Case No. IT-01-48-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Registrar:
Mr. Hans Holthuis

Judgement of:
16 November 2005

PROSECUTOR

SEFER HALILOVIC

___________________________________________

JUDGEMENT

___________________________________________

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

I. INTRODUCTION

A. The Accused Sefer Halilovic

Sefer Halilovic was born in Prijepolje in Serbia on 6 January 1952.¹ After his military education he became an officer in the JNA. In 1990 he attended a two-year course at the school for commanders in Belgrade. Sefer Halilovic had attained the rank of Major by the time he left the JNA in September 1991 to return to Bosnia and Herzegovina and join the Patriotic League.² On 25 May 1992 he was appointed by the Presidency of the Republic of Bosnia and Herzegovina (“RBiH”) as Commander of the Territorial Defence (TO).³ Sefer Halilovic was Supreme Commander, with the title “Chief”, of the Main Staff of the Army of the Republic of Bosnia and Herzegovina (“ABiH”) until 8 June 1993 when the new position of “Commander of the Main Staff” of the ABiH was established. The 8 June decision, issued by the President of the RBiH Alija Izetbegovic, appointed Rasim Delic to the position of ABiH Commander and provided that Sefer Halilovic would retain the position of “Chief of the Main Staff” of the ABiH.⁴ By order of 1 November 1993, the President of RBiH, Alija Izetbegovic “relieved” Sefer Halilovic from his duties as “Chief of the Main Staff”.⁵ When he voluntarily surrendered to the Tribunal on 25 September 2001, Sefer Halilovic was retired General of the ABiH and Minister for Refugees, Social Affairs and Displaced People in the Government of Bosnia and Herzegovina (“BiH”).⁶

B. Overview of the Case Against Sefer Halilovic
The Prosecution alleges that at a meeting held in Zenica from 21 to 22 August 1993, attended by most of the senior commanders of the ABiH including its Commander Rasim Delic, it was decided to conduct a military operation called “Neretva-93” in order to end the HVO-blockade of Mostar. It is alleged that at the meeting an “Operational plan”, prepared and tabled by Sefer Halilovic, was discussed and that it was agreed that an “Inspection Team”, headed by Sefer Halilovic, would go to Herzegovina “to command and co-ordinate the Operation.”⁷ According to the Prosecution, “Sefer Halilovic was the commander of the Operation and as such the troops, involved in the ‘Neretva-93’ Operation were under his command and control.”⁸
The Prosecution alleges that “the Operation” was commanded and co-ordinated from a Forward Command Post (“IKM”)⁹ in Jablanica. One axis of attack was from Donja Grabovica to Vrdi. This axis was commanded by Zulfikar Alispago and involved parts of the following units of the ABiH 1st Corps: the 9th Motorised Brigade (“9th Brigade”), the 10th Mountain Brigade (“10th Brigade”) and the 2nd Independent Battalion. Another axis of attack was from Dobro Polje to Prozor, which is the area where Uzdol is situated. This line of attack was commanded by Enver Buza, the Commander of the Prozor Independent Battalion.¹⁰
It is alleged that Sefer Halilovic, knowing of the 9th and the 10th Brigades “notorious reputations for being criminal and uncontrolled in behaviour”, ordered the deployment of units of these Brigades to Herzegovina.¹¹ It is further alleged that on 8 September 1993 the unit of the 9th Brigade and a part of the unit of the 10th Brigade were billeted in the village of Grabovica. At this point in time, the 2nd Independent Battalion was already billeted there.¹²
According to the Prosecution, soldiers of the 9th Brigade had problems securing accommodation with the local Bosnian Croat civilian population in Grabovica. It is alleged that on 8 September 1993 when the soldiers complained in the presence of Sefer Halilovic to Vehbija Karic, a member of the Inspection Team, that the villagers would not allow them into their houses, Vehbija Karic, “in word and gesture indicated that the troops should try those Bosnian Croat Civilians summarily and throw them into the Neretva river if they do not co-operate.”¹³ It is also alleged that Sefer Halilovic “voiced his disapproval about the comment to Vehbija Karic but said nothing to prevent the soldiers from acting on it.”¹⁴
The Indictment alleges that on 8 and 9 September 1993 thirty-three Bosnian Croat civilians were killed in Grabovica.¹⁵ It further alleges that Sefer Halilovic was notified during the night of 8 September about the killing of civilians and that once “notified and having knowledge of the criminal reputation of the 9th […] and 10th […] Brigades and having been present earlier that day when Vehbija Karic had made the remark […], Sefer Halilovic was duty bound to act urgently.”¹⁶
According to the Prosecution, Sefer Halilovic was ordered on 12 September 1993 by Rasim Delic “to re-consider the scope of the ‘Neretva-93’ Operation, to isolate the perpetrators of the incident, to take active measures and to immediately report on the measures he had taken.”¹⁷ It is alleged that Sefer Halilovic failed to implement the order of Rasim Delic resulting in a failure to punish the perpetrators of the crime, who were in the area until 19 September 1993.¹⁸
The Indictment also alleges that on 14 September 1993 in the course of “the Operation”, the Prozor Independent Battalion attacked Uzdol and killed twenty-nine Bosnian Croat civilians and one HVO prisoner of war.¹⁹
The Prosecution alleges that Sefer Halilovic, “by virtue of his position and authority as Commander of the Operation”, had effective control over the units subordinated to him, including the 9th Brigade, the 10th Brigade, the 2nd Independent Battalion and the Prozor Independent Battalion.²⁰
In view of the above, Sefer Halilovic is charged with murder, punishable under Article 3 of the Statute as recognised by Article 3(1)(a) of the Geneva Conventions. The Indictment alleges that Sefer Halilovic incurs criminal responsibility under Article 7(3) of the Statute since “notwithstanding his duties as a commander […] Sefer Halilovic did not take effective measures to prevent the killings of civilians in Grabovica” and “did not take steps to carry out a proper investigation to identify the perpetrators of the killings in both Grabovica and Uzdol and as commander of the Operation to punish them accordingly.”²¹

II. GENERAL CONSIDERATIONS REGARDING THE EVALUATION OF EVIDENCE
The Trial Chamber has assessed and weighed the evidence in this case in accordance with the Tribunal’s Statute and its Rules of Procedure and Evidence (“Rules”). Where no guidance is given by these sources, it has assessed the evidence in such a way as will best favour a fair determination of the case and which is consistent with the spirit of the Statute and the general principles of law.²²
Article 21(3) of the Statute provides that the Accused shall be presumed innocent until proven guilty.²³ The Prosecution therefore bears the burden of establishing the guilt of the Accused, and, in accordance with Rule 87(A) of the Rules, the Prosecution must do so beyond reasonable doubt.²⁴ In determining whether the Prosecution has done so with respect to the Count in the Indictment, the Trial Chamber has carefully considered whether there is any reasonable interpretation of the evidence admitted other than the guilt of the Accused Any ambiguity or doubt has been resolved in favour of the Accused in accordance with the principle of in dubio pro reo.²⁵
Article 21(4)(g) of the Statute provides that no accused shall be compelled to testify against himself. In the present case, the Accused exercised his right to remain silent; no adverse inferences were drawn from the fact that he did not testify.
Rule 89(C) of the Rules provides that the Trial Chamber “may admit any relevant evidence which it deems to have probative value.” The Trial Chamber has carefully considered the charges against the Accused in light of the entire record, including all evidence put forth by the Prosecution and the Defence.
As reflected in the Rules, there is a preference for witnesses to give evidence orally.²⁶ In addition to direct evidence, the Trial Chamber has admitted hearsay and circumstantial evidence. Hearsay evidence is evidence of facts not within the testifying witness’ own knowledge.²⁷ In evaluating the probative value of hearsay evidence, the Trial Chamber has carefully considered indicia of its reliability and, for this purpose, it has evaluated whether the statement was “voluntary, truthful and trustworthy” and has considered the content of the evidence and the circumstances under which it arose.²⁸ Circumstantial evidence is evidence of circumstances surrounding an event or offence from which a fact at issue may be reasonably inferred.²⁹ In some instances, the Trial Chamber has relied upon circumstantial evidence in order to determine whether or not a certain conclusion could be drawn. The Trial Chamber follows the Appeals Chamber when considering that “[s]uch a conclusion must be established beyond reasonable doubt. […] It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is [as]( consistent with the [innocence of an accused as with his or her guilt], he or she must be acquitted.”³⁰
Both the Prosecution and Defence made applications under Rule 92 bis, which permits parties to tender the evidence of a witness other than through means of viva voce testimony. The Trial Chamber permitted the Parties to tender certified written statements or former testimony of witnesses under Rule 92 bis in lieu of live testimony.³¹
In evaluating the evidence given viva voce the Trial Chamber has given due regard, among other things, to the individual circumstances of the witness, including the witness’ possible involvement in the events and the risk of self-incrimination, his relationship with the Accused and possible contamination between witnesses’ testimonies.³² The Trial Chamber has considered the internal consistency of each witness’ testimony and other features of their evidence, as well as whether corroborating evidence exists in the Trial record. Recalling that the evidence presented in this case relates to events that occurred twelve years ago, the Trial Chamber endorses the conclusion of the Krnojelac Trial Chamber that it did not treat:

minor discrepancies between the evidence of various witnesses, or between the evidence of a particular witness and a statement previously made by that witness, as discrediting their evidence where that witness had nevertheless recounted the essence of the incident charged in acceptable detail. […] Although the absence of a detailed memory on the part of these witnesses did make the task of the Prosecution more difficult, the lack of detail in relation to peripheral matters was in general not regarded as necessarily discrediting their evidence.³³

However, in cases of repeated contradictions within a witness’ testimony, the Trial Chamber has disregarded his or her evidence unless it has been sufficiently corroborated. In light of the factors mentioned above, in particular the risk of self -incrimination and the possible contamination between witnesses’ testimonies, the Trial Chamber is not fully satisfied that the evidence it has heard from certain witnesses was entirely reliable.³⁴ The Trial Chamber has therefore treated their testimony with caution and has relied on it only if corroborated by other evidence.
In some instances, only one witness has given evidence of an incident for which the Accused has been charged. The Appeals Chamber has held that the testimony of a single witness on a material fact does not, as a matter of law, require corroboration.³⁵ In such a situation, the Trial Chamber has carefully examined the evidence of the witness before making a finding of guilt against the Accused.
Before admitting evidence pursuant to Rule 92 bis, the Trial Chamber found that each written statement did not go to the acts and conduct of the Accused, was relevant to the present case, had probative value under Rule 89(C) of the Rules, and was cumulative in nature.³⁶ The evidence put forward by the witnesses under Rule 92 bis was admitted without cross-examination. The Trial Chamber recalls the observation of the Appeals Chamber in the Galic case that “where the witness who made the statement is not called to give the accused an adequate and proper opportunity to challenge the statement and to question that witness, the evidence which the statement contains may lead to a conviction only if there is other evidence which corroborates the statement”.³⁷ Such “other evidence ” may include other witnesses’ testimony, documentary evidence or video evidence.
The Trial Chamber has evaluated and considered the agreed facts from the Galic and the Martinovic and Naletilic Trial Judgements, as well as the facts concerning the ABiH military security service.³⁸ Agreed facts were accepted under Rule 65 ter (H) of the Rules, and were subjected, as all other evidence, “to the tests of relevance, probative value and reliability,” according to Rule 89 of the Rules.³⁹
In order to assess the authenticity of documents, the Trial Chamber considered evidence as to the source and chain of custody. The Trial Chamber did not consider unsigned, undated or unstamped documents, a priori, to be void of authenticity. Even when the Trial Chamber was satisfied of the authenticity of a particular document, it did not automatically accept the statements contained therein to be an accurate portrayal of the facts.⁴⁰ The Trial Chamber evaluated this evidence within the context of the Trial record as a whole.⁴¹ In this respect, the Trial Chamber notes that the book titled “Uzdol and all its victims”⁴² has partly been based on data provided by the then registrar of Uzdol, Kazo Zelenika. However, as Kazo Zelenika testified, he limited himself to provide personal data of the victims - such as dates of birth and death, civil status, parents’ names - while “[s]ome of the people who processed the text changed things around” and added information.⁴³ Purportedly this book was published to contribute funds for the construction of a memorial centre.⁴⁴ For these reasons, the Trial Chamber did not rely on the information included in the book unless it is corroborated by other evidence.

III. APPLICABLE LAW

A. Law on Article 3 of the Statute
The Indictment charges Sefer Halilovic with “murder, a violation of the laws or customs of war, punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) of the Geneva Conventions, and Article 7 (3) of the Statute of the Tribunal.”⁴⁵

1. General Requirements of Article 3 of the Statute
Article 3 of the Statute has been defined in the jurisprudence of the Tribunal as a general clause covering all violations of humanitarian law not covered by Articles 2, 4 or 5, including violations of Article 3 common to the four Geneva Conventions of 12 August 1949 (“Common Article 3”)⁴⁶ and other customary rules on non-international conflict.⁴⁷ The application of Article 3 of the Statute presupposes the existence of an armed conflict and a nexus between the alleged crime and the armed conflict.⁴⁸ Moreover, four additional condictions must be fulfilled for a crime to be prosectuded under Article 3 of the Statute. These conditions are generally known as the Tadic conditions.⁴⁹
(a) The Existence of an Armed Conflict and Nexus of the Alleged Crimes with the Armed Conflict
It is settled in the jurisprudence of the Tribunal that an armed conflict exists “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised groups or between such groups within a State.”⁵⁰
When an accused is charged with violation of Article 3 of the Statute, based on a violation of Common Article 3, it is immaterial whether the armed conflict was international or non-international in nature.⁵¹ Common Article 3 requires the warring parties to abide by certain fundamental humanitarian standards by ensuring “the application of the rules of humanity which are recognized as essential by civilized nations.”⁵² This was confirmed by the International Court of Justice in the Nicaragua case, where it held that:

Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called “elementary considerations of humanity ” (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22).⁵³

The provisions of Common Article 3 and the universal and regional human rights instruments share a common “core” of fundamental standards which are applicable at all times, in all circumstances and to all parties, and from which no derogation is permitted.⁵⁴ In light of this general applicability of the provisions of Common Article 3, there is no need for the Trial Chamber to define the nature of the conflict in the present case.⁵⁵
The Appeals Chamber in the Tadic case held that until a general conclusion of peace or a peaceful settlement is reached, international humanitarian law continues to apply “in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.”⁵⁶
The Defence argued that for the alleged crimes it was not proven that the crimes were not isolated or random acts. The Defence submitted that a crime would be “isolated ” or “random” when its occurrence “albeit possibly related to the armed conflict in some respect does not reveal a pattern of criminal conduct on the part of the party to the conflict or where the only relationship between the crime and the armed conflict appears to be a coincidence of time and location.”⁵⁷
As regards the crimes in Grabovica,⁵⁸ the Defence submitted that the alleged crimes were “isolated and random crimes committed by a small number of mostly unidentified individuals”, and “were not ‘closely related to the armed conflict’”.⁵⁹ As regards the crimes in Uzdol,⁶⁰ the Defence submitted that “the Prosecution has failed to demonstrate that those crimes – if proved – were sufficiently connected to the hostilities to amount to war crimes, in the sense of having established a ‘direct conjunction’ between the acts of the accused and the armed conflict.”⁶¹ The Trial Chamber notes that the Appeals Chamber considered this matter in Tadic and held that the required nexus should be established between the alleged crime and the armed conflict.⁶²
As to the precise nature of the nexus, when the crime alleged has not occurred at a time and place in which fighting was actually taking place, the Appeals Chamber has held that “it would be sufficient S…C that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.”⁶³ The crime “need not have been planned or supported by some form of policy”⁶⁴ and the armed conflict “need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.”⁶⁵
(b) The Tadic Conditions
Article 3 of the Statute confers on the Tribunal jurisdiction over any serious offences against international humanitarian law not covered by Article 2, 4 and 5, provided that four conditions be fulfilled: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature, or, if it belongs to treaty law, the required conditions must be met;⁶⁶ (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.⁶⁷
The charge of murder as a violation of the laws and customs of war in the present case is based on Common Article 3. It is well established that Article 3 of the Statute encompasses violations of Common Article 3.⁶⁸ It is also well established that Common Article 3 is part of international customary law,⁶⁹ that murder is a serious violation of international humanitarian law, which has grave consequences for the victim⁷⁰ and it also entails individual criminal responsibility.⁷¹

2. “Persons Taking no Active Part in the Hostilities” under Common Article 3
For the application of any Article 3 charge based on Common Article 3, the Prosecution must also prove that the victim was a person taking no active part in the hostilities⁷² at the time the crime was committed.⁷³
In the Tadic case, the test applied by the Trial Chamber was to ask whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, “being those hostilities in the context of which the alleged offences are said to have been committed.”⁷⁴ The Trial Chamber in Tadic held that “it is unnecessary to define exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is sufficient to examine the relevant facts of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in the hostilities at the relevant time.”⁷⁵
The Trial Chamber finds that it is the specific situation of the victim at the moment the crime was committed that must be taken into account in determining his or her protection under Common Article 3.⁷⁶ The Trial Chamber considers that relevant factors in this respect include the activity, whether or not the victim was carrying weapons, clothing, age and gender of the victims at the time of the crime.⁷⁷ While membership of the armed forces can be a strong indication that the vicitim is directly participating in the hostilities, it is not an indicator which in and of itself is sufficient to establish this.⁷⁸ Whether a person did or did not enjoy protection of Common Article 3 has to be determined on a case-by-case basis.⁷⁹

3. Specific Considerations Concerning Murder under Common Article 3
The Appeals Chamber in the Kvocka case recently defined the crime of murder under Article 3 of the Statute as follows:
1) the death of a victim taking no active part in the hostilities;
2) the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;
3) the intent of the accused or of the person or persons for whom he is criminally responsible:

a. to kill the victim; or

b. to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.⁸⁰
In relation to the mens rea, the Trial Chamber notes that the Trial Chamber in the Galic case stated, concerning the crime of attacks on civilians set forth in Article 51 of Additional Protocol I and Article 13 of Additional Protocol II, and punishable under Article 3 of the Statute:

[f]or the mens rea recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.⁸¹

The crime of attacks on civilians contains an element in relation to the status of the victims, which is similar to that of the crime of murder presently at issue. The Trial Chamber has previously found that the status of the victims as persons taking no active part in the hostilities is a condition for the applicability of Article 3 of the Statute.⁸² The Trial Chamber agrees with the Galic Trial Chamber that the Prosecution must show that the perpetrator was aware or should have been aware of this status of the victim. In other words, the mens rea of the perpetrator of murder must encompass the fact that the victims were persons taking no active part in the hostilities.⁸³ The Trial Chamber considers that the factors previously mentioned for determining whether a victim is or is not taking an active part in hostilities⁸⁴ are relevant in this respect.
It has been established that it is not necessary that a victim’s body has been recovered in order to prove that the victim is dead. The death may be established by circumstantial evidence provided “the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible.”⁸⁵ In the Trial Chamber’s opinion, relevant factors include, but are not limited to, the coincident or near-coincident time of death of other victims, the fact that the victims were present in an area where an armed attack was carried out, when, where and the circumstances in which the victim was last seen, and the behaviour of soldiers in the vicinity, as well as towards other civilians, at the relevant time.

B. Law on Article 7 (3)

1. Introduction
Article 7(3) of the Statute reads:
The fact that any of the acts referred to in Articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
It is clear that the form of responsibility set out in Article 7(3) of the Statute is based upon the duty of superiors to act, which consists of a duty to prevent and a duty to punish criminal acts of their subordinates.⁸⁶ It is thus the “failure to act when under a duty to do so” which is the essence of this form of responsibility.⁸⁷ As will be seen below, this duty to act arises by virtue of a superior’s possession of effective control over his subordinates.⁸⁸
The Trial Chamber recalls that the purpose behind the concept of command responsibility is to ensure compliance with the laws and customs of war and international humanitarian law generally.⁸⁹ The principle of command responsibility may be seen in part to arise from one of the basic principles of international humanitarian law aiming at ensuring protection for protected categories of persons and objects during armed conflicts. This protection is at the very heart of international humanitarian law.⁹⁰ Ensuring this protection requires, in the first place, preventative measures which commanders are in a position to take, by virtue of the effective control which they have over their subordinates, thereby ensuring the enforcement of international humanitarian law in armed conflict.⁹¹ A commander who possesses effective control over the actions of his subordinates is duty bound to ensure that they act within the dictates of international humanitarian law and that the laws and customs of war are therefore respected.
The elements of command responsibility are derived from the duties comprised in responsible command,⁹² and those duties are generally enforced through command responsibility.⁹³ For many years the responsibility of commanders for the conduct of their troops has been recognised in domestic jurisdictions.⁹⁴ The concept of responsible command can be seen in the earliest modern codifications of the laws of war. It was incorporated in the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. It was also reproduced in Article 1 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907 which states:
It was only in the aftermath of the Second World War that the concept of command responsibility for failure to act received its first judicial recognition in an international context. ⁹⁶ This form of responsibility by omission was formally recognised by Additional Protocol I of 8 June 1977 to the Geneva Conventions of 12 August 1949. Article 86 of Additional Protocol I affirms this form of responsibility, the basis for which is the duty placed on commanders by Article 87 of the same Protocol to preclude violations of the Geneva Conventions and their Additional Protocols.⁹⁷
The laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following criteria:
To be commanded by a person responsible for his subordinates[…]⁹⁵

2. The Nature of Command Responsibility in International Law
The concept of command responsibility as a form of individual criminal responsibility emerged in the post World War II era in national war crimes legislation, as well as in some post World War II case law. Prior to this, the responsibility of commanders in international law had been connected with the responsibility of states to ensure compliance with the laws of war. However, the post World War II case law contained differing views as to the nature of command responsibility, that is as liability for the crimes of subordinates, or, as a sui generis responsibility for dereliction of duty.
National legislation enacted in the post World War II period, for example in Canada,⁹⁸ France,⁹⁹ and Britain,¹⁰⁰ considered command responsibility as a form of accomplice liability. In other words, a commander’s failure to prevent or repress the breaches of international humanitarian law committed by his subordinates amounted to encouragement or assistance of the subordinates in the commission of the crime.
Certain post World War II trials attached liability to commanders for the crimes of their subordinates. For example, in Re Yamashita, although the charge was essentially one of breach of Yamashita’s duty as a commander, the United States Supreme Court attributed responsibility to Yamashita for having violated the laws of war by permitting his troops to commit atrocities.¹⁰¹ They based their imposition of individual responsibility on the concept of responsible command found in Article 1 of Fourth Hague Convention of 1907 and Article 43 of the annex thereto, Article 19 of the Tenth Hague Convention, and Article 26 of the Geneva Red Cross Convention.¹⁰² In his dissenting opinion, Justice Murphy argued that these provisions did not impose individual responsibility on a commander to control his troops, he stated that; “the laws of war heretofore recognized by this nation fail to impute responsibility to a fallen commander for excesses committed by his disorganised troops while under attack.”¹⁰³ He noted that there were cases from the beginning of the 20th Century where commanding officers were found to have violated the laws of war where they knew that a crime was to be committed and where they had the power to prevent it, but failed to exercise that power.¹⁰⁴ However, Justice Murphy’s main argument against the conviction of Yamashita was that there was no knowledge element. He stated “it is quite another thing to say that the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the absence of personal culpability. Had there been some element of knowledge or direct connection with the atrocities the problem would be entirely different.”¹⁰⁵ It would seem, therefore, that the Supreme Court, and Justice Murphy in his dissent, did not object to a commander’s liability for a war crime committed by his subordinates where he failed in his duty as a commander to control his troops. However, Justice Murphy considered that there must be a knowledge element for a commander to be held responsible.
The Hostage case, in examining the duty of commanders of occupied territory stated that “the commanding general of occupied territory, having executive authority as well as military command, will not be heard to say that a unit taking unlawful orders from someone other than himself was responsible for the crime and that he is thereby absolved from responsibility.”¹⁰⁶ In examining the individual responsibility of defendant List, the Court stated that “absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced.”¹⁰⁷ However, the Court in that case also found that a defendant’s “failure to terminate […] unlawful killings and to take adequate steps to prevent their recurrence constitutes a serious breach of duty and imposes criminal responsibility.”¹⁰⁸
The High Command case in examining the liability of defendant Von Leeb for the crimes of those within his area of command¹⁰⁹ stated that to establish the guilt of a defendant from connection with the acts “of the SIPO and SD”¹¹⁰ “by acquiescence,” “not only must knowledge be established, but the time of such knowledge must be established.”¹¹¹ The Court in that case also stated that,
“[c]riminal acts committed by those forces [under his command] cannot in themselves be charged to him on the theory of subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.”¹¹²
The Toyoda case considered that the responsibility of a commander was for dereliction of duty, stating;
“in the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities […], and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.”¹¹³
It may be concluded, therefore, that the post World War II case law was not uniform in its determination as to the nature of the responsibility arising from the concept of command responsibility.
Articles 86 and 87 of Additional Protocol I to the Geneva Conventions codified the concept of command responsibility. Article 86(2) provides for a commander’s liability, either criminal or disciplinary, for the crimes of his subordinates where he fails to “prevent or repress” those acts. The Commentary to paragraph 1 of Article 86 notes that responsibility for a breach of the Geneva Conventions consisting of a failure to act can only be established if the person failed to act when under a duty to do so. The Commentary to paragraph 2 of Article 86, which is to be read in conjunction with Article 87,¹¹⁴ acknowledges that this provision is the first in international law to impose penal sanctions for a failure to act.¹¹⁵ The Commentary notes that Article 86 applies both to breaches and to grave breaches, and that the term “penal or disciplinary” applies in the first case, while in the second case the principle of universal jurisdiction, understood as “aut dedere aut judicare” applies – that is the duty to extradite or prosecute.¹¹⁶ Thus, Article 86(2) attaches criminal responsibility for grave breaches of the Geneva Conventions. The Article is, however, silent as to the nature of the criminal responsibility – that is; whether it is responsibility for dereliction of duty or responsibility for the crimes of subordinates.
With regard to the Statute of the Tribunal, the text of Article 7(3) is not explicit as to whether liability attaches to a commander for the crimes of his subordinates or for dereliction of duty. In this regard the reports submitted to the Security Council prior to the adoption of the Statute may be of assistance.
A reading of the Secretary General’s Report concerning Article 7(3) does not exclude the possibility that command responsibility under the Statute of the Tribunal may be responsibility for dereliction of duty.¹¹⁷ The Report states that a commander “should be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates.”¹¹⁸ It is interesting to note in this respect, the clarification provided by the United Nations Commission of Experts Final Report.¹¹⁹ In examining command responsibility the Commission of Experts stated that superiors are “individually responsible for a war crime or crime against humanity committed by a subordinate”.¹²⁰ The Commission of Experts, in addressing command responsibility in their First Interim Report, stated that “military commanders are under a specific obligation, with respect to members of the armed forces under their command[…] to prevent and[…]suppress”. Having cited the paragraphs from their Interim Report, including the above-mentioned element, the Commission of Experts noted in their Final Report that “Article 7 of the statute of the international tribunal uses an essentially similar formulation”.¹²¹ Thus, the Commission of Experts may have considered that Article 7(3) attached responsibility to commanders for the crimes of their subordinates.
The ILC Commentary, which is based upon Articles 86 and 87 of Additional Protocol I, and 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute, considered that a military commander may be held criminally responsible for the unlawful conduct of his subordinates if he contributes indirectly to the commission of a crime by failing to prevent or repress that crime.¹²² The ILC Commentary provides that Article 6 confirms the individual criminal responsibility of the superior who is held accountable for a crime against the peace and security of mankind committed by his subordinate if certain criteria are met.¹²³ Furthermore, in elaborating the mental element they state that "Article 6 provides two criteria for determining whether a superior is to be held criminally responsible for the wrongful conduct of a subordinate."¹²⁴
While the post World War II case law was divergent as to the question of the exact nature of command responsibility, and Article 86(2) of Additional Protocol I and Article 7(3) are silent as to the nature of the responsibility of commanders, whether command responsibility is a mode of liability for the crimes of subordinates or responsibility of a commander for dereliction of duty has not been considered at length in the jurisprudence of the Tribunal. However, the consistent jurisprudence of the Tribunal has found that a commander is responsible for the crimes of his subordinates under Article 7(3). For example, the Trial Chamber in Celebici held that “[t]he type of individual criminal responsibility for the illegal acts of subordinates … is commonly referred to as ‘command responsibility’”.¹²⁵ The Trial Chamber continued; “[t](hat military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary and conventional international law.”¹²⁶ It may be noted that in this regard the Trial Chamber cited the Secretary General’s Report in support of its determination. The Appeals Chamber in Celebici also held that where a superior has effective control over his subordinates “he could be held responsible for the commission of the crimes if he failed to exercise such abilities of control”.¹²⁷ However, the Trial Chamber notes that there are further interpretations of command responsibility before the Tribunal. The Trial Chamber notes that Articles 7(1) and 7(3) are distinct modes of liability, as the Trial Chamber in Aleksovski held:
The doctrine of superior responsibility makes a superior responsible not for his acts sanctioned by Article 7(1) of the Statute but for his failure to act. A superior is held responsible for the acts of his subordinates if he did not prevent the perpetration of the crimes of his subordinates or punish them for the crimes.¹²⁸
The Trial Chamber also recalls the Partially Dissenting Opinion of Judge Shahabuddeen in the Hadzihasanovic Appeals Chamber Decision, stating:
The position of the appellants seems to be influenced by their belief that Article 7(3) of the Statute has the effect, as they say, of making the commander “guilty of an offence committed by others even though he neither possessed the applicable mens rea nor had any involvement whatsoever in the actus reus.” No doubt, arguments can be made in support of that reading of the provision, but I prefer to interpret the provision as making the commander guilty for failing in his supervisory capacity to take the necessary corrective action after he knows or has reason to know that his subordinate was about to commit the act or had done so.¹²⁹
The Trial Chamber finds that under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus “for the acts of his subordinates” as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of¹³⁰ the crimes committed by his subordinates, the commander should bear responsibility for his failure to act. The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed. The Trial Chamber considers that this is still in keeping with the logic of the weight which international humanitarian law places on protection values.

3. The Elements of Command Responsibility
The principle of individual criminal responsibility of commanders for failure to prevent or to punish crimes committed by their subordinates is an established principle of customary international law.¹³¹ Article 7(3) of the Statute is applicable to all acts referred to in Articles 2 to 5 thereof and applies to both international and non-international armed conflicts.¹³²
To hold a superior responsible under Article 7(3) of the Statute, the jurisprudence of the Tribunal has established that three elements must be satisfied:
i. The existence of a superior-subordinate relationship;
ii. the superior knew or had reason to know that the criminal act was about to be or had been committed; and
iii. the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.¹³³
(a) Superior-Subordinate Relationship
It is the position of command over the perpetrator which forms the legal basis for the superior’s duty to act, and for his corollary liability for a failure to do so.¹³⁴ As held by the Trial Chamber in Celebici, the doctrine of command responsibility is “ultimately predicated upon the power of the superior to control the acts of his subordinates.”¹³⁵
The main factor in determining a position of command is the “actual possession or non-possession of powers of control over the actions of subordinates”.¹³⁶ In determining the degree of control required by the superior over the subordinate for command responsibility to be applicable, the Appeals Chamber endorsed the concept of “effective control”, which it defined as “the material ability to prevent and punish criminal conduct”.¹³⁷ In this respect, factors indicative of an accused’s position of authority and effective control may include the official position held by the accused, his capacity to issue orders, whether de jure or de facto, the procedure for appointment, the position of the accused within the military or political structure and the actual tasks that he performed.¹³⁸ The Appeals Chamber in Blaskic held that “the indicators of effective control are more a matter of evidence than of substantive law, 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 ”.¹³⁹
A degree of control which falls short of the threshold of effective control is insufficient for liability to attach under Article 7(3). “Substantial influence ” over subordinates which does not meet the threshold of effective control is not sufficient under customary law to serve as a means of exercising command responsibility and, therefore, to impose criminal liability.¹⁴⁰
The jurisprudence of the Tribunal has interpreted the concepts of command and subordination in a relatively broad sense. Command does not arise solely from the superior’s formal or de jure status,¹⁴¹ but can also be “based on the existence of de facto powers of control”.¹⁴² In this respect, the necessity to establish the existence of a hierarchical relationship between the superior and the subordinate does “not […] import a requirement of direct or formal subordination”.¹⁴³
Command responsibility applies to every commander at every level in the armed forces. This includes responsibility for troops who have been temporarily assigned to that commander.¹⁴⁴ Article 87( 1) of Additional Protocol I states that the duty of commanders applies “to the armed forces under their command and other persons under their control”. The ICRC Commentary to Article 87(1) provides;
A commander may, for a particular operation and for a limited period of time, be supplied with reinforcements consisting of troops who are not normally under his command. He must ensure that these members of the armed forces comply with the Conventions and the Protocol as long as they remain under his command.¹⁴⁵
To hold a commander liable for the acts of troops who operated under his command on a temporary basis it must be shown that at the time when the acts charged in the indictment were committed, these troops were under the effective control of that commander.¹⁴⁶
The Trial Chamber also recalls that the test of effective control implies that more than one superior may be held responsible for his failure to prevent or punish the same crime committed by a subordinate.¹⁴⁷
Consistent with the above reasoning, there is no requirement that the superior -subordinate relationship be direct or immediate in nature for a commander to be found liable for the acts of his subordinate.¹⁴⁸ What is required is the establishment of the superior’s effective control over the subordinate, whether that subordinate is immediately answerable to that superior or more remotely under his command.¹⁴⁹ As to whether the superior has the requisite level of control, this is a matter which must be determined on the basis of the evidence presented in each case.¹⁵⁰
(b) Mental Element: “Knew Or Had Reason To Know”
The mental element required for a superior to be held responsible under Article 7(3) of the Statute is established where the superior knew or had reason to know that the subordinate was about to commit or had committed a crime.
Superior responsibility is not a form of strict liability.¹⁵¹ It must be proved either that (1) the superior had actual knowledge that his subordinates were committing or about to commit crimes within the jurisdiction of the Tribunal, or that (ii) he had in his possession information which would at least put him on notice of the risk of such offences, such information alerting him to the need for additional investigation to determine whether such crimes had been or were about to be committed by his subordinates.¹⁵²

(i) Actual Knowledge
A superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed, but may be established through circumstantial evidence.¹⁵³ Factors which may be considered in this respect include the number, type and scope of illegal acts committed by the subordinates as alleged in the indictment, the time during which the illegal acts occurred, the number and types of troops and logistics involved, the geographical location, whether the occurrence of the acts is widespread, the tactical tempo of operations, the modus operandi of similar illegal acts, the officers and staff involved, and the location of the commander at the time.¹⁵⁴ In relation to geographical and temporal circumstances, the more physically distant the superior was from the scene of the crimes, the more evidence which may be necessary to prove that he had actual knowledge of them. On the other hand, if the crimes were committed next to the superior’s duty-station this may be an important indicium that the superior had knowledge of the crimes, and even more so if the crimes were repeatedly committed.¹⁵⁵ Additionally, the fact that a military commander “will most probably” be part of an organised structure with reporting and monitoring systems has been found to facilitate proof of actual knowledge.¹⁵⁶

(ii) “Had Reason to know”
A commander will be considered to have “had reason to know” only if information was available to him which would have put him on notice of offences committed by his subordinates,¹⁵⁷ or about to be committed. The Appeals Chamber in Celebici, held that:
The phrase, “had reason to know”, is not as clear in meaning as that of “had information enabling them to conclude”, although it may be taken as effectively having a similar meaning. The latter standard is more explicit, and its rationale is plain: failure to conclude, or conduct additional inquiry, in spite of alarming information constitutes knowledge of subordinate offences. Failure to act when required to act with such knowledge is the basis for attributing liability in this category of case.¹⁵⁸
The Appeals Chamber in Celebici held that even general information in the possession of the commander which would put him on notice of possible unlawful acts by his subordinates would be sufficient.¹⁵⁹ This information does not need to provide specific information about unlawful acts committed or about to be committed; if a military commander, for example, has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, he may be considered as having the requisite knowledge.¹⁶⁰ The Appeals Chamber also made reference to the Commentary to Additional Protocol I, which refers to “reports addressed to the superior, [...] the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits” as potentially constituting the information referred to in Article 86(2) of Additional Protocol I.¹⁶¹ A superior may be regarded as having “reason to know” if he is in possession of sufficient information to be on notice of the likelihood of illegal acts by his subordinates, that is, if the information available is sufficient to justify further inquiry.¹⁶² However, the information in fact available to him need not be such that, by itself, it was sufficient to compel the conclusion of the existence of such crimes.¹⁶³ Thus a commander’s knowledge of, for example, the criminal reputation of his subordinates may be sufficient to meet the mens rea standard required by Article 7(3) of the Statute if it amounted to information which would put him on notice of the “present and real risk” of offences within the jurisdiction of the Tribunal.¹⁶⁴
A superior is not liable for failing to acquire information in the first place.¹⁶⁵ The Appeals Chamber has held that knowledge cannot be presumed if a person fails in his duty to obtain the relevant information of a crime, but it may be presumed where a superior had the means to obtain the relevant information and deliberately refrained from doing so.¹⁶⁶ Furthermore, a commander is not permitted to remain “wilfully blind” of the acts of his subordinates.¹⁶⁷
The Trial Chamber notes that an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question.¹⁶⁸ This is a factual assessment to be made on the basis of the evidence presented to the Trial Chamber.
In conclusion, the Trial Chamber must be satisfied that, pursuant to Article 7(3) of the Statute, the accused either “knew” or “had reason to know”. In this respect, the Trial Chamber notes that the Appeals Chamber has held that criminal negligence is not a basis of liability in the context of command responsibility.¹⁶⁹
(c) Failure to Prevent or Punish
Article 7(3) contains two distinct legal obligations: to prevent the commission of the offence and to punish the perpetrators thereof.¹⁷⁰ The duty to prevent arises when the commander acquires actual knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed, while the duty to punish arises after the commission of the crime.¹⁷¹ A failure to take the necessary and reasonable measures to prevent an offence of which a superior knew or had reason to know cannot be cured simply by subsequently punishing the subordinate for the commission of the offence.¹⁷²

(i) Necessary and Reasonable Measures
The question of whether a superior has failed to take all necessary and reasonable measures to prevent the commission of an offence or to punish the perpetrators thereof is intrinsically connected to the question of that superior’s effective control. A superior will be liable for a failure to take such measures that are “within his material possibility”.¹⁷³ A superior has a duty to exercise the measures possible under the circumstances.¹⁷⁴ Therefore, the question as to whether a superior had explicit legal capacity to take such measures may be irrelevant under certain circumstances if it is proven that he had the material ability to act.¹⁷⁵
The determination of what constitutes “necessary and reasonable measures” to prevent the commission of crimes or to punish the perpetrators is not a matter of substantive law but of evidence.¹⁷⁶ These measures are such that can be taken within the material ability of a commander as evidenced by the degree of effective control he wielded over his subordinates.¹⁷⁷ It is well established these measures may “vary from case to case”.¹⁷⁸ When determining whether necessary and reasonable measures have been taken, the relevant factors to be considered include: whether specific orders prohibiting or stopping the criminal activities were issued, what measures to secure the implementation of these orders were taken, what other measures were taken to ensure that the unlawful acts were interrupted and whether these measures were reasonably sufficient in the specific circumstances, and, after the commission of the crime, what steps were taken to secure an adequate investigation and to bring the perpetrators to justice.¹⁷⁹

(ii) Causation
In relation to the issue of whether the nexus of causation exists in the concept of command responsibility, the Trial Chamber notes that the Celebici Trial Chamber held:
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 offences 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 formulation of the principle in existing treaty law, or, with one exception, in the abundant literature on this subject.¹⁸⁰
This is not to say that, conceptually, the principle of causality is without application to the doctrine of command responsibility insofar as it relates to the responsibility of superiors for their failure to prevent the crimes of their subordinates. In fact, a recognition of a necessary causal nexus may be considered to be inherent in the requirement of crimes committed by subordinates and the superior’s failure to take the measures within his powers to prevent them. In this situation, 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.¹⁸¹
The Celebici Trial Chamber concluded that the very existence of the principle of superior responsibility for failure to punish, recognised under Article 7(3) and in customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility.¹⁸² The Kordic and Cerkez Trial Chamber also endorsed this view.¹⁸³
The Appeals Chamber in Blaskic stated that it was “not persuaded by [the argument] 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”.¹⁸⁴
The Trial Chamber further notes that the nature of command responsibility itself, as a sui generis form of liability, which is distinct from the modes of individual responsibility set out in Article 7(1), does not require a causal link. Command responsibility is responsibility for omission, which is culpable due to the duty imposed by international law upon a commander. If a causal link were required this would change the basis of command responsibility for failure to prevent or punish to the extent that it would practically require involvement on the part of the commander in the crime his subordinates committed, thus altering the very nature of the liability imposed under Article 7(3).

(iii) Duty to Prevent
According to the jurisprudence of the Tribunal, the duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate crime if he acquires knowledge that such a crime is being prepared or planned, or has reason to know thereof.¹⁸⁵
The duty to prevent may be seen to include both a “general obligation” and a “specific obligation” to prevent crimes within the jurisdiction of the Tribunal. The Trial Chamber notes, however, that only the “specific obligation” to prevent triggers criminal responsibility as provided for in Article 7(3) of the Statute.

a. General obligation
The existence of a general obligation to prevent the commission of crimes stems from the duty of a commander, arising from his position of effective control, which places him in the best position to prevent serious violations of international humanitarian law.¹⁸⁶ This obligation can be seen to arise from the importance which international humanitarian law places on the prevention of violations.¹⁸⁷
In the post World War II jurisprudence, both the Hostage and High Command cases considered that there was a positive duty on commanders to maintain order and protect the civilian population within their area of command.¹⁸⁸ Similarly, the Toyoda judgement explicitly recognised that superiors have “[a] duty to control, to take necessary steps to prevent commission […] of atrocities, and to punish offenders”.¹⁸⁹
The codification of the concept of command responsibility in Article 87 of Additional Protocol I also indicates the existence of a prior preventative duty. It imposes a duty on commanders to “ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.”¹⁹⁰ The ICRC Commentary to Article 87 paragraph 3, in examining the issue of the competing needs of respect for the Conventions and the commander’s need to focus on combat, states:
first, the preventive stage, which consists of instructing members of the armed forces and inculcating habits and reflexes which are reconcilable with the requirements of the Conventions, does not take place during combat, but before -- even before war has broken out. Secondly it is appropriate to point out that orders are not only given during combat, but mostly beforehand. All orders given before combat should always and at every level include a reminder of the provisions of the Conventions that are relevant in the particular situation.¹⁹¹
There also appears to be a requirement that a commander ensure order and exercise control over troops, which includes, for example, a need to be aware of the condition of troops, and to impose discipline.¹⁹² As noted above, the ICRC Commentary to Article 87 of Additional Protocol I states that a commander is required to exercise discipline over his troops to a sufficient degree.¹⁹³
The ICRC Commentary further states that it is because military commanders have the means for ensuring respect for the rules of the Conventions that they have the authority “and more than anyone else they can prevent breaches by creating the appropriate frame of mind, ensuring the rational use of the means of combat and by maintaining discipline.”¹⁹⁴ The Commentary to Article 87, paragraph 2 notes the need for commanders to ensure proper training of their troops, considering that account should be taken of the situation or the morale of the troops and, for example, of the probable presence of civilians in the neighbourhood of the military objective and the conduct to be observed towards them.¹⁹⁵ It continues “[i]t is in fact 'in order to prevent and suppress breaches' that military commanders are responsible for such instruction and with the duty to supervise it.”¹⁹⁶
It transpires from the jurisprudence of the Tribunal that some prior preventative measures may be required of a superior. The Trial Chamber in the Celebici case found that: “an important gap in any preventive efforts made by Mr. Mucic is that he as commander never gave any instructions to the guards as to how to treat the detainees.”¹⁹⁷ The Trial Chamber in Kvocka found that: “[t]here was certainly a duty to train and control the guards in the camp, and to prevent and punish criminal conduct.”¹⁹⁸ Similarly, the Trial Chamber in the Strugar case found that “[i]t remains relevant […] that nothing had been done by the Accused before the attack […] commenced to ensure that those planning, commanding and leading the attack […] were reminded of the restraints on shelling the Old Town [of Dubrovnik], or to reinforce existing prohibition orders.”¹⁹⁹
The Trial Chamber notes that it is well established that international humanitarian law intends to bar not only actual breaches of its norms, but aims also at preventing its potential breaches.²⁰⁰ As noted above, international humanitarian law entrusts commanders with a role of guarantors of laws dealing with humanitarian protection and war crimes, and for this reason they are placed in a position of control over the acts of their subordinates, and it is this position which generates a responsibility for failure to act. It is a natural element of the preventative constituent of command responsibility that a commander must make efforts to ensure that his troops are properly informed of their responsibilities in international law, and that they act in an orderly fashion.
While it is evident that no criminal liability may attach to the commander for failure in this duty per se, it may be an element to be taken into consideration when examining the factual circumstances of the case.²⁰¹ However, the adherence to this general obligation does not suffice by itself to avoid the commanders criminal liability in case he fails to take the necessary appropriate measure under his specific obligation.

b. Specific Obligation
As noted above, what the duty to prevent entails in a particular case will depend on the superior’s material ability to intervene in a specific situation. In establishing individual responsibility of superiors military tribunals set up in the aftermath of World War II have considered factors such as the superior’s failure to secure reports that military actions have been carried out in accordance with international law,²⁰² the failure to issue orders aiming at bringing the relevant practices into accord with the rules of war,²⁰³ the failure to take disciplinary measures to prevent the commission of atrocities by the troops under their command,²⁰⁴ the failure to protest against or to criticise criminal action,²⁰⁵ and the failure to insist before a superior authority that immediate action be taken.²⁰⁶ The Tokyo Trial held that a superior’s duty may not be discharged by the issuance of routine orders and that more active steps may be required.²⁰⁷
From the wording of Article 7(3) it is clear that the preventative element of the duty to prevent attaches where the subordinate “was about to commit such acts”, but before the actual offence has been committed. This interpretation is supported by the ICRC Commentary to Article 86 of Additional Protocol I which notes that paragraph 1 is a “general obligation to repress or suppress breaches resulting from a failure to act”,²⁰⁸ the use of the term ‘repress’ in Article 86(1) of Additional Protocol I indicates that the duty only attaches where the subordinate is on the point of committing an offence and from the moment of knowledge on the part of the superior.²⁰⁹ As the Trial Chamber in Strugar held:
an accused cannot avoid the intended reach of the provision by doing nothing, on the basis that what he knows does not make it entirely certain that his forces were actually about to commit offences, when the information he possesses gives rise to a clear prospect that his forces were about to commit an offence. In such circumstances the accused must at least investigate, i.e. take steps inter alia to determine whether in truth offences are about to be committed, or indeed by that stage have been committed or are being committed.²¹⁰

(iv) Duty to Punish

a. Failure to Punish in International Humanitarian Law
With regard to the question of whether failure to punish is a separate form of liability in international humanitarian law, some post World War II cases held commanders responsible for a failure in their duty to punish the crimes of their subordinates. It must be noted, however, that in these cases the duty to punish was in general, linked to the duty of a commander to prevent the commission of crimes, as opposed to being a separate duty.²¹¹
In the codification of the concept of command responsibility in Article 86 of Additional Protocol I, the phrase “prevent or repress” the crimes of subordinates is used. In examining this element of Article 86(2) the ICRC Commentary on Additional Protocols notes that “the clause requires both preventative and repressive action ”. It continues by stating that: “it reasonably restricts the obligation upon superiors to “feasible” measures, since it is not always possible to prevent a breach or punish the perpetrators”.²¹² The ILC Commentary also considers the term “repress” to include the duty to punish an offender.²¹³ The duty to punish as a form of liability separate from the duty to prevent has also been reflected in the more recent developments of the concept of command responsibility, that is, in the Statutes of the International Tribunals, and in the Statute of the ICC.
With regard to the jurisprudence of the Tribunal, the Appeals Chamber’s in Blaskic held that
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.” 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.²¹⁴
The Appeals Chamber concluded that the responsibility of a commander for his failure to punish was recognised in customary law prior to the commission of the crimes relevant to that indictment.²¹⁵
The duty to punish is a separate form of liability, distinct from the failure to prevent it has in fact developed from the importance attached to a commander’s duty to take preventative actions.
The argument that a failure to punish a crime is a tacit acceptance of its commission is not without merit. The Trial Chamber recognises that a commander, as the person in possession of effective control over his subordinates is entrusted by international humanitarian law with the obligation to ensure respect of its provisions. The position of the commander exercising authority over his subordinates dictates on his part to take necessary and reasonable measures for the punishment of serious violations of international humanitarian law and a failure to act in this respect is considered so grave that international law imputes upon him responsibility for those crimes. He has, in the words of the ICRC Commentary to the Additional Protocol “tolerated breaches of the law of armed conflict”.²¹⁶
Finally, the Trial Chamber considers that punishment is an inherent part of prevention of future crimes. It is insufficient for a commander to issue preventative orders or ensure systems are in place for the proper treatment of civilians or prisoners of war if subsequent breaches which may occur are not punished. This failure to punish on the part of a commander can only be seen by the troops to whom the preventative orders are issued as an implicit acceptance that such orders are not binding.

b. Prerequisites of the Duty to Punish
The duty to punish includes at least an obligation to investigate possible crimes or have the matter investigated, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities.²¹⁷
Military tribunals established after World War II interpreted the superiors’ duty to punish as implying an obligation for the superior to conduct an effective investigation²¹⁸ and to take active steps to ensure that the perpetrators will be brought to justice.²¹⁹ Whether the superior has called for a report on the incident and the thoroughness of the investigation could also be relevant in this respect.²²⁰
Further guidance as to the duty to punish is provided by Article 87, paragraph 3 of Additional Protocol I, which requires a commander who is aware that his subordinates have committed a breach of the Geneva Conventions or the Protocol “where appropriate to initiate disciplinary or penal action” against them. The ICRC Commentary to Additional Protocol I suggests that this action may include informing their superior officers of the situation, “drawing up a report in the case of a breach, […] proposing a sanction to a superior as disciplinary power, or – in the case of someone who holds such power himself – exercising it, within the limits of his competence, and finally, remitting the case to the judicial authority where necessary with such factual evidence which is possible to find.”²²¹
The superior does not have to be the person who dispenses the punishment, but he must take an important step in the disciplinary process.²²² He has a duty to exercise all measures possible within the circumstances;²²³ lack of formal legal competence on the part of the commander will not necessarily preclude his criminal responsibility.²²⁴ The duty to punish includes at least an obligation to investigate possible crimes, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities.²²⁵

IV. FACTUAL AND LEGAL FINDINGS

A. MILITARY AND CIVILIAN STRUCTURES

1. Army of the Republic of Bosnia and Herzegovina
What was later to become the ABiH²²⁶ initially consisted of more or less organised units as well as spontaneously created units, which were not part of any military structure.²²⁷ Under the leadership of Sefer Halilovic, the supreme military commander, an attempt was made to transform the various units into a functioning organised army.²²⁸ The result was the Territorial Defence (“TO”), which was formally established on 8 April 1992²²⁹ and which turned into the ABiH on 12 April 1992.²³⁰ In the beginning of its existence, including during the Indictment period, the ABiH was multi-ethnic in character.²³¹ During this time, the ABiH was inadequately funded.²³² A system of ranks was only introduced in late 1993 or 1994.²³³
The ABiH gradually became more organised, although in September 1993 it was still not a fully-functional army.²³⁴ There were a number of persons commanding units who did not have any formal military training²³⁵ and the intention was therefore to appoint as commanders those who had military training or a background in the JNA.²³⁶ The evidence shows that there was distrust and even animosity between the commanders with a military background and those who lacked such a background.²³⁷
(a) Structure of the Main Staff of the ABiH
The Main Staff²³⁸ was the supreme command of the ABiH and it was headquartered in the Presidency building in Sarajevo.²³⁹ Sefer Halilovic served as the supreme ABiH commander until 8 June 1993 and his title was Chief²⁴⁰ of the Main Staff of the ABiH.²⁴¹ On this date, the President of the Republic of Bosnia and Herzegovina, Alija Izetbegovic, issued a decision “restructuring […] the […] supreme command headquarters of the armed forces” (“8 June 1993 decision”).²⁴² This decision provides:

The post of the Commander of the Main Staff of the Armed Forces of the Republic of Bosnia and Herzegovina shall be established.

The post of the Chief of the Main Staff of the Armed Forces of the Republic of Bosnia and Herzegovina shall be retained.²⁴³

The decision further “appointed” Rasim Delic to the post of Commander of the Main Staff and “appointed” Sefer Halilovic as Chief of the Main Staff.²⁴⁴ In addition, the decision established two Deputy Commander positions to which Stjepan Siber and Jovan Divjak were appointed.²⁴⁵
Approximately six weeks later, on 18 July 1993, President Alija Izetbegovic issued a decision further restructuring the ABiH (“18 July decision”).²⁴⁶ According to this decision, during a state of war the Presidency of the Republic was the Supreme Command of the Armed Forces of the Republic.²⁴⁷ The decision provides that “The Republic of Bosnia and Herzegovina Army consists of the Main Staff and eight Corps.”²⁴⁸
(b) Further Evidence On the Position in the Main Staff Held by Sefer Halilovic After 8 June 1993
The Indictment refers to the positions held by Sefer Halilovic in the Main Staff before, during and after the period relevant to the Indictment in the following manner:
After July 1992, he functioned as the Chief of the General Staff of the Army of the Republic of Bosnia and Herzegovina (ABiH). On 18 August 1992 the Presidency formed five corps of the ABiH with Sefer Halilovic as Chief of the Supreme Command Staff/ Chief of the Main Staff. On 8 June 1993 […] Sefer Halilovic retained the post of Chief of the Supreme Command Staff of the ABiH until November 1993. Between 18 July 1993 to November 1993 Sefer Halilovic held the post of Deputy Commander of the Supreme Command Staff of the ABiH as well as Chief of the Supreme Command Staff.²⁴⁹
At a meeting on 21 to 22 August 1993 in Zenica (…the( Commander of the Supreme Command Staff, Rasim Delic, who was also present, agreed that an Inspection Team headed by his Deputy, Sefer Halilovic who was then also Chief of the Supreme Command Staff, would go to Herzegovina […].²⁵⁰
Sefer Halilovic was Chief of the Supreme Command Staff, one of Rasim Delic’s deputies […].²⁵¹
The Trial Chamber also notes that it appears to be the understanding of the Prosecution that the position held by Sefer Halilovic within the structure of the Main Staff was that of ‘Chief of Staff of the Main Staff’: “[Sefer Halilovic] continued to hold his former title of Chief of the Supreme Command Staff, but he was now the Chief of Staff of the Main Staff, as opposed to being the commander of the ABiH.”²⁵² In its Final Brief, the Defence accepted this submission.²⁵³
The Trial Chamber notes the ambiguity which exists in the evidence concerning Sefer Halilovic’s position within the structure of the Main Staff following the 8 June and 18 July decisions. This ambiguity may in part be as a consequence of the ABiH not being a fully-functional army. Witnesses referred to Sefer Halilovic’s position as being one of ‘chief of staff”.²⁵⁴ However, neither the 8 June decision nor the 18 July decision mentions a separate “staff” component of the Main Staff or a position of “chief of staff”.²⁵⁵ The evidence shows that a Main Staff chief of staff would have been directly in charge of, for instance, the Intelligence Administration, however the 18 July decision plainly put this administration directly under the Commander of the Main Staff, Rasim Delic.²⁵⁶ Therefore, the Trial Chamber finds that after the 18 July decision the de jure position held by Sefer Halilovic within the Main Staff was not one of chief of staff. The evidence is, however, unclear as to what Sefer Halilovic’s position, de jure or de facto, was within the Supreme Command of the ABiH, the Main Staff.
Prior to the 8 June decision, the Main Staff, and therefore the ABiH, had been commanded by Sefer Halilovic as Chief of the Main Staff. Importantly, the 8 June decision “established” the post of Commander of the Main Staff while ‘retaining’ the post of Chief of the Main Staff. This retention of the post of Chief of the Main Staff, while establishing the post of Commander, appears to be at odds with the fundamental principle of single authority in command, which was applied in the ABiH.²⁵⁷ This principle ensures that there can only be one commander at any given level of the military hierarchy.²⁵⁸
The 18 July decision made the Chief of the Main Staff²⁵⁹ a Deputy Commander, thus increasing the number of Deputy Commanders to three, and specified that one Deputy Commander would be “Croat”, one “Muslim” and one “Serb ”.²⁶⁰ According to the decision, the Deputy Commanders would “assume the duties of the Chief of the Main Staff on rotational basis”.²⁶¹ It appears, therefore, that this decision in practice removed Sefer Halilovic from the post of Chief of the Main Staff and, thus, that he was the subject of a demotion. However, the evidence also shows that after the 18 July decision Sefer Halilovic continued to sign documents as Chief of the Main Staff of the ABiH.²⁶²
The composition of the Main Staff was defined in the following manner by the 18 July decision; the Commander of the Main Staff and his Office, three Deputy Commanders, the Command Operations Centre with a Headquarters Administration, and several specialised administrations.²⁶³ The decision also defined the chain of command in the highest echelons of the ABiH as follows; the Main Staff Deputy Commanders, the chiefs of the various Main Staff administrations and branches, and the ABiH corps commanders were all “directly subordinate ” to the Commander of the Main Staff, Rasim Delic.²⁶⁴ With particular regard to ABiH corps commanders, the decision stated that they were to “liaise with the Command Operations Centre and the Chief of the Main Staff on issues determined by the Main Staff Commander.”²⁶⁵
The Prosecution did not provide the Trial Chamber with conclusive evidence concerning the de jure or de facto position of Sefer Halilovic within the structure of the Main Staff of the ABiH. The Trial Chamber therefore finds, while bearing in mind the Prosecution submission in its Final Brief that Sefer Halilovic was chief of staff of the Main Staff, that the evidence does not give a clear picture of Sefer Halilovic’s position within the structure of the Main Staff after the 18 July decision. The Prosecution alleges that:
[a]t all times relevant to the charges in the indictment, by virtue of his position and authority as Commander of the Operation he had effective control over the units subordinated to him. These included the 9th Motorised Brigade, the 10th Mountain Brigade, the 2nd Independent Battalion and the Prozor Independent Battalion.²⁶⁶
As the Prosecution bases its charge of individual criminal responsibility of Sefer Halilovic solely on his alleged position as “Commander of the [Neretva-93] Operation”,²⁶⁷ the Trial Chamber finds that it is not necessary to discuss further Sefer Halilovic’s de jure or de facto position within the structure of the Main Staff. The Prosecution allegation that Sefer Halilovic was the “Commander of the “Neretva-93 Operation” will be considered below.²⁶⁸
(c) The Military Security Service and the Main Staff Security Administration
Within the ABiH, the Military Security Service (“SVB”)²⁶⁹ was represented from the Main Staff level through the corps and brigade levels, down to the battalion level.²⁷⁰ The Main Staff Security Administration (“UB”)²⁷¹ was at the top of the SVB.²⁷² At the time relevant to the Indictment, the Chief of the UB of the Main Staff was Jusuf Jasarevic.²⁷³
The SVB organs were responsible for “state security” and had three primary functions: counter-intelligence, staff security and the military police.²⁷⁴ With regard to their counter-intelligence function, the task of the SVB was to “ create conditions for the fullest possible documentation of […] war crimes and other criminal offences committed in the aggression against the Republic […].”²⁷⁵ Jusuf Jasarevic testified that while this provision “assumes that war crimes were committed against our own structures by the aggressor [he believed] however, that this can also apply […] to cases where members of our units have committed a crime.”²⁷⁶ The SVB also had duties with regard to criminal proceedings.²⁷⁷
Chiefs and members of the SVB were “directly subordinated to the commanding officer of the command, staff, unit or institution in which they [served].”²⁷⁸ However, a specific feature of the SVB was its “dual command”, which existed as a result of its counter-intelligence function.²⁷⁹ The SVB organ would often obtain information that had to be verified by, for instance, documents and other sources in order that it would eventually achieve sufficient quality to be used by the relevant command. This, therefore, required superior levels within the SVB chain to provide “professional guidance” to, and have an influence on, the subordinate level of the SVB.²⁸⁰ However, as Jusuf Jasarevic testified: “one has to bear in mind […] that everything started and finished with the commander of the unit at which the security as a service was developed”.²⁸¹
(d) Rules and Training On the Law Regulating the Conduct of War
Selmo Cikotic, the Commander of the Operations Group (“OG”) West, testified that the introduction of rules concerning the application of the Geneva Conventions and the shaping of the ABiH into a regular and accountable army took place while Sefer Halilovic was the Supreme Commander of the ABiH.²⁸² Vahid Karavelic, the Commander of the 1st Corps, testified that during 1992 many documents, both with and without force of law, were issued explicitly demanding “absolute, 100 per cent adherence to the international Geneva Conventions”.²⁸³ The Instructions relating to the implementation of the international laws of war in the ABiH, from 1992 and which were available at the ABiH units,²⁸⁴ defined war crimes:
namely, genocide, inhumane acts committed against any civilian population, wounded, sick persons, medical staff; ill-treatment of war prisoners, injuring or killing of persons from the enemy side who have surrendered; summary executions, wanton destruction of public and private property, pollution of wells, violation of ceasefire and disregard of the international insignia for the protection of buildings against military operations.²⁸⁵
The “Decree relating to implementation of international laws of war within the army of Bosnia-Herzegovina”, dated 23 August 1992, provides that:
Both Commanders of armed forces and soldiers are bound to implement the rules of the International Laws of War; the commander is entitled to take legal action against the persons who violate the Provisions of the International Law of War.²⁸⁶
International law regulating the conduct of war was taught at the military academies of the former Yugoslavia.²⁸⁷ According to Salko Gusic, Commander of the 6th Corps, this training was given not only to commanders but to “all officers and army members”.²⁸⁸ Salko Gusic also testified that “(e(very army member had the duty of being familiar with the basics”.²⁸⁹ Primary responsibility for informing the soldiers of their obligations lay with the platoon, company and battalion commanders.²⁹⁰ In addition, before an operation “the person leading the troops would speak to the troops about how the task was to be carried out. One of the issues to be discussed was how POWs and civilians and war booty should be treated, how men or people should be evacuated, as well as wounded.”²⁹¹ However, Enes Sakrak, a member of the 9th Motorised Brigade (“9th Brigade), testified that he did not receive any training in the ABiH either on the treatment of civilians and prisoners of war, or generally on the applicability of the Geneva Conventions in warfare.²⁹² Nevertheless, Enes Sakrak stated that he knew that the killing of civilians was illegal.²⁹³
(e) Structure of Relevant ABiH Corps and Independent Units
As noted earlier, the 18 July decision provides that “the Republic of Bosnia and Herzegovina Army consists of the Main Staff and eight Corps”.²⁹⁴ The evidence shows, however, that when the 6th Corps was established by Rasim Delic on 9 June 1993, the day after he was appointed Commander of the Main Staff, only six corps were operational within the ABiH.²⁹⁵

(i) 1st Corps
The 1st Corps was established on 1 September 1992²⁹⁶ and was then commanded by Mustafa Hajrulahovic (nicknamed “Talijan”) with Vahid Karavelic as deputy commander.²⁹⁷ The 1st Corps was headquartered in Sarajevo.²⁹⁸ Vahid Karavelic succeeded Mustafa Hajrulahovic around mid-July 1993.²⁹⁹ The 1st Corps Chief of SVB was Sacir Arnautovic. In 1993, the 1st Corps consisted of approximately 75,000 soldiers.³⁰⁰ On 9 June 1993, the Commander of the Main Staff Rasim Delic amended the 1st Corps zone of responsibility to cover areas mainly in and around Sarajevo.³⁰¹ Subordinated to the 1st Corps were a number of units, including the 9th Motorised Brigade (“9th Brigade”), the 10th Mountain Brigade (“10th Brigade”) and the 2nd Independent Battalion.³⁰²

a. 9th Brigade
The 9th Brigade was created by merging the 3rd Mountain Brigade, which was under the command of Ramiz Delalic, nicknamed “Celo”, and the 7th Mountain Brigade.³⁰³ Vahid Karavelic testified that the Presidency of Bosnia and Herzegovina decided to merge the brigades for two reasons ; first, there were complaints that the 3rd Mountain Brigade did not carry out orders consistently and merging the brigades would therefore make it easier for the 1st Corps commander to exercise command and control,³⁰⁴ and secondly, in order to remove Ramiz Delalic from the post of brigade commander, which is why he was made Deputy Commander of the new 9th Brigade.³⁰⁵ Vahid Karavelic was doubtful, however, how effective this removal of Ramiz Delalic was and testified that the soldiers who came from the previous 3rd Mountain Brigade probably respected Ramiz Delalic more than the new commander Sulejman Imsirovic, a former JNA colonel.³⁰⁶ Zlatan Okic, an agent with the Ministry of the Interior (“MUP”) State Security Service (“SDB ”), testified to this as well, saying that although Ramiz Delalic “was not the commander any longer […] he was still in charge”.³⁰⁷
The new 9th Brigade consisted of around 5,000 soldiers³⁰⁸ and was headquartered in central Sarajevo.³⁰⁹ The brigade Chief of SVB was Tomislav (or Tomo) Juric.³¹⁰ The 9th Brigade had four combat battalions,³¹¹ one logistics battalion,³¹² a military police company,³¹³ an artillery company and an engineering company.³¹⁴ There was also an assault company,³¹⁵ which was a specially trained unit³¹⁶ numbering 50 or 60 men.³¹⁷ In addition, each combat battalion had a sabotage platoon of 30 soldiers.³¹⁸ The 9th Brigade’s main operative tasks was the defence of a part of Sarajevo.³¹⁹ The brigade was one of the stronger brigades of the 1st Corps in terms of composition, manpower and equipment.³²⁰ Unlike the situation in many other ABiH brigades where only 25 to 30 percent of the soldiers were armed, in the 9th Brigade approximately 65 to 70 percent of the soldiers were armed.³²¹ The 9th Brigade was not a mono-ethnic Bosnian Muslim brigade but also contained soldiers of other ethnicities.³²² There is evidence indicating that the 9th Brigade played a fundamental part in the defence of Sarajevo and that it was respected by the citizens of Sarajevo. One company of the 9th Brigade performed well in the battle on Mount Igman.³²³

b. 10th Brigade
The 10th Brigade was a slightly smaller unit than the 9th Brigade³²⁴ and was commanded by Musan Topalovic, nicknamed “Caco”.³²⁵ Just like the 9th Brigade, the 10th Brigade participated in the defence of the city of Sarajevo. Its zone of responsibility covered the left bank of the Miljacka river and parts of the city center and the Old Town³²⁶, and bordered the frontline against Bosnian Serb positions on Mount Trebevic.³²⁷ The 10th Brigade had three battalions and one 100-man strong assault company.³²⁸

c. Discipline and Behaviour of the 9th Brigade and the 10th Brigade Pre-September 1993

i. Generally
As will be seen below, the evidence as to the reputation of the 9th Brigade and the 10th Brigade varies significantly. Vahid Karavelic, the 1st Corps commander and thus the brigades’ superior commanding officer, testified that “not a single member of these units was ever described as a criminal in any way.”³²⁹ Jusuf Jasarevic, the Chief of the Main Staff UB, gave a more nuanced opinion and testified that:
most of the members of these brigades were honest people. A very small number of people were involved in breaches of discipline, and at that time we were dealing with the problem of this lack of discipline, which escalated gradually and contained elements of serious crimes.³³⁰
Jusuf Jasarevic further testified that the information he received “mostly pertained to violations of military discipline by individuals or certain parts of these brigades and sometimes their commanders”.³³¹ However, Jusuf Jasarevic also testified that “even outside the 1st Corps there were units where there was talk of indiscipline or insubordination”.³³² Namik Dzankovic, an officer in the Main Staff UB, testified that the 9th and the 10th Brigades as a whole did not have a bad reputation, but rather it was “only parts of those units that had a bad reputation.”³³³ According to Dzevad Tirak, the 6th Corps chief of staff, not all members of these units caused incidents or mistreated the general population. He testified that instead it was the two brigade commanders and people around them who caused trouble.³³⁴ Nevertheless, in his opinion these two brigades had the worst reputation in terms of discipline and frequent incidents.³³⁵ Witness E, a soldier in the 1st Corps, also testified that the two brigades did not enjoy a good reputation in Sarajevo.³³⁶ Zlatan Okic’s testimony supports Dzevad Tirak’s testimony that it was the commanders and soldiers close to them that caused most incident. Zlatan Okic testified that :
both in the 9th and the 10th Brigades there were 95 per cent of patriots and perhaps only 5 per cent of people who were high-ranking people, but they had a pretty bad reputation. Those commanders surrounded themselves by groups of – well, I don’t know whether I should call them common criminals or semi-criminals, but they were there.³³⁷
Vehbija Karic, a senior officer in the Main Staff, stated that a number of soldiers within the two brigades had a criminal background and acted unpredictably and were undisciplined.³³⁸ Comparing the situation in the two brigades, Jusuf Jasarevic believed that the situation was more “drastic ” in the 10th Brigade regarding which he received information that people were being physically abused.³³⁹
Further with regard to the 9th Brigade, Kemo Kapur, Commander of the brigade’s military police company, testified that the 9th Brigade as a whole enjoyed a good reputation and that it was “absolutely incorrect” to call the unit a criminal brigade.³⁴⁰ He insisted that its reputation was no worse than that of other brigades in Sarajevo at the time³⁴¹ and furthermore that prior to September 1993 he was not aware of any serious criminal offences having been committed by any members of the brigade.³⁴² Kemo Kapur did, however, admit that there probably were some brigade members who were criminal, but that they were very few.³⁴³ The main part of the brigade, however, was admired by many of Sarajevo’s inhabitants.³⁴⁴

ii. Taking Civilians to Dig Trenches
Evidence has been presented that persons of all ethnicities, who were not engaged in the defence of Sarajevo, were taken to dig trenches by members of the 9th and the 10th Brigades.³⁴⁵ According to Namik Dzankovic, this was the main reason for the bad reputation of the 9th and the 10th Brigades.³⁴⁶ It appears that the two brigades acted, at least on occasion, without respect for the official system under which civilians could be enlisted to assist temporarily the military with various non-combat activities.³⁴⁷
According to Kemo Kapur, soldiers from the 9th Brigade’s assault company would often surround the Markale market place in the Old Town of Sarajevo, introduce themselves as members of the military police company and check the identity cards of civilians. They would release those with military identity cards but would take the rest by truck to the front line to dig trenches. Citizens would usually spend one day digging trenches and before being released.³⁴⁸ Zlatan Okic testified to having been himself taken to dig trenches for 24 hours by either “Caco’s Brigade” or the 9th Brigade.³⁴⁹ On one occasion members of the 9th Brigade seized a vehicle from a civilian and returned it only after the civilian went to work digging trenches.³⁵⁰ There is also evidence that another civilian, Esad Cesko, was taken to dig trenches in early July 1993 after having refused to give the requested amount of money to members of the 9th Brigade.³⁵¹
Jusuf Jasarevic testified that 10th Brigade members would frequently pick people up on the street and forcibly take them to dig trenches in the clothes and footwear they happened to be wearing at the time. After several days of digging they would be released and brought back to the city.³⁵² The 1st Corps Commander Vahid Karavelic testified that on one occasion, when the 10th Brigade was taking civilians to dig trenches, the son of Rasim Delic was also taken away. Vahid Karavelic, and even President Alija Izetbegovic, had to become involved to have him released.³⁵³ Witness F puts this incident in July 1993, “the period when things became critical […] when they began to arrest people from the army”.³⁵⁴
According to Erdin Arnautovic, a member of the 9th Brigade, civilians digging trenches in the area of responsibility of the 9th Brigade were mostly volunteers.³⁵⁵ This was however denied by Namik Dzankovic, an officer in the Main Staff UB.³⁵⁶ A report produced by the SDB dated 6 July 1993³⁵⁷ and an official note from the Main Staff UB dated 1 July 1993³⁵⁸ mention incidents of civilians being taken forcibly to dig trenches.
According to Jusuf Jasarevic, “the members of the 9th Brigade were a little bit more lenient in this matter than the members of the 10th Brigade”.³⁵⁹ Kemo Kapur testified that members of the 10th Brigade were taking civilians to dig trenches more frequently than members of the assault company of the 9th Brigade.³⁶⁰ According to Erdin Arnautovic, civilians digging trenches in the area of responsibility of the 9th Brigade were given the best conditions with a line of soldiers in front protecting them.³⁶¹ Kemo Kapur testified that when people were taken to dig trenches by the 9th Brigade, they were completely protected and given meals and cigarettes: nobody was ever injured during the digging of the trenches.³⁶² Dzevad Tirak testified that the area of the front line where civilians were brought to dig trenches was relatively safe; however he pointed out that trench digging was risky because of sudden, haphazard fire by the enemy.³⁶³
Ramiz Delalic, Deputy Commander of the 9th Brigade, testified that, while in some other brigades there was a practice to force civilians to dig trenches, in the 9th Brigade that was seldom the case except in certain circumstances.³⁶⁴ He testified that there would be verbal orders to take people, who were not on good terms with persons in the Main Staff or in the Corps, to dig trenches.³⁶⁵ Ramiz Delalic further testified that both Vahid Karavelic and Sefer Halilovic,³⁶⁶ including Sefer Halilovic’s chef de cabinet Sadika Omerbegovic,³⁶⁷ on several occasions gave orders to take certain persons to dig trenches, including the previously mentioned Esad Cesko.³⁶⁸ Ramiz Delalic maintained these allegations even when faced with a statement by Sadika Omerbegovic that she “had never had any contacts in relation to this matter with Mr. Ramiz Delalic, nor could I have given any kind of lists for the taking of people to dig trenches.”³⁶⁹ The Trial Chamber has found that the testimony of Ramiz Delalic needs corroboration.³⁷⁰ As there is no corroborating evidence, the Trial Chamber cannot rely on Ramiz Delalic’s testimony in this respect.

iii. Thefts and General Misappropriation of Property
According to Vehbija Karic, a senior officer of the Main Staff, the criminal behaviour of the 9th and the 10th Brigades was indicated by the misappropriation of property in Sarajevo shops and supermarkets.³⁷¹ Witness F testified that he received information “that ‘members of the 9th Brigade’ in a way terrorised certain citizens by extorting money from them, seizing motor vehicles, property, and so on”.³⁷² Witness F specified that it was members of the 9th Brigade’s assault company who committed criminal acts.³⁷³ Vahid Karavelic testified that at the time he received information about incidents of racketeering involving some of Ramiz Delalic’s soldiers;³⁷⁴ he also received information that from time to time vehicles were seized by members of the 9th Brigade.³⁷⁵ Kemo Kapur testified that a minority of members of the 9th Brigade took it upon themselves to collect money from civilians whom they considered to be war profiteers to pay for weapons and assistance to injured soldiers.³⁷⁶ Civilians who donated money “would receive a receipt or a diploma as a form of gratitude for their donations to the Army of Bosnia and Herzegovina.”³⁷⁷ Kemo Kapur received information in the summer of 1993 that soldiers from the 9th Brigade assault company were introducing themselves as military policemen of the 9th Brigade and extorting money from citizens in Sarajevo.³⁷⁸ As a result of the money which was collected by some of those individuals and the weapons which could be purchased with it, the 9th Brigade became one of the most well armed units in Sarajevo.³⁷⁹ Ramiz Delalic testified that the 9th Brigade collected money through voluntary donations of businessmen of Sarajevo, like owners of cafés or restaurants.³⁸⁰ However, Kemo Kapur stated that the businessmen in the 9th Brigade area who refused to give donations to the brigade were taken into custody by the assault company and threatened into handing over money.³⁸¹ A document dated 7 October 1993 from the 1st Corps SVB mentions several incidents involving members of the 9th Brigade concerning the confiscation of goods from private owners or taking money from owners of catering establishments and shops for “protection ”.³⁸² A document from the Public Security Station (“SJB”³⁸³) in Sarajevo contains several allegations against Ramiz Delalic; it alleges, inter alia, that Ramiz Delalic and a group of 9th Brigade members “carried out illegal requisition of civilians’ property while searching apartments and business premises, estranging the inventory and property of many state-owned and private premises in the territory of the Stari Grad municipality”.³⁸⁴ The document also alleges that Ramiz Delalic forced businessmen in Sarajevo to give money “for the purchase of guns and ammunition from Konjic and Jablanica” and that one individual who refused to pay was taken to dig trenches on 2 September 1993.³⁸⁵
Kemo Kapur testified that when this method of acquiring money was discovered it was considered to be unacceptable and an informal three-man commission, which included him, was therefore established to handle voluntary donations.³⁸⁶ Kemo Kapur testified that the voluntary donations were not given to the commission members but directly to the assistant commander for logistics in the 9th Brigade command.³⁸⁷
Vahid Karavelic received information that Ramiz Delalic and Musan Topalovic were involved in smuggling activities; however, it was not possible to further investigate this matter or initiate proceedings against them before the Trebevic Operation.³⁸⁸
Jusuf Jasarevic, who was from mid-July 1993 the Chief of the Main Staff UB, was personally involved in solving an incident where members of the 9th Brigade had stolen a vehicle from UNPROFOR. The vehicle was returned after Jusuf Jasarevic spoke to the 9th Brigade Chief of the SVB Tomislav Juric and its Deputy Commander Ramiz Delalic.³⁸⁹

iv. General Undisciplined Behaviour
A report dated 2 June sent from the Sarajevo Public Security Centre (“CSB”³⁹⁰) to, among others, the Chief of the Main Staff, the Chief of the Main Staff UB and the 1st Corps commander, reports that Ramiz Delalic insulted the civilian police, who had brought him to the SJB for driving a motor vehicle “without personal identification or vehicle identification papers.” The report also provides that Ramiz Delalic threatened to blow up the SJB.³⁹¹
A report dated 28 June sent from the Sarajevo CSB to the Chief of the Main Staff UB reports that on 26 June eight members of the 9th Brigade threatened a civilian police officer because the civilian police had used force and detained a 9th Brigade member for questioning regarding theft of a bicycle.³⁹²
During the night of 2 to 3 July 1993, members of both the 9th Brigade and the 10th Brigade blocked several buildings in Sarajevo.³⁹³ The blockade was a reaction to the arrest of the 10th Brigade Deputy Commander Senad Pecar³⁹⁴ on charges of criminal activities by him and persons associated with him.³⁹⁵ Ramiz Delalic testified that Senad Pecar was arrested on the order of the Chief of the Main Staff UB, Fikret Muslimovic.³⁹⁶ As a result, Ramiz Delalic together with members of the 9th Brigade Assault Company ³⁹⁷ blocked the ABiH “operations centre” or “command and control centre” in central Sarajevo.³⁹⁸ The 10th Brigade blocked the building where Main Staff Commander Rasim Delic’s office was located,³⁹⁹ the SJB in the Old Town of Sarajevo,⁴⁰⁰ and a part of the Main Staff which was housed in the building of the Faculty of Sciences.⁴⁰¹ While the blockade of the buildings was lifted within a day⁴⁰² the 9th and the 10th Brigades held the soldiers in custody for up to several days at their respective headquarters, during which time the soldiers were stripped of their uniforms and humiliated.⁴⁰³ There were no fatalities or wounded in this incident.⁴⁰⁴ Witness F’s recollection is that “somebody from the command intervened with Mr. Halilovic and asked him to contact Ramiz Delalic and do something about it, and afterwards the blockade was lifted.”⁴⁰⁵ Bakir Alispahic, however, testified that there was a meeting in an “army hall” in Sarajevo to which he and Rasim Delic went and where they met Ramiz Delalic, Musan Topalovic and the Commander of the Delta Brigade. Bakir Alispahic does not remember that Sefer Halilovic “was involved in any way (or that he( was present at the meeting.”⁴⁰⁶ According to Kemo Kapur and Witness F, Ramiz Delalic and Musan Topalovic reached an agreement with President Alija Izetbegovic, who accepted their demands to replace Fikret Muslimovic.⁴⁰⁷
A document of the Main Staff UB provides that on the night of 4 July 1993:
around 22:00 hours Ramiz Delalic […] turned up at the 9th […] Brigade Police Base, accompanied by his assault company – intervention platoon, and said in front of his close aides: I have been to Sefer’s, he said “LASTE” would attack us tonight. After that, Ramiz Delalic […] told the combatants to take positions around the Kindergarten Centre in Svetozara Markovica Street and be ready to respond to the “LASTE” attack.⁴⁰⁸
Vehbija Karic, a senior member of the ABiH Main Staff, testified that “[a] series of people who were within the 9th and 10th Brigades were drug addicts before the war too, so they continued using drugs because drugs did get into Sarajevo […] Their behaviour wa