II. Command Responsibility and the Blaskic Case

International and Comparative Law Quarterly

Volumn 50, Issue 2, 2001, Pages 452-465

  Evans, Malcolm D ^a   Sarooshi, Danesh ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 84920938943     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/50.2.452     Document Type: Article

References (127)

1. See e.g., among these earlier cases U.S.A. v. Von Leeb et al., 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, p.1
2. U.S.A. v. Tomoyuki Yamashita, United Nations War Crimes Commission, 4 Law Reports of Trials of War Criminals, (1945), p.1.
3. The HVO is the military arm of the “Croatian Community of Herceg-Bosna” (HZHB).
4. Prosecutor v. Tihomir Blaskic, Case No. IT-95–14-T, decision of 3 March 2000, para. 378.
5. Second Amended Indictment, 25 April 1997, para. 2.
6. Prosecutor v. Tihomir Blaskic, Decision on the Objection of the Republic of Croatia to the issuance of subpoena duces tecum, IT-95–14-PT, 18 July 1997
7. in the Appeals Chamber, Prosecutor v. Tihomir Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 Oct. 1997, IT-95–14-AR108 bis.
8. On these decisions, see Sarooshi, D., “The Powers of the United Nations International Criminal Tribunals”, Max Planck Yearbook of United Nations Law, 2 (1998), p.141 at pp.149–154, 156–158.
9. For detailed consideration of these provisions, see infra Section D.
10. Blaskic case, infra, para. 64.
11. On the relationship between the ICTY and existing international humanitarian law, see Greenwood, C., “The Development of International Humanitarian Law by the International Criminal Tribunal for the former Yugoslavia”, Max Planck Yearbook of United Nations Law, 2 (1998), p.97 at p.111.
12. The Trial Chamber applied the decision of the Tadic Appeal Judgment (Prosecutor v. Dusko Tadic, Case No. IT-94–1-A, 15 July 1999, para. 84) when it held that “[a]n armed conflict which erupts in the territory of a single State and which is thus at first sight internal may be deemed international where the troops of another State intervene in the conflict or even where some participants in the internal armed conflict act on behalf of this other State.”
13. Blaskic case, Max Planck Yearbook of United Nations Law, para. 75.
14. The Trial Chamber relied on the testimony of a number of witnesses as well as UN reports and documents–including UN Security Council resolutions 752 and 787–which noted an HV presence in Bosnia and Central Bosnia. (Max Planck Yearbook of United Nations Law, paras 88–90.)
15. Tadic Appeal Judgment, Max Planck Yearbook of United Nations Law, paras 124–125.
16. Max Planck Yearbook of United Nations Law, para. 137 (original emphasis).
17. Blaskic case, Max Planck Yearbook of United Nations Law, para. 112.
18. Max Planck Yearbook of United Nations Law, para. 112.
19. Max Planck Yearbook of United Nations Law, para. 115.
20. Max Planck Yearbook of United Nations Law, para. 116.
21. Max Planck Yearbook of United Nations Law, paras 118–119.
22. Max Planck Yearbook of United Nations Law, para. 122.
23. Tadic Appeal Judgment, Max Planck Yearbook of United Nations Law, para. 140
24. as reproduced by the Trial Chamber in the Blaskic case, Max Planck Yearbook of United Nations Law, para. 121.
25. Blaskic case, Max Planck Yearbook of United Nations Law, paras 133, 146.
26. The Chamber found that the municipalities of Vitez, Busovaca, and Kiseljak could be characterised as occupied territories and as such the property of Bosnian Muslims in these areas received the protection of Article 53 of the Fourth Geneva Convention which prohibits the extensive destruction of property by an occupying power not justified by military necessity. (Max Planck Yearbook of United Nations Law, para. 149.)
27. Article 2(a) of the Statute. The mens rea “exists once it has been demonstrated that the accused intended to cause death or serious bodily injury which, as it is reasonable to assume, he had to understand was likely to lead to death.” (Max Planck Yearbook of United Nations Law, para. 153.)
28. Article 2(b) of the Statute. The Chamber affirmed the finding of the Celebici case concerning inhuman treatment which is “an intentional act or omission … which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity”. (Blaskic case, Max Planck Yearbook of United Nations Law, para. 154.) This category includes, e.g., acts such as torture.
29. Article 2(c) of the Statute. This offence is an intentional act or omission causing great suffering or serious injury to body or health, including mental health. (Max Planck Yearbook of United Nations Law, para. 156.)
30. Article 2(d) of the Statute. The destruction of property to be characterised as an offence must be unjustified by military necessity and must be extensive, unlawful, and wanton. (Max Planck Yearbook of United Nations Law, para. 157.)
31. Article 2(h) of the Statute. The unlawful act of taking civilians as hostages occurs when civilians are detained in order to obtain a concession or gain an advantage. (Max Planck Yearbook of United Nations Law, para. 158.)
32. Blaskic case, Max Planck Yearbook of United Nations Law, para. 152.
33. Max Planck Yearbook of United Nations Law, para. 161, and citations to earlier ICTY cases contained therein.
34. Max Planck Yearbook of United Nations Law, para. 166.
35. Max Planck Yearbook of United Nations Law, para. 170.
36. The Trial Chamber, moreover, affirmed earlier ICTY case-law that customary international law imposes criminal responsibility on individuals for serious violations of Common Article 3. (Max Planck Yearbook of United Nations Law, para. 176, and citations to earlier ICTY cases contained therein.)
37. The Trial Chamber requires that the attack must have caused deaths and/or serious injury within the civilian population or actual damage to civilian property. Civilians within the meaning of Article 3 of the ICTY Statute are persons who are not, or are no longer, members of the armed forces. Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity. (Max Planck Yearbook of United Nations Law, para. 180.)
38. The content of this offence under Article 3 of the ICTY Statute is the same as for wilful killing. (Max Planck Yearbook of United Nations Law, para. 181.)
39. This offence appears in Article 3(1)(a) common to the Geneva Conventions, but is to be linked to Article 2(a) (wilful killing), Article 2(b) (inhuman treatment), and Article 2(c) (causing serious injury to body) of the Statute. (Max Planck Yearbook of United Nations Law, para. 182)
40. The mens rea is that the accused intended to commit violence to the life or person of the victims deliberately or through recklessness. (Max Planck Yearbook of United Nations Law.)
41. The devastation must be such that it was not justified by military necessity and it must have been perpetrated intentionally or have been the foreseeable consequence of the acts of the accused. (Max Planck Yearbook of United Nations Law, para. 183.)
42. This prohibition extends both to isolated acts of plunder for private interest and to the organised seizure of property as part of a systematic exploitation of occupied territory. (Max Planck Yearbook of United Nations Law, para. 184.)
43. The damage or destruction must have been intentionally committed to clearly identifiable religious or educational institutions that were not being used for military purposes at the time and were not in the immediate vicinity of military objectives. (Max Planck Yearbook of United Nations Law, para. 185.)
44. The Trial Chamber held that treatment may be cruel regardless of the status of the persons concerned and, moreover, that cruel treatment may be defined as “an intentional act or omission ‘which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of Common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Convention.’” (Max Planck Yearbook of United Nations Law, para. 186.)
45. This offence is prohibited by Article 3(b) common to the 1949 Geneva Conventions which is covered by Article 3 of the ICTY Statute. The definition of a hostage here is similar to that of civilians taken as hostages within the meaning of grave breaches under Article 2 of the Statute (see Max Planck Yearbook of United Nations Law.)
46. Moreover, to be characterised as hostages the detainees must have been used to obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking. (Max Planck Yearbook of United Nations Law, para. 187.)
47. The Chamber found that the crime of “persecution” encompasses not only bodily and mental harm and infringements upon individual freedom, but also acts which appear less serious–e.g. attacks against property–so long as the victimised persons were specially selected on grounds linked to their belonging to a particular community. (Max Planck Yearbook of United Nations Law, para. 233.)
48. Max Planck Yearbook of United Nations Law, paras 198, 201–202.
49. On the elements of the knowledge required, see Max Planck Yearbook of United Nations Law, paras 245–259.
50. Max Planck Yearbook of United Nations Law, para. 207.
51. Max Planck Yearbook of United Nations Law, para. 206.
52. The plan does not need to have been expressly declared or even stated clearly and in precise terms. It may be surmised from, inter alia, the general historical circumstances and the overall political background against which the criminal acts are set; the establishment and implementation of autonomous political and military structures in an area; the general content of a political programme outlined in the writings and speeches of its authors; media propaganda; co-ordinated and repeated military offensives; alterations to the ethnic composition of populations; and the scale of the acts of violence perpetrated. (Max Planck Yearbook of United Nations Law, para. 204.)
53. Max Planck Yearbook of United Nations Law, para. 203.
54. Max Planck Yearbook of United Nations Law, para. 214.
55. Max Planck Yearbook of United Nations Law, para. 213.
56. Max Planck Yearbook of United Nations Law, para. 278.
57. Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96–4-T, 2 Sept. 1998, para. 480
58. as cited in the Blaskic case, Max Planck Yearbook of United Nations Law, para. 279.
59. Blaskic case, Max Planck Yearbook of United Nations Law, para. 279.
60. Max Planck Yearbook of United Nations Law, para. 280.
61. Max Planck Yearbook of United Nations Law, para. 282.
62. Prosecutor v. Anto Furundzija, Case no. IT-95–17/1-T, 10 Dec. 1998
63. Prosecutor v. Tadic, Case No. IT-94–1-T, 7 May 1997
64. Akayesu case, Max Planck Yearbook of United Nations Law
65. Prosecutor v. Zejnil Delalic et al, Case No. IT-96–21-T, 19 Nov. 1998 (hereafter “Celebici case”).
66. Blaskic case, Max Planck Yearbook of United Nations Law, para. 283.
67. The actus reus may also be committed through an omission, provided the failure to act had a decisive effect on the perpetration of the crime and that it was of course coupled with the requisite mens rea. (Max Planck Yearbook of United Nations Law, para. 284.)
68. Max Planck Yearbook of United Nations Law, para. 286.
69. On the customary status of this principle, see Blaskic case, Max Planck Yearbook of United Nations Law, para. 290.
70. Celebici case, Max Planck Yearbook of United Nations Law.
71. For discussion of these cases, see Bantekas, I., “The Contemporary Law of Superior Responsibility”, A.J.I.L., 93 (1999), p.573.
72. Prosecutor v. Zlatko Aleksovski, Case No. IT-95–14/1-T, 25 June 1999.
73. Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95–1-T, 21 May 1999.
74. Blaskic case, A.J.I.L., paras 300–301.
75. The actual knowledge element can be proved through either direct or circumstantial evidence. The latter including, inter alia, the following types of evidence: “the number, type and scope of the illegal acts, the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the speed of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time.” (A.J.I.L., para. 307.)
76. The Celebici Trial Chamber stated: “a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates.” (Celebici case, A.J.I.L., para. 393.)
77. Blaskic case, A.J.I.L., para. 312.
78. A.J.I.L., para. 329.
79. A.J.I.L., para. 329 (footnote omitted).
80. A.J.I.L., para. 331.
81. A.J.I.L., para. 332.
82. A.J.I.L., para. 335.
83. A.J.I.L., para. 336.
84. There was also a previous HVO attack on 20 Jan. 1993: see, A.J.I.L., paras 371–383.
85. A.J.I.L., paras 677–678.
86. The Trial Chamber found that detainees were subjected to inhuman treatment (count 15) and cruel treatment (count 16), since they were used as human shields; forced to dig trenches often on the battle front-lines (during which several were killed or wounded); raped; beaten; and subjected to, inter alia, mental violence, threats, and deprivation of sufficient food and water during detention in the municipalities of Vitez (A.J.I.L., 694–700)
87. Kiseljak (A.J.I.L., paras 690–693)
88. Busovaca (A.J.I.L., paras 688–689).
89. The Chamber found Blaskic criminally responsible for these crimes on the basis of Article 7(3) of the ICTY Statute, since the accused exercised effective control over the perpetrators of the crimes (A.J.I.L., paras 722–725)
90. that since he had ordered the detention of the Muslim civilians he must have known of the acts of violence taking place and the conditions of detention (A.J.I.L., para. 733).
91. In any case Blaskic was criminally responsible since he did not take reasonable measures to punish the perpetrators of the crimes either by investigating the crimes, imposing disciplinary measures, or by sending a report on the perpetrators of these crimes to the competent authorities. (A.J.I.L., para. 734.)
92. The Chamber found that protected persons were taken hostage by the HVO and used both in prisoner exchanges and in order to bring to a halt military operations by Bosnian Muslim armed forces (ABiH) against the HVO such that the offences in counts 17 and 18 of the indictment were constituted (A.J.I.L., paras 705–708)
93. moreover, that the accused was criminally responsible for this crime (A.J.I.L., paras 739–741).
94. On the final two counts (19 and 20) concerning the finding by the Chamber of inhuman and cruel treatment of detainees by using them as human shields, see A.J.I.L., paras 713–716
95. for the individual criminal responsibility of Blaskic for these crimes, see A.J.I.L., paras 742–743.
96. On the attacks by the HVO against Muslim civilians in the municipality of Busovaca in April 1993, the crimes committed in this area, and the individual criminal responsibility of General Blaskic, see A.J.I.L., paras 563–592
97. in the municipality of Kiseljak, see A.J.I.L., paras 593–661.
98. A.J.I.L., para. 385.
99. This finding was based on four factors. First, that the attacks were preceded by several political declarations by Bosnian Croat politicians announcing that a conflict between Croatian and Muslim forces was imminent. (Blaskic case, A.J.I.L., paras 387–388.)
100. Second, that the Croatian inhabitants of the villages were warned of the attack and that Croatian women and children had in Ahmici been evacuated on 15 April and in other areas Bosnian Croat families had left several days before the attacks. (A.J.I.L., para. 389.)
101. Third, the method of attack displayed a high level of preparation. (A.J.I.L., para. 390.)
102. Members of the U.K. contingent of the UN peace-keeping force in the area (UNPROFOR), testified that the main roads were blocked by HVO troops, and, moreover, that the attack occurred from three sides and was designed to force the fleeing population towards elite marksmen with sophisticated weapons who shot those escaping. (A.J.I.L., para. 390.)
103. The Trial Chamber also noted that “[o]ther troops, organised in small groups of about five to ten soldiers, went from house to house setting fire and killing.” (A.J.I.L., para. 390.)
104. Fourth, that international observers, mostly military experts, who went to the site after the attack had all stated that such an operation could only be planned at a high level of the military hierarchy. (A.J.I.L., para. 391.)
105. This was accepted by General Blaskic who stated under cross-examination before the Trial Chamber that the attack was “an organised, systematic and planned crime.” (A.J.I.L., para. 392.)
106. Blaskic case, A.J.I.L., para. 400.
107. A.J.I.L., paras 402–410.
108. A.J.I.L., paras 411–412.
109. A.J.I.L., para. 413.
110. A.J.I.L., para. 414.
111. A.J.I.L., paras 416.
112. The European Commission Monitoring Mission (ECMM) report on the attack on Ahmici states that at least 103 people were killed during the attack. (A.J.I.L., para. 417.)
113. A.J.I.L., para. 418.
114. A.J.I.L., paras 419–423.
115. A.J.I.L., para. 424.
116. A.J.I.L., paras 435, 437.
117. A.J.I.L., para. 435.
118. A.J.I.L., para. 440.
119. A.J.I.L., paras 442–466.
120. A.J.I.L., paras 467–468.
121. A.J.I.L., para. 472.
122. A.J.I.L., para. 474.
123. A.J.I.L., para. 474.
124. A.J.I.L., para. 474.
125. A.J.I.L., paras 477–485, 495.
126. A.J.I.L., para. 495.
127. A.J.I.L., para. 789.