Case No.:IT-95-14-A

    Date: 29 July 2004

    Original: English

    IN THE APPEALS CHAMBER

    Before:

    Judge Fausto Pocar, Presiding

    Judge Florence Ndepele Mwachande Mumba

    Judge Mehmet Güney

    Judge Wolfgang Schomburg

    Judge Inés Mónica Weinberg de Roca

    Registrar:

    Mr. Hans Holthuis

    Judgement of:

    29 July 2004

    PROSECUTOR

    v.

    TIHOMIR BLASKIC

    JUDGEMENT

    The Office of the Prosecutor:
    Mr. Norman Farrell
    Ms. Sonja Boelaert-Suominen
    Ms. Michelle Jarvis
    Ms. Marie-Ursula Kind
    Ms. Kelly Howick

    Counsel for the Appellant:
    Mr. Anto Nobilo
    Mr. Russell Hayman

    I. INTRODUCTION

  1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (“International Tribunal”) is seized of an appeal from the judgement rendered by the Trial Chamber on 3 March 2000 in the case of Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T (“ Trial Judgement”).

  2. The events giving rise to this appeal took place during the conflict between the Croatian Defense Council (“HVO”) and the Bosnian Muslim Army in the Lasva Valley region of Central Bosnia in the period from May 1992 until January 1994. The Appellant Tihomir Blaskic was the Commander of the HVO Armed Forces in Central Bosnia at the time the crimes at issue were committed.

  3. The Trial Chamber convicted the Appellant on the basis of nineteen counts set forth in the Indictment, in relation to crimes occurring in the Vitez, Busovaca, and Kiseljak municipalities.( 1 ) These counts encompassed violations of Articles 2, 3, and 5 of the Statute of the International Tribunal (“Statute”). The Appellant was convicted on the basis of Article 7(1) of the Statute for ordering the crimes at issue in this appeal. The Trial Chamber also stated in the disposition of the judgement that “(i(n any event, as a commander , he failed to take the necessary and reasonable measures which would have allowed these crimes to be prevented or the perpetrators thereof to be punished...”( 2 ) Therefore, the Trial Chamber also convicted the Appellant under Article 7(3) of the Statute. The Trial Chamber imposed a single sentence of 45 years’ imprisonment .

  4. The Appellant filed his notice of appeal on 17 March 2000.( 3 ) This long appeal has, in part, been characterized by the filing of an enormous amount of additional evidence. This was inter alia due to the lack of cooperation of the Republic of Croatia at the trial stage( 4 ) and to the delay in the opening of its archives, which only occurred following the death of former president Franjo Tudjman on 10 December 1999, thus preventing the parties from availing themselves of the materials contained therein at trial. During the appeal proceedings, the Appellant filed four motions pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”). In these motions, he sought to admit over 8,000 pages of material as additional evidence on appeal. The first of these additional evidence motions was filed on 19 January 2001, and the last, on 12 May 2003.

  5. On 31 October 2002, the Appeals Chamber issued a Scheduling Order in relation to the first three Rule 115 Motions that had been filed by the Appellant by that time. It deemed clearly admissible certain of the additional evidence sought to be admitted by the Appellant, and ordered the parties to present oral argument limited to the issue of whether that evidence justified a new trial by a Trial Chamber, on some or all of the counts. On 21 November 2002, oral arguments were heard pursuant to this order. On 22 November 2002, a Scheduling Order was issued by the Appeals Chamber allowing the Prosecution to file its rebuttal material.

  6. Following the filing of the fourth and final Rule 115 motion by the Appellant , and rebuttal material by the Prosecution in relation to this motion, the Appeals Chamber rendered its decisions on evidence on 31 October 2003. It found that in the circumstances of this case, a re-trial was not warranted. It decided which items of additional evidence and rebuttal material were admitted into the record . A total of 108 items were admitted, and as a consequence, several witnesses were heard in the evidentiary portion of the hearing on appeal, which took place from 8-11 December 2003, and was followed by final arguments on 16-17 December 2003.

  7. Having considered the written and oral submissions of the Appellant and the Prosecution, the Appeals Chamber hereby renders its Judgement.

    II. STANDARD OF REVIEW ON APPEAL

  8. While precedents setting out the standard of appellate review abound in the jurisprudence of the International Tribunal,( 5 ) the Appeals Chamber considers that this appeal necessitates a further examination of the existing standards.

  9. At the outset, the Appeals Chamber notes that the Appellant does not address this issue in his Appellant’s Brief. The Appellant does, however, address this issue in his Brief in Reply, where he argues that when a conviction is based either on insufficient evidence or on a “wholly erroneous” evaluation of the evidence by a Trial Chamber, the Appeals Chamber will overturn the conviction as a miscarriage of justice.( 6 ) He also submits that, where additional evidence has been admitted on appeal, a miscarriage of justice should be found where the evidence relied on by the Trial Chamber is exposed as unreliable in light of the additional evidence.( 7 ) He claims that the overwhelming majority of “crucial evidence” in this case has entered the record following his conviction, and that the Appeals Chamber “is sitting as a court of first impression with respect to the new evidence accepted on appeal .”( 8 )

  10. During the appeal hearing, the Appellant submitted that the record on appeal was “a mix of trial evidence and a very substantial body of new evidence that was not available to the Trial Chamber below.”( 9 ) Commenting on the “no reasonable tribunal of fact” standard set out by the Appeals Chamber in the Kupreskic Appeal Judgement,( 10 ) he submitted that, as there were no findings by the Trial Chamber as to the credibility or the weight to be given to the new evidence admitted on appeal in this case, the Appeals Chamber had no trial findings to defer to in relation to the new evidence .( 11 ) He suggested that the Appeals Chamber review the mix of evidence de novo,( 12 ) for several reasons. First, the Trial Chamber could not have reviewed the new evidence admitted on appeal.( 13 ) Second, international standards of due process of law require either a new trial or, at a minimum, de novo review.( 14 ) Third, the standard of “no reasonable tribunal of fact” could reward alleged Rule 68 violations by the Prosecution by permitting the Prosecution to prevail on a lower standard of proof on appeal.( 15 ) The Appellant also submitted that doubts in assessing the mix of evidence should be considered by the Appeals Chamber in his favour, since there would be no appeal from the decision of the Appeals Chamber.( 16 )

  11. The Prosecution submits that:

    (a(n appellant must establish that an error of fact was critical to the verdict reached by the Trial Chamber, thereby resulting in a “grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.” Consequently, it is not each and every error of fact that will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but only one that has occasioned a miscarriage of justice.( 17 )

    The Prosecution further submits that arguments similar to those advanced by the Appellant were raised in the Kupreskic case, yet in that case the Appeals Chamber determined that the “burden is on the appellant to establish that no reasonable tribunal of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber, together with the additional evidence admitted during the proceedings.”( 18 ) The Prosecution further submitted that it was not for the Appeals Chamber to look at all the evidence on the trial record de novo since it would be difficult for the Appeals Chamber to determine issues of credibility in relation to the witnesses who testified at trial.( 19 )

  12. Article 25 of the Statute provides for appeals on grounds of an error of law that invalidates the decision or an error of fact which has occasioned a miscarriage of justice. The standards to be applied in both cases are well established in the jurisprudence of the International Tribunal( 20 ) and the International Criminal Tribunal for Rwanda (ICTR).( 21 )

  13. The Appeals Chamber reiterates that an appeal is not a trial de novo . In making its assessment, the Appeals Chamber will in principle only take into account the following factual evidence: evidence referred to by the Trial Chamber in the body of the judgement or in a related footnote; evidence contained in the trial record and referred to by the parties; and additional evidence admitted on appeal. In setting out its contentions on appeal, a party cannot merely repeat arguments that did not succeed at trial, unless that party can demonstrate that rejecting them occasioned such error as to warrant the intervention of the Appeals Chamber.( 22 ) Arguments of a party which do not have the potential to cause the impugned decision to be reversed or revised may be dismissed immediately by the Appeals Chamber and need not be considered on the merits.( 23 ) With regard to requirements as to form, an appealing party is expected to provide precise references to relevant transcript pages or paragraphs in the judgement being challenged.( 24 ) The Appeals Chamber will not give detailed consideration to submissions which are obscure, contradictory, or vague, or if they suffer from other formal and obvious insufficiencies.( 25 ) Thus, in principle , the Appeals Chamber will dismiss, without providing detailed reasons, those submissions which are evidently unfounded.( 26 )

  14. The Appeals Chamber recalls, as a general principle, that in respect of an alleged error of law:

    …the Appeals Chamber […] is bound in principle to determine whether an error was in fact committed on a substantive or procedural issue. The case-law recognises that the burden of proof on appeal is not absolute with regard to errors of law. The Appeals Chamber does not review the Trial Chamber’s findings on questions of law merely to determine whether they are reasonable but rather to determine whether they are correct. Nevertheless, the party alleging an error of law must, at least , identify the alleged error, present arguments in support of its claim and explain how the error invalidates the decision.( 27 )

    However, if a party’s arguments do not support its contention, that party does not automatically lose its point since the Appeals Chamber may intervene and, for other reasons, find in favour of the contention that there is an error of law.( 28 )

  15. If the Appeals Chamber finds that an alleged error of law arises from the application of a wrong legal standard by a Trial Chamber, it is open to the Appeals Chamber to articulate the correct legal standard and to review the relevant findings of the Trial Chamber accordingly. In doing so, the Appeals Chamber not only corrects a legal error, but applies the correct legal standard to the evidence contained in the trial record, in the absence of additional evidence, and must determine whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by the Defense, before that finding is confirmed on appeal.

  16. As to errors of fact, the standard applied by the Appeals Chamber has been that of reasonableness, namely, whether the conclusion of guilt beyond reasonable doubt is one which no reasonable trier of fact could have reached.( 29 )

  17. The Appeals Chamber bears in mind that in determining whether or not a Trial Chamber’s finding was reasonable, it “will not lightly disturb findings of fact by a Trial Chamber.”( 30 ) The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in Kupreskic, wherein it was stated that:

    [p]ursuant to the jurisprudence of the Tribunal, the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber . Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber.( 31 )

  18. The Appeals Chamber concurs with the Kupreskic Appeal Judgement’s finding that:

    …where the Appeals Chamber is satisfied that the Trial Chamber returned a conviction on the basis of evidence that could not have been accepted by any reasonable tribunal or where the evaluation of the evidence was “wholly erroneous”, it will overturn the conviction since, under such circumstances, no reasonable tribunal of fact could be satisfied beyond reasonable doubt that the accused had participated in the criminal conduct.( 32 )

  19. The Appeals Chamber considers that there are no reasons to depart from the standard set out above, in relation to grounds of appeal alleging pure errors of fact and when no additional evidence has been admitted on appeal. That standard shall be applied where appropriate in the present Judgement.

  20. When factual errors are alleged on the basis of additional evidence proffered during the appellate proceedings, Rule 117 of the Rules provides that the Appeals Chamber shall pronounce judgement “on the basis of the record on appeal together with such additional evidence as has been presented to it.”

  21. The Appeals Chamber in Kupreskic established the standard of review when additional evidence has been admitted on appeal, and held:

    The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.( 33 )

  22. The standard of review employed by the Appeals Chamber in that context was whether a reasonable trier of fact could have been satisfied beyond reasonable doubt as to the finding in question, a deferential standard. In that situation, the Appeals Chamber in Kupreskic did not determine whether it was satisfied itself , beyond reasonable doubt, as to the conclusion reached, and indeed, it did not need to do so, because the outcome in that situation was that no reasonable trier of fact could have reached a finding of guilt.

  23. However, if in a given case, the outcome were that a reasonable trier of fact could reach a conclusion of guilt beyond reasonable doubt, the Appeals Chamber considers that, when the Appeals Chamber is itself seized of the task of evaluating trial evidence and additional evidence together, and in some instances in light of a newly articulated legal standard, it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal. The Appeals Chamber underscores that in such cases, if it were to apply a lower standard, then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of evidence relied upon in the case, assessed in light of the correct legal standard , be reached by either Chamber beyond reasonable doubt.

  24. In light of the foregoing, the Appeals Chamber sets out the following summary concerning the standard of review to be applied on appeal by the International Tribunal in relation to findings challenged only by the Defence, in the absence of a Prosecution appeal, as in the present case.

    (a) The Appeals Chamber is confronted with an alleged error of fact, but the Appeals Chamber has found no error in the legal standard applied in relation to the factual finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will determine whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If a reasonable trier of fact could have reached such a conclusion, then the Appeals Chamber will affirm the finding of guilt.

    (b) The Appeals Chamber is confronted with an error in the legal standard applied in relation to a factual finding, and an error of fact has been alleged in relation to that finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt.

    (c) The Appeals Chamber is confronted with an alleged error of fact, and – contrary to the scenario described in (a) – additional evidence has been admitted on appeal . There is no error in the legal standard applied in relation to the factual finding . There are two steps involved.

    (i) The Appeals Chamber will first determine, on the basis of the trial record alone , whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.

    (ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt .

    (d) The Appeals Chamber is confronted with an error in the legal standard applied in relation to the factual finding and an alleged error of fact, and – contrary to the scenario described in (b) – additional evidence has been admitted on appeal. There are two steps involved.

    (i) The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt, on the basis of the trial record. If it is not convinced, then no further examination of the matter is necessary as a matter of law.

    (ii) If, however, the Appeals Chamber, applying the correct legal standard to the evidence contained in the trial record, is itself convinced beyond reasonable doubt as to the finding of guilt, it will then proceed to determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself still convinced beyond reasonable doubt as to the finding of guilt.

    III. ALLEGED ERRORS OF LAW CONCERNING ARTICLE 7 OF THE STATUTE

  25. The Appellant submits that the Trial Chamber erred in its definition of the specific elements of criminal responsibility under Article 7(1) and Article 7(3) of the Statute, and in its failure to draw a clear distinction between these two forms of responsibility.( 34 ) The Appellant maintains that by doing so, the Trial Chamber wrongfully convicted the Appellant ; provided the Appellant with insufficient notice of the legal basis of his conviction ; and thus impeded his ability to appeal the Trial Judgement.( 35 )

  26. As a general response to the Appellant’s arguments, the Prosecution agrees that responsibility under Article 7(1) and Article 7(3) of the Statute must in principle be distinguished, but submits that this difference should not be overstated.( 36 ) It claims that both forms of responsibility are “a means of evaluating the linkage of an accused to a particular crime base” and the chosen theory of liability essentially plays its role at the sentencing stage.( 37 ) It further asserts that both modes may be charged concurrently and convictions could , conceivably, be entered under both modes in relation to the same conduct.( 38 ) The Prosecution submits that the Trial Chamber made three different types of findings in this case: (i) in relation to some incidents, it deemed that the Appellant could be found guilty on the basis of both Articles 7(1) and 7(3) of the Statute;( 39 ) however, the Trial Chamber decided in those instances that the primary mode of liability under which he should be held responsible was Article 7(1); (ii) in relation to one instance, violence committed in the detention centres, the Trial Chamber found that the Appellant could only be convicted under Article 7(3);( 40 ) and (iii) concerning the shelling of Zenica, the Trial Chamber found that the evidence was insufficient to sustain a conviction under either mode.( 41 )

    A. Individual Criminal Responsibility under Article 7(1) of the Statute

    1. Planning, Instigating, and Ordering

  27. According to the Appellant, the standards set forth in the Trial Judgement concerning the forms of criminal participation consisting of planning, instigating , and ordering under Article 7(1) of the Statute deviate from those established by the jurisprudence of the International Tribunal and the ICTR, customary international law, and national legislation.( 42 ) The Appellant submits that the correct standard of mens rea for these three forms of criminal participation is “direct or specific intent,” rather than the “indirect” or recklessness standard adopted by the Trial Chamber in this case.( 43 ) In addition, he alleges that the Trial Chamber failed to differentiate between the recklessness standard and that of dolus eventualis, and improperly applied these concepts.( 44 )

  28. The Appellant further claims that his conviction has been erroneously based on a strict liability theory.( 45 ) He submits that the Trial Chamber erroneously considered that a lawful order can become unlawful circumstantially “because unlawful acts have occurred in its implementation .”( 46 ) He also claims that, under that standard, a commander may be held responsible for “anything that takes place once his order has begun,” regardless of whether these acts were within the scope of actions intended by the commander himself. In doing so, the Appellant argues, the Trial Chamber committed a legal error by concluding, as it must have, that a commander may be convicted purely on the basis of implicitly illegal orders.

  29. In addition, and contrary to the Trial Chamber’s finding, the Appellant submits that liability for planning, instigating, or ordering requires proof of causation between the acts of the accused and the actual perpetrator of the crime, which has not been established in this case.( 47 ) He states that the circumstantial evidence presented by the Prosecution on that point did not reach the beyond reasonable doubt threshold necessary for conviction .( 48 ) The Appellant points out that “in the Judgement’s analysis of the events in Vitez, Stari Vitez, and the villages in the municipalities of Kiseljak and Busovaca, the Trial Chamber uses selective circumstantial evidence, such as the non-consecutive numbering of the orders entered into evidence at trial, to infer that Appellant had to have issued illegal orders which the Chamber did ‘not strictu sensu have in its possession.’”( 49 ) The Appellant also asserts that “[t]he Trial Chamber’s legal finding that planning , instigating and ordering under [Article] 7(1) could be predicated on a mens rea of recklessness (or in the case of aiding and abetting, on acceptance of the mere “possibility” of an unspecified crime) was set out at the beginning of the [Trial] Judgement and pervades the entire analysis that followed.”( 50 )

  30. In response, the Prosecution states that the Appellant has generally failed to establish any instance where the Trial Chamber committed an error “invalidating the decision.”( 51 ) On many occasions , it claims, the Appellant has not even attempted to do so, simply offering particular re-interpretations of the International Tribunal’s case law.( 52 ) Although the existence of a volitive component must be present in all forms of responsibility under Article 7(1) of Statute, the Prosecution submits that the proposition of the Appellant, based on his reading of the Akayesu Trial Judgement, that this component must take the form of conscious desire, specific intent, or some other qualified form of intent, is both unsupported by the Akayesu decision and incorrect as a legal proposition.( 53 ) It submits that recent decisions of the International Tribunal have shown that dolus eventualis or indirect intent could be an acceptable standard.( 54 ) The Appellant’s review of domestic and international jurisprudence is not more convincing , the Prosecution says.( 55 ) Nor is his argument that the Trial Chamber misinterpreted the concept of dolus eventualis and/or recklessness.( 56 )

  31. Moreover, the Prosecution submits that the Appellant’s argument that he may only be responsible if he has anticipated the physical perpetrator’s acts with enough specificity to make him aware of six elements( 57 ) is simply not supported by the cases he refers to.( 58 ) The Prosecution contends that the liability of the Appellant was not based on his “vague belief in the mere possibility of certain future events” or on a strict liability theory as he claims, but on the knowledge and acceptance of a risk.( 59 ) The Prosecution further points out that the Appellant’s general suggestion that “planning, instigating and ordering” contain a requirement of causation has actually been upheld by the Trial Chamber in the present case.( 60 ) The Prosecution finally rejects the Appellant’s suggestion that the existence of a plan or an order could not have been established circumstantially.( 61 )

  32. At the outset, the Appeals Chamber notes that the Appellant was not convicted for planning or instigating crimes. As a result, it declines to consider the issues raised in this ground of appeal in relation to these two modes of participation. The issue which the Appeals Chamber will address is whether a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute, and if so, how it should be defined.

  33. The Appeals Chamber has not had the occasion to pronounce on this issue in previous decisions. In the Vasiljevic Appeal Judgement, the Appeals Chamber considered the issue of mens rea, but in relation to the extended form of joint criminal enterprise. The Appeals Chamber has previously held that participation in a joint criminal enterprise is a form of “commission” under Article 7(1) of the Statute. In the Vasiljevic Appeal Judgement, it stated:

    With regard to the extended form of joint criminal enterprise, what is required is the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one which was part of the common design arises “only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk” – that is, being aware that such crime was a possible consequence of the execution of that enterprise, and with that awareness, the accused decided to participate in that enterprise.( 62 )

    In relation to the responsibility for a crime other than that which was part of the common design, the lower standard of foreseeability — that is, an awareness that such a crime was a possible consequence of the execution of the enterprise — was applied by the Appeals Chamber. However, the extended form of joint criminal enterprise is a situation where the actor already possesses the intent to participate and further the common criminal purpose of a group. Hence, criminal responsibility may be imposed upon an actor for a crime falling outside the originally contemplated enterprise, even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur, and nevertheless participated in the enterprise.

  34. In further examining the issue of whether a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute, the Appeals Chamber deems it useful to consider the approaches of national jurisdictions. In common law systems, the mens rea of recklessness is sufficient to ground liability for serious crimes such as murder or manslaughter . In the United States, for example, the concept of recklessness in criminal cases has been defined in the Model Penal Code( 63 ) as follows:

    a conscious disregard of a substantial and unjustifiable risk that the material element exists or will result from [the actor's] conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation .( 64 )

    According to the Model Penal Code, therefore, the degree of risk involved must be substantial and unjustifiable; a mere possibility of risk is not enough.

  35. In the United Kingdom, the House of Lords in the case of R v. G and another considered the ambit of recklessness within the meaning of section 1 of the Criminal Damage Act of 1971.( 65 ) Lord Bingham’s opinion, with which his colleagues agreed, was that

    [A] person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to-(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk…( 66 )

    According to this opinion, the risk involved must be unreasonable; furthermore, with respect to a particular result, the actor in question must be aware of a risk that such a result will occur, not merely that it may occur.

  36. In the Australian High Court decision of R v. Crabbe, the Court considered “whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be knowledge of the probability that his acts will cause death or grievous bodily harm (…) or whether knowledge of a possibility is enough.”( 67 ) The High Court determined that:

    The conclusion that a person is guilty of murder if he commits a fatal act knowing that it will probably cause death or grievous bodily harm but (absent an intention to kill or do grievous bodily harm) is not guilty of murder if he knew only that his act might possibly cause death or grievous bodily harm is not only supported by a preponderance of authority but is sound in principle. The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence , can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm.( 68 )

  37. The High Court in R v. Crabbe also considered the situation where a person’s knowledge of the probable consequence of his act is accompanied by indifference , finding that:

    A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is…guilty of murder, although such knowledge is accompanied by indifference whether death or grievous bodily harm might not be caused or not, or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element.( 69 )

  38. In the common law jurisdictions examined above, the mens rea of recklessness incorporates the awareness of a risk that the result or consequence will occur or will probably occur, and the risk must be unjustifiable or unreasonable. The mere possibility of a risk that a crime or crimes will occur as a result of the actor’s conduct generally does not suffice to ground criminal responsibility.( 70 )

  39. In civil law systems, the concept of dolus eventualis may constitute the requisite mens rea for crimes. In French law, for example, this has been characterized as the taking of a risk and the acceptance of the eventuality that harm may result. Although the harm in question was not desired by the actor , it was caused by his dangerous behaviour, which was carried out deliberately and with the knowledge that harm may occur.( 71 ) In Italian law, the principle is expressed as follows: the occurrence of the fact constituting a crime, even though it is not desired by the perpetrator, is foreseen and accepted as a possible consequence of his own conduct.( 72 ) The German Federal Supreme Court (Bundesgerichtshof, BGH) has found that acting with dolus eventualis requires that the perpetrator perceive the occurrence of the criminal result as possible and not completely remote, and that he endorse it or at least come to terms with it for the sake of the desired goal.( 73 ) It has further stated that in the case of extremely dangerous, violent acts, it is obvious that the perpetrator takes into account the possibility of the victim’s death and, since he continues to carry out the act, accepts such a result. The volitional element denotes the borderline between dolus eventualis and advertent or conscious negligence.

  40. In the present case, the Trial Chamber in paragraph 474 of the Trial Judgement articulated the following standard:

    Even if doubt were still cast in spite of everything on whether the accused ordered the attack with the clear intention that the massacre would be committed, he would still be liable under Article 7(1) of the Statute for ordering the crimes. As has been explained above, any person who, in ordering an act, knows that there is a risk of crimes being committed and accepts that risk, shows the degree of intention necessary (recklessness) [le dol éventuel in the original French text] so as to incur responsibility for having ordered, planned or incited the commitment of the crimes.( 74 )

    Although the Trial Chamber, citing in a its “above, discussion on Article 7 of the Statute,”( 75 ) indicated that the standard it was articulating in paragraph 474 had already been explained earlier in the Trial Judgement, an examination of previous paragraphs pertaining to the legal elements of Article 7 demonstrates that the Trial Chamber did not actually do so. Other paragraphs in the Trial Judgement articulated the standard set out in paragraph 474 using different expressions. These paragraphs are quoted below :

    562. The Trial Chamber concludes that General Blaskic is responsible for the crimes committed in the three villages on the basis of his negligence [dol éventuel in the French text], in other words for having ordered acts which he could only reasonably have anticipated would lead to crimes.

    592. The Trial Chamber is also convinced beyond any reasonable doubt that by giving orders to the Military Police in April 1993, when he knew full well that there were criminals in its ranks((, the accused intentionally took the risk that very violent crimes would result from their participation in the offensives….

    653. The Trial Chamber maintains that even though General Blaskic did not explicitly order the expulsion and killing of the civilian Muslim populations, he deliberately ran the risk of making them and their property the primary targets of the "sealing off" and offensives launched on 18 April 1993….

    661. The Trial Chamber is of the view that the content of the military orders sent to the Ban Jelacic Brigade commander, the systematic and widespread aspect of the crimes perpetrated and the general context in which these acts fit permit the assertion that the accused ordered the attacks effected in April and June 1993 against the Muslim villages in the Kiseljak region. It also appears [“Il appert également” in the French text] that General Blaskic clearly had to have known that by ordering the Ban Jelacic Brigade to launch such wide-ranging attacks against essentially civilian targets extremely violent crimes would necessarily result. Lastly, it emerges from those same facts that the accused did not pursue a purely military objective but that by using military assets he also sought to implement the policy of persecution of the Muslim civilian populations set by the highest HVO authorities and that, through these offensives, he intended to make the populations in the Kiseljak municipality take flight.

    738. With particular regard for the degree of organisation required, the Trial Chamber concludes that General Blaskic ordered the use of detainees to dig trenches, including under dangerous conditions at the front. The Trial Chamber also adjudges that by ordering the forced labour Blaskic knowingly took the risk that his soldiers might commit violent acts against vulnerable detainees, especially in a context of extreme tensions.

    741. The Trial Chamber concludes that although General Blaskic did not order that hostages be taken, it is inconceivable that as commander he did not order the defence of the town where his headquarters were located. In so doing, Blaskic deliberately ran the risk that many detainees might be taken hostage for this purpose.

  41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chamber’s above articulations of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent , is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chamber’s standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.

  42. The Appeals Chamber therefore holds that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.( 76 )

    2. Aiding and Abetting

  43. The Appellant submits that liability for aiding and abetting requires, at a minimum, actual knowledge.( 77 ) He submits that not only must the aider and abettor know that his acts provide support to another person’s offence, but he must also know the specifics of that offence. Recklessness or negligence on his part is not sufficient, he asserts, contrary to the Trial Chamber’s alleged finding on that point.( 78 ) Furthermore, the Appellant submits that the actus reus of aiding and abetting includes a causation requirement which the Trial Chamber failed to acknowledge and to apply.( 79 ) In other words, the contribution must “have a direct and important impact on the commission of the crime.”( 80 ) Instead, the Appellant maintains, the Trial Chamber erroneously applied a strict liability standard to find the Appellant guilty as an aider and abettor and reiterates that the Trial Chamber’s conclusion that “he could be found guilty if he accepted the possibility that some unspecified crime was a 'possible or foreseeable consequence' of military action effectively eliminates the 'actual knowledge' mens rea of aiding and abetting, and is thus erroneous as a matter of law.”( 81 ) He states that this standard was set out at the beginning of the Trial Judgement and pervades the entire analysis that followed.( 82 )

  44. The Prosecution submits that the Appellant’s claim that the mens rea adopted by the Trial Chamber in relation to aiding and abetting — “possible and foreseeable consequence of the conduct” — was too low is unsupported by any “standard ” or authority. Nor did the Appellant, according to the Prosecution, indicate any instance where the application of such a standard would have impacted upon his conviction thereby possibly enabling him to claim prejudice.( 83 ) The Prosecution further submits that the Trial Chamber did not apply a negligence standard in the instant case but that, if it had, it would have been completely appropriate to do so.( 84 ) Finally, the Prosecution rejects the Appellant’s unsupported assertion that aiding and abetting liability requires an element of causation between the act of the accused and the act of the principal.( 85 )

  45. In Vasiljevic, the Appeals Chamber set out the actus reus and mens rea of aiding and abetting. It stated:

    (i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination , rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. […]

    (ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal. […]( 86 )

    The Appeals Chamber considers that there are no reasons to depart from this definition .

  46. In this case, the Trial Chamber, following the standard set out in Furundžija , held that the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”( 87 ) It further stated that the mens rea required is “the knowledge that these acts assist the commission of the offense.”( 88 ) The Appeals Chamber considers that the Trial Chamber was correct in so holding.

  47. The Trial Chamber further stated that the actus reus of aiding and abetting may be perpetrated through an omission, “provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea.”( 89 ) It considered :

    In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime.( 90 )

    The Appeals Chamber leaves open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting.

  48. The Trial Chamber in this case went on to state:

    Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator is not required. Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom .( 91 )

    The Appeals Chamber reiterates that one of the requirements of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime. In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required. It further agrees that the actus reus of aiding and abetting a crime may occur before , during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.

  49. In relation to the mens rea of an aider and abettor, the Trial Chamber held that “in addition to knowledge that his acts assist the commission of the crime , the aider and abettor needs to have intended to provide assistance, or as a minimum , accepted that such assistance would be a possible and foreseeable consequence of his conduct.”( 92 ) However, as previously stated in the Vasiljevic Appeal Judgement, knowledge on the part of the aider and abettor that his acts assist in the commission of the principal perpetrator’s crime suffices for the mens rea requirement of this mode of participation .( 93 ) In this respect, the Trial Chamber erred.

  50. The Trial Chamber agreed with the statement in the Furundžija Trial Judgement that “it is not necessary that the aider and abettor…know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”( 94 ) The Appeals Chamber concurs with this conclusion.

  51. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber was correct in part and erred in part in setting out the legal requirements of aiding and abetting.

  52. The Appeals Chamber notes that in this case, the Trial Chamber did not hold the Appellant responsible for aiding and abetting the crimes at issue. In addition , the Appeals Chamber considers that this form of participation was insufficiently litigated on appeal.( 95 ) Furthermore , the Appeals Chamber does not consider that this form of participation was fairly encompassed by the Indictment.( 96 ) In these circumstances, the Appeals Chamber declines to consider this form of participation any further.

    B. Command Responsibilty under Article 7(3) of the Statute

  53. In this section,( 97 ) the Appeals Chamber will only address alleged legal errors concerning Article 7(3) of the Statute , and will leave contentions raised by the Appellant in his second ground of appeal , concerning whether the facts of the case support a finding that the Appellant had effective control in the Central Bosnia Operative Zone (CBOZ), to the parts of the Judgement where the factual grounds of appeal are considered.

    1. Actual knowledge of a superior

  54. The Appellant claims that the mens rea under Article 7(3) of the Statute is actual knowledge or “information which, if at hand, would oblige the commander to conduct further inquiry.”( 98 ) Regarding actual knowledge, the Appellant submits that it requires more than proof of a person’s rank as a military commander, and that the Trial Chamber failed to look beyond the Appellant’s status to establish his knowledge, thus relying “almost exclusively” on the Appellant’s rank and status. This, the Appellant contends, is an unacceptable form of strict liability which in effect shifts the burden of proof.( 99 )

  55. The Prosecution responds that the Appellant has failed to make a single reference to any paragraph of the Trial Judgement that would lend credence to this allegation . On the contrary, it submits, this argument has been contradicted by the findings of the Trial Chamber in relation to the events in Ahmici, the offence of trench- digging, and the maltreatment of detainees.( 100 )

  56. The Appeals Chamber notes that the Appellant has not taken issue with the requirements set out by the Trial Chamber with regard to the circumstantial evidence to be used in support of the finding of a superior’s actual knowledge. Rather, he challenges the statement of the Trial Chamber in paragraph 308 of the Trial Judgement that:

    [t]hese indicia must be considered in light of the accused’s position of command , if established. Indeed, as was held by the Aleksovski Trial Chamber, an individual’s command position per se is a significant indicium that he knew about the crimes committed by his subordinates.

    The Appellant contends that this statement applies the standard of strict liability by founding his actual knowledge on the basis of his position of command.

  57. The Appeals Chamber disagrees with this interpretation of the Trial Judgement . The Trial Chamber referred to the Appellant’s position of command in addition to the indicia it set out in paragraph 307 of the Trial Judgement,( 101 ) and regarded the position of command not as the criterion for, but as indicia of the accused’s knowledge. Given that paragraph 308 appears in the section of the Trial Judgement discussing Article 7(3) of the Statute, and given the fact that the Trial Chamber recognised, at the beginning of its discussion of Article 7(3), that to establish responsibility under that article, proof was required of, among other things, the accused’s knowledge,( 102 ) there is no merit in the Appellant’s allegation of the application of strict liability by the Trial Chamber to his case. This aspect of the appeal is dismissed.

    2. The standard of “had reason to know”

  58. The Appellant next submits that the “had reason to know” standard is not a mere negligence standard and does not imply a general duty to know on the part of the commander.( 103 ) He argues that the Trial Chamber’s view that the Appellant’s negligence in informing himself may serve as a basis for establishing his liability under Article 7(3) of the Statute is contrary to the role, function, and interpretation of that provision and creates in effect a form of strict liability which infringes upon the presumption of innocence of the Appellant by focusing exclusively on his position.( 104 ) He submits that even if it were admitted that command responsibility is a form of liability based on negligence, all of the underlying offences with which the Appellant was charged require more than negligence as the mens rea, and that offences such as “negligent murder” or “negligent persecutions” simply do not exist under international law.( 105 ) He concludes that what the Trial Judgement does by allegedly lowering the mens rea standard of command responsibility is to create new criminal offences such as “negligent murder,” thereby violating the principle of nullum crimen sine lege.( 106 )

  59. The Prosecution concedes that, to the extent that the Trial Chamber stated that the “had reason to know” standard encompassed a “should have known” standard , the Trial Chamber was in error.( 107 ) However, the Prosecution adds that such a theoretical allowance would not enable the conclusion that such an error would invalidate the Trial Judgement.( 108 ) No showing to that effect has been made by the Appellant, and none could be made since, according to the Prosecution, none of the Trial Chamber’s findings rests solely on the Appellant’s alleged breach of his duty to know.( 109 )

  60. In reply, the Appellant contends that the Prosecution’s concession that the Trial Chamber committed an error in relation to the required mens rea should “for this reason alone” lead to a reversal of his conviction.( 110 ) It is not sufficient for the Prosecution to say that in any case the point was rendered harmless because of the Trial Chamber’s finding of “actual” or “constructive” knowledge . Further, the Appellant contends that the imputation of knowledge to him by the Trial Chamber was based solely on his position.( 111 )

  61. The Appeals Chamber notes that the Trial Chamber concluded that:

    …if a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute.( 112 )

    At another place in the Trial Judgement, the Trial Chamber “holds, again in the words of the Commentary, that ‘(t(heir role obliges them to be constantly informed of the way in which their subordinates carry out the tasks entrusted them, and to take the necessary measures for this purpose.’”( 113 ) One of the duties of a commander is therefore to be informed of the behaviour of his subordinates.

  62. The Appeals Chamber considers that the Celebici Appeal Judgement has settled the issue of the interpretation of the standard of “had reason to know.” In that judgement, the Appeals Chamber stated that “a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates.”( 114 ) Further, the Appeals Chamber stated that “(n(eglect of a duty to acquire such knowledge, however , does not feature in the provision (Article 7(3)( as a separate offence, and a superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or to punish.”( 115 ) There is no reason for the Appeals Chamber to depart from that position.( 116 ) The Trial Judgement’s interpretation of the standard is not consistent with the jurisprudence of the Appeals Chamber in this regard and must be corrected accordingly .

  63. As to the argument of the Appellant that the Trial Chamber based command responsibility on a theory of negligence, the Appeals Chamber recalls that the ICTR Appeals Chamber has on a previous occasion rejected criminal negligence as a basis of liability in the context of command responsibility, and that it stated that “it would be both unnecessary and unfair to hold an accused responsible under a head of responsibility which has not clearly been defined in international criminal law.”( 117 ) It expressed that “(r(eferences to ‘negligence’ in the context of superior responsibility are likely to lead to confusion of thought....”( 118 ) The Appeals Chamber expressly endorses this view.

  64. The appeal in this respect is allowed, and the authoritative interpretation of the standard of “had reason to know” shall remain the one given in the Celebi ci Appeal Judgement, as referred to above.

    3. When does effective control exist and in what form?

  65. The Appellant submits that it was not established that he had effective control over the perpetrators at the time of the commission of their acts.( 119 ) He insists that this control must be established at the time of the incidents charged in the Indictment.( 120 ) He also argues that he would only have had effective control over the special purpose units at the time of the incidents charged in the Indictment, if at that time “he not only had been able to give orders to these units but if, in addition, those orders had actually been followed.”( 121 ) He contends that the submission of reports on atrocities does not in itself enable the conclusion that effective control existed, as the commander does not have the authority to confront the situation himself but must await the steps taken by competent authorities .( 122 ) He adds that the vagueness of the Trial Judgement on that point requires a reversal of the conviction.( 123 )

  66. The Prosecution responds that the Appellant’s argument that the Trial Chamber erred insofar as it concluded that “effective control” could be established on the basis of evidence that a person had the material ability to submit reports about atrocities to higher authorities should be rejected.( 124 ) The Prosecution considers that the Appellant appears to suggest that his effective control over special units could only have been established if his orders had been shown to have been followed by them, but that he has failed to identify the Trial Chamber’s findings to which this aspect of his ground of appeal relates and has failed to establish that the Trial Chamber’s finding that his orders were indeed followed by such units was unreasonable.( 125 ) The Prosecution further rejects the Appellant’s limited interpretation of what may constitute “effective control” and submits that, on the basis of the evidence, the Trial Chamber could reasonably conclude that he was in control of certain units which did not form parts of the regular HVO troops.( 126 ) In its view, where subordinates are under more than one superior, every such superior may be held responsible for the crimes committed by the subordinates.( 127 )

  67. The Appeals Chamber takes note that the Trial Chamber concurred with the Celebici Trial Judgement, which endorsed the view that a superior must have effective control over “the persons committing the underlying violations of international humanitarian law.”( 128 ) The Trial Chamber also stated that “a commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates , insofar as he exercises effective control over them.”( 129 ) Both conclusions of the Trial Chamber fall within the terms of Article 7(3) of the Statute, and both are not challenged by the Appellant.

  68. With regard to the position of the Trial Chamber that superior responsibility “may entail” the submission of reports to the competent authorities,( 130 ) the Appeals Chamber deems this to be correct. The Trial Chamber only referred to the action of submitting reports as an example of the exercise of the material ability possessed by a superior.

  69. The Appeals Chamber also notes that the duty of commanders to report to competent authorities is specifically provided for under Article 87(1) of Additional Protocol I, and that the duty may also be deduced from the provision of Article 86(2) of Additional Protocol I.( 131 ) The Appeals Chamber also notes the Appellant’s argument that to establish that effective control existed at the time of the commission of subordinates’ crimes, proof is required that the accused was not only able to issue orders but that the orders were actually followed. The Appeals Chamber considers that this provides another example of effective control exercised by the commander. The indicators of effective control are more a matter of evidence than of substantive law,( 132 ) and those indicators are limited to showing that the accused had the power to prevent , punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate.( 133 ) The appeal in this regard is therefore rejected.

    4. “Reasonable and necessary measures” and the nexus between the failure of a superior to act and subordinates’ crimes

    (a) Reasonable and necessary measures

  70. The Appellant contends that the Trial Chamber did not set any standards for determining the “reasonable and necessary measures” required of the commander, and that the example of submitting reports by the commander is insufficient to define the measures.( 134 )

  71. The Prosecution responds that the Appellant has failed to establish that the Trial Chamber erred in its reasoning as to what constituted “reasonable and necessary measures” in the present instance.( 135 )

  72. The Appeals Chamber notes that the Trial Chamber held that:

    …it is a commander’s degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator…this implies that, under some circumstances, a commander may discharge his obligation to prevent or punish by reporting the matter to the competent authorities.( 136 )

    It appears from this statement that necessary and reasonable measures are such that can be taken within the competence of a commander as evidenced by the degree of effective control he wielded over his subordinates. The measure of submitting reports is again an example, applicable “under some circumstances.” The Appeals Chamber considers that it was open to the Trial Chamber not to list measures that might vary from case to case,( 137 ) since it had made it clear that such measures should be necessary and reasonable to prevent subordinates’ crimes or punish subordinates who had committed crimes. What constitutes such measures is not a matter of substantive law but of evidence, whereas the effect of such measures can be defined by law,( 138 ) as has been so defined by the Trial Chamber in this case. The appeal in this regard is rejected.

    (b) The nexus between the failure of a superior to act and subordinates’ crimes

  73. The Appellant argues that an element of causation is required to establish a commander’s responsibility under Article 7(3) of the Statute,( 139 ) and that the Trial Chamber failed to establish the required causal nexus between the Appellant’s failure to act and the commission of crimes on his subordinates’ part.( 140 ) The Appellant argues that “the Trial Chamber, in not requiring causation even on a co-contributory level, again imposes strict liability on the Appellant, who is held responsible for his subordinates’ crimes, regardless of whether it was impossible for him to prevent these crimes from being committed,”( 141 ) and that by presuming a causal effect between the Appellant’s passivity and his subordinates’ unlawful acts, the Trial Chamber reversed the burden of proof and violated the principle of presumption of innocence.( 142 )

  74. The Prosecution responds that there is no requirement of causality between the commander’s failure to act and the commission of criminal acts by his subordinates .( 143 )

  75. The Appeals Chamber understands the contention of the Appellant to be that the Trial Chamber obviated proof of causation linking the commander’s failure to act and subordinates’ crimes,( 144 ) and that it should have asked the Prosecution to prove the existence of causation , rather than presumed the nexus which the Appellant was then required to disprove . The issue is whether the nexus exists in the doctrine of command responsibility . In support of the existence of a nexus between the commander’s failure to act and subordinates’ crimes, the Appellant relies, as did the Trial Chamber, on a statement made by the Celebici Trial Chamber that:

    the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed.( 145 )

    The Trial Chamber was of the view that a causal link might be considered inherent in the requirement that the superior failed to prevent the subordinates’ crimes,( 146 ) thus endorsing the submission to that effect made by the Appellant during his trial .

  76. However, the Celebici Trial Judgement does not cite any authority for that statement on the existence of the nexus. On the contrary, it states clearly that:

    Notwithstanding the central place assumed by the principle of causation in criminal law, causation has not traditionally been postulated as a conditio sine qua non for the imposition of criminal liability on superiors for their failure to prevent or punish offence committed by their subordinates. Accordingly, the Trial Chamber has found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formation of the principle in existing treaty law, or, with one exception , in the abundant literature on this subject.( 147 )

    That Trial Chamber later concluded that the very existence of the principle of superior responsibility for the failure to punish, recognised under Article 7(3) of the Statute and in customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility.( 148 )

  77. The Appeals Chamber is therefore not persuaded by the Appellant’s submission that the existence of causality between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, is an element of command responsibility that requires proof by the Prosecution in all circumstances of a case. Once again , it is more a question of fact to be established on a case by case basis, than a question of law in general.

    5. Is “failure to punish” another form of “failure to prevent”?

  78. The Appellant claims that the failure to punish is not a separate theory of liability but merely a sub-category of the commander’s responsibility for failing to prevent his subordinates’ unlawful acts.( 149 ) The jurisdiction ratione materiae of the International Tribunal is circumscribed by customary international law, and the International Tribunal cannot impose criminal responsibility for acts which, prior to their being committed, did not entail such responsibility under customary international law. The Appellant also submits that when the acts were committed, international law did not provide for a commander’s criminal responsibility for the mere failure to punish his subordinates’ unlawful acts. He argues that the creation of responsibility as a principal for failing to punish a subordinate’s unlawful acts, without any nexus to the prevention of the commission of future crimes, exceeds the scope of the Statute.( 150 )

  79. The Prosecution points out that the Trial Chamber’s finding in this respect only relates to the mistreatment of detainees. The Prosecution argues that the duties of a commander to prevent and to punish crimes of subordinates are two independent duties and that the commander may be found responsible for the violation of either or both.( 151 ) The Prosecution concludes that the Trial Chamber was correct in finding that “command responsibility for failure to punish subordinates who committed crimes referred to in Articles 2 to 5 [of the Statute] is thus expressly provided for.”( 152 )

  80. The Appeals Chamber notes that this argument of the Appellant was raised in a preliminary motion which he filed before the Trial Chamber in 1996.( 153 ) The Trial Chamber, dismissing the preliminary motion in a decision on 4 April 1997 , stated the following:

    In conclusion, since in its motion the Defence failed to show that, according to international case-law, conventions and national military manuals – accepting that the United States manual places liability for war crimes on the shoulders of the commander who fails to punish the violators of the laws of war (motion, p. 15, 9) – command responsibility is not ascribed to a commander who fails to punish his subordinates who committed crimes, the argument based on a violation of the principle of nullem crimen sine lege is likewise inoperative.( 154 )

  81. On appeal, the Appellant relies on two precedents referred to by the Trial Chamber in its 4 April 1997 decision. The first is the part of the judgement by the International Military Tribunal for the Far East in 1948 concerning the case against the former Prime Minister Hideki Tojo. The Appellant quotes the statement of the tribunal that Tojo “took no adequate steps to punish offenders and to prevent the commission of similar offences in the future.”( 155 ) However, the judgement then sets out Tojo’s failure to call for a report on a past incident known as the Bataan Death March and his failure to punish anyone in relation to the incident.( 156 ) This is followed by another finding that he failed to take proper care of prisoners of war camps during his term of office, despite his knowledge of their poor conditions and high death rate. None of the factual findings in that case related to future events.( 157 ) Tojo was also found guilty for the failure to punish, in addition to his being found guilty for the failure to prevent. Thus, the International Military Tribunal regarded the failure to punish as an independent basis of criminal responsibility. The case does not, therefore, support the Appellant’s submission in this regard.

  82. The second precedent relied on by the Appellant is the judgement in the Hostage case. The Appellant cites the words of the military tribunal regarding the responsibility of Field Marshal von List that “his failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility.”( 158 ) However, the judgement rendered by the military tribunal in that case goes on to state that “a commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command.”( 159 ) It then adds:

    The reports made to the defendant List as Armed Forces Commander Southeast charged him with notice of the unlawful killing of thousands of innocent people in reprisal for acts of unknown members of the population who were not lawfully subject to such punishment. Not once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts. His failure to terminate these unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility .( 160 )

    …in his capacity as commanding general of occupied territory, he was charged with the duty and responsibility of maintaining order and safety, the protection of the lives and property of the population, and the punishment of crime. This not only implies a control of the inhabitants in the accomplishment of these purposes, but the control and regulation of all other lawless persons or groups…The primary responsibility for the prevention and punishment of crime lies with the commanding general….( 161 )

    It is clear that the military tribunal regarded the punishment of crime as one of the several duties imposed on a commander in an occupied territory.

  83. The Appellant also makes a brief reference to Articles 86 and 87 of Additional Protocol I which he considers “embody the same principles as the findings in these cases.”( 162 ) However, Article 87(3 ) of Additional Protocol I reads:

    The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol , and, where appropriate, to initiate disciplinary or penal action against violators thereof.

    Disciplinary or penal action can only be initiated after a violation is discovered , and a violator is one who has already violated a rule of law. Further, it is illogical to argue both that “a superior’s responsibility for the failure to punish is construed as a sub-category of his liability for failing to prevent the commission of unlawful acts,” and that “failure to punish only led to the imposition of criminal responsibility if it resulted in a failure to prevent the commission of future crimes .”( 163 ) The failure to punish and failure to prevent involve different crimes committed at different times: the failure to punish concerns past crimes committed by subordinates, whereas the failure to prevent concerns future crimes of subordinates.

  84. The Appeals Chamber also takes note of the Regulations concerning the Application of International Law to the Armed Forces of SFRY (1988), referred to in the Celebici Trial Judgement and relied on by the Trial Chamber in the present case,( 164 ) which clearly sets out command responsibility for the failure to punish as a separate head of responsibility. The regulations should have put a commander such as the Appellant on notice of his duty under international law as recognised in the domestic law of the State in whose territory he was to serve as a commander of the armed forces of one of the parties to the armed conflict.

  85. In the view of the Appeals Chamber, the Trial Chamber did not err in finding to the effect that the responsibility of a commander for his failure to punish was recognised in customary law prior to the commission of crimes relevant to the Indictment . The arguments of the Appellant in this respect are not persuasive and are therefore rejected.

    C. The blurring of responsibility under Article 7(1) and Article 7(3) of the Statute

  86. The Appellant contends that the Trial Judgement blurs the respective requirements of Article 7(1) responsibility and Article 7(3) responsibility, contravening the principle of nullum crimen sine lege which, in addition to prohibiting a conviction without a concise definition of an alleged crime, also prohibits a conviction entered in excess of the statutory or generally accepted parameters of the definition .( 165 ) In relation to his responsibility for “ordering” under Article 7(1) of the Statute, the Appellant submits that while Article 7(3) of the Statute imposes criminal responsibility on a commander for certain omissions, provided that he was under a specific duty to act, “[a]n omission, however , cannot constitute the actus reus of ordering the commission of an unlawful act, the form of participation for which the Trial Chamber holds the Appellant primarily responsible under Article 7(1).”( 166 ) The failure of the Trial Chamber to set forth the respective requirements for the two forms of criminal responsibility, the Appellant submits, is erroneous in law and violates his right to due process.( 167 ) The Appellant also argues that the Trial Judgement failed to establish a precise definition of the superior-subordinate relationship required for the proof of responsibility for ordering an unlawful act under Article 7(1) of the Statute, but instead relied on an erroneous definition of effective control in terms of Article 7(3).( 168 ) He also contends that insofar as the Trial Chamber held that a commander’s failure to punish unlawful acts can be synonymous with aiding and abetting, he argues that this holding, coupled with the Trial Chamber’s finding of liability for aiding and abetting without proof of causation, amounts to the imposition of strict liability .( 169 )

  87. The Prosecution submits that in all but one instance – the violence committed in detention centres – when the Trial Chamber was satisfied that both the requirements of Article 7(1) and Article 7(3) were met, it opted for Article 7(1) responsibility . Consequently, any legal errors made by the Trial Chamber in its analysis of Article 7(3) would not necessarily invalidate the Trial Judgement, other than in relation to the violence committed in detention centres.( 170 ) The Prosecution submits that “insofar as the appellant seeks to show that he did not exercise effective control over all HVO troops, there can be no impact on the verdict,”( 171 ) since the Prosecution only needs to show that “he occupied a position of authority and used that position to convince another one to commit an offence.”( 172 ) The Prosecution therefore suggests that “the passages where the Trial Chamber uses the terms ‘effective control,’ ‘command and control,’ and ‘superior responsibility’ must be read in that light.”( 173 )

  88. The Appeals Chamber notes that the Prosecution made submissions during the appeal hearing that the Appeals Chamber would be competent to revise a conviction and to find the Appellant guilty “under Article 7(3) of the Statute for all counts ,” where it deemed that the Trial Chamber erred in finding the Appellant guilty for ordering the crimes charged in the Indictment.( 174 ) The Appeals Chamber also notes that the Appellant was charged in the Indictment under both Article 7(1) and Article 7(3) of the Statute, and that the Trial Chamber conducted the trial on that basis.( 175 ) From the conclusions drawn by the Trial Chamber in relation to certain events and in view of the Disposition, it is clear to the Appeals Chamber that the Trial Chamber considered the merits of the case in terms of both Article 7(1) and Article 7(3) in relation to those events. Contrary to the Prosecution’s submission on appeal , therefore, the question of effective control was in issue in this case and did have an impact upon the verdict.

  89. The Appeals Chamber notes that in paragraph 337 of the Trial Judgement, the Trial Chamber considered that:

    It will be illogical to hold a commander criminally responsible for planning, instigating or ordering the commission of crimes and, at the same time, reproach him for not preventing or punishing them. However, as submitted by the Prosecution((, the failure to punish past crimes, which entails the commander’s responsibility under Article 7(3), may, pursuant to Article 7(1) and subject to the fulfilment of the respective mens rea and actus reus requirements, also be the basis for his liability for either aiding and abetting or instigating the commission of future crimes.

    For this proposition, the Trial Chamber relied on the Regulations concerning the Application of International Law to the Armed Forces of SFRY (1988), referred to above. The Appeals Chamber recognises that paragraph 337 of the Trial Judgement did not enunciate a concurrent application of Article 7(1) and Article 7(3) of the Statute. In other passages of the Trial Judgement, however, the Trial Chamber may have fostered confusion in this regard by making conflicting statements such as: “at the time of the facts, the accused held a command position which made him responsible for the acts of his subordinates,”( 176 ) as well as the “command position is more of an aggravating circumstance than direct participation.”( 177 ) But the Appeals Chamber has to express concern at the Disposition of the Trial Judgement wherein the Trial Chamber, having found the Appellant guilty for ordering persecutions and for having committed other offences on the basis of the same factual findings, further finds:

    In any event, as a commander, he failed to take the necessary and reasonable measures which would have allowed these crimes to be prevented or the perpetrators thereof to be punished….( 178 )

    This statement, which refers to Article 7(3) responsibility, reveals a case of concurrent conviction pursuant to Article 7(1) and Article 7(3) of the Statute, in contradiction with the view expressed in paragraph 337 of the Trial Judgement.

  90. The Appeals Chamber recalls that in the Aleksovski Appeal Judgement, the Appeals Chamber observed that the accused’s “superior responsibility as a warden seriously aggravated [his] offences”( 179 ) in relation to those offenses of which he was convicted for his direct participation .( 180 ) While the finding of superior responsibility in that case resulted in an aggravation of sentence, there was no entry of conviction under both heads of responsibility in relation to the count in question. In the Celebici Appeal Judgement, the Appeals Chamber stated :

    Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count. Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).( 181 )

  91. The Appeals Chamber considers that the provisions of Article 7(1) and Article 7(3) of the Statute connote distinct categories of criminal responsibility. However , the Appeals Chamber considers( 182 ) that, in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute. Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing.( 183 )

  92. The Appeals Chamber therefore considers that the concurrent conviction pursuant to Article 7(1) and Article 7(3) of the Statute in relation to the same counts based on the same facts, as reflected in the Disposition of the Trial Judgement, constitutes a legal error invalidating the Trial Judgement in this regard.

  93. At this juncture, the Appeals Chamber also points out that where the Trial Chamber in this case, in relation to particular incidents, did not make any factual findings on the basis of Article 7(3) of the Statute, the Appeals Chamber will not consider this mode of responsibility, notwithstanding the sweeping statement concerning Article 7(3) responsibility contained in the Disposition of the Trial Judgement.

    IV. ALLEGED ERRORS OF LAW CONCERNING ARTICLE 5 OF THE STATUTE

    A. Common Statutory Elements of Crimes against Humanity

  94. The Appellant submits that the Trial Chamber “erred in several significant respects in construing and applying the substantive legal standards of Article 5 .”( 184 ) Generally, he claims that:

    [the] Trial Chamber deviated from established principles of Tribunal and/or customary law by: (1) failing to require that [the] Appellant possessed the requisite knowledge of the broader criminal attack necessary to establish a crime against humanity; (2) failing to define the actus reus of the crime of persecution in a sufficiently narrow fashion in accordance with the principles of legality and specificity; and (3) failing to require that [the] Appellant possessed the requisite specific discriminatory intent necessary to establish the crime of persecution.( 185 )

    The Appellant claims that the Trial Chamber erred in that there is insufficient evidence as a matter of law to support its findings.( 186 ) He submits that the following common statutory elements of crimes against humanity are required to sustain a conviction under Article 5 of the Statute: (i) the acts of the accused must take place in the context of a widespread or systematic attack ; (ii) the attack must be directed against a civilian population; (iii) the attack and the acts of the accused must be pursuant to a pre-existing criminal policy or plan; and (iv) the accused must have knowledge that his acts formed part of the broader criminal attack.( 187 )

  95. The Prosecution contends that none of these claims come within the purview of Article 25 of the Statute, in that no allegations of legal errors invalidating the Trial Judgement or of factual errors occasioning a miscarriage of justice have been made.( 188 ) As such, the Prosecution submits that there is no reason for the Appeals Chamber to consider the claims falling under sub-heading A of Section IX of the Appellant’s Brief.( 189 )

    1. Requirement that the acts of the accused must take place in the context of a widespread or systematic attack

  96. The Appellant states that the acts of the accused, which must constitute an enumerated crime, must also be committed “as part of a widespread or systematic attack and not as just a random act of violence.”( 190 ) This element, the Appellant adds, requires a nexus between the acts of the accused and the broader attack which elevates the underlying offences to crimes against humanity.( 191 ) In response, the Prosecution affirms that it is settled law that the acts of the accused must form part of an attack that must be either widespread or systematic in character, and points out that the Appellant did not suggest that the Trial Chamber erred in this respect.( 192 )

  97. The Appeals Chamber observes that the Appellant does not appear to identify an error in the Trial Judgement in relation to this argument. Nevertheless, it goes on to consider the Trial Chamber’s articulation of this element of crimes against humanity.

  98. It is well established in the jurisprudence of the International Tribunal that in order to constitute a crime against humanity, the acts of an accused must be part of a widespread or systematic attack directed against any civilian population .( 193 ) This was recognized by the Trial Chamber, which stated: “…there can be no doubt that inhumane acts constituting a crime against humanity must be part of a systematic or widespread attack against civilians.”( 194 )

  99. The Trial Chamber then stated that the “systematic” character:

     

    refers to four elements which for the purposes of this case may be expressed as follows:

    - the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community;

    - the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another ;

    - the preparation and use of significant public or private resources, whether military or other;

    - the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.( 195 )

    The Trial Chamber went on to state that the plan “need not necessarily be declared expressly or even stated clearly and precisely”( 196 ) and that it could be surmised from a series of various events, examples of which it listed.( 197 )

  100. The Appeals Chamber considers that it is unclear whether the Trial Chamber deemed the existence of a plan to be a legal element of a crime against humanity . In the view of the Appeals Chamber, the existence of a plan or policy may be evidentially relevant, but is not a legal element of the crime. This is further discussed below.

  101. In relation to the widespread or systematic nature of the attack, the Appeals Chamber recalls the jurisprudence of the International Tribunal according to which the phrase “widespread” refers to the large-scale nature of the attack and the number of targeted persons, while the phrase “systematic” refers to the organized nature of the acts of violence and the improbability of their random occurrence.( 198 ) Patterns of crimes, in the sense of the non-accidental repetition of similar criminal conduct on a regular basis, are a common expression of such systematic occurrence .( 199 ) Only the attack, not the individual acts of the accused, must be widespread or systematic.( 200 ) The Appeals Chamber underscores that the acts of the accused need only be a part of this attack, and all other conditions being met, a single or limited number of acts on his or her part would qualify as a crime against humanity, unless those acts may be said to be isolated or random.( 201 )

  102. In sum, the Appeals Chamber concludes that the Trial Chamber was correct in stating that acts constituting crimes against humanity must be part of a widespread or systematic attack against civilians.

    2. Requirement that the attack be directed against a civilian population

  103. The Appellant further submits that the Prosecution must establish that there was an attack directed against a civilian population of which the acts of the accused formed a part.( 202 ) He asserts that this requirement hinges on the intent of the attack rather than on its physical result,( 203 ) and that the expression “directed against” requires that the civilian population be the primary object of the attack.( 204 ) At a minimum, the Appellant alleges, the perpetrator must have known or considered the possibility that the victim of his crime was a civilian, and that he could not reasonably have believed that the victim was a member of the armed forces or other legitimate combatant .( 205 ) The Appellant further submits that he never ordered attacks directed against a civilian population, and reiterates that civilian casualties were the unfortunate consequence of an otherwise legitimate and proportionate military operation, not an attack targeting a civilian population .( 206 )

  104. The Prosecution suggests that the Appellant defines the phrase “civilian population ” too restrictively in light of the settled law of the International Tribunal and that he confuses the issue of whether there was a widespread or systematic attack on the one hand, with which particular individuals can be considered to be among the victims of this attack, on the other.( 207 ) In particular, the Prosecution submits that the Trial Chamber was correct in concluding that the presence of resistance fighters and those placed hors de combat does not alter the civilian character of a population.( 208 ) The Prosecution further submits that reference in paragraph 435 of the Kunarac Trial Judgement to the perpetrator’s knowledge of the victim’s status relates more to the issue of which individuals may be said to be the victims of crimes against humanity. The reference should be understood as “guidance to the trier of fact in the sense that an accused’s knowledge cannot be assessed in abstracto but must be evaluated in relation to the particular crime against humanity the perpetrator is accused of.”( 209 ) The Prosecution also insists that in situations of uncertainty as to an individual’s status, he or she must be presumed to be a civilian.( 210 ) As the Appellant has not even attempted to demonstrate that the conclusions reached by the Trial Chamber on the composition of the victim group in this case were so unreasonable that no reasonable trier of fact could have reached similar conclusions , the Prosecution says, the findings of the Trial Chamber should be left undisturbed .( 211 )

  105. The Appeals Chamber considers that the Appellant seems to be alleging an error of law in the Trial Judgement in relation to this issue, as well as an error of fact. Only the alleged legal error will be addressed here. The legal requirement under Article 5 of the Statute that the attack in question be directed against a civilian population was elaborated upon in the Kunarac Appeal Judgement, wherein the Appeals Chamber stated that:

    … the use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals.( 212 )

  106. The Appeals Chamber in Kunarac further stated:

    … the expression “directed against” is an expression which “specifies that in the context of a crime against humanity the civilian population is the primary object of the attack”. In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. T