The Mens Rea of Superior Responsibility as Developed by ICTY Jurisprudence

Leiden Journal of International Law

Volumn 14, Issue 3, 2001, Pages 617-634

  Keith, K M F ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

Author keywords

ICTY; mens rea; Superior Responsibility

Indexed keywords

EID: 85016183924     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000309     Document Type: Article

References (51)

1. Art. 7(1) of the ICTY Statute provides: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime.”
2. For an overview of the customary law development of Superior Responsibility, see, generally, W.H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973); L.C. Green, Command Responsibility in International Humanitarian Law, 5 Transnational Law and Contemporary Problems 319 (1995); A.P. Rogers, Law on the Battlefield, Chapter 7 (1996); B. Bing Jia, The Doctrine of Command Responsibility in International Law with Emphasis on Liability for Failure to Punish, XLV(3) NILR 325 (1998); and M. Lippman, The Evolution and Scope of Command Responsibility, 13(1) LJIL 139 (2000).
3. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) on the Establishment of the ICTY, S/25704, para. 34.
4. M.C. Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia, at 337-340 (Transnational Publishers Inc., 1996).
5. The Trial Chambers concur and Appeals Chamber approves of the principle that a superior may be military or civilian, de facto or de jure. Further, the chain of command between the superior and subordinates may be either direct or indirect. (See Id. note 3: Čelebići Trial Chamber Judgement, at paras. 363 and 377; BlaBkić Trial Chamber Judgement, at paras. 300-302; Aleksovski Trial Chamber Judgement, at paras. 75-76; Kordić Judgement, at para. 416; The Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad LandCo, Case No. IT-96-21-A, Judgement, Appeals Chamber, 20 February 2001, para. 197 (hereinafter ‘Čelebići Appeals Chamber Judgement’). The test used to determine whether a person is in fact a superior is “effective control.” It is the degree of effective control a person exercises over others that is the determining factor of whether they are defined as a superior. Therefore, as held by the Appeals Chamber, “possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such powers prima facie results in effective control unless proof to the contrary is produced.” (Čelebići Appeals Chamber Judgement, at para. 197.) The Tribunal has defined “effective control” in terms of the material ability a person has to prevent or punish subordinates for violations of the laws and customs of war. (Čelebići Appeals Chamber Judgement, at para. 256.) Therefore, proof of “material ability” is the defining factor for (a) whether a person is a superior, and (b) whether they took the necessary and reasonable measures.
6. Čelebići Appeals Chamber Judgement, The Trial Chambers concur and Appeals Chamber approves of the principle that a superior may be military or civilian, de facto or de jure. note 7, at para. 241; and The Trial Chambers concur and Appeals Chamber approves of the principle that a superior may be military or civilian, de facto or de jure. note 3: Čelebići Trial Chamber Judgement, at para. 386; BlaBkić Judgement, at para. 307; Aleksovski Trial Chamber Judgement, at para. 80; Kordić Judgement, at para. 427.
7. For instance in the Hostage case, the Court relied on specific evidence such as reports transmitted to a commander's headquarters to construct knowledge. Parks, Čelebići Appeals Chamber Judgement note 2, at 59-61.
8. The Military Tribunal held: “The crimes were so extensive and widespread, both as to time and area, that they must either have been wilfully permitted by the accused, or secretly ordered by him […].” US v. Yamashita, 327 U.S. I (1945); (1946) ILR, at 256-257. The Military Tribunal did not express the precise standard of mens rea applied in the Yamashita case. This has resulted in scholars advancing different interpretations of the standard used. Some have argued that strict liability was applied. Others have argued that the accused had actual knowledge or the Tribunal applied a “must have known” standard. See, generally, B. Landrum, The Yamashita War Crimes Trial: Command Responsibility Then and Now, 149 Military Law Review 293 (Winter 1995), who provides a brief comparative analysis of the different views on the standard of liability applied in this case.
9. In the Krstić case before the ICTY, the accused claims to have no knowledge of the crimes committed in the Srebrenica area until a couple of months after they occurred. The Prosecution introduced various media reports of the crimes being reported days later, including media reports received as far away as China, to rebut the accused's argument. See, generally, Prosecutor v. Radislav Krstić, Case No. IT-98-33-T; Trial Transcript dated 1 November 2000 with reference to Prosecution exhibits 113 and 114.
10. Aleksovski Trial Chamber Judgement, the Krstić case before the ICTY, the accused claims to have no knowledge of the crimes committed in the Srebrenica area until a couple of months after they occurred. note 3, at para. 80. The BlaBkić Trial Chamber also referred to some form of weighting: “These indicia must be considered in light of the accused's position of command, if established.” BlaBkić Judgement, the Krstić case before the ICTY, the accused claims to have no knowledge of the crimes committed in the Srebrenica area until a couple of months after they occurred. note 3, at para. 308.
11. BlaBkić Judgement, Aleksovski Trial Chamber Judgement note 3, at para. 478.
12. Čelebići Appeals Chamber Judgement, BlaBkić Judgement note 7, at paras. 228-241.
13. Čelebići Trial Chamber Judgement, Čelebići Appeals Chamber Judgement note 3, at para. 388.
14. BlaBkić Judgement, Čelebići Trial Chamber Judgement note 3, at para. 322.
15. Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict, 1125 UNTS 3 (1979); 16 ILM 1391 (1977).
16. Čelebići Trial Chamber Judgement, Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflict note 3, at para. 393.
17. BlaBkić Judgement, Id. note 3, at para. 332.
18. Art. 31 of the Vienna Convention on the Law of Treaties provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of their treaty in their context and in light of its object and purpose.” Reprinted in D.J. Harris, Cases and Material on International Law, 5th Ed., at 813 (1998).
19. Čelebići Trial Chamber Judgement, Art. note 3, at para. 393.
20. Id., at para. 391.
21. H.S. Levie, Protection of War Victims: Protocol I to the 1949 Geneva Conventions, at 302-312 (1981).
22. Id., at 307.
23. Id., at 305.
24. Id., at 307.
25. Protection of War Victims: Protocol I to the 1949 Geneva Conventions note 17.
26. Y. Sandoz, C. Swinarski & B. Zimmerman (Eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC Geneva, at para. 3560 (1987).
27. BlaBkić Judgement, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 note 3, at para. 329.
28. BlaBkić Judgement note 30, at para. 3541.
29. BlaBkić Judgement, BlaBkić Judgement note 30 note 3, at paras. 324-331.
30. Čelebići Appeals Chamber Judgement, BlaBkić Judgement note 7, at para. 241 (emphasis added).
31. Id., at para. 226.
32. Id., at para. 237.
33. Id., at para. 230.
34. Id., at para. 228.
35. Čelebići Trial Chamber Judgement, Čelebići Appeals Chamber Judgement note 3, at para. 388: The Tokyo judgement refers to the principle that the absence of knowledge should not be considered a defence if the superior “was at fault in having failed to acquire such knowledge.” In the Toyoda case, the Tribunal declared that the principle of command responsibility applied to the commander who “knew, or should have known, by use of reasonable diligence.”
36. Parks, Čelebići Trial Chamber Judgement note 2, at 68.
37. BlaBkić Judgement, Čelebići Trial Chamber Judgement note 2 note 3, at para. 318.
38. Čelebići Appeals Chamber Judgement, BlaBkić Judgement note 7, at para. 229: “It is to be noted that the courts which referred to the existence of a ‘duty to know’ at the same time found that the accused were put on notice of subordinates’ acts.”
39. The Prosecutor v. DuBko Tadić, Case No. IT-94-1-A, Judgement, Appeals Chamber, 15 July 1999, para. 247.
40. BlaBkić Judgement, The Prosecutor v. DuBko Tadić note 3, at paras. 315-322.
41. The Čelebići indictment covers the period May to September 1992, Čelebići Trial Chamber Judgement, BlaBkić Judgement note 3, Ann. B, Indictment, paras. 16-37.
42. Čelebići Trial Chamber Judgement, Čelebići Trial Chamber Judgement note 3, at para. 393.
43. W.J. Fenrick, Article 28 Responsibility of Commanders and Other Superiors, in O. Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court-Observers’ Notes, Article by Article, at 519 (Baden-Baden, 1999).
44. Čelebići Appeals Chamber Judgement, Article 28 Responsibility of Commanders and Other Superiors note 7, at para. 241.
45. Id., at para. 239.
46. Id., at para. 238.
47. Id., at paras. 238-239.
48. Kordić Judgement, Čelebići Appeals Chamber Judgement note 3, at para. 437.
49. Kordić Judgement note 7, at para. 234.
50. The European Court of Human Rights has applied the concept of a treaty as a living instrument. See, generally, R. MacDonald, F. Matscher & H. Petzold (Eds.), The European System for the Protection of Human Rights 68 (Martinus Nijhoff Publishers, 1993).
51. This was one of the main factors stressed by the Swedish delegate during the drafting process of Art. 86. Levie, The European Court of Human Rights has applied the concept of a treaty as a living instrument. note 25, at 310.