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The Prosecutor v.

Zejnil Delalic, Zdravko Mucic (a/k/a/ "Pavo"),


Hazim Delic, Esad Landzo (a/k/a "Zenga") Case No. IT-96-21-T

"Judgement"

16 November 1998
Trial Chamber (Judges Karibi-Whyte [Presiding], Odio Benito and Jan)

- Article 2 of the Statute: an international armed conflict existed in Bosnia and


Herzegovina throughout the period of the Indictment and the victims were
protected persons under Geneva Convention IV;
- Article 3 of the Statute: both Article 3 common to the Geneva Conventions as well
as the Hague Regulations are covered under Article 3;
- Determination of the elements of the following offences: wilful killing and murder;
torture, rape as torture; wilfully causing great suffering or serious injury to body or
health; inhuman treatment; cruel treatment; inhumane conditions; unlawful
confinement of civilians; and plunder;
- Analysis of the requisite elements of superior criminal responsibility pursuant to
Article 7(3) of the Statute.

Introduction

The Judgement of what has become known as the Celebici case, addresses many important
legal issues, including some never addressed by the Tribunal or, indeed, by any
international criminal court. This summary of course cannot address all these issues or be a
substitute for the subtly formulated legal considerations and findings. The following merely
highlights the most important legal aspects of the Judgement.

The findings and the sentences imposed are indicated first:

Zejnil Delalic was found not guilty of the 12 counts, including one alternative count, of grave
breaches of the Geneva Conventions of 1949 (Geneva Convention I for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention II
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea; Geneva Convention III Relative to the Treatment of Prisoners of War
(hereinafter "Geneva Convention III"); Geneva Convention IV Relative to the Protection of
Civilian Persons in Time of War (hereinafter "Geneva Convention IV") (Article 2 of the
Statute); and violations of the laws or customs of war (Article 3 of the Statute), for which
he was charged because of his alleged command over the Celebici prison camp at the
relevant time. He was also acquitted of the charge of direct participation in the unlawful
confinement of civilians (a grave breach of the Geneva Conventions).

Zdravko Mucic was charged with 13 counts, including one alternative count, of grave
breaches of the Geneva Conventions and violations of the laws or customs of war. Mr Mucic
was found guilty on 11 counts and sentenced to seven years’ imprisonment. As a superior,
he was held responsible for wilful killing (a grave breach of Geneva Convention IV), murder
(a violation of the laws or customs of war), wilfully causing great suffering or serious injury
to body or health (a grave breach of Geneva Convention IV), cruel treatment (a violation of
the laws or customs of war), torture (a grave breach of Geneva Convention IV and a
violation of the laws or customs of war) and inhuman treatment (a grave breach of Geneva
Convention IV). He was found to have participated directly in the wilful causing of great
suffering or serious injury to body or health, cruel treatment and the unlawful confinement
of civilians (a grave breach of Geneva Convention IV).

Hazim Delic was charged with 38 counts, including 6 alternative counts, of grave breaches
of the Geneva Conventions and violations of the laws or customs of war. He was found
guilty on 14 counts and sentenced to 20 years’ imprisonment for his direct participation in
wilful killing, murder, the wilful causing of great suffering or serious injury to body or health,
cruel treatment, torture and inhuman treatment. The Trial Chamber held that since it had
not been proved beyond a reasonable doubt that Mr Delic had exercised superior authority,
it acquitted him of the related charges.

As a direct participant in the offences, Esad Landzo was charged with 24 counts, including 4
alternative counts, of grave breaches of the Geneva Conventions and violations of the laws
or customs of war. He was found guilty on 18 counts and sentenced to 15 years’
imprisonment for wilful killing, murder, the wilful causing of great suffering or serious injury
to body or health, cruel treatment and torture.

1. Article 2 of the Statute1

The parties apparently did not contend that the application of Article 2 (Grave breaches of
the Geneva Conventions of 1949) requires (1) an international armed conflict and (2) that
the victims be protected under any of the four Geneva Conventions of 1949. The
Prosecution argued that both these requirements were met, but the Defence did not agree.
Having already established the existence of an armed conflict and a nexus between the
conflict and the alleged acts, in light of the general requirements for the application of
Articles 2 and 3 of the Statute, the Trial Chamber first considered the nature of the armed
conflict.

The nature of the armed conflict in Bosnia and Herzegovina2

As a preliminary point, the Trial Chamber recalled the Separate Opinion of Judge Abi-Saab
on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, in the
Tadic case (IT-94-1-AR72) and acknowledged the possibility that customary law has
extended the application of the "grave breaches" system to internal armed conflicts.
However, for the purposes of determining the case at issue, it found that an international
armed conflict existed in Bosnia and Herzegovina during the relevant time period.

The Trial Chamber considered the Commentary to Geneva Convention IV (Jean Pictet (ed.),
1985/1994 reprint edition) according to which an international armed conflict exists when
any difference arises between two States which leads to the intervention of members of the
armed forces. It was held that, in such a case, the relevant norms of international
humanitarian law apply throughout the territory of the States until the general cessation of
hostilities unless the existence of a separate internal armed conflict in part of the larger
territory which is unrelated to the international armed conflict has been proved.

The Trial Chamber determined that on 6 April 1992, the date Bosnia and Herzegovina was
recognised as an independent State, an international armed conflict existed on its territory,
including in Konjic municipality where the crimes were allegedly committed. Noting no
general cessation of hostilities before November 1995, the Trial Chamber focused on the
date of 19 May 1992, by which time the Yugoslav Peoples’ Army (JNA) had apparently
withdrawn from Bosnia and Herzegovina. Following the Separate and Dissenting Opinion of
Judge McDonald Regarding the Applicability of Article 2 of the Statute of 7 May 1997 in the
Tadic case (IT-94-1-T), however, the Trial Chamber found that the replacement of the JNA
by the Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska
(hereinafter "the VRS") "… constituted a deliberate attempt to mask the continued
involvement of the FRY [Federal Republic of Yugoslavia (Serbia and Montenegro)] in the
conflict while its Government remained in fact the controlling force behind the Bosnian
Serbs." The Trial Chamber therefore concluded that the conflict which continued after 19
May 1992 until the end of that year should also be characterised as international.

The status of the victims as "protected persons"3

According to Article 4 of Geneva Convention IV, the applicable legal test in respect of civilian
populations is whether the victims were in the hands of a party to the conflict or an
occupying power of which they were not nationals. Finding that "in the hands of" should be
explained as "under the control of", the Trial Chamber focused on the issue of nationality.
The problem here was that both victims and alleged perpetrators were nationals of Bosnia
and Herzegovina.

The Trial Chamber noted the Opinion and Judgement of 7 May 1997 in the Tadic case (IT-
94-1-T) (hereinafter "the Tadic Judgement") in which Trial Chamber II found that all the
individuals involved had the same nationality and, on the basis of the Nicaragua case (1986
ICJ Reports, 14) decided in the International Court of Justice (hereinafter "the ICJ"),
considered whether an "agency relationship" had existed between Republica Srpska and the
FRY. Having denied this relationship, the majority of the Trial Chamber ruled that the
victims in the Tadic case were not "protected persons".

In the present case, the Trial Chamber reasoned differently when it addressed the issue of
nationality. On the basis of expert witness evidence, it first concluded that, although
perhaps emerging, the obligation for States to grant individuals the right to choose their
own nationality is not yet a settled rule of customary international law. It added, however,
that the doctrine of "effective link" between an individual and the State of his or her
nationality, applied by the ICJ in the Nottebohm case (1955 ICJ Reports, 4), could provide
more guidance.

The Trial Chamber found that, in the case in point, the granting of nationality had occurred
within the context of the dissolution of a State during armed conflict and that the Bosnian
Serbs had clearly expressed the wish not to be nationals of Bosnia and Herzegovina. The
Trial Chamber reviewed the arguments of "effective link" and "agency" but, in fact,
concluded that a much broader approach to the concept of "protection" under the Geneva
Convention IV was required and that the concept of nationality and the requirements of
domestic law could not be used to restrict the scope of application of that Convention in the
context of the present case.

Having found that the victims were not prisoners of war and that the protection granted
under Geneva Conventions III and IV is continuous, the Trial Chamber denied the
application of the former and concluded instead that all the victims were "protected
persons" under Geneva Convention IV.

2. Article 3 of the Statute4


Bringing its charges under Article 3 of the Statute (Violations of the laws or customs of
war), the Prosecution alleged violations of Article 3 common to the Geneva Conventions
relating to internal armed conflict, as well as of the Regulations attached to the 1907 Hague
Convention (IV) Respecting the Laws and Customs of War on Land (hereinafter "the Hague
Regulations" and "Hague Convention IV" respectively) regarding the prohibition of plunder.

Contrary to Defence contentions, but taking the same approach as the Appeals Chamber in
its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadic case
(IT-94-1-AR72) (hereinafter "the Tadic Jurisdiction Decision"), the Trial Chamber first found
that Article 3 of the Statute may be understood as including all violations of international
humanitarian law, i.e. both "Geneva" and "Hague law", not covered elsewhere in the
Statute. The Trial Chamber then ruled that Common Article 3 has acquired the status of
customary international law. In this regard, it referred to the ICJ Nicaragua case, the
Judgement in the Akayesu case (ICTR-96-4-T) of 2 September 1998 of Trial Chamber I of
the International Criminal Tribunal for Rwanda (ICTR) (hereinafter "the Akayesu
Judgement"), the Report of the Secretary-General Pursuant to Paragraph 2 of Security
Council Resolution 808 (1993 S/25704) (hereinafter "the Report of the Secretary-General"),
and an uncontradicted statement in the Security Council by the United States further to the
adoption of the Statute.

The Trial Chamber also found that violations of Common Article 3 attract individual criminal
responsibility. In this regard, the Chamber noted the (non-mandatory) jurisdiction of
national courts over violations of the Geneva Conventions other than the grave breaches. It
also based its decision on the 1996 Draft Code of Crimes against the Peace and Security of
Mankind (UN Doc. A/51/10) of the International Law Commission (hereinafter "the ILC Draft
Code"), the Statute of the ICTR and the Statute of the International Criminal Court of 1998
(hereinafter "the ICC").

Furthermore, in response to the Defence’s concern vis a vis a violation of the principle of
nullum crimem sine lege, the Trial Chamber noted that all crimes enshrined in Common
Article 3 were criminalised in national legislation in force during the alleged perpetration.
Moreover, the Trial Chamber took note of Article 15(2) of the International Covenant on
Civil and Political Rights of 1966 (hereinafter "the ICCPR"), according to which, the principle
of nullum crimem is without prejudice to the trial and punishment of acts, which at the time
of their alleged commission were criminal under the general principles of law.

Violations of Common Article 3 of the Geneva Conventions thus fall under Article 3 of the
Statute although the Trial Chamber did note that, should a more teleological approach to
Article 2 be taken than thus far articulated by the Appeals Chamber, it might be more
logical to include these offences under Article 2 of the Statute.

As regards the substantive norms enshrined in the Hague Regulations, the Trial Chamber
found that these unquestionably form part of customary international law. The Regulations
were thus found to fall under Article 3 of the Statute as also stated in the Report of the
Secretary-General.

3. Elements of the offences5

The Trial Chamber determined the elements of the alleged offences on the basis of
customary international law as it stood during the time period to which the Indictment
related.
Wilful killing and murder6

The Indictment categorised the killing of several detainees as both wilful killing, a grave
breach (punishable under Article 2 of the Statute), and as murder, a violation of Article 3
common to the Geneva Conventions (punishable under Article 3 of the Statute). Despite the
different terminology, the Trial Chamber found that, placed in the context of the Geneva
Conventions, the contents of these offences are the same. In particular, the Trial Chamber
considered the primary purpose of Common Article 3, which was to extend the elementary
protection of international humanitarian law to internal armed conflicts.

The Trial Chamber noted that the actus reus of these two identical crimes may be satisfied
by both an act or an omission. Furthermore, the Chamber found that a substantial causal
connection between the conduct of the accused and the death of the victim must exist.

The second aspect of criminal culpability is the mens rea, the mental element. In this
regard, the definition of the "intent" required was contentious. The Defence, relying upon
(English) common law had argued that intent does not include recklessness. The Trial
Chamber, however, in agreement with the Prosecution, found guidance in the Commentary
(Yves Sandoz et al. eds., 1987) to the 1977 Geneva Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Victims of International Armed Conflicts
(Protocol I) (hereinafter "Additional Protocol I"), which explicitly includes recklessness as an
element of wilfulness (in "wilful killing"). Furthermore, the Trial Chamber considered the
common law term "malice" and the civil law concept dolus (eventualis) in light of the mens
rea requirements in common law (which generally includes recklessness and awareness of
the likelihood or probability of death) and in civil law (where foreseeability and possibility of
death are relevant). Finally, considering the crimes particularly in the context of the nature
and purpose of the Geneva Conventions, the Trial Chamber found that the mens rea for
wilful killing and murder 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."

Offences of mistreatment7

Torture8

The crime of torture was charged as a grave breach and as a violation of Common Article 3.
The Trial Chamber first found that torture is without question prohibited by both
conventional and customary international law. Indeed, recalling a number of international
and regional human rights instruments, in particular, the Convention Against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (hereinafter "the
Torture Convention"), and the Declaration on the Protection from Torture of 1975
(hereinafter "the Torture Declaration"), adopted by consensus by the United Nations
General Assembly, the Trial Chamber concluded that the prohibition of torture constitutes a
norm of jus cogens as confirmed by the United Nations Special Rapporteur on Torture.

The definition of torture under international law, however, was somewhat less clearly
articulated. Nonetheless, in view of the various definitions in the Torture Declaration, the
Inter-American Convention to Prevent and Punish Torture of 1985, and the Torture
Convention, the Trial Chamber held that the consensus reflected in the latter definition
represents customary international law. Accordingly, 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."

The Trial Chamber then discussed the requisite elements of torture in more detail. First,
having reviewed the jurisprudence of the ICCPR Human Rights Committee, the European
Court and the European Commission of Human Rights, the Trial Chamber found that no
abstract threshold of pain or suffering can be determined. The Trial Chamber reasoned that
an attempt to categorise acts of torture precisely would be detrimental to the cause of its
overall prohibition. However, it determined that both acts and omissions may constitute
torture so long as the torturer demonstrates the required intent.

Furthermore, contrary to the Defence contention, the Trial Chamber ruled that the list of
prohibited purposes in the customary law definition of torture is not exhaustive but merely
representative. It also held that torture need not have been committed solely for a
prohibited purpose, but that the purpose need only form part of the motivation. Finally, the
Chamber distinguished between prohibited purposes and purely private purposes which
would ordinarily be sanctioned under national law. However, it stressed that, in times of
war, prohibited purposes often form an integral part of behaviour, which makes it possible
to categorise the act as torture.

Finally, in order to render the prohibition of torture meaningful in the context of an internal
armed conflict, the Trial Chamber noted that the involvement of a public official or other
person acting in an official capacity includes officials of non-State parties to the conflict.

Rape as torture9

The Indictment alleged the commission of rape, categorised as torture, and punishable as a
grave breach of the Geneva Conventions and as a violation of Common Article 3 of the
Geneva Conventions. Reviewing various international instruments, including Geneva
Convention IV, Additional Protocol I, and the 1977 Geneva Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Victims of Non-International Armed
Conflicts (Protocol II), Hague Convention IV, and also the definitions of crimes against
humanity in the Nürnberg Charter and Article 5 of the Statute, the Trial Chamber first
concluded that there is no doubt that rape and other forms of sexual assault are prohibited
by international humanitarian law. For the definition of rape, the Trial Chamber followed the
recent Akayesu Judgement. Accordingly, the Chamber considered "… rape to constitute a
physical invasion of a sexual nature, committed on a person under circumstances that are
coercive."

Rape constitutes torture if all the requisite elements of that crime are met. Reviewing, inter
alia, the jurisprudence of the Inter-American Commission on Human Rights and the
European Court of Human Rights, the Trial Chamber found that rape causes severe pain and
suffering, both physical and psychological. Furthermore, according to the Trial Chamber, it
is difficult to envisage circumstances during armed conflict in which no prohibited purpose
underlies the rape.

Wilfully causing great suffering or serious injury to body or health10

The Trial Chamber defined this crime, a grave breach of the Geneva Conventions, on the
basis of the Commentary to Geneva Convention IV. Accordingly, it was noted that while a
prohibited purpose is required in the case of torture, this is not so in the present case. The
Chamber further defined this offence as "… 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."

Inhuman treatment11

The Trial Chamber first found that, given the widespread prohibition in international human
rights instruments, inhuman treatment, a grave breach of the Geneva Conventions, is
prohibited by both conventional and customary international law. A definition of inhuman
treatment, however, has been less clearly articulated. The Defence had submitted that, for
this reason and except for the clearest cases, criminal prosecution for this offence would
constitute a violation of the principle of nullum crimen.

Having established on the basis of its purely linguistic meaning that "inhumane" means "not
humane", the Trial Chamber analysed the relevant provisions in the Geneva Conventions
and the Commentaries, including, in particular, Common Article 3. Having also considered
the categorisation of inhumane acts as crimes against humanity in Article 5 of the Statute,
the Nürnberg Charter and the ILC Draft Code, the Chamber then considered the
jurisprudence of the European Commission and the European Court of Human Rights, and
the ICCPR Human Rights Committee.

In conclusion, the Chamber defined inhuman treatment as "… 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." It thus follows that although acts of torture and the wilful causing of great suffering
are all acts of inhumane treatment, not all acts in this category necessarily fall into either of
the first two. The Trial Chamber concluded that inhuman treatment requires that a violation
of the basic principle of humane treatment, particularly respect for human dignity, must
have been committed. This, the Chamber concluded, is a question of fact which must be
judged in the circumstances of the case.

Cruel treatment12

Despite its prohibition in international and regional human rights instruments, a definition of
the offence of cruel treatment, charged as a violation of Common Article 3, could not be
found. Nevertheless, reviewed in the context of the various prohibitive instruments, as well
as the Tadic Judgement, the Trial Chamber determined that the meaning of this crime is
equivalent to the offence of inhuman treatment.

Inhumane conditions13

The alleged inhumane conditions in the Celebici prison camp were charged as wilfully
causing great suffering or serious injury to body or health and as cruel treatment. The
Defence argued that, under the circumstances, the best possible conditions had been set up
in the camp. However, the Trial Chamber held that the standards required are absolute and
not relative. Reiterating the respective definitions already found, the Trial Chamber held
that, while it is possible to categorise inhumane conditions as wilfully causing great
suffering, they are more appropriately charged as inhuman treatment.

Unlawful confinement of civilians14


The Trial Chamber first noted that the Geneva Conventions do not grant an absolute right to
freedom of movement. Further to a review of Articles 5 and 27, and specifically Articles 41,
42 and 43 of Geneva Convention IV, it concluded that when civilians are considered to pose
a threat to its security, they may be interned. Having established that States have broad
discretion in deciding whether civilians pose a threat to their security, the Trial Chamber
considered that internment must be exceptional and may never be used collectively.
Furthermore, an initially lawful internment becomes illegal when the basic procedural rights
stated in Article 43 are not upheld.

Plunder15

In the Indictment, plunder was charged as a violation of Article 3 of the Statute. The Trial
Chamber first found that the international law prohibition of and the individual criminal
liability for the unjustified appropriation of enemy property not only embrace the organised
seizure of property carried out within the framework of systematic exploitation of occupied
territory, but also individual acts of looting for private gain.

The Defence submitted that the alleged instances of plunder were not serious enough to
constitute serious violations of international humanitarian law as required by Article 1 of the
Statute. In this regard, the Trial Chamber applied the Appeals Chamber’s finding in the
Tadic Jurisdiction Decision which held that for a violation to be "serious" it must breach a
rule protecting important values and have grave consequences for the victim. On a factual
note, the Trial Chamber found that, given the limited monetary value of the appropriated
items in the present case, consequences of such gravity had not occurred. Accordingly, the
corresponding count in the Indictment was dismissed.

4. Superior criminal responsibility16

The Trial Chamber needed to reach a decision on the criminal responsibility of three of the
four accused who were charged on the basis of their alleged positions as superiors of the
perpetrators of the crimes listed in the Indictments. Unlike the case of individual criminal
responsibility pursuant to Article 7(1), where the approach chosen in the Tadic Judgement
was adopted, for the first time since World War II the principle of command responsibility as
enshrined in Article 7(3) of the Statute, needed to be formulated and applied by an
international judicial body.

The Trial Chamber first distinguished between two forms of command or superior
responsibility, the two terms being used interchangeably in the Judgement. There is the
responsibility of a commander for acts of subordinates through a positive act, e.g. ordering,
which is also referred to as direct command responsibility punishable under Article 7(1).
There is also command responsibility for acts of subordinates through a culpable omission.
This latter responsibility, also referred to both as indirect command responsibility and
command responsibility strictu sensu, is at issue in the present case.

Despite limited international jurisprudence, the Trial Chamber still found that the principle of
superior responsibility for failure to act forms part of customary international law. In this
regard, the Trial Chamber referred to Articles 86 and 87 of Additional Protocol I and their
travaux préparatoires which confer upon commanders the obligation to control, prevent or
punish violations of the Geneva Conventions or the Protocol committed by their
subordinates and render punishable a failure to act accordingly. Furthermore, the Trial
Chamber noted that the doctrine has been incorporated into the (military) legal orders of
the United States and the United Kingdom. This was also the case in the former Yugoslavia.
It can also be found in the ILC Draft Code and in the ICC Statute.

From the text of Article 7(3) the Trial Chamber identified the following essential elements of
command responsibility in respect of failure to act:

(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.

The superior-subordinate relationship17

The Trial Chamber first found that not only military but also civilian superiors may be held
responsible for failure to act. This finding is based upon the non-exclusive language of
Article 7(3), an uncontradicted statement by the United States in the Security Council
following the adoption of resolution 827 on the establishment of the Tribunal, and the Final
Report of the United Nations Commission of Experts (S/1994/674). The Trial Chamber also
considered the position adopted by ICTY Trial Chamber I in its review of the indictment
against Milan Martic (IT-95-11-I, 8 March 1996) pursuant to Rule 61. Furthermore, it
considered World War II related case-law, in particular, decisions of the International
Military Tribunal for the Far East.

The Trial Chamber then considered the requisite character of the superior-subordinate
relationship. The Defence submitted that the responsibility for failure to act extends only to
individuals having the power to issue binding orders and to punish violators of such orders.
In the military this would be only a commander. In its review of the relevant case-law, the
Trial Chamber noted that the matter is not undisputed and agreed that the superior must be
in a position of command.

However, the Trial Chamber also found that the position of command need not necessarily
be de jure. The Chamber came to this conclusion by referring once again to Additional
Protocol I, which extends military command responsibility not only to subordinates but also
to other persons under the commander’s control. Analysis of a broad body of World War II
related case-law led the Trial Chamber to its determination that the applicable test here is
whether a superior has effective control over the perpetrators. In line with the ILC,
however, the Chamber stressed that such control should resemble military command
control.

The superior knew or had reason to know18

As to the requisite mens rea, the Trial Chamber first found that the superior’s knowledge
that his subordinates were about to commit, or had committed the offences must be proved
either by direct or indirect evidence. The Trial Chamber also found that proof of knowledge
can be established with the guidance of a list of indicia established by the Commission of
Experts. Therefore, knowledge can never be presumed, as the Prosecution had submitted in
the case of matters of public notoriety.

Secondly, defining the appropriate test for "had reason to know", the Trial Chamber first
turned to the judicial findings reached in the aftermath of World War II which affirmed the
commander’s obligation to remain informed about the activities of his subordinates.
However, in order to determine the state of customary law at the time of the alleged
crimes, which is required by the principle of nullum crimem, the Trial Chamber also
considered Additional Protocol I and its travaux préparatoires.

Having noted the explicit disapproval of the Protocol’s drafters of the language "should have
known", and even "should reasonably have known", the Trial Chamber determined that the
present case required the standard that the superior had to have possessed information
which, at the very least, would point out the risk of the commission of offences by indicating
the need for additional investigation. Referring to the ICC Statute, however, the Chamber
emphasised that this finding is without prejudice to the current state of customary
international law.

The superior failed to take the necessary and reasonable measures to prevent or
punish19

Since an evaluation of whether the superior has met his responsibilities in this regard is
inextricably linked with the facts of the case, the Trial Chamber did not formulate an
abstract definition. It did, however, note that the test should be to determine whether the
superior took the measures that are within his material possibility. The Trial Chamber thus
explicitly rejected the position of the ILC in its Draft Code, according to which a superior’s
responsibility does not exceed his legal competence.

Finally, as opposed to the Defence contention, the Trial Chamber held that while a causal
connection between the failure of the superior to prevent the commission of the
subordinate’s crime and the commission of the crime is likely, causation is not a requisite
element of superior responsibility. The Trial Chamber accepted the Prosecution’s submission
and found that this requirement would be incompatible with the existence of the principle of
superior responsibility for failure to punish.20

____________________________________________
1 Paragraphs 199 to 277.
2 Paragraphs 204 to 235.
3 Paragraphs 236 to 277.
4 Paragraphs 278 to 318.
5 Paragraphs 419 to 592.
6 Paragraphs 420 to 439.
7 Paragraphs 440 to 558.
8 Paragraphs 446 to 497.
9 Paragraphs 475 to 497.
10 Paragraphs 498 to 511.
11 Paragraphs 512 to 544.
12 Paragraphs 545 to 553.
13 Paragraphs 554 to 558.
14 Paragraphs 559 to 583.
15 Paragraphs 584 to 592.
16 Paragraphs 330 to 400.
17 Paragraphs 348 to 378.
18 Paragraphs 379 to 393.
19 Paragraphs 394 to 395.
20 On the issue of "causation", see paragraphs 396 to 400.