any misunderstanding that the absence of corresponding national legislation may cause. The Secretary-General went on, in paragraph 35 of the Report, to specify the customary law applicable as being,

the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945.

418. The implication of these explanations is that the Security Council, not being a legislative body, cannot create offences. It therefore vests in the Tribunal the exercise of jurisdiction in respect of offences already recognised in international humanitarian law. The Statute does not create substantive law, but provides a forum and framework for the enforcement of existing international humanitarian law.

It is with these considerations in mind that the Trial Chamber addresses the elements of the offences charged in the Indictment.

I. Elements of the Offences

419. The Trial Chamber must look to customary international law in order to arrive at a determination of the elements of the offences alleged in the present case as they stood during the time-period to which the Indictment relates. These offences are here categorised under the following headings: wilful killing and murder; offences of mistreatment; unlawful confinement of civilians; and plunder.

1. Wilful Killing and Murder

(a) Introduction

420. The Indictment alleges that each of the accused is responsible for the killing of several of the detainees in the Celebici prison-camp, on account of either their personal participation in such killings, or their superior authority over those directly involved. The Indictment has been formulated in such a way as to classify these acts as both "wilful killing" – punishable under Article 2 of the Statute - and "murder" – punishable under Article 3. Before analysing the evidence concerning these particular charges, the Trial Chamber must, therefore, establish the meaning to be attached to their classification in such a way.

421. The first question which arises is whether there is a qualitative difference between "wilful killing" and "murder" such as to render the elements constituting these offences materially different. The Trial Chamber notes that the term "wilful killing" has been incorporated directly from the four Geneva Conventions, in particular articles 50, 51, 130 and 147 thereof, which set out those acts that constitute "grave breaches" of the Conventions. In the French text of the Conventions, this terminology is translated as "l’homicide intentionnel". On the other hand, "murder", prohibited by common article 3 of the Conventions, is translated literally in the French text of the Conventions as "meurtre".

422. The Trial Chamber takes the view that it is the simple essence of these offences, derived from the ordinary meaning of their terms in the context of the Geneva Conventions, which must be outlined in the abstract before they are given concrete form and substance in relation to the facts alleged. With this in mind, there can be no line drawn between "wilful killing" and "murder" which affects their content.

423. In addition, it should not be forgotten that the primary purpose of common article 3 of the Geneva Conventions was to extend the "elementary considerations of humanity" to internal armed conflicts. Thus, as it is prohibited to kill protected persons during an international armed conflict, so it is prohibited to kill those taking no active part in hostilities which constitute an internal armed conflict. In this spirit of equality of protection, there can be no reason to attach meaning to the difference of terminology utilised in common article 3 and the articles referring to "grave breaches" of the Conventions.⁴³²

424. Having reached this conclusion, the remaining issue becomes the formulation of the elements of these crimes of "wilful killing" and "murder". It is apparent that it is a general principle of law that the establishment of criminal culpability requires an analysis of two aspects⁴³³. The first of these may be termed the actus reus – the physical act necessary for the offence. In relation to homicide of all natures, this actus reus is clearly the death of the victim as a result of the actions of the accused. The Trial Chamber finds it unnecessary to dwell on this issue, although it notes that omissions as well as concrete actions can satisfy the actus reus element⁴³⁴ and, further, that the conduct of the accused must be a substantial cause of the death of the victim.⁴³⁵

425. The second aspect of the analysis of any homicide offence relates to the necessary mental element, or mens rea. Often this debate centres around the question of "intent" and it is, indeed, this issue which is the subject of dispute between the parties in the present case. Thus, before proceeding further in its discussion, the Trial Chamber deems it necessary to set out the arguments raised by the parties in this regard.

(b) Arguments of the Partie

426. Simply stated, it is the position of the Prosecution that the mens rea element of wilful killing and murder is established where the accused possessed the intent to kill, or inflict grievous bodily harm on the victim. It argues that the word "wilful" must be interpreted to incorporate reckless acts as well as a specific desire to kill, whilst excluding mere negligence. More particularly, the Prosecution contends that, while the accused’s acts must be "intentional", the concept of intention can assume different forms, including both direct and indirect intention to commit the unlawful act. Such indirect intention incorporates the situation where the accused commits acts and is reckless to their consequences and where death is foreseeable⁴³⁶. In support of this argument, the Prosecution relies on the Commentary to article 85 of Additional Protocol I which defines ‘wilfully’ in the following terms:

wilfully: the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (‘criminal intent’ or ‘malice aforethought’); this encompasses concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.⁴³⁷

427. The Defence⁴³⁸ seeks to rely on a narrower concept of intent and, in particular, would exclude from its scope any notion of recklessness. According to the Defence for Mr. Landzo and Mr. Delic, the mens rea element of the offence of wilful killing requires a showing by the Prosecution that the accused had the specific intent to cause death by his actions⁴³⁹. Expanding upon this, the Defence submits that the words "reckless" and "intent" are mutually exclusive, and that "in the common law tradition offences requiring intent are typically to be distinguished from those where mere recklessness will suffice⁴⁴⁰." In this regard, it cites the English case of R v Sheppard ⁴⁴¹and quotes the statement made by Lord Diplock therein, that "[t]he primary meaning of ‘wilfully’ is ‘deliberate’"⁴⁴². This, in the view of the Defence, is the preferable construction of the mens rea requirement for wilful killing or murder under the Geneva Conventions and Additional Protocol I.

428. The Defence further contends that this interpretation accords with the French text of article 130 of the Third Geneva Convention and article 147 of the Fourth Geneva Convention (dealing with grave breaches) which equates "l’homicide intentionnel" with "wilful killing". In its view there is a difference of meaning between the two translations of the Conventions, the term ‘intentional’ being a much stronger word in English than ‘wilful’. Thus, the French text should be preferred over the English on the basis that "where such differences exist, they should be decided in favour of the Defendant." ⁴⁴³

429. The Defence further finds there to be a contradiction between the definition of "wilful" in the Commentary to article 85 of Additional Protocol I and the provisions of article 32 of the Fourth Geneva Convention, which prohibits the High Contracting Parties,

from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.

The Commentary to this article states:

"Purpose of the prohibition" – The Diplomatic Conference deliberately employed the words ‘of such a character as to cause’ instead of the formula ‘likely to cause’ which figured in the original draft. In thus substituting a causal criterion for one of intention, the Conference aimed at extending the scope of the Article; henceforth, it is not necessary that an act should be intentional for the person committing it to be answerable for it. The aim is to ensure that every protected person shall receive humane treatment from the civil and military authorities. In this respect, Article 32 is as general as possible and mentions only as examples the principal types of atrocity committed during the Second World War, which should be prohibited for ever. However, it should be noted that most of the acts listed in the second sentence of this Article can only be committed with intent.⁴⁴⁴

The Defence relies on the final sentence of this Commentary, stating that it "strongly suggests that murder requires ‘intent’".⁴⁴⁵

430. In response to these arguments, the Prosecution asserts that the Defence wrongly seeks to equate the concept of recklessness with simple negligence. In addition, the Prosecution takes issue with the Defence reading of R v Sheppard, and submits that the House of Lords held in that case that:

a man ‘wilfully’ fails to provide adequate medical attention for a child if he either (a) deliberately does so, knowing that there is some risk that the child’s health may suffer unless he receives such attention; or (b) does so because he does not care whether the child may be in need of medical treatment or not.⁴⁴⁶

431. Both the Prosecution and the Defence have focused upon the word "wilful" in their discussion of the necessary mens rea required to establish the offences of "wilful killing" and "murder". This has had the unfortunate result of drawing attention away from the nature and purpose of the prohibition contained in the Geneva Conventions, which is clearly to proscribe the deliberate taking of the lives of those defenceless and vulnerable persons who are the objects of the Conventions’ protections⁴⁴⁷. It is this nature and purpose which primarily guides the Trial Chamber’s consideration of the matter and its examination of the terminology utilised, for a simple semantic approach, or one which confines itself to the specificities of particular national jurisdictions, can only lead to confusion or a fruitless search for an elusive commonality. In any national legal system, terms are utilised in a specific legal context and are attributed their own specific connotations by the jurisprudence of that system. Such connotations may not necessarily be relevant when these terms are applied in an international jurisdiction.

432. Article 32 of the Fourth Geneva Convention contains the fundamental prohibition on acts which result in the death or physical suffering of protected civilians. The Commentary to this article notes that it is formulated in a manner which emphasises the link of causality between act and result, whilst recognising that the listed offences generally require an element of intent – that which we have here termed mens rea. The nature of this "intent" requirement is left unexplained. Guidance may, however, be found in the Commentary to Additional Protocol I. In relation to article 11 of that instrument, the commentary incorporates the concept of "recklessness" into that of "wilfulness", whilst excluding mere negligence from its scope. Likewise, in relation to article 85 of the Additional Protocol, the commentary seeks to distinguish ordinary negligence from wrongful intent or recklessness, and regards only the latter as encompassed by the term "wilful".

433. The Trial Chamber is further instructed by the plain, ordinary meaning of the word "wilful", as found in the Concise Oxford English Dictionary, which is "intentional, deliberate". There is, on this basis, no divergence of substance between the use of the term "wilful killing" and the French version, "l’homicide intentionnel". In Le Nouveau Petit Robert dictionary, "intentionnel" is defined as "ce qui est fait exprès, avec intention, à dessein." The essence to be derived from the usage of this terminology in both languages is simply that death should not be an accidental consequence of the acts of the accused. The ordinary meaning of the English term "murder" is also understood as something more than manslaughter and thus, as stated above, no difference of consequence flows from the use of "wilful killing" in place of "murder".

434. At common law, the term "malice" is often utilised to describe the necessary additional element that transforms a homicide from a case of manslaughter to one of murder. Yet again, however, there is a strong danger of confusion if such terminology is transposed into the context of international law, without explanation of its exact meaning. Malice does not merely refer to ill-will on the part of the perpetrator of the killing, but extends to his intention to cause great bodily harm or to kill without legal justification or excuse and also "denotes a wicked and corrupt disregard of the lives and safety of others"⁴⁴⁸. In most common law jurisdictions, the mens rea requirement of murder is satisfied where the accused is aware of the likelihood or probability of causing death or is reckless as to the causing of death. In Australia, for example, knowledge that death or grievous bodily harm will probably result from the actions of the accused is the requisite test⁴⁴⁹. Under Canadian law, the accused is required to have a simultaneous awareness of the probability of death and the intention to inflict some form of serious harm⁴⁵⁰, and this is also the position in Pakistan.⁴⁵¹

435. The civil law concept of dolus describes the voluntariness of an act and incorporates both direct and indirect intention⁴⁵². Under the theory of indirect intention (dolus eventualis), should an accused engage in life-endangering behaviour, his killing is deemed intentional if he "makes peace" with the likelihood of death. In many civil law jurisdictions the foreseeability of death is relevant and the possibility that death will occur is generally sufficient to fulfil the requisite intention to kill.

436. The Trial Chamber is mindful of the benefits of an approach which analyses the amount of risk taken by an accused that his actions will result in death and considers whether that risk might be deemed excessive. Under this approach, all of the circumstances surrounding the infliction of harm and the resulting death of the victim are examined and the relevant question is whether it is apparent from these circumstances that the accused’s actions were committed in a manner "manifesting extreme indifference to the value of human life⁴⁵³." Such an approach enables the adjudicative body to take into account factors such as the use of weapons or other instruments, and the position of the accused in relation to the victim.

(d) Findings

437. While different legal systems utilise differing forms of classification of the mental element involved in the crime of murder, it is clear that some form of intention is required. However, this intention may be inferred from the circumstances, whether one approaches the issue from the perspective of the foreseeability of death as a consequence of the acts of the accused, or the taking of an excessive risk which demonstrates recklessness. As has been stated by the Prosecution, the Commentary to the Additional Protocols expressly includes the concept of "recklessness" within its discussion of the meaning of "wilful" as a qualifying term in both articles 11 and 85 of Additional Protocol I.

438. Bearing in mind our discussion of the relevant principles of interpretation above, it is in this context, and in that of the nature and purpose of the Geneva Conventions, that the Trial Chamber determines the meaning of the terms utilised in the Statute of the Tribunal. As stated by Fletcher;

[t]he method of analyzing ordinary usage invites us to consider what these terms mean as they are used, not what they "mean" when wrenched out of context and defined for the purposes of legal analysis.⁴⁵⁴

439. On the basis of this analysis alone, the Trial Chamber is in no doubt that the necessary intent, meaning mens rea, required to establish the crimes of wilful killing and murder, as recognised in the Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life. It is in this light that the evidence relating to each of the alleged acts of killing is assessed and the appropriate legal conclusion reached in Section IV below.

2. Offences of Mistreatment

(a) Introduction to Various Offences of Mistreatment

440. The Indictment alleges that each of the accused is responsible for various forms of mistreatment of the detainees in the Celebici prison-camp. Such mistreatment, not resulting in death, is variously categorised and alleged as: torture, a grave breach of the Geneva Conventions punishable under Article 2(b) of the Statute, and a violation of the laws or customs of war punishable under Article 3 of the Statute, as recognised by article 3(1)(a) of the Geneva Conventions; rape as torture, a grave breach of the Geneva Conventions punishable under Article 2(b) of the Statute, and a violation of the laws or customs of war punishable under Article 3 of the Statute, as recognised by article 3(1)(a) of the Geneva Conventions; wilfully causing great suffering or serious injury, a grave breach of the Geneva Conventions punishable under Article 2(c) of the Statute; inhuman treatment, a grave breach of the Geneva Conventions punishable under Article 2(b) of the Statute; and cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute and recognised by article 3(1)(a) of the Geneva Conventions.

441. The offences of torture, wilfully causing great suffering or serious injury to body or health and inhuman treatment are proscribed as grave breaches of the Geneva Conventions. The offences of torture and cruel treatment are prohibited under common article 3 of the Geneva Conventions. However, no definition or elaboration of these offences are provided in the Conventions themselves. Thus, the Trial Chamber must find the customary international law definitions of the elements of these offences as they stood at the time period to which the Indictment relates. A detailed explanation of the reasoning underlying this determination will be discussed in the following paragraphs.

442. The Trial Chamber finds that torture is the most specific of those offences of mistreatment constituting "grave breaches" and entails acts or omissions, by or at the instigation of, or with the consent or acquiescence of an official, which are committed for a particular prohibited purpose and cause a severe level of mental or physical pain or suffering. The offence of wilfully causing great suffering or serious injury to body or health is distinguished from torture primarily on the basis that the alleged acts or omissions need not be committed for a prohibited purpose such as is required for the offence of torture. Finally, within this framework of grave breach offences, inhuman treatment involves acts or omissions that cause serious mental or physical suffering or injury or constitute a serious attack on human dignity. Accordingly, all acts or omissions found to constitute torture or wilfully causing great suffering or serious injury to body or health would also constitute inhuman treatment. However, this third category of offence is not limited to those acts already incorporated in the foregoing two, and extends further to acts which violate the basic principle of humane treatment, particularly the respect for human dignity.

443. The offences of torture and cruel treatment, proscribed under common article 3, are also interrelated. The characteristics of the offence of torture under common article 3 and under the "grave breaches" provisions of the Geneva Conventions, do not differ. The offence of cruel treatment under common article 3 carries the same meaning as inhuman treatment in the context of the "grave breaches" provisions. Thus, for the purposes of common article 3, all torture is encapsulated in the offence of cruel treatment. However, this latter offence extends to all acts or omissions which cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.

444. The general requirements for the application of Articles 1, 2 and 3 of the Statute have already been discussed above in Section III. Most importantly, it has been found that, in order for any of the acts to which the various charges of mistreatment refer to constitute violations of Article 2 or Article 3 of the Statute, the Trial Chamber must be satisfied that the precondition that there be a nexus between the acts of the accused and the armed conflict is met. The Trial Chamber has found that this nexus undoubtedly exists in relation to each of the acts alleged in the Indictment.

445. Having made these preliminary remarks about the interrelationship of the mistreatment offences, both under the "grave breaches" provisions of the Geneva Conventions and common article 3, and the general requirement of the nexus between the acts of the accused and the armed conflict as a precondition to the application of Articles 1, 2 and 3 of the Statute, the Trial Chamber proceeds with the following detailed consideration of definitions and criteria to be attached to each of these offences under customary international law.

(b) Torture

(i) Introduction

446. The torture of persons not taking an active part in hostilities is absolutely prohibited by the Geneva Conventions, both in internal and international armed conflicts. The commission of acts of torture is specifically enumerated in the Conventions as constituting a grave breach, as well as violating common article 3 and other provisions of the Conventions and Additional Protocols⁴⁵⁵. The requisite elements of this offence merit particular clarification as they form the basis upon which torture is differentiated from other offences of ill-treatment contained in the Geneva Conventions. Both the Prosecution and the Defence have made significant submissions on this issue and the Trial Chamber thus deems it useful to outline these before continuing with its discussion.

(ii) Arguments of the Parties

447. The Prosecution consistently maintains that the Trial Chamber ought to apply the customary law definition of torture as expressed in the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter "Torture Convention"). In its Response to the Motion to Dismiss, and its Closing Brief, the Prosecution further submits that the Trial Chamber should rely on the customary law definition of torture. It notes that this definition is broader than that suggested in the Commentary to the Fourth Geneva Convention⁴⁵⁶. It cites Professor Bassiouni in this regard, who suggests that torture requires a secondary purpose behind the acts of injury, which inhuman treatment does not. In his view, this secondary purpose must be to obtain a confession, or for any other purpose. Further, Bassiouni suggests that what constitutes this secondary purpose has changed over time, noting the provisions of Additional Protocol I and the 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter "Declaration on Torture"). ⁴⁵⁷

448. In support of the contention that torture can be employed for a variety of purposes beyond that of illiciting information, the Prosecution notes Bassiouni’s comment, when considering the issue of rape as torture, that the commission of mass rape was employed during the conflicts in the former Yugoslavia in order to punish the victims and/or to intimidate them or their communities.

449. The Defence argues that the customary and conventional definition of torture, in the context of international humanitarian law, is narrower than that posited by the Prosecution. It submits that, under the Geneva Conventions, torture must have as its motive the obtaining of information. Accordingly, in the view of the Defence, the Prosecution’s proposed definition seeks to broaden the customary definition of torture for the purposes of international humanitarian law, contrary to the intent of the Secretary-General and Security Council that the Tribunal only apply settled customary international law so as to avoid violating the principle of nullum crimen sine lege.

450. In support of this argument, the Defence relies upon the commentary to article 147 of the Fourth Geneva Convention. It further emphasises that the distinguishing feature of the offence of torture is the purpose for which it is inflicted. In its view, it is clear that the "prohibited purpose" is that of obtaining "from that person or another person, confessions or information" and it is unclear whether it could also include any other purpose. The Defence also refers to Bassiouni in support of this proposition. It submits that Bassiouni is unclear whether the required motive can serve a purpose other than the obtaining of a confession or information and that the other motives in the Prosecution’s proposed definition are overly broad, that is, they do not reflect what is beyond any doubt part of customary law. Accordingly, the Defence submits that the Trial Chamber should construe the "prohibited purpose" requirement of torture narrowly and in favour of the defendant, so as to comply with the Report of the Secretary-General and with the general principle of criminal law that ambiguous statutes should be construed narrowly, in favour of the defendant.

451. During closing oral submissions, Mr. Michael Greaves, on behalf of the Defence, stated that torture and rape were included within the meaning of "other inhumane acts" contained in article 6(c) of the Charter of the International Military Tribunal⁴⁵⁸. However, in his view, the elements of these offences remain to be identified. He further suggested that the Trial Chamber could rely on the applicable criminal law of the former republics of the SFRY in the construction of these elements, as this would be in accordance with the principle of legality. In addition, he argued that the definition contained in the Torture Convention does not reflect settled customary international law. In support of this proposition, counsel referred to article 1 of the Torture Convention, which provides that the definition contained therein is "for the purposes of this Convention". Further, counsel submitted that the definition of torture differs in various other jurisdictions, quoting the decision of the European Court of Human Rights (hereafter "European Court") in the case of Republic of Ireland v. United Kingdom⁴⁵⁹, although he did not offer his view on the definition of torture proposed in that case.

(iii) Discussion

a. The Definition of Torture Under Customary International Law

452. There can be no doubt that torture is prohibited by both conventional and customary international law. In addition to the proscriptions of international humanitarian law, which are pleaded in the Indictment, there are also a number of international human rights instruments that express the prohibition. Both the Universal Declaration of Human Rights⁴⁶⁰ and the ICCPR contain such provisions⁴⁶¹. Torture is also prohibited by a number of regional human rights treaties, including the European Convention on Human Rights ⁴⁶²(hereafter "European Convention"), the American Convention on Human Rights⁴⁶³, the Inter-American Convention to Prevent and Punish Torture⁴⁶⁴ (hereafter "Inter-American Convention"), and the African Charter on Human and Peoples’ Rights.⁴⁶⁵

453. In addition, there are two international instruments that are solely concerned with the prohibition of torture, the most significant of which is the Torture Convention⁴⁶⁶. This Convention was adopted by the General Assembly on 10 December 1984 and has been ratified or acceded to by 109 States, including the SFRY, representing more than half of the membership of the United Nations. It was preceded by the Declaration on the Protection from Torture, which was adopted by the United Nations General Assembly on 9 December 1975 without a vote.⁴⁶⁸

454. Based on the foregoing, it can be said that the prohibition on torture is a norm of customary law. It further constitutes a norm of jus cogens⁴⁶⁹, as has been confirmed by the United Nations Special Rapporteur for Torture⁴⁷⁰. It should additionally be noted that the prohibition contained in the aforementioned international instruments is absolute and non-derogable in any circumstances. ⁴⁷¹

455. Despite the clear international consensus that the infliction of acts of torture is prohibited conduct, few attempts have been made to articulate a legal definition of torture. In fact, of the instruments prohibiting torture, only three provide any definition. The first such instrument is the Declaration on Torture, article 1 of which states:

torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. . . . Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading punishment.

456. This definition was used as the basis for the one subsequently articulated in the Torture Convention⁴⁷², which states, in article 1 that,

the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

457. This differs from the formulation utilised in the Declaration on Torture in two ways. First, there is no reference to torture as an aggravated form of ill-treatment in the Torture Convention. However, this quantitative element is implicit in the requisite level of severity of suffering. Secondly, the examples of prohibited purposes in the Torture Convention explicitly include "any reason based on discrimination of any kind", whereas this is not the case in the Declaration on Torture.

458. The third such instrument, the Inter-American Convention, was signed on 9 December 1985⁴⁷³. The definition of torture contained in Article 2 thereof incorporates, but is arguably broader than, that contained in the Torture Convention, as it refrains from specifying a threshold level of pain or suffering which is necessary for ill treatment to constitute torture. ⁴⁷⁴

459. It may, therefore, be said that the definition of torture contained in the Torture Convention includes the definitions contained in both the Declaration on Torture and the Inter-American Convention and thus reflects a consensus which the Trial Chamber considers to be representative of customary international law.

460. Having reached this conclusion, the Trial Chamber now considers in more depth the requisite level of severity of pain or suffering, the existence of a prohibited purpose, and the extent of the official involvement that are required in order for the offence of torture to be proven.

b. Severity of Pain or Sufferin

461. Although the Human Rights Committee, a body established by the ICCPR to monitor its implementation, has had occasion to consider the nature of ill-treatment prohibited under article 7 of the ICCPR, the Committee’s decisions have generally not drawn a distinction between the various prohibited forms of ill-treatment. However, in certain cases, the Committee has made a specific finding of torture, based upon the following conduct: beating, electric shocks and mock executions⁴⁷⁵; plantones, beatings and lack of food⁴⁷⁶; being held incommunicado for more than three months whilst being kept blindfolded with hands tied together, resulting in limb paralysis, leg injuries, substantial weight loss and eye infection.⁴⁷⁷

462. The European Court and the European Commission of Human Rights have also developed a body of jurisprudence that deals with conduct constituting torture, prohibited by article 3 of the European Convention. As with the findings of the Human Rights Committee, it is difficult to obtain a precise picture of the material elements of torture from the decisions of these bodies, although they are useful in providing some examples of prohibited conduct. The most notable findings from this jurisdiction are the Greek Case ⁴⁷⁸and the Northern Ireland Case. The Greek Case was the first extensively reasoned decision on the conventional prohibition of torture, in which the practice of administering severe beatings to all parts of the body, known as falanga, as practised by the Athens Security Police, was held by the European Commission of Human Rights to constitute torture and ill-treatment. ⁴⁷⁹

463. The Northern Ireland Case best illustrates the inherent difficulties in determining a threshold level of severity beyond which inhuman treatment becomes torture. Whereas the European Commission of Human Rights considered that the combined use of wall-standing, hooding, subjection to noise, sleep deprivation and food and drink deprivation constituted a violation of article 3 amounting to torture, in this case, the European Court concluded that such acts did not amount to torture as they "did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood"⁴⁸⁰. Instead, the European Court found that the relevant acts constituted inhuman and degrading treatment in breach of article 3 of the European Convention.

464. In its decision in the Northern Ireland Case, the European Court found that the offence of torture was confined to ill-treatment resulting in "very serious and cruel suffering"⁴⁸¹. In doing so, it relied in part upon that section of the definition articulated in the Declaration of Torture that describes torture as "an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." The Trial Chamber notes that the European Court expressly acknowledged that the use of the five techniques of interrogation in question had caused "intense physical and mental suffering" but then, nonetheless, concluded that the intensity of the suffering inflicted was insufficient to warrant a finding of torture, without further explanation. Indeed, this aspect of the decision has been the subject of criticism in human rights literature⁴⁸². Furthermore, in later cases, forms of ill-treatment analogous to those considered by the European Court in the Northern Ireland Case have been found by other human rights bodies to constitute torture.⁴⁸³

465. In two other cases, the European Court has found breaches of article 3 amounting to torture. In Aksoy v. Turkey,⁴⁸⁴ the Court held that the applicant had been subjected to torture contrary to article 3 where he had been stripped naked and suspended by his arms which had been tied together behind his back. It took the view that,

this treatment could only have been deliberately inflicted: indeed a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to paralysis of both arms which lasted for some time. The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.⁴⁸⁵

466. Similarly, in Aydin v. Turkey⁴⁸⁶, the European Court made a specific finding of a breach of article 3 amounting to torture, on two separate grounds. First, the rape of the applicant during her detention was held to constitute torture - this is discussed in further detail below. Secondly, the European Court found that the following acts constituted independent grounds for a finding of torture:

[The applicant] was detained over a period of three days during which she must have been bewildered and disorientated by being kept blindfolded, and in a constant state of physical pain and mental anguish brought on by the beatings administered to her during questioning and by the apprehension of what would happen to her next. She was also paraded naked in humiliating circumstances thus adding to her overall sense of vulnerability and on one occasion she was pummelled with high-pressure water while being spun around in a tyre.⁴⁸⁷

467. Finally, it should also be noted that the Special Rapporteur on Torture, in his 1986 report, provided a detailed, although not exhaustive, catalogue of those acts which involve the infliction of suffering severe enough to constitute the offence of torture, including: beating; extraction of nails, teeth, etc.; burns; electric shocks; suspension; suffocation; exposure to excessive light or noise; sexual aggression; administration of drugs in detention or psychiatric institutions; prolonged denial of rest or sleep; prolonged denial of food; prolonged denial of sufficient hygiene; prolonged denial of medical assistance; total isolation and sensory deprivation; being kept in constant uncertainty in terms of space and time; threats to torture or kill relatives; total abandonment; and simulated executions. ⁴⁸⁸

468. From the foregoing discussion it can be seen that the most characteristic cases of torture involve positive acts. However, omissions may also provide the requisite material element, provided that the mental or physical suffering caused meets the required level of severity and that the act or omission was intentional, that is an act which, judged objectively, is deliberate and not accidental. Mistreatment that does not rise to the threshold level of severity necessary to be characterised as torture may constitute another offence.

469. As evidenced by the jurisprudence set forth above, it is difficult to articulate with any degree of precision the threshold level of suffering at which other forms of mistreatment become torture. However, the existence of such a grey area should not be seen as an invitation to create an exhaustive list of acts constituting torture, in order to neatly categorise the prohibition. As stated by Rodley, "… a juridical definition cannot depend upon a catalogue of horrific practices; for it to do so would simply provide a challenge to the ingenuity of the torturers, not a viable legal prohibition."⁴⁸⁹

c. Prohibited Purpose

470. Another critical element of the offence of torture is the presence of a prohibited purpose. As previously stated, the list of such prohibited purposes in the Torture Convention expands upon those enumerated in the Declaration on Torture by adding "discrimination of any kind". The use of the words "for such purposes" in the customary definition of torture, indicate that the various listed purposes do not constitute an exhaustive list, and should be regarded as merely representative. Further, there is no requirement that the conduct must be solely perpetrated for a prohibited purpose. Thus, in order for this requirement to be met, the prohibited purpose must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose.

471. A fundamental distinction regarding the purpose for which torture is inflicted is that between a "prohibited purpose" and one which is purely private. The rationale behind this distinction is that the prohibition on torture is not concerned with private conduct, which is ordinarily sanctioned under national law⁴⁹⁰. In particular, rape and other sexual assaults have often been labelled as "private", thus precluding them from being punished under national or international law. However, such conduct could meet the purposive requirements of torture as, during armed conflicts, the purposive elements of intimidation, coercion, punishment or discrimination can often be integral components of behaviour, thus bringing the relevant conduct within the definition. Accordingly,

[o]nly in exceptional cases should it therefore be possible to conclude that the infliction of severe pain or suffering by a public official would not constitute torture … on the ground that he acted for purely private reasons. ⁴⁹¹

472. As noted above, the Defence argues that an act can only constitute torture if it is committed for a limited set of purposes, enumerated in the Commentary to article 147 of the Fourth Geneva Convention. This proposition does not reflect the position at customary law as discussed above, which clearly envisages prohibited purposes additional to those suggested by the Commentary.

d. Official Sanction

473. Traditionally, an act of torture must be committed by, or at the instigation of, or with the consent or acquiescence of, a public official or person acting in an official capacity. In the context of international humanitarian law, this requirement must be interpreted to include officials of non-State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international conflicts involving some non-State entities.

474. The incorporation of this element into the definition of torture contained in the Torture Convention again follows the Declaration on Torture and develops it further by adding the phrases "or with the consent or acquiescence of" and "or other person acting in an official capacity". It is thus stated in very broad terms and extends to officials who take a passive attitude or turn a blind eye to torture, most obviously by failing to prevent or punish torture under national penal or military law, when it occurs.

(iv) Rape as Torture

475. The crime of rape is not itself expressly mentioned in the provisions of the Geneva Conventions relating to grave breaches, nor in common article 3, and hence its classification as torture and cruel treatment. It is the purpose of this section to consider the issue of whether rape constitutes torture, under the above mentioned provisions of the Geneva Conventions. In order to properly consider this issue, the Trial Chamber first discusses the prohibition of rape and sexual assault in international law, then provides a definition of rape and finally turns its attention to whether rape, a form of sexual assault, can be considered as torture.

a. Prohibition of Rape and Sexual Assault Under International Humanitarian Law

476. There can be no doubt that rape and other forms of sexual assault are expressly prohibited under international humanitarian law. The terms of article 27 of the Fourth Geneva Convention specifically prohibit rape, any form of indecent assault and the enforced prostitution of women. A prohibition on rape, enforced prostitution and any form of indecent assault is further found in article 4(2) of Additional Protocol II, concerning internal armed conflicts. This Protocol also implicitly prohibits rape and sexual assault in article 4(1) which states that all persons are entitled to respect for their person and honour. Moreover, article 76(1) of Additional Protocol I expressly requires that women be protected from rape, forced prostitution and any other form of indecent assault. An implicit prohibition on rape and sexual assault can also be found in article 46 of the 1907 Hague Convention (IV) that provides for the protection of family honour and rights. Finally, rape is prohibited as a crime against humanity under article 6(c) of the Nürnberg Charter and expressed as such in Article 5 of the Statute.

477. There is on the basis of these provisions alone, a clear prohibition on rape and sexual assault under international humanitarian law. However the relevant provisions do not define rape. Thus, the task of the Trial Chamber is to determine the definition of rape in this context.

b. Definition of Rape

478. Although the prohibition on rape under international humanitarian law is readily apparent, there is no convention or other international instrument containing a definition of the term itself. The Trial Chamber draws guidance on this question from the discussion in the recent judgement of the ICTR, in the case of the Prosecutor v. Jean-Paul Akayesu ⁴⁹²(hereafter "Akayesu Judgement") which has considered the definition of rape in the context of crimes against humanity. The Trial Chamber deciding this case found that there was no commonly accepted definition of the term in international law and acknowledged that, while "rape has been defined in certain national jurisdictions as non-consensual intercourse", there are differing definitions of the variations of such an act. It concluded,

that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focusing rather on the conceptual framework of state sanctioned violence.This approach is more useful in international law. […]

The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed under circumstances which are coercive.[…] ⁴⁹³

479. This Trial Chamber agrees with the above reasoning, and sees no reason to depart from the conclusion of the ICTR in the Akayesu Judgement on this issue. Thus, the Trial Chamber considers rape to constitute a physical invasion of a sexual nature, committed on a person under circumstances that are coercive. Having reached this conclusion, the Trial Chamber turns to a brief discussion of the jurisprudence of other international judicial bodies concerning rape as torture.

c. Decisions of International and Regional Judicial Bodie

480. In order for rape to be included within the offence of torture it must meet each of the elements of this offence, as discussed above. In considering this issue, the Trial Chamber finds it useful to examine the relevant findings of other international judicial and quasi-judicial bodies as well as some relevant United Nations reports.

481. Both the Inter-American Commission on Human Rights (hereafter "Inter-American Commission") and the European Court of Human Rights have recently issued decisions on the question of whether rape constitutes torture. On 1 March 1996, the Inter-American Commission handed down a decision in the case of Fernando and Raquel Mejia v. Peru⁴⁹⁴, which concerned the rape, on two occasions, of a schoolteacher by members of the Peruvian Army. The facts of the case are as follows.

482. On the evening of 15 June 1989, Peruvian military personnel, armed with submachine guns and with their faces covered, entered the Mejia home. They abducted Fernando Mejia, a lawyer, journalist and political activist, on suspicion of being a subversive and a member of the Tupac Amaru Revolutionary Movement. Shortly thereafter, one of these military personnel re-entered the home, apparently looking for identity documents belonging to Mr. Mejia. While his wife, Raquel Mejia, was searching for these documents, she was told that she was also considered a subversive, which she denied. The soldier involved then raped her. About 20 minutes later the same soldier returned, dragged her into her room and raped her again. Raquel Mejia spent the rest of the night in a state of terror. Her husband’s body, which showed clear signs of torture, was subsequently found on the banks of the Santa Clara River.

483. The Inter-American Commission found that the rape of Raquel Mejia constituted torture in breach of article 5 of the American Convention of Human Rights⁴⁹⁵. In reaching this conclusion, the Inter-American Commission found that torture under article 5 has three constituent elements. First, there must be an intentional act through which physical or mental pain and suffering is inflicted on a person; secondly, such suffering must be inflicted for a purpose; and, thirdly, it must be inflicted by a public official or by a private person acting at the instigation of a public official. ⁴⁹⁶

484. In considering the application of these principles to the facts, the Inter-American Commission found that the first of these elements was satisfied on the basis that:

[r]ape causes physical and mental suffering in the victim. In addition to the violence suffered at the time it is committed, the victims are commonly hurt or, in some cases, are even made pregnant. The fact of being made the subject of abuse of this nature also causes a psychological trauma that results, on the one hand, from having been humiliated and victimised, and on the other, from suffering the condemnation of the members of their community if they report what has been done to them. ⁴⁹⁷

485. In finding that the second element of torture had also been met, the Inter-American Commission found that Raquel Mejia was raped with the aim of punishing her personally and intimidating her. Finally, it was held that the third requirement of the definition of torture was met as the man who raped Raquel Meija was a member of the security forces.⁴⁹⁸

486. Two important observations may be made about this decision. First, in considering whether rape gives rise to pain and suffering, one must not only look at the physical consequences, but also at the psychological and social consequences of the rape. Secondly, in its definition of the requisite elements of torture, the Inter-American Commission did not refer to the customary law requirement that the physical and psychological pain and suffering be severe. However, this level of suffering may be implied from the Inter-American Commission’s finding that the rape, in the instant case, was "an act of violence" occasioning physical and psychological pain and suffering that caused the victim: a state of shock; a fear of public ostracism; feelings of humiliation; fear of how her husband would react; a feeling that family integrity was at stake and an apprehension that her children might feel humiliated if they knew what had happened to their mother.⁴⁹⁹

487. The European Court has also recently considered the issue of rape as torture, as prohibited by article 3 of the European Convention, in the case of Aydin v. Turkey. In this case, a majority of the Court referred to the previous finding of the European Commission for Human Rights, when it stated that, after being detained, the applicant was taken to a police station where she was:

blindfolded, beaten, stripped, placed inside a tyre and sprayed with high pressure water, and raped. It would appear probable that the applicant was subject to such treatment on the basis of suspicion of collaboration by herself or members of her family with members of the PKK, the purpose being to gain information and/or deter her family and other villagers from becoming implicated in terrorist activities. ⁵⁰⁰

488. The European Court held that the distinction between torture and inhuman or degrading treatment in article 3 of the European Convention was embodied therein to allow the special stigma of torture to attach only to deliberate inhuman treatment causing very serious and cruel suffering. ⁵⁰¹It went on to state that:

[w]hile being held in detention the applicant was raped by a person whose identity has still to be determined. Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally.
[…]

Against this background the Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of article 3 of the Convention. Indeed the court would have reached this conclusion on either of these grounds taken separately. ⁵⁰²

489. By stating that it would have found a breach of article 3 even if each of the grounds had been considered separately, the European Court, on the basis of the facts before it, specifically affirmed the view that rape involves the infliction of suffering at a requisite level of severity to place it in the category of torture. A majority of the Court (14 votes to 7) thus found that there had been a breach of article 3 of the European Convention and, while those judges who disagreed with this finding were not convinced that the events alleged actually took place, they did not otherwise disagree with the reasoning of the majority on the application of article 3⁵⁰³. Indeed, two of the dissenting judges explicitly stated that, had they found the acts alleged proven, they would constitute an extremely serious violation of article 3. ⁵⁰⁴

490. In addition, the Akayesu Judgement referred to above expresses a view on the issue of rape as torture most emphatically, in the following terms:

Like torture rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment control or destruction of a person. Like torture rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.⁵⁰⁵

491. The view that rape constitutes torture, is further shared by the United Nations Special Rapporteur on Torture. In an oral introduction to his 1992 Report to the Commission on Human Rights, the Special Rapporteur stated that:

since it was clear that rape or other forms of sexual assault against women in detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture. ⁵⁰⁶

In his first report he also listed various forms of sexual aggression as methods of torture, which included rape and the insertion of objects into the orifices of the body. ⁵⁰⁷

492. The profound effects of rape and other forms of sexual assault were specifically addressed in the Report of the Commission of Experts thus:

Rape and other forms of sexual assault harm not only the body of the victim. The more significant harm is the feeling of total loss of control over the most intimate and personal decisions and bodily functions. This loss of control infringes on the victim’s human dignity and is what makes rape and sexual assault such an effective means of ethnic cleansing. ⁵⁰⁸

493. Finally, in a recent report, the United Nations Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, has considered the issue of rape as torture with particular regard to the prohibited purpose of discrimination. The United Nations Special Rapporteur referred to the fact that the Committee on the Elimination of Discrimination against Women has recognised that violence directed against a woman because she is a woman, including acts that inflict physical, mental or sexual harm or suffering, represent a form of discrimination that seriously inhibits the ability of women to enjoy human rights and freedoms. Upon this basis, the United Nations Special Rapporteur opined that, "in many cases the discrimination prong of the definition of torture in the Torture Convention provides an additional basis for prosecuting rape and sexual violence as torture." ⁵⁰⁹

(v) Findings

494. In view of the above discussion, the Trial Chamber therefore finds that the elements of torture, for the purposes of applying Articles 2 and 3 of the Statute, may be enumerated as follows:

(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical,
(ii) which is inflicted intentionally,
(iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind,
(iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.

495. The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity. The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official, or with the consent or acquiescence of such an official. Rape causes severe pain and suffering, both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting. Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict.

496. Accordingly, whenever rape and other forms of sexual violence meet the aforementioned criteria, then they shall constitute torture, in the same manner as any other acts that meet this criteria.

497. It is in the light of these findings that the evidence relating to the charges of torture contained in the Indictment is considered in Section IV below.

The offence of wilfully causing great suffering or serious injury to body or health is expressly prohibited as a grave breach in each of the four Geneva Conventions. However, in order to attach meaning to the prohibition, it is necessary to analyse the circumstances in which particular actions may constitute the causing of such suffering or serious injury. This very issue is indeed the subject of contention between the parties in the present case.

(i) Arguments of the Parties

499. It is clear from the submissions of the Prosecution that it takes the position that there are two separate offences, one being "wilfully causing great suffering" and the second being "wilfully causing serious injury to body or health". In its view, the elements of the first of these are as follows, first, the accused intended to inflict great suffering without the underlying intention and purposes of torture, with recklessness constituting a sufficient form of intention. Secondly, great suffering was in fact inflicted upon the victim, which need not be limited to physical suffering, but can also include mental or moral suffering.

500. The Prosecution further submits that the second offence of "wilfully causing serious injury to body or health" has two main elements. First, the accused intended to cause injury to the body or health of the victim, including his mental health, with recklessness constituting a sufficient form of such intention. Secondly, serious injury to body or health was in fact inflicted upon the victim.

501. The Prosecution argues that the elements of these offences are clearly set out by their terms and refers to the Commentary to article 147 of the Fourth Geneva Convention. This suggests that suffering may be inflicted without a contemplated purpose, such as is required for torture, and that "wilfully causing great suffering" does not necessarily imply injury to body or health. The Prosecution further submits that while "wilfully causing injury to body or health" does require the actual infliction of such injury, it need not be a permanent injury.

502. In its Response to the Motion to Dismiss, the Prosecution submits that there is no support for the adoption of additional requirements in relation to both offences, such as, that the victim must have been maimed and lost the use of a bodily member or organ, or that injury to health may only encompass bodily damage. In its view, such requirements are wholly unsupportable and contrary to the definitions of the crimes. ⁵¹⁰

503. The Defence makes two main submissions. First, it argues that the offence of causing "great suffering or injury" has two sources, the first being common article 3 to the Geneva Conventions that prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." The second is the prohibition of "wilfully causing great suffering or serious injury to body or health" contained in article 130 of the Third Geneva Convention and article 147 of the Fourth Geneva Convention. It contends, however, that these terms lack the specificity required of criminal statutes and they cannot, therefore, form the basis of a criminal prosecution, as this would violate the principle of nullum crimen sine lege.⁵¹¹

504. In the alternative, should the above argument fail, the Defence argues that the elements of this offence are that:

1. the violation was wilful; and

2. it caused great suffering; or

3. serious injury to body or health.

505. The Defence maintains that the term "wilful" carries the same meaning as it does for the purposes of the offence of wilful killing and, accordingly, this means that it must have been the specific intent of the perpetrator of the mistreatment to cause the actual result, being either great suffering or serious injury to body or health. The Defence submits that it is insufficient to show simply that the perpetrator intended to commit an act and that the act caused the result. The Defence also submits that the suffering must be both real and great, by objective standards. It rejects the discussion in the Commentary of the meaning of the term "serious injury to body or health" and maintains that a serious injury is one that causes a protracted loss of use of a bodily member or organ. The use of the word "protracted" is suggested in order to avoid the "incapacity to work" standard suggested by the Commentary, while at the same time recognising that some injuries are serious while others are not.

(ii) Discussion

506. Article 2(c) of the Statute enumerates the offence of wilfully causing great suffering or serious injury to body or health as a grave breach of the Geneva Conventions. This terminology is utilised in the same manner in each of the four Geneva Conventions⁵¹². The construction of the phrase "wilfully causing great suffering or serious injury to body or health" indicates that this is one offence, the elements of which are framed in the alternative and apparent on its face.

507. The Commentary to the Fourth Geneva Convention, which is identical to the Commentaries to the Second and Third Geneva Conventions in this regard⁵¹³, makes a number of useful observations on the meaning of the phrase "wilfully causing great suffering or serious injury to body or health".

Wilfully causing great suffering - this refers to suffering inflicted with the ends in view for which torture is inflicted or biological experiments carried out. It would therefore be inflicted as a punishment, in revenge or for some other motive, perhaps out of pure sadism. In view of the fact that suffering in this case does not seem, to judge by the phrase which follows, to imply injury to body or health, it may be wondered if this is not a special offence not dealt with by national legislation. Since the Conventions do not specify that only physical suffering is meant, it can quite legitimately be held to cover moral suffering also.

Serious injury to body or health – this is a concept quite normally encountered in penal codes, which usually use as a criterion of seriousness the length of time the victim is incapacitated for work.⁵¹⁴

508. Thus, the Commentary first draws a distinction between this offence and the offence of torture, on the basis that the prohibited purpose required in order for an act to constitute the latter is not required for the former. While the Trial Chamber is in accord with this fundamental distinction, the presence of the prohibited purpose of punishment may raise the causing of great suffering or serious injury to the level of torture as defined above.

509. Secondly, the Commentary suggests that "causing great suffering" encompasses more than mere physical suffering, and includes moral suffering. This view is supported by the plain, ordinary meaning of the words "wilfully causing great suffering", which are not qualified by the words "to body or health", as is the case with "causing injury". Thus, the suffering incurred can be mental or physical.

510. Thirdly, the Commentary posits a possible criterion for judging the seriousness of the injury, being an incapacity to work. While this may well be the case in some situations, when ascertaining the meaning of the term "serious" in the absence of other interpretive material, the Trial Chamber must look to the plain ordinary meaning of the word. The Oxford English Dictionary defines this word as "not slight or negligible". Similarly, the term "great" is defined as "much above average in size, amount or intensity". The Trial Chamber therefore views these quantitative expressions as providing for the basic requirement that a particular act of mistreatment results in a requisite level of serious suffering or injury.

(iii) Findings

511. The Trial Chamber thus finds that the offence of wilfully causing great suffering or serious injury to body or health constitutes an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury. It covers those acts that do not meet the purposive requirements for the offence of torture, although clearly all acts constituting torture could also fall within the ambit of this offence.

(d) Inhuman Treatment

512. There are several counts of the Indictment which charge the accused with inhuman treatment, punishable under Article 2(b) of the Statute. The following discussion seeks to establish the content of the prohibition on inhuman (or inhumane) treatment.

(i) Arguments of the Parties

The Prosecution takes the position that:

1. Inhuman treatment is any act or omission that causes the physical, intellectual, or moral integrity of the victim to be impaired, or causes the victim to suffer indignity, pain or suffering.
2. the accused must have intended to unlawfully impair the physical, intellectual or moral integrity of the victim, otherwise subject the victim to indignities, pain or suffering out of proportion to the treatment expected of one human being by another. Recklessness would constitute a sufficient form of such intention. ⁵¹⁵

514. The Prosecution further states that it is unnecessary to prove that the act in question had grave consequences for the victim⁵¹⁶.In addition, it refers to the discussion in the Tadic Judgment of the meaning of "cruel treatment" as prohibited by common article 3(1) of the Geneva Conventions, where Trial Chamber II did not find such an element to be required⁵¹⁷. In that case it was held that the prohibition on cruel treatment is a means to an end, being that of "ensuring that persons taking no active part in the hostilities shall in all circumstances be treated humanely". ⁵¹⁸

515. The Defence submits, in its Motion to Dismiss⁵¹⁹, that the offence of inhumane treatment lacks sufficient specificity to form the basis of a criminal prosecution except in the clearest cases. The Defence, in its closing oral arguments⁵²⁰, further adds that, due to this lack of specificity, it potentially violates the principle of nullum crimen sine lege.

(ii) Discussion

516. The offence of inhuman treatment - or traitements inhumains in the French text - appears in each of the four Geneva Conventions as a grave breach⁵²¹. In addition, article 119 of the Fourth Geneva Convention provides that any disciplinary penalties inflicted upon detained civilians must not be "inhuman, brutal or dangerous for the health of internees". An equivalent prohibition with respect to prisoners of war is contained in article 89 of the Third Geneva Convention.

517. As with torture, there can be no doubt that inhuman treatment is prohibited under conventional and customary international law. The same international human rights and United Nations instruments that contain the prohibitions against torture, also proscribe inhuman treatment⁵²². On the strength of this almost universal condemnation of the practice of inhuman treatment, it can be said that its prohibition is a norm of customary international law. However, unlike the offence of torture, none of the aforementioned instruments have attempted to fashion a definition of inhuman treatment. It thus falls to this Trial Chamber to identify the essential meaning of the offence.

518. The Oxford English Dictionary defines treatment as inhuman when it is "brutal, lacking in normal human qualities of kindness, pity etc." The noun "inhumane" is simply defined as "not humane", which denotes "kind-hearted, compassionate, merciful". Similarly, in relation to the French version, the Le Nouveau Petit Robert dictionary defines "inhumain" as "qui manque d’ humanité", "barbare, cruel, dur, impitoyable, insensible". It is therefore apparent from the plain ordinary meaning of the adjective "inhuman(e)", that the term "inhuman treatment" is defined by reference to its antonym, humane treatment.

519. This accords with the approach taken by the ICRC in its Commentary to article 147 of the Fourth Geneva Convention. In seeking to explain this term, the Commentary refers to article 27 of the same Convention, and states that "the sort of treatment covered by this article, therefore, would be one which ceased to be humane⁵²³." Further support is lent to this view by the Commentary to article 119, which states "[t]hat this paragraph … reaffirms the humanitarian ideas contained in Articles 27 and 32, and thus underlines the need never to lose sight of these essential principles"⁵²⁴. The Commentary to inhuman treatment as a grave breach under article 51 of the Second Geneva Convention also defines this offence by reference to article 12 of that Convention, which provides that protected persons must be treated with humanity. Accordingly, the Commentary to article 51 states that the "sort of treatment covered here would therefore be whatever is contrary to that general rule". ⁵²⁵

520. Having identified the basic premise that inhuman treatment is treatment which is not humane, and which is thus in breach of a fundamental principle of the Geneva Conventions, the Trial Chamber now turns to a more detailed discussion of the meaning of the terms "inhuman treatment" and "humane treatment". While the dictionary meanings referred to above are obviously important to this consideration, in order to determine the essence of the offence of inhuman treatment, the terminology must be placed within the context of the relevant provisions of the Geneva Conventions and Additional Protocols.

521. The Commentary to article 147 of the Fourth Geneva Convention opines that inhuman treatment,

could not mean, it seems, solely treatment constituting an attack on physical integrity or health; the aim of the Convention is certainly to grant civilians in enemy hands a protection which will preserve their human dignity and prevent them from being brought down to the level of animals. That leads to the conclusion that by "inhuman treatment" the Convention does not mean only physical injury or injury to health. Certain measures, for example, which might cut the civilian internees off completely from the outside world and in particular from their families, or which caused grave injury to their human dignity, could conceivably be considered as inhuman treatment. ⁵²⁶

522. This language is repeated in relation to article 51 of the Second Geneva Convention in the commentary to that Convention⁵²⁷, and also in that concerning article 130 of the Third Geneva Convention⁵²⁸. The only difference is that the words "could conceivably be" in the last sentence of the quotation above are replaced in the Commentary to the Second and Third Geneva Conventions by the words "should be". This difference in terminology would seem to indicate that the drafters of the commentaries to the Second and Third Geneva Conventions took a stronger position on the issue of whether acts causing grave injury to human dignity are also encompassed in the concept of inhuman treatment.

523. As has been previously stated in this Judgement, the concept of humane treatment permeates all four of the Geneva Conventions and the Additional Protocols, and is encapsulated in the Hague Regulations and the two Geneva Conventions of 1929⁵²⁹. The key provision of the Fourth Geneva Convention containing the obligation to treat protected persons humanely is contained in article 27, the first two paragraphs of which state that:

[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all attacks of violence and threats thereof and against insults and public curiosity.Women shall be especially protected against any attack of their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

524. This article is the ‘basis of the Convention, proclaiming … the principles upon which the whole of the "Geneva Law’ is founded" being the "principle of respect for the human person and the inviolable character of the basic rights of individual men and women.⁵³⁰" The Commentary makes the fundamental significance of humane treatment clear by stating that it is "in truth the leitmotiv of the four Geneva Conventions"⁵³¹. It goes on to state that the word "treatment",

must be understood here in its most general sense as applying to all aspects of man’s life … The purpose of this Convention is simply to define the correct way to behave towards a human being, who himself wishes to receive humane treatment and who may, therefore, also give it to his fellow human beings. ⁵³²

525. In its conclusion, the Commentary characterises humane treatment, and the prohibition of certain acts which are incompatible with it, as general and absolute in character, valid in all circumstances and at all times. ⁵³³

526. After proclaiming the general principle of humane treatment, article 27 of Geneva Convention IV gives examples of acts that are incompatible with it, such as acts of violence or intimidation "inspired not by military requirements or a legitimate desire for security, but by a systematic scorn for human values", including insult and exposing people to public curiosity⁵³⁴. This list has been supplemented by article 32 of the same Convention, which prohibits all acts causing physical suffering or extermination including murder, torture, corporal punishment, mutilation, medical or scientific experiments not necessitated by the medical treatment of the person concerned, and any other measures of brutality⁵³⁵. This article is not exhaustive, it is as general as possible and only gives examples of the principal types of atrocities committed during the Second World War. ⁵³⁶

527. Article 13 of the Third Geneva Convention similarly contains the principles and prohibitions of articles 27 and 32 of the Fourth Geneva Convention. It provides that prisoners of war must be treated humanely at all times. Again, the principle is stated by reference to behaviour that is inconsistent with it. After setting out the general principle that all prisoners shall be treated humanely, the article states that unlawful acts or omissions causing death or endangering the health of a prisoner of war are considered as serious breaches:

In particular no prisoner of war may be subjected to physical mutilation, or to medical or scientific experiments of any kind which are not justified … [l]ikewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation, and against insults and public curiosity.

528. The Commentary to the Third Geneva Convention, in relation to this provision, directly addresses the application of the principle of humane treatment, and the prohibition of acts which are inconsistent with it, in the situation where protected persons are legitimately detained. It states that:

[t]he requirement of humane treatment and the prohibition of certain acts inconsistent with it are general and absolute in character. They are valid at all times, and apply, for example, to cases where the repressive measures are legitimately imposed on a protected person, since the dictates of humanity must be respected even if measures of security or repression are being applied. The obligation remains fully valid in relation to persons in prison or interned, whether in the territory of a party to the conflict or in occupied territory. It is in such situations, when human values appear to be in greatest peril, that the provision assumes its full importance".⁵³⁷

This Commentary goes on to state that the concept of humane treatment implies, in the first place, an absence of any type of corporal punishment, but that it does not only have this negative aspect. It also involves a notion of protection of a prisoner of war, which means "to stand up for him, to give him assistance and support and also to defend or guard him from injury or danger." ⁵³⁸Thus, a positive obligation of protection flows from the requirement of humane treatment, which "extends to moral values, such as the independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity)." ⁵³⁹

529. The principle of humane treatment is also enunciated in the second, third and fourth paragraphs of article 12 of both the First and Second Geneva Conventions, dealing with the wounded and sick on land and sea. The commentaries to these Conventions make the point that the purpose of these paragraphs was to develop and define the concept of humane care and treatment⁵⁴⁰. After setting out the general obligation of humane treatment, article 12 provides that it is to be applied without discrimination, and prohibits any attempts upon life or violence to the person, in particular, murder, extermination, torture, biological experiments, wilfully being left without medical assistance or care, or the creation of conditions which expose persons to contagion or infection. The Commentary to the First Geneva Convention provides that treatment in this context is to be understood in its most general sense as applying to all aspects of a man’s existence.⁵⁴¹

530. The Third Geneva Convention also includes two further provisions that enshrine the fundamental principle of humane treatment. Article 20 provides that prisoners of war must be evacuated humanely, which includes being supplied with sufficient food, potable water, clothing and medical attention. The Commentary to the Third Geneva Convention recognises that there may be different physical and living conditions between prisoners of war and the troops of the detaining power. Moreover, "treatment which may be bearable for the captors might cause indescribable suffering for their prisoners. Account must be taken of varying habits with regard to climate, food, comfort, clothing, etc"⁵⁴². The determining factor is humane treatment - life or health must not be endangered and serious hardship and suffering must be avoided⁵⁴³. In addition, article 46 of the Third Geneva Convention provides similar safeguards with respect to the transfer of prisoners of war. Indeed, it goes further than article 20 by expressly stating that account must be taken of climatic conditions to which the prisoners of war are accustomed. Accordingly, the prohibition on inhumane treatment also extends to the living conditions of protected persons and would be violated if adequate food, water, clothing, medical care and shelter, were not provided in light of the protected persons’ varying habits and health.

531. Article 75 of Additional Protocol I and articles 4 and 7 of Additional Protocol II also enshrine the basic principle of humane treatment. Indeed, the Commentary to Additional Protocol II, states that the "right of protected persons to respect for their honour, convictions and religious practices is an element of humane treatment", with reference to article 27 of the Fourth Geneva Convention. ⁵⁴⁴

532. Finally, and importantly, the principle of humane treatment constitutes the fundamental basis underlying common article 3 of the Geneva Conventions. This article prohibits a number of acts, including violence to life and to the person, such as murder, mutilation, cruel treatment, torture and outrages on personal dignity, and humiliating and degrading treatment. The Commentary to the First Geneva Convention, in relation to common article 3, addresses the issue of the definition of the concept of humane treatment, and hence inhumane treatment, thus:

It would therefore be pointless and even dangerous to try to enumerate things with which a human being must be provided for his normal maintenance as distinct from that of an animal, or to lay down in detail the manner in which one must behave towards him in order to show that one is treating him ‘humanely’, that is as a fellow human being and not as a beast or a thing. The details of such treatment may, moreover vary according to circumstances – particularly the climate - and to what is feasible. On the other hand, there is less difficulty in enumerating things which are incompatible with human treatment. That is the method followed in the Convention when it proclaims four absolute prohibitions … No possible loophole is left; there can be no excuse, no attenuating circumstances.⁵⁴⁵

In relation to the enumeration of prohibited behaviour, it continues that,

[h]owever much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes.⁵⁴⁶

It is this Commentary which best explains the general approach of the Geneva Conventions to the concept of humane and inhuman treatment. As has been emphasised throughout this Judgement, humane treatment is the cornerstone of all four Conventions, and is defined in the negative in relation to a general, non-exhaustive catalogue of deplorable acts which are inconsistent with it, these constituting inhuman treatment.

533. The foregoing discussion with regard to inhuman treatment is also consistent with the concept of "inhumane acts", in the context of crimes against humanity. These acts are prohibited and punishable under Article 5 of the Statute and include murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds and other inhumane acts. This list is in accord with article 6(c) of the Nürnberg Charter and article II 1(c) of Control Council Law No. 10, which was the first time such acts were expressly recognised as crimes against humanity. Article 18(k) of the ILC Draft Code contains a more extensive list of acts which may constitute crimes against humanity than that contained in the foregoing provisions. It also provides that "other inhumane acts" are acts that, in fact, severely damage the physical or mental integrity of the victim, or his health or human dignity. The ILC also recognises that it is impossible to establish an exhaustive list of inhumane acts that may constitute crimes against humanity. ⁵⁴⁷

534. Having considered the meaning of inhuman treatment in the context of the Geneva Conventions, as well as in relation to the category of crimes against humanity, the Trial Chamber now turns to a consideration of how the prohibition has been interpreted by other international adjudicative bodies. As has been noted above, the European Court and the European Commission of Human Rights have developed a substantial body of jurisprudence addressing the various forms of ill-treatment prohibited under article 3 of the European Convention. Insofar as these bodies have sought to distinguish the various offences prohibited under article 3 of the European Convention, they have done so by reference to a sliding scale of severity⁵⁴⁸. Using this approach, the European Court has found that the special stigma of torture attaches only to deliberate inhuman treatment causing very serious and cruel suffering⁵⁴⁹. The Trial Chamber has already discussed the finding of the European Court in the Northern Ireland Case that this distinction between the notion of torture and that of inhuman or degrading treatment "derives principally from a difference in the intensity of the suffering inflicted." ⁵⁵⁰

535. The European Court has also used the purpose for which the ill-treatment was inflicted to distinguish torture from other inhuman or degrading treatment. Two recent opinions of the European Court finding violations of article 3 amounting to torture have been discussed above, but are also relevant in this regard. In Aydin v. Turkey, the European Court noted that the suffering inflicted on the applicant that amounted to torture was calculated to enable the security forces to elicit information⁵⁵¹. Similarly, in Aksoy v. Turkey, the European Court noted that the ill-treatment found to constitute torture "would appear to have been administered with the aim of obtaining admissions or information from the applicant."⁵⁵²

536. At the other end of the scale, the European Court has held that, in order for ill-treatment to fall within the scope of the prohibition contained in article 3, it must;

. . . attain a minimum level of severity. [...] The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.⁵⁵³

537. In Tomasi v. France, where the European Court made an explicit finding of inhuman treatment amounting to a violation of article 3, the applicant alleged that, during a police interrogation he had been slapped, kicked, punched, given forearm blows, made to stand for long periods without support, had his hands handcuffed behind his back, been spat upon, made to stand naked in front of an open window, deprived of food and threatened with a firearm. The court held that the "large number of blows inflicted on Mr. Tomasi and their intensity . . . are two elements which are sufficiently serious to render such treatment inhuman and degrading⁵⁵⁴." In Ribitsch v. Austria⁵⁵⁵, the European Court found that the applicant had been subjected to inhuman and degrading treatment in violation of article 3 when he had been beaten while in police custody, and he and his wife, who was detained with him, had been threatened and insulted. The European Court went even further to find that:

[i]n respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in article 3 of the Convention.⁵⁵⁶

538. More recently, the European Court has found ill-treatment amounting to a violation of article 3 where a boy of nine years had been beaten with considerable force on more than one occasion with a garden cane⁵⁵⁷. In the most coherent framing of the concept, the European Commission of Human Rights has described inhuman treatment as that which "deliberately causes serious mental and physical suffering."⁵⁵⁸

539. Article 7 of the ICCPR provides that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

540. The Human Rights Committee has adopted a comprehensive approach to the application of article 7 in its General Comment to this provision, choosing not to "establish sharp distinctions between the different kinds of punishment or treatment⁵⁵⁹."The Committee has noted, however, that any distinction between the terms would depend on the "nature, purpose and severity of the treatment applied." ⁵⁶⁰

541. In a few cases, the Human Rights Committee has made specific findings of inhuman treatment in violation of article 7 of the ICCPR. In Portorreal v. Dominican Republic⁵⁶¹, the applicant had been arrested and taken to a cell measuring 20 by 5 metres, where approximately 125 persons accused of various crimes were held, and where, owing to lack of space, some detainees had to sit on excrement. The applicant received no food and water until the following day and he was finally released after 50 hours in detention. The Committee found that this constituted inhuman and degrading treatment amounting to a violation of article 7 of the ICCPR. In Tshisekedi v. Zaire⁵⁶², the Committee also found there to have been a violation of article 7 amounting to inhuman treatment where the applicant had been "deprived of food and drink for four days after his arrest . . . and was subsequently kept interned under unacceptable sanitary conditions.⁵⁶³" Again, in Bouton v. Uruguay, the Committee found that being forced to stand blindfolded and bound for 35 hours, while listening to the cries of other detainees being tortured, being threatened with punishment, and being forced to sit blindfolded and motionless on a mattress for many days, constituted inhuman treatment.⁵⁶⁴

541. Based on the Human Rights Committee’s enumeration of the distinctions between torture and inhuman and degrading treatment, Nowak has remarked that inhuman treatment must include "all forms of imposition of severe suffering that are unable to be qualified as torture for lack of one of its essential elements."⁵⁶⁵ Furthermore, in his view, inhuman treatment also includes ill-treatment that does not reach the requisite level of severity to qualify as torture.⁵⁶⁶

542. Clearly, the international adjudicative bodies that have considered the application of this offence of inhuman(e) treatment have tended to define it in relative terms. That is, inhuman treatment is treatment which deliberately causes serious mental and physical suffering that falls short of the severe mental and physical suffering required for the offence of torture. Furthermore, the offence need not have a prohibited purpose or be committed under official sanction as required by torture.

(iii) Findings

543. In sum, the Trial Chamber finds that inhuman treatment is an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. The plain, ordinary meaning of the term inhuman treatment in the context of the Geneva Conventions confirms this approach and clarifies the meaning of the offence. Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed "grave breaches" in the Conventions fall. Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment.

544. In this framework of offences, all acts found to constitute torture or wilfully causing great suffering or serious injury to body or health would also constitute inhuman treatment. However, this third category of offence is not limited to those acts already incorporated into the other two and extends further to other acts which violate the basic principle of humane treatment, particularly the respect for human dignity. Ultimately, the question of whether any particular act which does not fall within the categories of the core group is inconsistent with the principle of humane treatment, and thus constitutes inhuman(e) treatment, is a question of fact to be judged in all the circumstances of the particular case.

(e) Cruel Treatment

545. The offences charged as cruel treatment in the Indictment are brought under Article 3 of the Statute, either in the alternative to charges of torture, or additional to charges of wilfully causing great suffering or serious injury or inhuman treatment, brought under Article 2 of the Statute.

(i) Arguments of the Parties

546. The Prosecution argues that cruel treatment has the same elements as the offence of inhuman treatment and encompasses situations where the accused mistreats the victim and subjects him or her to mental or physical pain or suffering, without thereby pursuing any of the purposes underlying the offence of torture⁵⁶⁷. In its Response to the Motion to Dismiss⁵⁶⁸, the Prosecution refers to the discussion in the Tadic Judgment of the meaning of "cruel treatment", in support of this proposition⁵⁶⁹. In that case, Trial Chamber II held that the prohibition on cruel treatment is a means to an end, being that of "ensuring that persons taking no active part in the hostilities shall in all circumstances be treated humanely"⁵⁷⁰. The Judgement further refers to article 4 of Additional Protocol II, wherein the prohibition refers to "violence to the life, health, and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment." ⁵⁷¹

547. The Defence has not made specific submissions with respect to the definition of the offence of cruel treatment. However, in its discussion of "great suffering or serious injury" in the Motion to Dismiss, the Defence stated that the "the drafters of Common Article 3 deliberately kept prohibited acts poorly defined". ⁵⁷²

(ii) Discussion

548. The basis of the inclusion of cruel treatment within Article 3 of the Statute is its prohibition by common article 3(1) of the Geneva Conventions, which proscribes, "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture". In addition to its prohibition in common article 3, cruel treatment or cruelty is proscribed by article 87 of the Third Geneva Convention, which deals with penalties for prisoners of war, and article 4 of Additional Protocol II, which provides that the following behaviour is prohibited:

violence to life, health and physical and or mental well being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.

549. As with the offence of inhuman treatment, no international instrument defines this offence, although it is specifically prohibited by article 5 of the Universal Declaration of Human Rights, article 7 of the ICCPR, article 5, paragraph 2, of the Inter-American Convention of Human Rights and article 5 of the African Charter of Human and Peoples’ Rights. In each of these instruments, it is mentioned in the same category of offence as inhuman treatment.

550. In the Tadic Judgment, Trial Chamber II provided its view of the meaning of this offence, stating that, according to common article 3, "the prohibition against cruel treatment is a means to an end, the end being that of ensuring that persons taking no active part in hostilities shall in all circumstances be treated humanely.⁵⁷³" Thus, that Trial Chamber acknowledged that cruel treatment is treatment that is inhuman.

551. Viewed in the context of common article 3, article 4 of Additional Protocol II, the various human rights instruments mentioned above, and the plain ordinary meaning, the Trial Chamber is of the view that cruel treatment is treatment which causes serious mental or physical suffering or constitutes a serious attack upon human dignity, which is equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions.

(iii) Findings

552. In light of the foregoing, the Trial Chamber finds that cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions. Accordingly, the offence of torture under common article 3 of the Geneva Conventions is also included within the concept of cruel treatment. Treatment that does not meet the purposive requirement for the offence of torture in common article 3, constitutes cruel treatment.

553. Having considered in detail the meaning of the foregoing offences, the Trial Chamber shall now address inhumane conditions, which have been alleged in the Indictment as wilfully causing great suffering and cruel treatment.

(f) Inhumane Conditions

554. Counts 46 and 47 of the Indictment allege the existence of inhumane conditions in the Celebici prison-camp and these are charged as wilfully causing great suffering, under Article 2(c), and cruel treatment, under Article 3 of the Statute. While there is no offence of "inhumane conditions" recognised as such in international humanitarian law, it is necessary to determine whether this concept can be considered as being incorporated into the offences of wilfully causing great suffering or serious injury to body or health or cruel treatment.

555. In its Response to the Motion to Dismiss, the Prosecution addresses the issue of inhumane conditions⁵⁷⁴.It rejects an argument made by the Defence that, if conditions at a detention facility are inadequate but are nonetheless all that could be provided in the circumstances prevailing at the relevant time, they are not inhumane. In support of its position, the Prosecution argues that, as a matter of law, a detaining authority is not allowed to starve or otherwise keep prisoners in clearly inhumane and life threatening conditions.

556. The phrase "inhumane conditions" is a factual description relating to the nature of the general environment in which detained persons are kept and the treatment which they receive. Accordingly, the Trial Chamber is bound to apply the legal standards found for the offences of wilfully causing great suffering or serious injury to body or health and cruel treatment to this factual category.

557. These legal standards are absolute and not relative. Thus, when considering the factual allegation of inhumane conditions with respect to these legal offences, no reference should be made to the conditions prevailing in the area of detention in order to determine what the standard of treatment should have been. The legal standard in each of the mistreatment offences discussed above delineates a minimum standard of treatment which also applies to conditions of detention. During an armed conflict, persons should not be detained in conditions where this minimum standard cannot be met and maintained.

558. Given that, in the context of Article 3 of the Statute, cruel treatment carries the same meaning as inhuman treatment in the context of Article 2, this allegation of inhumane conditions is appropriately charged as cruel treatment. However, in light of the above discussion of these offences, the Trial Chamber is of the view that, while it is possible to categorise inhumane conditions within the offence of wilfully causing great suffering or serious injury to body or health under Article 2, it is more appropriately placed within the offence of inhuman treatment.

3. Unlawful Confinement of Civilian

559. The Indictment charges three of the accused, namely Hazim Delic, Zdravko Mucic and Zejnil Delalic, with direct participation in, as well as superior responsibility for, the unlawful confinement of numerous civilians in the Celebici prison-camp. It is the purpose of this section of our discussion of the applicable law to determine the parameters of this offence as a grave breach of the Geneva Conventions.

(a) Arguments of the Parties

560. According to the Prosecution, the Fourth Geneva Convention only permits the confinement or internment of "protected persons" in the territory of a party to a conflict if the security of the detaining power makes it absolutely necessary and, in occupied territory, for imperative reasons of security⁵⁷⁵. Thus, in the view of the Prosecution, confinement should always be considered as an exceptional measure and can only be lawful in the event of a real threat to security. Furthermore, such determinations have to be made on an individual basis and the mere fact that a civilian is a subject of an enemy power cannot justify his or her confinement.

561. The Prosecution argues, moreover, that certain procedural protections for such detained civilians must exist, including the right to appeal against the confinement and have it periodically reviewed. It maintains that, in the absence of these procedural guarantees, an otherwise lawful internment is rendered unlawful. In addition, the Prosecution argues that, even if a confinement can initially be considered lawful, some basic procedural rights have to be upheld during the period of the confinement. In particular, the confinement has to be reviewed by a competent tribunal.

562. In response, the Defence relies on the Commentary to the Fourth Geneva Convention in this regard⁵⁷⁶. The Commentary describes the prohibition on the unlawful confinement of protected civilians in the following terms:

Unlawful confinement: Most national legal systems punish unlawful deprivation of liberty and this breach could therefore be dealt with as an offence against ordinary law. The offence, however, would probably be very difficult to prove. Indeed, the belligerent Powers can intern any enemy citizens or aliens on their territory if they consider it absolutely necessary for their security. In the same way, Occupying Powers can intern some of the inhabitants of the occupied territories. The illegal nature of the confinement would therefore be very difficult to prove in view of the extended powers granted in this matter to States. Obviously, however, internment for no particular reason, especially in occupied territories, could come within the definition of this breach.⁵⁷⁷

(b) Discussion

563. The offence of unlawful confinement of civilians is punishable under Article 2(g) of the Statute as a grave breach of the Geneva Conventions, as recognised in article 147 of Geneva Convention IV. The first issue to be addressed in analysing this offence is the circumstances in which civilians can be confined and, secondly, what requirements have to be fulfilled to render a confinement in a given case lawful. These two questions are dealt with here in turn.

(i) Legality of Confinement

564. The Trial Chamber has already determined that the persons detained in the Celebici prison-camp were persons protected under the Fourth Geneva Convention and can, therefore, be regarded as civilians. Hence, it is only deemed necessary to decide whether the confinement of the persons concerned in the given case was in violation of international humanitarian law.

565. The protection of civilians from harm during armed conflict is a fundamental aim of international humanitarian law. However, the freedom of movement of "enemy" civilians during armed conflict may be restricted, or even temporarily suppressed, if circumstances so require. Thus there is no absolute right in the Geneva Conventions to freedom of movement. However, this does not mean that there is a general suspension of this right during armed conflict either. To the contrary, the regulations concerning civilians in the territory of a party to an armed conflict are based on the concept that the individual freedom of civilians should remain unimpaired. The right in question is therefore a relative one, which may be restricted.⁵⁷⁸

566. When the ICRC draft text for the Fourth Geneva Convention was presented to the 1949 Diplomatic Conference, several delegations stated that, in cases involving spies, saboteurs or other unprivileged combatants, there should be some derogation permitted from the rights normally accorded to protected persons. Otherwise, those rights could be used to the disadvantage of a party to an armed conflict⁵⁷⁹. Therefore, the confinement of civilians is permitted in certain limited situations. The general rule providing for the limitation of the rights of civilians is contained in article 5 of the Fourth Geneva Convention, which provides as follows:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where, in occupied territory, an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

567. The language of article 5 is very broad and its provisions may be applicable in a wide variety of situations⁵⁸⁰. The concept of "activities prejudicial or hostile to the security of the State" is difficult to define. What appears to be included is, above all, espionage, sabotage and intelligence activities for the enemy forces or enemy nationals. The clause cannot simply refer to an individual’s political attitude towards the State⁵⁸¹. However, no further guidance as to the kinds of action envisaged is given in the text of article 5.

568. While there is no requirement that the particular activity in question must be judged as criminal under national law before a State can derogate from the rights of protected civilians under article 5, it is almost certain that the condemned activity will in most cases be the subject of criminal punishment under national law⁵⁸². However, the instances of such action that might be deemed prejudicial or hostile to State security must be judged as such under international law, both for cases arising in occupied and unoccupied territory. Clearly, a civilian cannot shoot a passing enemy soldier, secrete a bomb in the enemy encampment, or otherwise directly and intentionally harm his enemy and hope to retain all the protections of the Fourth Geneva Convention⁵⁸³. However, all of these acts involve material, direct harm to the adversary, rather than merely granting support to the forces of the party with which the civilian is aligned.

569. There can be no doubt that the confinement of civilians can fall under those "measures of control and security" which parties to a conflict may take according to article 27 of Geneva Convention IV. This article provides that,

[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

570. However, these security measures which States are entitled to take are not specified. Once again, the Convention merely lays down a general provision and a great deal is thus left to the discretion of the parties to the conflict as regards the choice of means. It appears that these would include, for example, a mild restriction such as the duty of registering and also more stringent measures like assigned residence or internment. What is essential is that the measures of constraint adopted should not affect the fundamental right of the persons concerned to be treated with humanity⁵⁸⁴. The right to respect for the human person covers all the rights of the individual, that is, those rights and qualities which are inseparable from a person by the very fact of his or her existence, in particular, the right to physical, moral and intellectual integrity.⁵⁸⁵

571. Although the fundamental human rights of the persons concerned are not, generally speaking, in any danger as a result of some of the administrative measures which might be taken in relation to them, this is not necessarily so in the case of assigned residence or internment. The experience of the Second World War has shown in tragic fashion that under such conditions there is a particularly great danger of offences against the human person. Furthermore, all too often in situations of armed conflict, the mere fact of being an enemy subject has been regarded as a justification for internment. For these reasons, the relevant norms of international humanitarian law have been developed such that only absolute necessity, based on the requirements of State security, can justify recourse to these measures, and only then if security cannot be safeguarded by other, less severe means.⁵⁸⁶

572. The drafters of the Fourth Geneva Convention, conscious of these dangers, only permitted internment and assigned residence as a last resort, and makes them subject to strict rules (articles 41 to 43 and article 78).

573. Article 41 of Geneva Convention IV provides as follows:

Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43.

In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of this Convention.

574. Article 41 thus points out that the internment of civilians is admissible only in limited cases and is, in any case, subject to strict rules. These rules are contained primarily in articles 42 and 43, which are based on the general reservation of article 27, paragraph 4, permitting "such measures of control and security as may be necessary as a result of the war". Articles 42 and 43 return to the term "security", itself a somewhat broad criterion, as justification for the restrictions upon liberty that they permit. "Security" remains as vague here as in earlier articles, and the expression does not appear susceptible to more concrete definition. The measure of activity deemed prejudicial to the internal or external security of the State which justifies internment or assigned residence is left largely to the authorities of that State itself.

575. Article 42 of Geneva Convention IV provides as follows:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

576. Clearly, internment is only permitted when absolutely necessary. Subversive activity carried on inside the territory of a party to the conflict, or actions which are of direct assistance to an opposing party, may threaten the security of the former, which may, therefore, intern people or place them in assigned residence if it has serious and legitimate reasons to think that they may seriously prejudice its security by means such as sabotage or espionage.

577. On the other hand, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living and is not, therefore, a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures, the party must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security. The fact that an individual is male and of military age should not necessarily be considered as justifying the application of these measures.

578. In relation to occupied territory, specific provisions of the Geneva Conventions apply. Although the present case does not relate to a situation of occupation, it is useful to briefly consider these provisions insofar as they are relevant to the unlawful confinement of civilians. Article 78 of Geneva Convention IV sets up a rule similar to article 41 in situations of occupation, allowing Occupying Powers to intern protected persons under certain conditions⁵⁸⁷. However, internment and assigned residence, whether in the occupying power’s national territory or in the occupied territory, are exceptional measures to be taken only after careful consideration of each individual case⁵⁸⁸.Such measures are never to be taken on a collective basis.

(ii) Procedural Safeguards

579. In case the internment of civilian persons can be justified according to articles 5, 27 or 42 of Geneva Convention IV, the persons so detained must still be granted some basic procedural rights. These rights are entrenched in article 43 of Geneva Convention IV which provides as follows:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.

580. Article 43 supplements articles 41 and 42 by laying down a procedure which is designed to ensure that the parties to an armed conflict, which resort to measures of internment, respect the basic procedural rights of the persons concerned. As Geneva Convention IV leaves a great deal to the discretion of the detaining party in the matter of the original internment or placing in assigned residence of an individual, the party’s decision that such measures of detention are required must be "reconsidered as soon as possible by an appropriate court or administrative board".

581. The judicial or administrative body reviewing the decision of a party to a conflict to detain an individual must bear in mind that such measures of detention should only be taken if absolutely necessary for reasons of security. Thus, if these measures were inspired by other considerations, the reviewing body would be bound to vacate them. Clearly, the procedures established in Geneva Convention IV itself are a minimum and the fundamental consideration must be that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely demands.⁵⁸⁹

582. It need only be mentioned briefly that article 78, relative to the confinement of civilians in occupied territory, also safeguards the basic procedural rights of the persons concerned. It can therefore be concluded that respect for these procedural rights is a fundamental principle of the Convention as a whole.

583. For the reasons set out above, it is the opinion of this Trial Chamber that the confinement of civilians during armed conflict may be permissible in limited cases, but has in any event to be in compliance with the provisions of articles 42 and 43 of Geneva Convention IV. The security of the State concerned might require the internment of civilians and, furthermore, the decision of whether a civilian constitutes a threat to the security of the State is largely left to its discretion. However, it must be borne in mind that the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. An initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in article 43 of Geneva Convention IV.

4. Plunder

(a) Introduction

584. Count 49 of the Indictment alleges that the accused Zdravko Mucic and Hazim Delic are responsible, both as direct participants and by virtue of their alleged positions as superiors, for the plunder of money, watches, and other valuable property belonging to persons detained in the Celebici prison-camp. The two accused are, on this count, charged with a violation of the laws or customs of war punishable under Article 3(e) of the Statute – "plunder of public or private property". Before proceeding to consider the merits of the charge, the Trial Chamber must here establish the meaning to be attached to the offence of "plunder" under international law.

(b) Arguments of the Parties

585. According to the Prosecution, the prohibition of "plunder" or "pillage" is a well-established principle in international law, which is found, inter alia, in articles 28 and 47 of the Regulations annexed to the 1907 Hague Convention IV and article 33 of Geneva Convention IV. In its view, in addition to the requirement that the accused be linked to one side of an armed conflict, the elements of this offence are as follows:

a) The accused unlawfully destroyed, took, or obtained any public or private property belonging to institutions or persons linked to the other side of the armed conflict.

b) The destruction, taking, or obtaining by the accused of such property was committed with the intent to deprive the owner or any other person of the use or benefit of the property, or to appropriate the property for the use of any person other than the owner.⁵⁹⁰

586. While declining to offer any alternative definition of the offence of plunder, the Defence for the accused Hazim Delic and Zdravko Mucic contend that the prerequisites for its application to the present case have not been met. With reference to Article 1 of the Statute, the Defence asserts that any theft of money, watches and other valuable property as alleged in the Indictment cannot constitute such serious violations of international humanitarian law as to give the International Tribunal subject matter jurisdiction over the alleged offences⁵⁹¹. In addition to this argument, based on the jurisdictional limits placed upon the International Tribunal by its Statute, the Defence further appears to contend that the acts alleged in the Indictment do not in law constitute the offence of plunder. In its submissions in the Defence Motion to Dismiss, the Defence for Mr. Delic thus maintains that "the Hague Regulations forbidding plunder were designed to prevent abuses such as those of the Nazis during the Second World War in taking valuable property such as artworks from occupied nations. They were not designed to punish under international law private soldiers who steal property of little value from civilians."⁵⁹² Similarly, it was contended by the Defence during closing oral arguments that,

"[s]tealing watches and coins is not what plunder is about. It is not a serious grave breach of the Geneva Conventions [sic]. Plunder is what Herman Goering did with the art of Eastern Europe. That’s what grave breaches are. Or, for example, emptying entire houses of their quality furniture".⁵⁹³

587. In considering the elements of the offence of plunder, the Trial Chamber must take as its point of departure the basic fact that international humanitarian law not only proscribes certain conduct harmful to the human person, but also contains rules aimed at protecting property rights in times of armed conflict. Thus, whereas historically enemy property was subject to arbitrary appropriation during war, international law today imposes strict limitations on the measures which a party to an armed conflict may lawfully take in relation to the private and public property of an opposing party. The basic norms in this respect, which form part of customary international law, are contained in the Hague Regulations, articles 46 to 56 which are broadly aimed at preserving the inviolability of public and private property during military occupation. In relation to private property, the fundamental principle is contained in article 46, which provides that private property must be respected and cannot be confiscated⁵⁹⁴. While subject to a number of well-defined restrictions⁵⁹⁵, such as the right of an occupying power to levy contributions and make requisitions, this rule is reinforced by article 47, which unequivocally establishes that "[p]illage is formally forbidden". Similarly, article 28 of the Regulations provides that "[t]he pillage of a town or place, even when taken by assault, is prohibited".

588. The principle of respect for private property is further reflected in the four Geneva Conventions of 1949. Thus, while article 18 of Geneva Convention III protects the personal property of prisoners of war from arbitrary appropriation, article 15 of Convention I and article 18 of Convention II expressly provide that parties to a conflict must take all possible measures to protect the shipwrecked, wounded and sick against pillage, and prevent their being despoiled. Likewise, article 33 of Convention IV categorically affirms that "[p]illage is prohibited". It will be noted that this prohibition is of general application, extending to the entire territories of the parties to a conflict, and is thus not limited to acts committed in occupied territories. ⁵⁹⁶

589. The basic principle that violations of the rules protecting property rights in armed conflict can constitute war crimes, for which individual criminal liability may be imposed, has not been questioned in the present case⁵⁹⁷. Instead, the Defence would seem to challenge the Prosecution’s assertions regarding the type, and level, of violations for which criminal responsibility may arise. Intimately connected with this matter is the essentially terminological question of whether the acts alleged in the Indictment, if at all criminal under international law, constitute the specific offence of "plunder". It is to these issues that the Trial Chamber must now turn.

590. In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory. Contrary to the submissions of the Defence, the fact that it was acts of the latter category which were made the subject of prosecutions before the International Military Tribunal at Nürnberg and in the subsequent proceedings before the Nürnberg Military Tribunals⁵⁹⁸ does not demonstrate the absence of individual criminal liability under international law for individual acts of pillage committed by perpetrators motivated by personal greed. In contrast, when seen in a historical perspective, it is clear that the prohibition against pillage was directed precisely against violations of the latter kind. Consistent with this view, isolated instances of theft of personal property of modest value were treated as war crimes in a number of trials before French Military Tribunals following the Second World War⁵⁹⁹. Commenting upon this fact, the United Nations War Crimes Commission correctly described such offences as "war crimes of the more traditional type". ⁶⁰⁰

591. While the Trial Chamber, therefore, must reject any contention made by the Defence that the offences against private property alleged in the Indictment, if proven, could not entail individual criminal responsibility under international law, it must also consider the more specific assertion that the acts thus alleged do not amount to the crime of "plunder". In this context, it must be observed that the offence of the unlawful appropriation of public and private property in armed conflict has varyingly been termed "pillage", "plunder" and "spoliation". Thus, whereas article 47 of the Hague Regulations and article 33 of Geneva Convention IV by their terms prohibit the act of "pillage", the Nürnberg Charter⁶⁰¹, Control Council Law No. 10⁶⁰² and the Statute of the International Tribunal⁶⁰³ all make reference to the war crime of "plunder of public and private property". While it may be noted that the concept of pillage in the traditional sense implied an element of violence⁶⁰⁴ not necessarily present in the offence of plunder⁶⁰⁵, it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous. The Trial Chamber reaches this conclusion on the basis of its view that the latter term, as incorporated in the Statute of the International Tribunal, should be understood to embrace all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as "pillage". It will be noted that it is not possible, absent a complete analysis of the existing legal framework for the protection of public and private property under international humanitarian law, to here set out a more comprehensive description of the circumstances under which such criminal responsibility arises.

592. As indicated above, the Defence further contends that facts alleged in the Indictment do not display a violation of international law of a sufficient serious the alleged offence. As this is a matter more closely related to the particular charge made in the Indictment than to an analysis of the offence of plunder considered in abstracto, it will be considered by the Trial Chamber in Section IV following.

______________________________

593. This concludes the Trial Chamber’s discussion of the law applicable to the present case and the Trial Chamber is thus now in a position to analyse the evidence brought by both the Prosecution and the Defence, in order to make the appropriate findings of the innocence or guilt of the accused as to the charges contained in the Indictment.