Dungel - Command Responsibility in ICT

8/3/2019 Dungel - Command Responsibility in ICT

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COMMAND RESPONSIBILITY

IN

INTERNATIONAL CRIMINAL TRIBUNALS

Paper presented at the National Consultative Summit on Extrajudicial Killings and

Enforced DisappearancesSearching for Solutions, July 1617, 2007, Manila*

BY

MR.JOAKIMDUNGELL.L.M., IN INTERNATIONAL LEGAL STUDIES,NYU

L.L.M.,GOTEBORG UNIVERSITY IN SWEDENFELLOW OF THE INTERNATIONAL BARASSOCIATION,INTERNATIONAL CRIMINALTRIBUNAL

FOR THE FORMER YUGOSLAVIA

* ORGANIZED BY THE SUPREME COURT AND CO-SPONSORED BY THE COMMISSION ON HUMANRIGHTS IN COOPERATION WITH THE ASIA FOUNDATION


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COMMAND RESPONSIBILITY IN INTERNATIONAL CRIMINAL TRIBUNALS

Paper presented at the National Consultative Summit on Extrajudicial Killings and

Enforced DisappearancesSearching for Solutions, July 1617, 2007, Manila

Joakim Dungel

Summary

The concept of command responsibility offers an important legal tool forinternational criminal tribunals to try high-ranking superiors with respect to crimes

committed by often unidentified subordinates. The command responsibility doctrine is

well-established in conventional and customary international law. It imposes criminalliability for superiors in relation to crimes committed by their subordinates where: (1) a

superior-subordinate relationship exists between the superior and the perpetrator of thecrime; (2) the superior knew or had reason to know that the crime was about to be or had

been committed; and (3) the superior failed to take the necessary and reasonable

measures to prevent the criminal acts or punish the perpetrators thereof. In assessingwhether these legal elements are met, formal structures such as an official or military

superior-subordinate relationship or explicit legal capacities to take measures are not

always required as a matter of law. Rather, international criminal tribunals have beenmore concerned with the actual circumstances, such as whether the superior, whether

civilian or military, has effective control over his or her subordinates, and whether the

superior took the measures he or she could have taken.

1. Introduction

International criminal tribunals have jurisdiction to hold natural persons

individually criminally responsible for international crimes such as genocide, crimesagainst humanity, and war crimes. However, those crimes are often physically

committed by a large number of individual perpetrators, who in many cases remain

unidentified or so low in the chain of command that they are not indicted. As a result, inview of their limited investigative resources, it may prove impracticable for international

criminal tribunals to bring to trial all persons who physically carried out the crimes on the

ground. Yet these perpetrators are often members of organized groups, for examplemilitary, paramilitary, or police units. In such cases, the doctrine of command

responsibility provides a crucial legal tool for international criminal tribunals to hold


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superiors within those groups criminally responsible in relation to the crimes of their

subordinates, whether or not the latter are identified by name.1

In essence, command responsibility imposes criminal responsibility for a

superiors failure to act when under a duty to do so.2

A superior will incur command

responsibility if he or she knows or has reason to know that his or her subordinates areabout to commit or have committed crimes, unless the superior prevents the subordinates

crimes, or, if the crimes have already been committed, punishes the perpetrators. This

legal design places a legal obligation on superiors to ensure that their subordinatescomply with the law. The purpose of command responsibility is thus to ensure a broad

compliance with international humanitarian law.

The notion of command responsibility as a form of individual criminal

responsibility emerged in the post World War II era in national war crimes legislation and

in some post World War II case law.3

It was later codified in Articles 86 and 87 ofAdditional Protocol I to the Geneva Conventions. Today, the concept of command

responsibility is enshrined in the statutes of all major international tribunals.

4

Forexample, Article 7(3) of the statute of the International Criminal Tribunal for the former

Yugoslavia (ICTY) provides that:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute was

committed by a subordinate does not relieve his superior of criminal responsibility 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 preventsuch acts or to punish the perpetrators thereof.

1 It is sufficient that the perpetrators are identified as belonging to a unit or group controlled by the

superior. Prosecutor v. Blaki, Case No. IT-95-14-A, Judgement, 29 July 2004, para. 217;Prosecutor v.

Brima et al., Case No. SCSL-04-16-T, Judgement, 20 June 2007, para. 790.2Prosecutor v. Halilovi, Case No. IT-01-48-T, Judgement, 16 Nov. 2005 (Halilovi Judgment), paras

38.3 Responsibility of commanders for the conduct of their troops has long been recognized in domestic

jurisdictions, as well as in the earliest modern codifications of war, such as the 1899 and 1907 HagueConventions. See e.g. Stuart E. Hendin, Command Responsibility and Superior Orders in the Twentieth

CenturyA Century of Evolution, MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW, 10 (2003):1,

paras 6-8 (citing Order of Charles VII of France of 1439 and Massachusetts Provisional Congress statement

of 1775).4

Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc.S/RES/827 (1993), Annex, Art. 7(3); Statute of the International Criminal Tribunal for Rwanda, UN Doc.

S/RES/955 (1994), Annex, Art. 6(3); Statute of the Special Court for Sierra Leone,Agreement Between theUnited Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra

Leone, 16 January 2002, Annex, Art. 6(3); Statute of the Khmer Rouge Tribunal, Law on the

Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes

Committed During the Period of Democratic Kampuchea, Art. 29; Rome Statute of the International

Criminal Court, circulated as document A/CONF.183/9 of 17 July 1998 and corrected by process-verbauxof 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January

2002, Art. 28; Statute of the Special Tribunal for Lebanon, UN Doc. S/RES/1757 (2007), Art. 3(2).


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Since the landmark case elebii,5

the ICTY and the International Criminal Tribunal for

Rwanda (ICTR) have established a rich jurisprudence on command responsibility, whichhas been followed by the Special Court for Sierra Leone (SCSL).

6In short, the principle

that military and other superiors may be held criminally responsible in respect of the acts

of their subordinates is well-established in conventional and customary international

law.

7

This paper attempts to provide a general overlook of the nature, the legal

elements, and the practical application of the concept of command responsibility ininternational criminal tribunals. The presentation is based primarily on the case-law of

the ICTY, as that tribunal has taken the lead in the legal development of command

responsibility. While the ICTR and the SCSL largely have followed the ICTYjurisprudence in this area, some aspects will be highlighted where the ICC has adopted a

different stance regarding certain aspects of command responsibility.

2. Nature of command responsibility

A fundamental question as to the nature of command responsibility is whether it

is a means of indirectly holding superiors responsible for criminal acts of theirsubordinates, or, rather, whether it is a form of liability for superiors own, personal

misconduct.

While acknowledging command responsibility as a tool to facilitate holding high-

ranking officers criminally responsible,8

Post World War II case-law was not uniform in

determining the nature of this form of liability.9

It was only recently that the ICTYexplicitly addressed the issue. In the 2005 Halilovi case, the Trial Chamber clarified

that a commander is not responsible as though he had committed the crime himself.Instead, the superior incurs criminal liability for his or her failure to comply with the duty

that international law imposes on superiors to prevent or punish crimes committed by

their subordinates.10

The SCSL has also adopted this reasoning.11

Thus, as the lawpresently stands, at least in the ICTY and the SCSL, command responsibility is liability

for an omission. It is worth noting, however, that the wording of the statutes of the ICC

and of the Special Tribunal for Lebanon appears to take a different view, as they stipulate

that superiors may be held responsible for crimes committed by subordinates(emph. added).

12

5 Prosecutor v. Delali et al., Case No. IT-96-21-A, Judgement, 20 Feb. 2001 (elebii Appeal

Judgment).6

Prosecutor v. Brima et al. , Case No. SCSL-04-16-T, Judgement, 20 June 2007 (Brima et al. Judgment),paras 779-800.7elebii Appeal Judgment, para. 195.8See e.g. U.S. Military Commission, Manila,In re Yamashita, Judgment of 7 Dec. 1945, ILR, Vol.13, at

255; Beatrice I. Bonaf,Finding a Proper Role for Command Responsibility, JOURNAL OF INTERNATIONAL

CRIMINAL JUSTICE (2007), 1-20, at 3.9Halilovi Judgment, para. 48.10

Halilovi Judgment, para. 54.11Brima et al. Judgment, para. 783.12 ICC Statute, Art. 28; Statute of the Special Tribunal for Lebanon, Art. 3(2).


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3. Elements of command responsibility

To hold a person criminally responsible under the concept of command

responsibility for an international crime, three legal elements must be met:

1. The existence of a superior-subordinate relationship between the

accused as superior and the perpetrator of the crime;

2. The superior knew or had reason to know that the crime was about

to be or had been committed; and

3. The superior failed to take the necessary and reasonable measures

to prevent the criminal acts or punish the perpetrators thereof.13

3.1. Superior-subordinate relationship

The doctrine of command responsibility is ultimately predicated on the power of

the superior to control the acts of his subordinates.14

In this respect, a military hierarchyis not required: the ICTY, the ICTR, and the SCSL have all held that the doctrine of

command responsibility applies not only to military commanders, but also to political

leaders and other civilian superiors in possession of authority.15

It is also not necessarythat a formal, de jure subordination exist. A superior position for purposes of command

responsibility can be based on de facto powers of control.16

Furthermore, the perpetrator

does not need to be directly subordinated to the superior, but can be several steps downthe chain of command.

17At least in the military context, command responsibility applies

to every commander at every level of command, even if the troops were only temporarilycommanded by the superior.

18

What matters is whether the superior has actual powers to control the actions ofhis or her subordinates. To determine this, all three aforementioned tribunals apply the

effective control test, which aims to determine whether the superior has the material

13See e.g. the ICTY Appeal Judgments inProsecutor v. Blaki, Case No. IT-95-14-A, Judgement, 29 July

2004 (Blaki Appeal Judgment, para. 484;Prosecutor v. Aleksovski, Case No. IT-95-14/1-A,

Judgement, 24 March 2000 (Aleksovski Appeal Judgement).14Halilovi Judgment, para. 57 (citingProsecutor v. Delali et al., Case No. IT-96-21-T, Judgement, 16

Nov. 1998, para. 377).15elebii Appeal Judgment, paras 195-196;Aleksovski Appeal Judgement, para. 76; The Prosecutor v.

Baglishema, Case No. ICTR-95-1A-A, Judgment (Reasons), 3 July 2002, para. 51;Kajelijeli v. TheProsecutor, Case No. ICTR-98-44A-A, 23 May 2005 (Kajelijeli Appeal Judgment), para. 85;Brima et

al. Judgment, para. 782.16elebii Appeal Judgment, para. 195;Kajelijeli Appeal Judgment, para. 85;Brima et al. Judgment, para.

784.17

elebii Appeal Judgment, para. 303;Halilovi Judgment, paras 60, 63.18Halilovi Judgment, para. 61 (citing International Committee of the Red Cross Commentary to Art. 87(1)

of Additional Protocol I to the Geneva Conventions).


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ability to prevent and punish criminal conduct.19

If he or she does, then there is a legal

basis for command responsibility. Lesser degrees of control, however, for examplesubstantial influence, do not incur command responsibility.

20

Whether the effective control test is met must be determined on the basis of the

evidence of each particular case. However, there are factors which may be generallyindicative of an accuseds position of authority. Examples include the accuseds official

position, his or her capacity to issue orders, the procedure for appointment, the accuseds

position in the military or political structure, and the actual tasks that he or she performed. In addition, the ICTY has held that it is permissible topresume that

possession of a formal de jure power results in effective control unless proof to the

contrary is provided.21

As to irregular armed groups with less formal structures, itbecomes more important to focus on the superiors de facto authority. For instance, the

SCSL has deemed relevant in this regard that the superior had first entitlement to the

profits of war, such as looted property and natural resources; exercised control over thefate of vulnerable persons such as women and children; the superior had independent

access to and/or control of the means to wage war, including arms and ammunition andcommunications equipment; the superior rewarded himself or herself with positions of

power and influence; the superior had the capacity to intimidate subordinates intocompliance and was willing to do so; the superior was protected by personal security

guards, loyal to him or her, akin to a modern praetorian guard; the superior fuels or

represents the ideology of the movement to which the subordinates adhere; and thesuperior interacts with external bodies or individuals on behalf of the group.

22

3.2. Mental element: Knew or had reason to know

Command responsibility is not a form of strict liability. In order to incurcommand responsibility, it must be proven that the superior either had actual knowledge,

or had reason to know, that his or her subordinates were committing or about to commit

crimes.

A superiors actual knowledge cannot be presumed, but it may be established

through circumstantial evidence.23

Factors which may be considered in this respect

include the number, type, and scope of illegal acts committed by the subordinates; thetime during which they occurred; the number and type of troops involved; the

geographical location; whether the acts were widespread; the tactical tempo of

operations; the modus operandi of similar illegal acts; the officers and staff involved; andthe location of the accused at the time. The more physically distant the superior was

from the scene of the crimes, the more evidence may be necessary to prove his or her

knowledge. Similarly, the evidence required may vary depending on the superiors

19elebii Appeal Judgment, para. 256;Kajelijeli Appeal Judgment, para. 86;Brima et al. Judgment, para.

784.20elebii Appeal Judgment, para. 266;Halilovi Judgment, para. 59.21

elebii Appeal Judgment, para. 197.22Brima et al. Judgment, para. 788.23Halilovi Judgment, para. 66;Brima et al. Judgment, para. 792.


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position in the chain of command, and on what reporting and monitoring mechanisms are

in place.

Whether a superior had reason to know has been interpreted fairly broadly. The

central question here is whether information was available to the superior which would

have put him on notice of crimes committed by his subordinates.

24

This information doesnot need to provide specific information about unlawful acts committed or about to be

committed; if a military commander, for example, has received information that some of

the soldiers under his command have a violent or unstable character, have a criminalreputation, or have been drinking prior to being sent on a mission, he may be considered

as having the requisite knowledge.25

Further, reports addressed to the superior, the

tactical situation, the level of training, instruction of subordinates, and character traits ofsubordinates can also be relevant.

26The information itself need not compel the

conclusion that the subordinates committed crimes or were about to do so. Rather, a

superior may be regarded as having reason to know if the information justifies furtherinquiry; that is, if it puts him or her on notice of a present and real risk of crimes.

A superior will not incur command responsibility if he or she is unable to obtain

information about a crime. But where the superior had the means to obtain suchinformation and deliberately refrained from doing so, then knowledge can be presumed.

27

This being said, the assessment of a superiors actual or imputed knowledge remains, of

course, a question of fact to be determined on a case-by-case basis.

It should be noted that the mental element of command responsibility under the

ICC Statute differs somewhat from the other international criminal tribunals. Article 28of the ICC Statute distinguishes between military commanders, and other superiors. With

respect to military commanders, the normal knew or should have known standardapplies.

28Other superiors, however, may only incur command responsibility if they

knew or consciously disregarded information which clearly indicated that the

subordinates were committing or about to commit crimes.29

Under the ICC Statute, theconcept of command responsibility is thus less stringent toward superiors who are not

military commanders.

3.3. Failure to prevent or punish

The doctrine of command responsibility comprises two distinct legal duties for

superiors who know or have reason to know that crimes have been or are about to becommitted by their subordinates: to prevent future crimes and to punish perpetrators of

past crimes. Both compel subordinates compliance with the law by forcing their

24elebii Appeal Judgment, para. 241;Blaki Appeal Judgment, para. 62;Brima et al. Judgment, para.794.25elebii Appeal Judgment, para. 238;Halilovi Judgment, para. 68.26elebii Appeal Judgment, para. 238 (citing International Committee of the Red Cross Commentary to

Art. 86(2) of Additional Protocol I to the Geneva Conventions).27

elebii Appeal Judgment, para. 226;Halilovi Judgment, para. 69.28 ICC Statute, Art. 28(a)(i).29 ICC Statute, Art. 28(b)(i).


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superior to take action. The duty to prevent arises as soon as the commander acquires

actual knowledge or has reason to know that a crime is being or is about to be committed,whereas the duty to punish arises once the crime has been committed. Importantly, if a

superior fails to fulfill his or her duty to prevent, this failure cannot be cured simply by

punishing the subordinates afterwards.30

The statutes of all international criminal tribunals stipulate that the superior must

take the necessary and reasonable measures to fulfill these two duties. What

constitutes such measures cannot be determined in the abstract, but is a question ofevidence.

31Nevertheless, some general guidelines can be gleaned from the

jurisprudence. Most importantly, the circumstances may be such that it is irrelevant

whether the superior had the explicit legal capacity to take the required measures.Instead, what matters is whether he or she had the material ability to act.

32In other

words, the question is whether the superior took such necessary and reasonable measures

that could be taken given the superiors degree of effective control over his or hersubordinates.

33The kind and extent of measures to be taken depend on the degree of

effective control exercised by the superior at the relevant time, and on the severity andimminence of the crimes that are about to be committed. Relevant factors to consider

may include whether specific orders prohibiting or stopping the criminal activities wereissued; what measures to secure the implementation of these orders were taken; what

other measures were taken to ensure that the unlawful acts were interrupted and whether

these measures were reasonably sufficient in the specific circumstances; and, after thecommission of the crime, what steps were taken to secure an adequate investigation and

to bring the perpetrators to justice.

As to the duty to prevent, a superior must prevent not only the execution and

completion of a subordinates crimes, but also crimes that are about to be committed.Arguably, then, the superior must intervene as soon as he becomes aware of the planning

or preparation of crimes to be committed by his subordinates and as long as he has the

effective ability to prevent them from starting or continuing.34

With regard to the duty to punish, it includes at least an obligation to investigate

possible crimes, to establish the facts, and, if the superior lacks the power to sanction, to

report them to the competent authorities.35

Finally, a note is warranted on whether a nexus of causation between the

superiors failure to prevent crimes and the commission of those crimes is required. TheICTY has held that such causality is not generally required.

36This conclusion is

30Halilovi Judgment, para. 72. See alsoBlaki Appeal Judgment, para. 83 (The failure to punish and

failure to prevent involve different crimes committed at different times: the failure to punish concerns pastcrimes committed by subordinates, whereas the failure to prevent concerns future crimes of subordinates.).31 Blaki Appeal Judgment, para. 72.32Halilovi Judgment, para. 73;Brima et al. Judgment, para. 798.33See Blaki Appeal Judgment, para. 72.34

Brima et al. Judgment, para. 798.35Halilovi Judgment, para. 97.36Blaki Appeal Judgment, para. 77.


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buttressed by the fact that none of the ICTY, ICTR, or SCSL statutes include any

causality requirement in their provisions on command responsibility. Article 28 of theICC Statute, however, does require that the subordinates crimes occur as a result of the

superiors failure to exercise control properly.37

Therefore, it would seem uncertain

whether or not the concept of command responsibility, generally, requires an element of

causation.

4. Practical application of command responsibility

This section provides a cursory description of how the concept of command

responsibility practically has been applied in cases before the ICTY. An area where

problems have occurred in particular has been in proving that the superior failed tocomply with the duty to punish.

4.1. Investigation

Any criminal case begins with an investigation. In the context of the ICTY, muchof the basis for the evidence was gathered in the former Yugoslavia in the Tribunals

early years, in the form written statements by victims collected by investigators on behalfof the Office of the Prosecutor. The Prosecutor possesses full investigative powers, and

states are under an obligation to cooperate with the tribunal.38

4.2 Prosecution, arrest, and pre-trial

On the basis of its investigation, the Prosecution drafts an indictment, containing aconcise statement of facts and the crimes with which the accused is charged under thestatute. The indictment, as the primary instrument of accusation, should be sufficiently

detailed to allow the accused to prepare a meaningful defense. When relying on

command responsibility, the indictment should therefore contain facts that the accused is

the superior of subordinates sufficiently identified, over whom he had effective controland for whose acts he is alleged to be responsible. It should further set out the conduct

of the accused by which he may be found to possess the necessary mental element

(knew or had reason to know). The facts relevant to the acts of the accusedssubordinates will usually be stated with less precision, because the detail of those acts are

often unknown, and because the acts themselves are often not very much in issue.

Finally, the indictment should set out the conduct of the accused by which he may befound to have failed to take the necessary and reasonable measures to prevent the crimes

or to punish the persons who committed them.39

An example of an indictment relying on

command responsibility is attached to this paper.

37See Kai Ambos, Superior Responsibility, in CASSESE,GAETA,JONES (eds.) THE ROME STATUTE:A

COMMENTARY, Vol. I, Oxford 2002, 848, at 860.38

ICTY Statute, Art. 29.39Blaki Appeal Judgment, para. 218;Prosecutor v. Naletili and Martinovi, Case No. IT-98-34-A,

Judgement, 3 May 2006 (Naletili and Martinovi Appeal Judgment), para. 67.


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The indictment is then submitted to a Judge for review and confirmation. Once

the indictment has been confirmed, it is served on the accused. If the accused does notsurrender to the ICTY voluntarily, the Judge can issue a warrant for his or her arrest.

After arrest, the accused is immediately transferred to the ICTYs detention facility in

The Hague, close to the Tribunal itself. Shortly after his or her transfer, the accused

makes an initial appearance before the Tribunal, at which the accused pleads guilty or notguilty to charges against him or her.

If the accused pleads not guilty, the pre-trial phase ensues. It serves to a large

extent to facilitate the impending trial and flesh out the important issues. For example,the accused may agree that he was a superior as alleged in the indictment, but dispute the

allegation that he had reason to know that his troops committed the crimes charged.

4.3 Trial

The Prosecution carries the burden of proving beyond reasonable doubt the

accuseds command criminal responsibility at trial. As mentioned above, the Prosecutionmay rely on circumstantial evidence in this regard, and any evidence, including hearsay,is admissible before the ICTY provided it is relevant and has probative value. Other legal

standards apply, of course, to the admission of evidence, but it is not necessary to detail

them herein. An example of how and what kind of evidence has been used to establishcommand responsibility is theNaletili and Martinovi case.

This case concerned the Croat-Muslim conflict in Mostar in Bosnia-Herzegovinain 1993-1994. Bosniaks were being imprisoned in large numbers in detention camps, to

which paramilitaries had unfettered access and often arrived to mistreat the prisoners, or

to take them out to perform life-threatening labor on the frontlines. The Prosecution had

alleged that the accused Naletili

, a.k.a. Tuta, bore command responsibility, inter alia,in relation to his subordinates committing the crime of willfully causing great suffering in

these camps. The Prosecution called former detainees to testify about the beatings, and

who had beaten them. The perpetrators had sometimes identified themselves as Tutasmen, and other witnesses had recognized the patches on the perpetrators shoulders.

40

However, this evidence was often inconclusive, and so the Prosecution had to look

elsewhere for corroborating evidence. It found such evidence in a salary list includingNaletilis paramilitary group. This and other documentary evidence, notably a war diary

from a soldier, sufficed to establish Naletilis effective control over his subordinates.

The Prosecution also relied extensively on logbooks of the detention camps.These books kept a detailed record of which prisoners were taken out for labor, by which

military or paramilitary unit, and, if they were returned, at what time. This evidence

helped establish that prisoners were mistreated or killed while in the accuseds unit.

40 Naletili was admired by some, notorious to others, but in all cases well-known in Mostar. To minimize

the risk of reprisals, many of the witnesses gave evidence under protective measures, such as pseudonyms,

and facial and/or vocal distortion. In addition, the ICTY operates a witness and victims program, under

which witnesses can be picked up by an ICTY representative at their home and escorted to the court. Thereis also an experienced psychologist standing by during sensitive testimonies. In rare cases, the ICTY can

relocate witnesses to guarantee their safety.


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While the Prosecution succeeded in proving the elements of Naletilis command

responsibility as to many of the crimes charged, it failed to prove that he had reason toknow in one respect. This concerned an occasion when some of Naletilis men were

transporting prisoners to the Ljubuki detention camp. Their bus got stuck in the mud,

and when Naletili arrived at the site, two of his men were beating a prisoner outside the

bus. Naletili

saw this, but told them to stop and continue their journey instead. Therewas ample evidence that the same two men would come to the Ljubuki camp to mistreat

prisoners there and that there was no doubt that they were Naletilis subordinates. The

Appeals Chamber, however, deemed the fact that Naletili had seen his two men beatingthe prisoner outside the bus insufficient evidence that he also had reason to know that

the men would enter the Ljubuki camp and continue their mistreatment of prisoners

there.

While in some cases it may be presumed that possession of a formal de jure

power results in effective control, other aspects of command responsibility may bemore difficult to prove. TheHadihasanovi case illustrates the problem of establishing

that a superior failed to punish.

In this case, the Prosecution faced the issue of how to prove beyond reasonabledoubt that the accused did notdo something, i.e., that he failed to punish his subordinates

for their crimes. The Prosecutions solution was to send an investigator, Mr. Hackshaw,

to research the archives of the district military prosecutors relevant to the crimes in theindictment. Mr. Hackshaw conducted his investigation from 2 to 5 June 2004 but found

no case linked to the indictment. The Prosecution argued that since it had shown due

diligence in its investigation and had seen that no measures had been taken by theaccused, it was up to the accused to present the measures he had takenin other words,

to refute the Prosecutions findings. The Defense objected to this reversal of the burdenof proof as contrary to basic principles of international criminal law. The Trial Chamber

considered, however, that the investigation may have probative value if the

methodology used during the investigation was sufficiently reliable to satisfy therequirements of a fair trial.

41It found that, with respect to some crimes, the

methodology used was sufficient, but that, in other cases, it failed to meet fair trial

requirements. The Trial Chamber emphasized, however, that where the methodology

was found lacking, the Prosecution could not rely on the weaknesses of the accusedsDefense to fill the gaps in its own investigation, as this would indeed shift the burden of

proof to the accused.42

As far as the ICTR is concerned, it has only convicted one single person under the

command responsibility doctrine.43

It appears that the general problem for the ICTR with

respect to command responsibility has been to prove the superior-subordinaterelationship. This problem arguably stems from the fact that the cases before the ICTR

primarily deal not with superiors operating within clear military command structures, but,

41Prosecutor v. Hadihasanovi, Case No. IT-01-47-T, Judgement, 15 March 2006 (Hadihasanovi

Judgement), para. 973.42Hadihasanovi Judgement, paras 974, 998.43Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-T, Judgement and Sentence, 25 Feb. 2004.


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rather, with local or central political leaders, such as bourgmestres, prefects, ministers,

and leaders or political parties.

4.4. Conviction and sentence

Often times an accused is charged and found criminally responsible not onlyunder the doctrine of command responsibility, but also under a direct form of

responsibility (for example, commission or ordering) for the same offences. In such

cases, both the ICTY and the ICTR have taken the view that a Trial Chamber mustconvict under the direct form of responsibility first.

44Only if it acquits the accused of

direct responsibility, may it proceed to convict under the command responsibility

doctrine. Thus, for example, where it is established that a superior both ordered andfailed to prevent or punish crimes of his or her subordinates, the superior can only be

convicted for having ordered the crimes.

Nevertheless, in imposing a sentence, the ICTY may find that a convicts direct

criminal responsibility is aggravated by the convicts position of authority.

45

However, ifthe accused is convicted under the doctrine of command responsibility, the position of

authority which lent the accused effective control over his or her subordinates may notbe considered an aggravating factor.

46This is so because to do otherwise would result in

that position of authority being double-counted; once as part of the accuseds criminal

conduct, and once as an aggravating factor.

5. Conclusion

The concept of command responsibility provides an important legal tool to try

superiors, be they civilian or military, in relation to crimes committed by theirsubordinates. To establish command responsibility it is first necessary to show that the

accused had effective control over his or her subordinates. While relevant as evidence

of such control, a formal de jure superior-subordinate relationship is not required in thisregard. Next, it must be established that the superior knew or had reason to know that

the subordinates had committed or were about to commit crimes. This mental element

may be proven by circumstantial evidence. Finally, the superior must have failed to

prevent the subordinates crimes or to punish the perpetrators. The superior is obliged totake the necessary and reasonable measures to fulfill these two duties, to the extent that

he or she had the material ability to act.

The ICTR, dealing mostly with civilian and political leaders, as opposed to

military commanders, have encountered problems in proving the superior-subordinate

relationship. The ICTY, which hears more cases involving military commandersoperating within clear structures of command, has not had such problems to the same

44Blaki Appeal Judgment, paras 91-92; Kajelijeli Appeal Judgment, para. 81.45

elebii Appeal Judgement, para. 745;Aleksovksi Appeal Judgement, para. 183;Blaki AppealJudgement, paras 89, 91.46Naletili and Martinovi Appeal Judgment, paras 610, 613.


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extent. Instead, the ICTY has experienced difficulties in showing that the superior failed

to punish the crimes of his or her subordinates. From a prosecutorial viewpoint, perhapsa lesson to be learned from the experience of these two tribunals is that the obstacles to

proving command responsibility to a large extent depends on the specific context in

which the crimes took place. For example, if the accused is a high-ranking military

commander in the regular forces, it may be that little is needed to show that he or she hadeffective control over subordinates far down the chain of command. However,

establishing that the commander had reason to know about the low-ranking soldiers

crimes may be more cumbersome because the commander is positioned far away fromthe scene of the crimes. Conversely, if the accused is a community political leader, only

very persuasive evidence may suffice to establish that he or she had effective control

over his or her political followers. However, if a superior-subordinate relationship isproven, given the leaders proximity to the subordinates, less extensive evidence may be

needed to show that the he or she had reason to know about crimes that the

subordinates committed.


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ATTACHMENTINDICTMENT ALLEGING COMMAND RESPONSIBILITY

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER

YUGOSLAVIA

CASE NO: IT-01-48-I

THE PROSECUTOR OF THE TRIBUNAL

AGAINST

SEFER HALILOVIC

INDICTMENT

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia,

pursuant to her authority under Article 18 of the Statute of the Tribunal charges:

SEFER HALILOVIC

with VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, as set forth below:

THE ACCUSED

1) Sefer HALILOVIC: the son of Rustem, born on 6 January 1952 in Prijepolje in theregion of Serbia known as Sandzak. He attended the military academy in Belgrade in1971 for 3 years. In 1975 he went to the military school in Zadar where he became an

Officer in the Yugoslav Peoples Army (JNA). On 31 August 1990 he went to Belgrade

and attended a two-year course at the school for commanders.

When Sefer HALILOVIC left the JNA in September 1991 he was a professional

military officer who had attained the rank of Major. He returned to Bosnia-Herzegovina

in September 1991, joined the Patriotic League and planned the defence of Bosnia-Herzegovina. On 25 May 1992 he was appointed by the Presidency of the Republic of

Bosnia and Herzegovina (RBiH) as Commander of the Territorial Defence (TO) Staff of

the RBiH, replacing Hasan Efendic. Consequently he became the most senior Military

Commander of the armed forces of the RBiH.

During the period 25 May 1992 until early July 1992, whilst the TO evolved into the

Army, as per the Law of the Army of the Republic of Bosnia and Herzegovina dated 20


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May 1992, Sefer HALILOVIC performed the function of the Commander of the TO

Staff of the RBiH. His function meant he was also a member of the War Presidency.After July 1992, he functioned as the Chief of the General Staff of the Army of the

Republic of Bosnia and Herzegovina (ABiH).

On 18 August 1992 the Presidency formed five corps of the ABiH with SeferHALILOVIC as Chief of the Supreme Command Staff/ Chief of the Main Staff.

On 8 June 1993 a new position was created, Commander of the Supreme Command Staff.Rasim Delic filled this post. Sefer HALILOVIC retained the post of Chief of the

Supreme Command Staff of the ABiH until November 1993.

Between 18 July 1993 to November 1993 Sefer HALILOVIC held the post of Deputy

Commander of the Supreme Command Staff of the ABiH as well as Chief of the

Supreme Command Staff.

After a meeting in Zenica on 20-21 August 1993 Sefer HALILOVIC was appointedHead of an Inspection Team and commander of an Operation called "NERETVA-93".

He is now a retired General of the ABiH and is a Minister in the Government of Bosnia-

Herzegovina.

CHARGE

COUNT 1

MURDER

2) The Prosecutor re-alleges and incorporates by reference paragraph 1) and paragraphs35)-44) in Count 1.

3) At a meeting on 21 to 22 August 1993 in Zenica, attended by most of the senior

military commanders of the ABiH including Rasim Delic, it was decided that the ABiH

would conduct a military Operation in Herzegovina. It was called "NERETVA-93". Themain purpose of the Operation was to capture territory held by the Bosnian Croat forces

(HVO) from Bugojno to Mostar thereby ending the blockade of Mostar. In order toachieve these aims the ABiH would launch offensives within this area. At the meeting an

Operational plan which had been prepared and tabled by Sefer HALILOVIC was

discussed. The Commander of the Supreme Command Staff, Rasim Delic, who was also

present, agreed that an Inspection Team headed by his Deputy, Sefer HALILOVIC whowas then also Chief of the Supreme Command Staff, would go to Herzegovina to

command and co-ordinate the Operation. Units from the 1st, 3

rd, 4

thand 6

thCorps

including a unit which was commanded by Zulfikar Alispago were to be subordinated to

Sefer HALILOVIC for the Operation.

4) Sefer HALILOVIC was the commander of the Operation and as such the troops

involved in the "NERETVA-93" Operation were under his command and control.


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These include the 9th

Motorised Brigade, the 10th

Mountain Brigade, the 2nd

Independent

Battalion and the Prozor Independent Battalion.

Sefer HALILOVIC was the most senior Military Commander for Operation

"NERETVA-93", in the field.

The Inspection Team actually consisted of Vehbija Karic, Zicro Suljevic, Rifat Bilajac

and Namik Dzankovic. The Operation was commanded and co-ordinated from theForward Command Post in Jablanica. One line of attack was from Donja Grabovica to

Vrdi. This part of the Operation was commanded by Zulfikar Alispago and involved the

use of the 9th

Motorised Brigade, the 10th

Mountain Brigade and the 2nd

IndependentBattalion, all from the 1

stCorps of the ABiH. Another line of attack was from Dobro

Polje to Prozor. Enver Buza, who was the Commander of the Prozor Independent

Battalion, was to command this line of attack. The village of Uzdol was along this line.

5) Sefer HALILOVIC was intimately involved with the planning and implementation of

the Operation and it was he who ordered the deployment of units of the 9th

Motorised and

10th

Mountain Brigades from the 1st

Corps in Sarajevo, to Herzegovina. Prior to the

arrival of these units he had visited the operational area including the village ofGrabovica on at least two occasions.

6) Both these units had notorious reputations for being criminal and uncontrolled in

behaviour as well as having participated in an armed mutiny in July 1993. Sefer

HALILOVIC had knowledge of the behaviour of these units from discussions withmembers of the Ministry of Interior, the Military and others who were trying to find a

way to deal with their criminal behaviour.

7) The ABiH had taken the village of Grabovica in May 1993. Grabovica is situated on

the Neretva river and alongside the main road from Sarajevo to Mostar. The land risessharply on either side of the river. On the one bank of the river there were the homes of

mainly Bosnian Croat civilians. On the other bank there were some resident Bosnian

Croat civilians as well as the majority of Bosnian Muslim refugees and later some formercamp detainees.Some of the local Croat population had stayed in their homes after the

village had been taken by the Bosnian Muslim Armed Forces. There was a measure of

co-existence with the Muslims in the area even after the end of August 1993 when anumber of Muslim refugees and former detainees were housed on both sides of the

Neretva River.

8) A unit of the 9th

Motorised Brigade, which was under the command of the Deputy-

Brigade Commander, Ramiz Delalic, left Sarajevo on 7 September 1993. On arrival inJablanica on 8 September 1993 this unit of the 9th Motorised Brigade was sent to be

billeted in Grabovica, some 11-12km away. A small group of the 10th

Mountain Brigade

was also billeted in Grabovica that afternoon.

9) On 8 September 1993, after their arrival in Grabovica some soldiers of the 9th

Motorised Brigade had problems securing accommodation with the local Bosnian Croat


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civilian population. The 2nd

Independent Battalion, which was also from the 1st

Corps in

Sarajevo had already been billeted in Grabovica.

10) On that day Vehbija Karic, and some other members of the Inspection Team visited

Grabovica to check on the troops. During that visit Sefer HALILOVIC was present in

the village when the troops complained to Vehbija Karic that many of the Bosnian Croatcivilians would not let them into their houses. Mustafa Hota, a soldier from the 9th

Motorised Brigade, was one of those who had complained to Vehbija Karic about the

accommodation. Vehbija Karic then in word and gesture indicated that the troops should

try those Bosnian Croat civilians summarily and throw them into the Neretva river if theydid not co-operate. Sefer HALILOVIC voiced his disapproval about the comment to

Vehbija Karic but said nothing to prevent the soldiers from acting on it.

11) Some soldiers of the 9th

Motorised Brigade sought accommodation at the house of

Pero Maric and his wife, Dragica in Grabovica.

12) Initially Pero Maric refused them entry to the house. Sometime later Mustafa Hotaarrived and he forced Pero Maric to give the troops access to the house. Mustafa Hota

then left.

13) Mustafa Hota returned sometime later whilst Pero Maric and some of the troops wereseated around a table outside the house. Mustafa Hota paced around the table and whilst

talking he shot Pero Maric in the head.Later that evening Pero Marics wife, Dragica was

killed at the house.

14) There was continuous shooting in the village that evening and that night. Over thenext two days the bodies of the Bosnian Croat civilians were seen in the village,

alongside the Neretva river and floating in the river.

15) Sefer HALILOVIC was notified during the night of 8 September 1993 about the

killings of civilians. Once he was notified and having knowledge of the criminalreputation of the 9

thMotorised and 10

thMountain Brigades and having been present

earlier that day when Vehbija Karic had made the remark referred to in paragraph 10above, Sefer HALILOVIC was duty bound to act urgently. Sefer HALILOVIC had to

take immediate and effective steps to eliminate a further threat and danger to the

surviving civilians by either evacuating them or ensuring they were properly protected in

the village. To accomplish this Sefer HALILOVIC should have ordered hissubordinates, including the commanders of the units billeted in the village of Grabovica,

to take immediate steps to ensure that their troops in Grabovica were brought under

control and prevented from killing or harming the surviving civilians. SeferHALILOVIC should have requested or ordered members of the 6

thCorps military police

companies that were located in Jablinica and Konjic and/or the Neretvica Brigade

military police company in Pasovici to secure the village of Grabovica with the purposeof protecting the surviving and injured civilians. Sefer HALILOVIC should have

ordered the use of other military security personnel to assist the military police and have

ordered the use of force, where necessary, to implement his order. Sefer HALILOVIC


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should have ordered medical personnel to go to the village to assist the wounded and to

provide other medical attention, where necessary. He was also duty bound to order theimmediate arrest and detention of the suspects and to immediately initiate an

investigation.

16) During the period 8 to 9 September 1993, two young boys, Goran and Zoran Zadrowere at their home in Grabovica when three Muslim soldiers came to the house andenquired about the livestock they had. Their father, grandfather and grandmother took the

soldiers to the barn. The boys remained with their mother and young sister. The boys

heard shots being fired and their mother told them to run into the forest. When theyreturned during the course of the day on 9 September 1993 they saw five dead bodies of

their entire family near their house.

They also saw the bodies of some of their neighbours.

17) On the morning of 9 September 1993 three soldiers of the 9th

Motorised Brigade who

were billeted in Pero Marics house went to look for fruit above the Grabovica railway

track. One of them was Enes Sakrak.

18) At one point they met a woman who was carrying a young child. They were the

mother and sister of Goran and Zoran Zadro, referred to above. Enes Sakrak shot them

both. Other members of the same family were found killed nearby their home.

19) Later that day soldiers of the 9th

Motorised Brigade found the two Zadro boys and

handed them over to Ramiz Delalic who took them to the Zulfikar units base in DonjaJablanica. There was a meeting held, at which Sefer HALILOVIC was present to decide

what to do with the boys. It was eventually decided that they should be sent to stay in the

town of Jablanica.

20) Ramiz Delalic, the Deputy-Commander of the 9th

Motorised Brigade had ordered thebodies of those killed to be hidden. Soldiers of the 9

thMotorised Brigade and of the 10

th

Mountain Brigade buried and burned some of those bodies. Local soldiers from

Zulfikars unit transported some bodies out of the village in trucks.

21) In all thirty-three Bosnian Croat civilians were killed in Grabovica, their names are

listed hereunder:

1. Pero CULJAK, son of Mijat, born 15 November 1913

2. Matija CULJAK, wife of Pero, born 17 May 1917

3. Cvitan LOVRIC, son of Tadija, born 11 October 19364. Jela LOVRIC, wife of Cvitan, born 20 November 1940

5. Mara MANDIC, wife of Tomo, born in 1912

6. Ivan MANDIC, son of Marko, born 15 June 19357. Ilka MILETIC, daughter of Ilija, born 20 January 1926

8. Anica PRANJIC, wife of Ivan, born 7 February 1914

9. Franjo RAVLIC, son of Stjepan, born 17 May 1918

10. Ivan SARIC, son of Pero, born 13 August 1939


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11. Pero MARIC, son of Ilija, born 27 September 1914

12. Dragica MARIC, wife of Pero, born 21 September 191413. Josip BREKALO, son of Ivan, born 29 June 1939

14. Luca BREKALO, wife of Josip, born 14 September 1939

15.Andrija DREZNJAK, son of Tomo, born 23 February 1921

16. Mara DREZNJAK, daughter of Andrija, born 21 April 192117. Dragica DREZNJAK, daughter of Andrija, born 25 November 1953

18. Ilka MARIC, daughter of Simun, born 20 January 1921

19. Ruza MARIC, daughter of Simun, born 17 February 195620. Martin MARIC, son of Blaz, born 7 August 1911

21. Marinko MARIC, son of Martin, born 6 January 1941

22. Luca MARIC, wife of Marinko, born 25 November 194423. Marko MARIC, son of Ante, born 28 February 1906

24. Matija MARIC, wife of Marko, born 14 November 1907

25. Ruza MARIC, daughter of Mijo, born 13 April 193526. Ivan ZADRO, son of Andrija, born 28 March 1924

27. Matija ZADRO, wife of Ivan, born 23 September 192328. Mladen ZADRO, son of Ivan, born 18 June 1956

29. Ljubica ZADRO, wife of Mladen, born 8 July 195630. Mladenka ZADRO, daughter of Mladen, born 13 August 1989

31. Zivko DREZNJAK, son of Blaz, born 29 August 1933

32. Ljuba DREZNJAK, wife of Zivko, born 15 May 1932

33. Jozo ISTUK, son of Ante, born 16 April 1930

22) Sefer HALILOVIC was in the village the day after the killings occurred. Sefer

HALILOVIC was also present at a meeting in Jablanica when Vehbija Karic said that hehad not intended the troops to have interpreted the words he had used literally, to kill the

civilians, but meant it as a form of encouragement to them to be brave.

23) The Minister of the Interior of the RBiH, twice met with Sefer HALILOVIC, once

in Jablanica and on the second occasion in a military facility known as the ARK in theKonjic Municipality and suggested to him that the Operation be stopped and that a full

investigation be conducted by the military into the civilian deaths.

24) Following the incident in Grabovica the Commander of the Supreme Command Staff,Rasim Delic, sent an order, dated 12 September 1993, to Sefer HALILOVIC requesting

him to re-consider the scope of the "NERETVA-93" Operation, to isolate the perpetrators

of the incident, to take active measures and to immediately report on the measures he hadtaken. He was also ordered to do everything to prevent such events in the future. SeferHALILOVIC failed to implement the order resulting in a failure to punish the

perpetrators of the crime who were in the area until 19 September 1993.

25) On 14 September 1993 in the course of the operation "NERETVA-93", the Prozor

Independent Battalion, under the command of Enver Buza attacked the village of Uzdol.Uzdol consists of a number of small hamlets in particularly hilly terrain in the Prozor

Municipality. It was then exclusively inhabited by Bosnian Croat civilians.


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26) Sefer HALILOVIC sent Zicro Suljevic, a member of his Inspection Team, with the

Commander of the Prozor Independent Battalion to ensure the attack was carried out.

27) During the course of the attack twenty-nine Bosnian Croat civilians, who were not

combatants were killed. An HVO prisoner, Slavko Mendes, was captured and executed.

28) The event in Uzdol was widely broadcast on the local radio and television media as

well as on the international media. After international inquiries had been made about the

event, both the President of the Republic of Bosnia and Herzegovina and another ofRasim Delics Deputys between 15 and 16 September 1993 asked the 6

thCorps

Command to provide them with details of the event. The written request was sent through

the communications centre in Jablanica.

29) In all twenty-nine Bosnian Croat civilians and one HVO prisoner of war were killed

in Uzdol. The names of the civilians are listed hereunder:

1. Stjepan ZELIC born 2 January 19832. Marija ZELIC born 12 September 19803. Ruza ZELIC born 25 December 1944

4. Jadranka ZELENIKA born 8 January 1981

5. Lucija RAJIC born 26 September 19336. Stanko RAJIC born 20 May 1927

7. Mijo RAJIC born 12 September 1924

8. Ivka RAJIC born 29 April 19219. Sima RAJIC born 6 July 1914

10. Ivka RAJIC born 16 April 1934

11. Domin RAJIC born 21 September 1936

12. Mara RAJIC born 26 November 193813. Jela DZALTO born 5 June 1950

14. Kata LJUBIC born 10 September 1948

15. Anica STOJANOVIC born 5 December 194916. Franjo STOJANOVIC born 6 January 1916

17. Anto STOJANOVIC born 5 March 1923

18. Serafina STOJANOVIC born 12 February 192219. Luca ZELENIKA born 25 April 1906

20. Ivan ZELENIKA born 1 June 1930

21. Ruza ZELENIKA born 14 April 1931

22. Janja ZELENIKA born 28 August 193123. Dragica ZELENIKA born 25 April 1934

24. Mato LJUBIC born 6 November 1923

25. Kata PERKOVIC born 24 November 192326. Martin RATKIC born19 January 1925

27. Kata RATKIC born 24 November 1928

28. Zorka GLIBO born 10 October 1938

29. Mara GRUBESA born 1 May 1943


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30) On 16 September 1993 Sefer HALILOVIC was ordered to stop all combat activities

against the HVO immediately or at the latest by noon on 18 September 1993.

31) On 20 September 1993 Sefer HALILOVIC and the other members of his Inspection

Team signed a report about their mission in Herzegovina. The report recommends

criminal procedures be instituted against certain military officers and civilian officials yetmakes no mention about the Grabovica or Uzdol incidents.

32) Save for a trip to Sarajevo in September 1993, Sefer HALILOVIC remained ascommander of the Operation in the area until 5 October 1993 and was able to initiate an

investigation into the killings in Uzdol and have the perpetrators punished.

33) On 26 September 1993, Sefer HALILOVIC attended a meeting where the President

of the RBiH said that he did not want to have anything to do with troops who slaughteredchildren and women. The President then referred to crimes committed by the ABiH, in

particular the slaughters near Grabovica and Uzdol and said they should be stopped.

Sefer HALILOVIC, who spoke at the meeting, neither referred to nor disputed what thePresident had to say about the Grabovica and Uzdol incidents.

34) Notwithstanding his duties as a commander that have been set out above, Sefer

HALILOVIC did not take effective measures to prevent the killings of civilians inGrabovica. Further, despite the order from Rasim Delic, dated 12 September 1993, Sefer

HALILOVIC did not take steps to carry out a proper investigation to identify the

perpetrators of the killings in both Grabovica and Uzdol and as commander of the

Operation to punish them accordingly.

By these acts and omissions in relation to the killings in Grabovica and Uzdol, Sefer

HALILOVIC committed,

COUNT 1: Murder,a VIOLATION OF THE LAWS OR CUSTOMS OF WAR

punishableunder Article 3 of the Statute of the Tribunal and recognised by Article

3(1)(a) of the Geneva Conventions, and Article7(3) of the Statute of the Tribunal.

SUPERIOR RESPONSIBILITY

SEFER HALILOVIC:

35) Sefer HALILOVIC was appointed by Rasim DELIC to command the Operation

"NERETVA-93".

36) Sefer HALILOVIC was Chief of the Supreme Command Staff, one of Rasim

Delics deputies and was the most senior ranking Commander in Herzegovina at that time

for the Operation. The ABiH Disciplinary Regulations, in particular those gazetted on 13

August 1992, as amended, to implement the rules relating to the investigation of war

crimes, also bound him.


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37) He was an experienced Commander, had exercised control and command over

military units and was well-versed in military disciplinary procedures.

38) At all times relevant to the charges in the indictment, by virtue of his position and

authority as Commander of the Operation he had effective control over the units

subordinated to him. These included the 9

th

Motorised Brigade, the 10

th

MountainBrigade, the 2nd

Independent Battalion and the Prozor Independent Battalion.

39) Sefer HALILOVIC demonstrated both formal de jure and de facto power, by hiscommand and control in military matters in a manner consistent with the exercise of

superior authority, by issuing orders, instructions and directives to the units, by ensuringthe implementation of these orders, instructions and directives and bearing full

responsibility for their implementation. He also assigned lines of attack and co-ordinated

the combat activities of the units. He planned and was instrumental in the implementationof the military operations carried out by the units which took part in the "NERETVA-93"

Operation.

GENERAL ALLEGATIONS

40) At all times relevant to this indictment, an armed conflict existed on the territory of

the Republic of Bosnia and Herzegovina.

41) All of the victims to whom the charge refers, whether they were civilians or prisoners

of war, were, at all relevant times, persons protected by the Geneva Conventions of 1949.

42) The accused in this indictment was required to abide by the regulations of the laws or

customs of war governing the conduct of war, including the Geneva Conventions.

43) Sefer HALILOVIC, whilst holding the position of superior authority as setout in theforegoing paragraphs, is criminally responsible for the acts of his subordinates, pursuant

to Article 7(3) of the Tribunal Statute.

A superior is responsible for the acts of his subordinate(s) if he knew or had reason to

know that his subordinate(s) were about to commit such acts or had done so and thesuperior failed to take the necessary and reasonable measures to prevent such acts or to

punish the perpetrators thereof.

ADDITIONAL FACTS

44) The Republic of Bosnia and Herzegovina declared its independence on 3 March 1992and was recognised by the European Community on 6 April 1992. On 22 May 1992 the

United Nations admitted the Republic of Bosnia and Herzegovina as a member State.


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____________

Carla Del Ponte

Prosecutor

Dated this 10 day of September, 2001

The Hague Netherlands

Documents

Dungel - Command Responsibility in ICT