1. Composed of Judge Gabrielle
Kirk McDonald (Presiding), Judge Ninian Stephen and Judge Lal Chand Vohrah.
175. In this connection mention can be made of the Stocké
case brought before the European Commission of Human Rights. A German national
fled from Germany to Switzerland and then to France to avoid arrest in Germany
for alleged tax offences. He was then tricked into re-entering Germany by a police
informant and was arrested. He then claimed before the European Commission of
Human Rights that he had been arrested in violation of Article 5(1) of the ECHR.
The Commission held that:
2. "Opinion and Judgment",
The Prosecutor v. Dusko Tadic, Case No.: IT-94-1-T, Trial Chamber II,
7 May 1997. (For a list of designations and abbreviations used in this Judgement,
see Annex A – Glossary of Terms).
3. "Sentencing Judgment",
The Prosecutor v. Dusko Tadic, Case No.: IT-94-1-T, Trial Chamber II,
14 July 1997.
4. "Judgement", The
Prosecutor v. Drazen Erdemovic, Case No.: IT-96-22-A, Appeals Chamber,
7 October 1997.
5. It should be observed that
Dusko Tadic in the present proceedings is appellant and cross-respondent. Conversely,
the Prosecutor is respondent and cross-appellant. In the interest of clarity
of presentation, however, the designations "Defence" or "Appellant"
and "Prosecution" or "Cross-Appellant" will be employed
throughout this Judgement.
6. "Amended Notice of Appeal",
Case No.: IT-94-1-A, 8 January 1999.
7. Transcript of hearing in The
Prosecutor v Dusko Tadic, Case No.: IT-94-1-A, 25 January 1999, p. 307
(T. 307 (25 January 1999). (All transcript page numbers referred to in the course
of this Judgement are from the unofficial, uncorrected version of the English
transcript. Minor differences may therefore exist between the pagination therein
and that of the final English transcript released to the public).
8. "Notice of Appeal",
Case No.: IT-94-1-A, 6 June 1997.
9. "Motion for the Extension
of the Time Limit", Case No.: IT-94-1-A, 6 October 1997.
10. T. 105 (22 January 1998).
11. "Decision on Appellant’s
Motion for the Extension of the Time-limit and Admission of Additional Evidence",
Case No.: IT-94-1-A, 15 October 1998.
12. "Appellants Brief on
Appeal Against Opinion and Judgement of 7 May 1997", Case No.: IT-94-1-A,
12 January 1998, with accompanying appendices separately filed; "Appellant’s
Brief on Appeal Against Sentencing Judgement" Case No.: IT-94-1-A, 12 January
1998.
13. "Cross-Appellant’s
Response to Appellant’s Brief on Appeal against Opinion and Judgement of
May 7, 1997, Filed on 12 January 1998", Case No.: IT-94-1-A, 17 November
1998; "Response to Appellant’s Brief on Appeal Against Sentencing
Judgement filed on 12 January 1998", Case No.: IT-94-1-A, 16 November 1998.
14. "Amended Brief of Argument
on behalf of the Appellant", Case No.: IT-94-1-A, 8 January 1999.
15. T. 308 (25 January 1999).
16. "Brief of Argument
of the Prosecution (Cross-Appellant)", Case No.: IT-94-1-A, 12 January
1998 and accompanying "Book of Authorities", Case No.: IT-94-1-A,
22 January 1998. (See also "Corrigendum to Prosecutor’s Brief of Argument
filed on 12 January 1998 and Book of Authorities filed on 22 January 1998"
Case No.: IT-94-1-A, 9 September 1998).
17. "The Respondent’s
Brief of Argument on the Brief of Argument of the Prosecution (Cross-Appellant)
of January 12, 1998", Case No.: IT-94-1-A, 24 July 1998.
18. "Prosecution (Cross-Appellant)
Brief in Reply", Case No.: IT-94-1-A, 1 December 1998.
19. "The Respondent’s
Brief of Argument on the Brief of Argument of the Prosecution (Cross-Appellant)
of January 19, 1999", Case No.: IT-94-1-A, 19 January 1999.
20. "Order Accepting Filing
of Substitute Brief", Case IT-94-1-A, 4 March 1999. (See also
"Opposition to the Appellant’s 19 January 1999 filing entitled ‘The
Respondent’s Brief of Argument on the Brief of Argument of the Prosecution
(Cross-Appellant) of 19 January, 1999 (sic)’", Case No.: IT-94-1-A,
21 January 1999; "Submission in relation to Appellant’s ‘Substitute
Brief’ filed on 19 January 1999", Case No.: IT-94-1-A, 24 February
1999).
21. "Skeleton Argument
– Appellant’s Appeal Against Conviction", Case No.: IT-94-1-A,
19 March 1999 ("Skeleton Argument – Appellant’s Appeal Against
Conviction"); "Skeleton Argument – Appeal Against Sentence",
Case No.: IT-94-1-A, 19 March 1999; "Skeleton Argument of the Prosecution",
Case No.: IT-94-1-A, 19 March 1999 ("Skeleton Argument of the Prosecution").
See also "Skeleton Argument – Prosecutor’s Cross-Appeal",
Case No.: IT-94-1-A, originally filed by the Defence on 19 March 1999 and subsequently
re-filed on 20 April 1999 ("Defence’s Skeleton Argument on the Cross-Appeal").
22. "Motion for the Extension
of the Time Limit", Case No.: IT-94-1-A, 6 October 1997.
23. Rule 115 provides:
26. "Decision on Appellant’s
Motion for the Extension of the Time-limit and Admission of Additional Evidence",
Case No.: IT-94-1-A, 15 October 1998.
27. "Appellant’s Second
Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115 of the Tribunal’s
Rules", Case No.: IT-94-1-A, 8 January 1999; "Motion (3) to Admit
Additional Evidence on Appeal Pursuant to Rule 115 of the Rules of Procedure
and Evidence", Case No.: IT-94-1, 19 April 1999.
28. T. 307-308 (25 January 1999);
T. 20 (19 April 1999).
29. See "Scheduling Order
Concerning Allegations against Prior Counsel", Case No.: IT-94-1-A, 10
February 1999. At the outset of the appellate process, Mr. Milan Vujin acted
as lead counsel for the Defence, with the assistance of Mr. R. J. Livingston.
By a decision of the Deputy Registrar on 19 November 1998, Mr. Milan Vujin
was withdrawn as counsel for the accused and replaced by Mr. William Clegg as
lead counsel (See "Decision of Deputy Registrar regarding the Assignment
of Counsel and the Withdrawal of Lead Counsel for the Accused", Case No.:
IT-94-1-A, 19 November 1998).
30. Appellant’s Amended
Notice of Appeal against Judgement, paras. 1.1–1.4; Appellant’s Amended
Brief on Judgement, paras. 1.1-1.12.
31. Appellant’s Amended
Notice of Appeal against Judgement, paras. 3.1–3.6; Appellant’s Amended
Brief on Judgement, paras. 3.1-3.11.
32. Amended Notice of Appeal,
paras. 2.1-2.4.
33. T. 307 (25 January 1999).
34. Notice of Cross-Appeal,
p. 2; Cross-Appellant’s Brief, paras. 2.1-2.88.
35. Notice of Cross-Appeal,
p. 2; Cross-Appellant’s Brief, paras. 3.1-3.33.
36. Notice of Cross-Appeal,
p. 3; Cross-Appellant’s Brief, paras. 4.1-4.23.
37. Notice of Cross-Appeal,
p. 3; Cross-Appellant’s Brief, paras. 5.1-5.28.
38. Notice of Cross-Appeal,
p. 3; Cross-Appellant’s Brief, paras. 6.1-6.32 with reference to "Decision
on Prosecution Motion for Production of Defence Witness Statements", Case
No.: IT-94-1-T, Trial Chamber II, 27 November 1996.
39. T. 306 (21 April 1999).
40. T. 303 (21 April 1999).
41. Appellant’s Brief on
Sentencing Judgement, pp. 4–6; T. 304 (21 April 1999).
42. Appellant’s Brief on
Sentencing Judgement, pp. 9-10; T. 305 (21 April 1999).
43. Sentencing Judgement, para.
76. See Appellant’s Brief on Sentencing Judgement, p. 10.
44. Ibid., p. 14.
45. Appellant’s Amended
Notice of Appeal against Judgement, p. 3.
46. Notice of Cross-Appeal,
p. 3.
47. Ibid., p. 4.
48. Ibid.
49. Ibid.
50. Ibid.
51. Appellant’s Amended
Brief on Judgement, paras. 1.1-1.3; T. pp. 35-40 (19 April 1999).
52. Appellant’s Amended
Brief on Judgement, para 1.11.
53. Appellant’s Amended
Notice of Appeal against Judgement, p. 6.
54. Dombo Beheer B.V. v.
The Netherlands, Eur. Court H. R., judgement of 27 October 1993, Series
A, no. 274; Neumeister v. Austria, Eur. Court H. R., judgement of 27
June 1968, Series A, no. 8; Delcourt v. Belgium, Eur. Court H. R.,
judgement of 17 January 1970, Series A, no. 11; Borgers v. Belgium,
Eur. Court H. R., judgement of 30 October 1991, Series A, no. 214; Albert
and Le Compte v. Belgium, Eur. Court H. R., judgement of 10 February 1983,
Series A, no. 58; Bendenoun v. France, Eur. Court H. R., judgement
of 24 February 1994, Series A, no. 284; Kaufman v. Belgium,
Application No. 10938/84, 50 Decisions and Reports of the European Commission
of Human Rights ("DR") 98; X and Y v. Austria, Application
No. 7909/74, 15 DR 160.
55. T. 30-31 (19 April 1999).
56. T. 31 (19 April 1999).
57. Appellant’s Amended
Brief on Judgement, paras. 1.4-1.6; T. 29-31, 40, 45-48 (19 April 1999).
58. T. 38-41 (19 April 1999).
59. T. 52-53 (19 April 1999).
60. T. 50-51 (19 April 1999).
61. T. 45-49(19 April 1999).
62. Prosecution’s Response
to Appellant’s Brief on Judgement, paras. 3.8–3.16, 3.30.
63. Prosecution’s Response
to Appellant’s Brief on Judgement, paras. 3.21-3.23; T. 88-89 (20 April
1999).
64. T. 90-91 (20 April 1999).
65. T. 97 (20 April 1999).
66. T. 90, 98-99 (20 April 1999).
67. Skeleton Argument of the
Prosecution, para.10; Prosecution’s Response to Appellant’s Brief
on Judgement, paras. 3.29, 6.9.
68. Skeleton Argument of the
Prosecution, para. 6.
69. T. 96 (20 April 1999).
70. T. 100 (20 April 1999).
71. Article 14(1) of the ICCPR
provides in part: "All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
[ …] ."
72. Article 6(1) of the ECHR
provides in part: "In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established
by law."
73. Article 8(1) of the American
Convention on Human Rights provides in part:
75. Morael v. France,
Communication No. 207/1986, 28 July 1989, U.N. Doc. CCPR/8/Add/1, 416.
76. Robinson v. Jamaica,
Communication No. 223/1987, 30 March 1989, U.N. Doc. CCPR/8/Add.1, 426.
77. Wolf v. Panama, Communication
No. 289/1988, 26 March 1992, U.N. Doc. CCPR/11/Add.1, 399.
78. T. 29-35 (19 April 1999).
79. Kaufman v. Belgium,
50 DR 98.
80. Ibid., p. 115.
81. Dombo Beheer B.V. v.
The Netherlands, Eur. Court H. R., judgement of 27 October 1993, Series
A, no. 274.
82. Ibid., para. 40.
83. Delcourt v. Belgium,
Eur. Court H. R., judgement of 17 January 1970, Series A, no. 11.
84. Ibid., para. 34.
85. In Kaufman v. Belgium,
50 DR 98, the Eur. Commission H. R. held that equality of arms did not give
the applicant a right to lodge a counter-memorial. In Neumeister v. Austria,
Eur. Court of H. R., judgement of 27 June 1968, Series A, no. 8, the Court decided
that the principle did not apply to the examination of the applicant’s
request for provisional release, despite the prosecutor having been heard ex
parte. In Bendenoun v. France, Eur. Court H. R., judgement of 24
February 1994, Series A, no. 284, the Court ruled that an applicant who did
not receive a complete file from the tax authorities was not entitled thereto
under the principle of equality of arms because he was aware of its contents
and gave no reason for the request. In Dombo Beheer B.V. v. The Netherlands,
Eur. Court H. R., judgement of 27 October 1993, Series A, no. 274, the Court
held that there was a breach of equality of arms where the single first hand
witness for the applicant company was barred from testifying whereas the defendant
bank’s witness was heard.
86. B. d. B et al. v. The
Netherlands, Communication No. 273/1989, 30 March 1989, U.N. Doc. A/44/40,
442.
87. Nqalula Mpandanjila et
al. v. Zaire, Communication No 138/1983, 26 March 1986, U.N. Doc. A/41/40,
121.
88. See "Judgement
on the Request of the Republic of Croatia for Review of the Decision of Trial
Chamber II of 18 July 1997", The Prosecutor v. Tihomir Blaskic,
Case No.: IT-95-14-AR108bis, Appeals Chamber, 29 October 1997, para.
26.
89. Ibid., para. 33.
90. T. 47 (19 April 1999); Judgement,
para. 32 ("Following a recess of three weeks after the close of the Prosecution
case to permit the Defence to make its final preparations, the Defence case
opened on 10 September 1996 [ …] .").
91. Judgement, paras. 29-35.
92. T. 59, 60 (20 April 1999).
93. Letter from President Cassese
to Mrs. B. Plavsic of 19 September 1996, referred to by Judge Shahabuddeen during
the hearing on 20 April 1999 (ibid.).
94. In its submissions, the
Defence refers to the victim identified by the Trial Chamber only as one "Osman",
by the name "Osman Didovic". The Appeals Chamber is not here
called upon to determine whether the name thus given by the Defence is accurate.
95. Prosecution’s Response
to Appellant’s Brief on Judgement, para. 2.14.
96. More fully, the International
Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and
Other Serious Violations of International Humanitarian Law Committed in the
Territory of Rwanda and Rwandan Citizens responsible for genocide and other
such violations committed in the territory of neighbouring States, between 1
January 1994 and 31 December 1994.
97. Geneva Convention Relative
to the Protection of Civilian Persons in Time of War of August 12, 1949 ("Geneva
Convention IV" or "Fourth Geneva Convention").
98. Military and Paramilitary
Activities in and Against Nicaragua (Nicaragua v. United States of America)
(Merits), Judgment, ICJ Reports (1986), p. 14 ("Nicaragua").
99. See Defence’s
Substituted Response to Cross-Appellant’s Brief, para. 2.6.
100. See Defence’s
Substituted Response to Cross-Appellant’s Brief, paras. 2.1 – 2.18;
T. 219-220 (21 April 1999).
101. See "Decision
on the Defence Motion for Interlocutory Appeal on Jurisdiction", The Prosecutor v. Dusko Tadic,
Case No.: IT-94-1-AR72, Appeals Chamber, 2 October 1995 ("Tadic Decision
on Jurisdiction"), paras. 79-84 (Tadic (1995) I ICTY JR 353).
102. See para. 2.25
of the Cross-Appellant’s Brief:
104. See Judgement,
paras. 569-608:
570. For evidence of this it is enough to refer
generally to the evidence presented as to the bombardment of Sarajevo, the
seat of government of the Republic of Bosnia and Herzegovina, in April 1992
by Serb forces, their attack on towns along Bosnia and Herzegovina’s
border with Serbia on the Drina River and their invasion of south-eastern
Herzegovina from Serbia and Montenegro [ …] ." (emphasis added).
106. See Judgement,
paras. 607-608.
107. In addition to the evidence
referred to in para. 570 of the Judgement, reference may also be made to the
facts cited by Judge Li in his Separate Opinion to the Tadic Decision
on Jurisdiction (paras. 17-19), for example BH’s Declaration that it was
at war with the FRY and the reports of various expert bodies suggesting that
the conflict was international. Moreover, in three Rule 61 Decisions involving
the conflict between the Serbs and the BH Government (Nikolic, Vukovar Hospital,
and Karadzic and Mladic), Trial Chambers have found the
conflict to have been an international armed conflict. (See "Review
of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence",
The Prosecutor v. Dragan Nikolic, Case No.: IT-94-2-R61, Trial Chamber
I, 20 October 1995, para 30 (Nikolic (1995) II ICTY JR 738); "Review
of Indictment Pursuant to Rule 61", The Prosecutor v. Mile Mrksic
et al., Case No.: IT-95-13-R61, Trial Chamber I, 3 April 1996, para.
25; "Review of the Indictments Pursuant to Rule 61 of the Rules Procedure
and Evidence", The Prosecutor v. Radovan Karadzic and Ratko Mladic,
Case No.: IT-95-18-R61, Trial Chamber I, 11 July 1996, para. 88)).
108. Cross-Appellant’s
Brief, para. 2.31.
109. Ibid., para. 2.30.
110. Ibid.
111. Ibid., paras. 2.21-2.23.
112. Geneva Convention Relative
to the Treatment of Prisoners of War of August 12, 1949 ("Geneva Convention
III" or "Third Geneva Convention").
113. These four conditions
are as follows:
(a) that of being commanded by a person responsible
for his subordinates;
(b) that of having a fixed distinctive sign recognisable
at a distance;
(c) that of carrying arms openly; and
(d) that of conducting their operations in accordance
with the laws and customs of war.
It might be contended that these conditions, which
undoubtedly had become part of customary international law, may now be considered
to have been replaced by the different conditions set out in Article 44(3) and
43(1) of Additional Protocol I (Protocol Additional to the Geneva Conventions
of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts (Additional Protocol I), 1977). This contention should of course
be premised on the assumption – for which proof is required - that these
two Articles have already been transformed into customary international rules.
Be that as it may, the requirement in Article
43(1) of "[being] under a command responsible to [ a] party [to the conflict]
for the conduct of its subordinates" has not replaced that of "belonging
to a Party to the conflict" provided for in Article 4(A)(2) of the Third
Geneva Convention. See generally the International Committee of
the Red Cross ("ICRC") Commentary on the Additional Protocols (Yves
Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1949, International Committee of
the Red Cross, Geneva 1987), pp. 506-517, paras. 1659-1681.
114. Jean Pictet (ed.), Commentary:
III Geneva Convention Relative to the Treatment of Prisoners of War, International
Committee of the Red Cross, Geneva, 1960, First reprint, Geneva, 1994, p. 57:
As is clear from the reasoning the Appeals Chamber sets out further on in the
text of this Judgement, even if this approach is adopted, the test of control
as delineated by this Chamber remains indispensable for determining when individuals
who, formally speaking, are not military officials of a State may nevertheless
be regarded as forming part of the armed forces of such a State.
118. Nicaragua, para.
115. As the Court put it, there must be "effective control of the military
or paramilitary operations in the course of which the alleged violations ?of
international human rights and humanitarian lawg were committed”.
119. Ibid., para. 115:
121. Cross-Appellant’s
Brief, paras. 2.14-2.17.
122. Cross-Appellant’s
Brief, paras. 2.16-2.17; Cross-Appellant’s Brief in Reply,
para. 2.19.
123. Cross-Appellant’s
Brief, para. 2.56.
124. According to the Prosecution
(Cross-Appellant’s Brief, para. 2.58), the Court applied the "agency"
test when considering whether the contras engaged the responsibility
of the United States. The Prosecution has pointed out that in this regard the
Court "did not refer to the need for effective control, but rather”
– to quote the words of the Court cited by the Prosecution – “whether
or not the relationship [...] was so much one of dependency on the one side
and control on the other that it would be right to equate the contras,
for legal purposes, with an organ of the United States Government, or as acting
on behalf of that Government" (Nicaragua, para. 109).
125. Cross-Appellant’s
Brief, paras. 2.57-2.58.
126. See Nicaragua,
pp. 187-190.
127. See Nicaragua,
para. 75.
128. See the Advisory
Opinion delivered by the ICJ on 29 April 1999 in Difference Relating to the
Immunity from Legal Process of a Special Rapporteur of the Commission on Human
Rights, para. 62.
129. Customary international
law on the matter is correctly restated in Article 5 of the Draft Articles on
State Responsibility adopted in its first reading by the United Nations International
Law Commission: "For the purposes of the present articles ?of Chapter II:
The ‘Act of the State’ under International Lawg, conduct of any State
organ having that status under the internal law of that State shall be considered
as an act of the State concerned under international law, provided that organ
was acting in that capacity in the case in question" (Report of the
International Law Commission on the work of its Forty-Eighth Session (6
May-26 July 1996), U.N. Doc. A/51/10, p. 126).
Article 5, as provisionally adopted by the ILC
Drafting Committee in 1998, is even clearer. It provides (International Law
Commission, Fiftieth Session, 1998, U.N. Doc. A/CN.4/L.569, p. 2):
2. For the purposes of paragraph 1, an organ
includes any person or body which has that status in accordance with the internal
law of the State." (emphasis added).
2. The conduct of an organ of an entity which
is not part of the formal structure of the State or of a territorial governmental
entity, but which is empowered by the internal law of that State to exercise
elements of the governmental authority, shall also be considered as an act
of the State under international law, provided that organ was acting in that
capacity in the case in question".
132. Ibid., para. 86.
133. Ibid., para. 109
(emphasis added).
134. Separate and Dissenting
Opinion of Judge McDonald, para. 25.
135. Cross-Appellant’s
Brief, para. 2.58.
136. See the Separate
Opinion of Judge Ago in Nicaragua, paras. 14-17. Judge Ago correctly
stated that it fell to the Court first to establish whether the individuals
at issue had the status of national officials or officials of national public
entities and then, where necessary, to consider whether, lacking this status,
they acted instead as de facto State officials, thereby engaging the
responsibility of the State. For the purpose of establishing the international
responsibility of a State, he therefore identified two broad classes of individuals:
those having the status of officials of the State or of its autonomous bodies,
and those lacking such a status. Clearly, for Judge Ago the issue of deciding
whether an individual had acted as a de facto State organ arose only
with respect to the latter category. Furthermore, Judge Ago characterised the
CIA and the so-called UCLAs in a manner different from the Court (see para.
15).
137. Judgement, paras. 584-588.
138. Article 8 of the Draft
provides:
a) it is established that such person or group
of persons was in fact acting on behalf of that State; or
The text of Article 8 as provisionally adopted
by the ILC Drafting Committee in 1998 provides:
141. The United States claimed
that Mexico was responsible for the killing of United States nationals at the
hands of a mob with the participation of Mexican soldiers. Mexico objected that,
even if it were assumed that the soldiers were guilty of such participation,
Mexico should not be held responsible for the wrongful acts of the soldiers,
on the grounds that they had been ordered by the highest official in the locality
to protect American citizens. Instead of carrying out these orders, however,
they had acted in violation of them, in consequence of which the Americans had
been killed. The Mexico/United States General Claims Commission dismissed the
Mexican objection and held Mexico responsible. It stated that if international
law were not to impute to a State wrongful acts committed by its officials outside
their competence or contrary to instructions, "it would follow that no
wrongful acts committed by an official could be considered as acts for which
his Government could be held liable". It then added that:
143. See Kenneth
P. Yeager v. Islamic Republic of Iran, 17 Iran-U.S. Claims Tribunal Reports,
1987, vol. IV, p. 92).
144. Ibid., para. 23.
145. Ibid., para. 37.
146. Ibid., paras 39,
45. The Claims Tribunal went on to note that:
148. Ibid., para. 61.
149. United States Diplomatic
and Consular Staff in Tehran, Judgment, ICJ Reports (1980), p. 13, para.
17.
150. The Claims Tribunal stated
the following:
"[ ...] Rather, the evidence suggests that
the new government, despite occasional complaints about a lack of discipline,
stood behind them [ the Komitehs] . The Tribunal is persuaded, therefore,
that the revolutionary ‘Komitehs’ or ‘Guards’ involved
in this Case, were acting ‘for’ Iran." (para. 44).
The Tribunal then concluded that:
In Daley, on the other hand, the Claims
Tribunal held Iran responsible for the expropriation of a car, for the five
Iranian "Revolutionary Guards" who had taken the car were "in
army-type uniforms" at the entrance of a hotel which had come "under
the control of Revolutionary Guards" a few days before. (Daley v. Islamic
Republic of Iran, Award No. 360-1-514-1, 18 Iran-U.S Claims
Tribunal Reports, 1988, 232 at paras. 19-20).
152. Loizidou v. Turkey
(Merits), Eur. Court of H. R., Judgement of 18 December 1996 (40/1993/435/514).
153. In its judgement, the
Court stated the following on the point at issue here:
155. The Court stated the following:
The armed conflict that took place on its territory
in the following period was not an internal clash (conflict), in which an
ethnic group was trying to break with the existing State of Bosnia-Herzegovina
and which [ as a consequence] had no international character. The expert witness
Fischer pointed out that, by using the term international humanitarian law
applicable to this conflict, the United Nations Security Council has used
the term usual in international terminology to refer to the law applicable
to international armed conflicts. This [ according to the expert witness]
showed that the Security-Council considered the conflict to be international.
The expert witness Fischer cited the following circumstances as indicia of
an international conflict according to the prevailing view in international
law: the participation of organs of a State in a conflict on the territory
of another State, e.g. the participation of officers in the clashes, or the
financing of and provision of technical equipment to one party to the conflict
by another State; the latter at least when it is combined with the aforementioned
interconnection [ Verflechtung] between personnel. According to this Chamber’s
findings, these criteria are met in the case at hand. The Chamber has found
that at the beginning of May officers of the JNA, which at that time was purely
Serb, began taking Doboj and the surrounding villages. There can, therefore,
be no doubt regarding the existence of an international armed conflict at
that point in time. However, this Chamber has further found that after 19
May 1992, when the JNA officially withdrew from Bosnia-Herzegovina, officers
of the JNA continued to be employed in Bosnia-Herzegovina and paid by Belgrade,
and that at the end of May maté riel, weapons and vehicles were still
being brought from Belgrade to Bosnia-Herzegovina. As a consequence, a close
personal, organisational and logistical interconnection [ Verflechtung] of
the Bosnian-Serb army, paramilitary groups and the JNA persisted. The headquarters
of the Bosnian-Serb army maintained a liaison office in Belgrade." (ibid., pp.
158-160 of the unpublished typescript; unofficial translation).
157. See e.g., the debates
in the U.N. Security Council in 1976, on the raids of South Africa into Zambia
to destroy bases of the SWAPO (see in particular the statements of Zambia
(SCOR, 1944th Meeting of 27 July 1976, paras. 10-45) and South Africa (ibid.,
paras. 47-69); see also SC resolution no. 393 (1976) of 30 July 1976));
see also the debates on the Israeli raids in Lebanon in June 1982 (in
particular the statements of Ireland (SCOR, 2374th Meeting of 5 June 1982, paras.
35-36) and of Israel (ibid., paras. 74-78 and SCOR, 2375th Meeting of
6 June 1982, paras. 22-67) and in July-August 1982 (see the statement
of Israel, SCOR, 2385th Meeting of 29 July 1982, paras. 144-169)); see also
the debates on the South African raid in Lesotho in December 1982 (see
in particular the statements of France (SCOR, 2407th Meeting of 15 December
1982, paras. 69-80), of Japan (ibid., paras. 98-107), of South Africa
(SCOR, 2409th Meeting of 16 December 1982, paras. 126-160) and of Lesotho (ibid.,
paras. 219-227)).
Although there does not seem to exist any international
practice in this area, it may happen that a State simply providing economic
and military assistance to a military group (hence not necessarily exercising
effective control over the group) directs a member of the group or the whole
group to perform a specific internationally wrongful act, e.g. an international
crime such as genocide. In this case one would face a situation similar to that
described above, in the text, of a State issuing specific instructions to an
individual.
158. See Nicaragua,
paras. 239-249, 292(3) and 292(4).
159. United States Diplomatic
and Consular Staff in Tehran, Judgment, ICJ Reports (1980), pp. 3 ff.
160. The Court stated the following:
162. The Court stated the following:
164. Ibid., para. 80.
165. Alfred W. Short v.
Islamic Republic of Iran, Award No. 312-11135-3, 16 Iran-U.S. Claims
Tribunal Reports 1987, p. 76).
166. After finding that the
acts of the revolutionaries could not be attributed to Iran, the Claims Tribunal
noted the following:
Mention can also be made of the Eichmann
case (Attorney-General of the Government of Israel v. Adolf Eichmann,
36 International Law Reports 1968, pp. 277-344): see for instance
Security Council resolution 4349 of 23 June 1960 and the debates in the Security
Council; see in particular the statements of Argentina (SCOR, 865th Meeting
of 22 June 1960, paras. 25-27), of Israel (SCOR of the 866th Meeting on 22 June
1960, para. 41), of Italy (SCOR of the 867th Meeting of 23 June 1960, paras.
32-34), of Ecuador (ibid., paras. 47-49), of Tunisia (ibid., para.
73) and of Ceylon (SCOR of the 868th Meeting of 23 June 1960, paras. 12-13).
In many of these cases, the need for specific
instructions by the State concerning the commission of the specific act with
which the individual had been charged, or the ex post facto public endorsement
of that act, can be inferred from the facts of the case.
168. These cases, although
they concern war crimes (the notion of "grave breaches" had not yet
come into existence at the time), are nevertheless relevant to our discussion.
Indeed, they provide useful indications concerning the conditions on which civilians
may be assimilated to State officials.
169. Trial of Joseph Kramer
and 44 Others, British Military Court, Luneberg, 17th September-17th
November, 1945, Law Reports of Trials of War Criminals, Selected and Prepared
by the United Nations War Crimes Commission, Published for the United Nations
War Crimes Commission by His Majesty’s Stationary Office, London 1947 ("UNWCC"),
vol. II, p. 1.
170. Ibid., p. 152 (emphasis
added) (the Austrian civilian, Schlomowicz, was not found guilty). See also
ibid., p. 109. Most of the accused civilians were found guilty and
sentenced to imprisonment. It is clear from this case that according to the
court, by acting as de facto members of the German apparatus running
the Belsen concentration camp, the Polish civilians could be assimilated to
German State officials.
171. Public Prosecutor v.
Menten, 75 International Law Reports 1987, pp. 331 ff.
172. The court stated the following:
174. See, e.g., the
Daley case, where the Iran U.S. Claims Tribunal attributed international
responsibility to Iran for acts of five Iranian "Revolutionary Guards"
in "army type uniforms" (18 Iran-U.S. Claims Tribunal Reports,
1988, p. 238, at para. 19).
176. See Separate and
Dissenting Opinion of Judge McDonald, para. 1: "I completely agree with
and share in the Opinion and Judgment with the exception of the determination
that Article 2 of the Statute is inapplicable to the charges against the accused."
177. Judgement, para. 601.
178. Ibid.
179. Ibid., paras. 601-602.
180. As Judge McDonald noted:
182. Judgement, para. 115:
183. Ibid., para. 118
("Despite the announced JNA withdrawal from Bosnia and Herzegovina in May
1992, active elements of what had been the JNA, now rechristened as the VJ [
…] remained in Bosnia and Herzegovina after the May withdrawal and worked
with the VRS throughout 1992 and 1993") and para. 569 ("[ …]
the forces of the VJ continued to be involved in the armed conflict after that
date").
184. See in particular ibid.,
para. 566:
185. Moreover, it is interesting
to observe that while concluding that by 19 May 1992 effective control over
the VRS had been lost by the JNA/VJ, the Trial Chamber simultaneously observed
that such control nevertheless did not appear to have been regained by the Bosnian
authorities. In particular, the Trial Chamber found that the "Government
of the Republic of Bosnia and Herzegovina [ …] faced [ …] major problems
[ …] of defence, involving control over the mobilization and operations
of the armed forces" (Judgement, para. 124, emphasis added).
186. In and of itself, the
logistical difficulties of disengaging from the conflict and withdrawing such
a large force would have been considerable. With regard to the extent and depth
of the involvement of the large number of JNA forces engaged in Bosnia and Herzegovina
and the ongoing nature of their activities beyond 19 May 1992, see ibid.,
paras. 124-125: "By early 1992 there were some 100,000 JNA troops in Bosnia
and Herzegovina with over 700 tanks, 1,000 armoured personnel carriers, much
heavy weaponry, 100 planes and 500 helicopters, all under the command of the
General Staff of the JNA in Belgrade. [ …] On 19 May 1992 the withdrawal
of JNA forces from Bosnia and Herzegovina was announced but the attacks were
continued by the VRS."
187. See in particular
ibid., para. 116 (citing the 1993 publication of the former Yugoslav
Federal Secretary for Defence, General Veljko Kadijevic, entitled My view
of the Break-up: an Army without a State (Prosecution Exhibit 30)):
189. Ibid., para. 598:
191. The Trial Chamber noted
that:
194. See in this regard
the testimony of the expert witness Dr. James Gow, transcript of hearing in
The Prosecutor v. Dusko Tadic, Case No.: IT-94-1-T, 10 May 1996, pp.
308-309; ibid., 13 May 1996, pp. 330-338.
195. Judgement, para.
605.
196. It was deemed insufficient by the Trial Chamber that the
VJ "‘made use of the potential for control inherent in that dependence’,
or was otherwise given effective control over those forces [ …] "
(ibid.; emphasis added).
197. The Trial Chamber noted
that:
199. As outlined below, this
process culminated in the agreement of the Republika Srpska to be represented
at the Dayton conference by the FRY (below, at paragraph 159). This appears
to have been in spite of intense opposition, within the Republika Srpska,
to the peace settlements proposed by the international community, as is evidenced
by the overwhelming rejection by the Bosnian Serbs of the international community’s
peace plan for Bosnia and Herzegovina in a referendum which took place in Bosnian
Serb-held territory on 27 – 28 August 1994 (See Report of the Secretary-General
on the Work of the Organization, UNGAOR, 49th sess., supp. no.
1 (A/49/1), 2 September 1994, p. 95).
200. This agreement stipulated
that the delegation of the Republika Srpska was to be "headed by
the President of the Republic of Serbia Mr. Slobodan Milosevic" (Article
2). Pursuant to this agreement, the leadership of the Republika Srpska
agreed "to adopt the binding decisions of the delegation, regarding the
Peace Plan, in plenary sessions, by simple majority. In the case of divided
votes, the vote of the President, Mr. Slobodan Milosevic, shall be
decisive" (Article 3). That Mr. Milosevic was head of the joint delegation
was confirmed by Mr. Milosevic himself in his letter of 21 November 1995 to
President Izetbegovic concerning Annex 9 to the Dayton-Paris Accord. (Agreement
on file with the International Tribunal’s Library).
201. This letter had been signed
by Mr. Milutinovic, Foreign Minister of the FRY, following a request of 20 November
1995 of the three members of the "Delegation of Republika Srpska"
to Mr. Milosevic.
202. See the texts of
the Dayton-Paris Accord (General Framework Agreement for Peace in Bosnia and
Herzegovina, initialled by the parties on 21 November 1995, U.N. Doc. A/50/790,
S/1995/999, 30 November 1995).
203. Article 4(2) of Geneva
Convention IV provides as follows:
205. See also Article
44 of Geneva Convention IV:
207. T. 169 (20 April 1999).
208. T. 170 (20 April 1999).
209. T. 176 (20 April 1999).
210. Cross-Appellant’s
Brief, para. 3.12.
211. Judgement, para. 373.
212. Skeleton Argument of the
Prosecution, para. 42.
213. Judgement, para. 373:
"The bare possibility that the deaths of the Jaskici villagers were the
result of encountering a part of that large force would be enough [ …]
to prevent satisfaction beyond reasonable doubt that the accused was involved
in those deaths."
214. Ibid., para. 373:
"The fact that there was no killing at Sivci could suggest that the killing
of villagers was not a planned part of this particular episode of ethnic cleansing
of the two villages, in which the accused took part [ …] ."
215. T. 172 (20 April 1999).
216. Cross-Appellant’s
Brief, para. 3.19.
217. Ibid., paras. 3.24,
3.27.
218. Cross-Appellant’s
Brief, paras. 3.27-3.29; T. 179-180 (20 April 1999).
219. Cross-Appellant’s
Brief, para. 3.29.
220. Defence’s Substituted
Response to Cross-Appellant’s Brief, paras. 3.8-3.10; Defence’s Skeleton
Argument on the Cross-Appeal, para. 2(c).
221. T. 251 (21 April 1999).
222. Defence’s Substituted
Response to Cross-Appellant’s Brief, para. 3.19; Defence’s Skeleton
Argument on the Cross-Appeal, para. 2(d).
223. Defence’s Substituted
Response to Cross-Appellant’s Brief, paras. 3.9-3.10; Defence’s Skeleton
Argument on the Cross-Appeal, para. 2(d).
224. Judgement, paras. 369,
373.
225. Ibid., paras. 370-373.
226. Ibid., para. 373.
227. Ibid.
228. An example is provided
by Article 27 para. 1 of the Italian Constitution ("La responsibilità
penale è personale." ("Criminal responsibility is personal.")
(unofficial translation)).
229. See for instance
Article 121-1 of the French Code pénal ("Nul n’est responsable
pénalement que de son propre fait"), para. 4 of the Austrian Strafgesetzbuch
("Strafbar ist nur, wer schuldhaft handelt" ("Only he
who is culpable may be punished") (unofficial translation)).
230. This rather basic proposition
is usually tacitly assumed rather than explicitly acknowledged. For an example
of where it was expressly stated, however, see, for Great Britain, R.
v. Dalloway (1847) 3 Cox CC 273. See also the various decisions of
the German Constitutional Court, e.g., BverfGE 6, 389 (439) and 50, 125 (133),
as well as decisions of the German Federal Court of Justice (e.g., BGHSt 2,
194 (200)).
231. Report of the Secretary-General
Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N.
Doc. S/25704, 3 May 1993 ("Report of the Secretary-General"), para.
53 (emphasis added).
232. Ibid., para 54
(emphasis added).
233. Trial of Otto Sandrock
and three others, British Military Court for the Trial of War Criminals,
held at the Court House, Almelo, Holland, on 24th-26th
November, 1945, UNWCC, vol. I, p. 35).
234. The accused were German
non-commissioned officers who had executed a British prisoner of war and a Dutch
civilian in the house of whom the British airman was hiding. On the occasion
of each execution one of the Germans had fired the lethal shot, another had
given the order and a third had remained by the car used to go to a wood on
the outskirts of the Dutch town of Almelo, to prevent people from coming near
while the shooting took place. The Prosecutor stated that "the analogy
which seemed to him most fitting in this case was that of a gangster crime,
every member of the gang being equally responsible with the man who fired the
actual shot" (ibid., p. 37). In his summing up the Judge Advocate
pointed out that:
235. Hoelzer et al.,
Canadian Military Court, Aurich, Germany, Record of Proceedings 25 March-6 April
1946, vol. I, pp. 341, 347, 349 (RCAF Binder 181.009 (D2474); copy on file with
the International Tribunal’s Library).
236. Trial of Gustav Alfred
Jepsen and others, Proceedings of a War Crimes Trial held at Luneberg, Germany
(13-23 August, 1946), judgement of 24 August 1946 (original transcripts in Public
Record Office, Kew, Richmond; on file with the International Tribunal’s
Library).
237. Ibid., p. 241.
238. Trial of Franz Schonfeld
and others, British Military Court, Essen, June 11th-26th, 1946, UNWCC,
vol. XI, p. 68 (summing up of the Judge Advocate).
239. Trial of Feurstein
and others, Proceedings of a War Crimes Trial held at Hamburg, Germany (4-24
August, 1948), judgement of 24 August 1948 (original transcripts in Public Record
Office, Kew, Richmond; on file with the International Tribunal’s Library).
240. The Prosecutor had stated
the following:
242. In this regard, the Judge
Advocate noted that: "[ o] f course, it is quite possible that it [ the
criminal offence] might have taken place in the absence of all these accused
here, but that does not mean the same thing as saying [ …] that [ the accused]
could not be a chain in the link of causation [ …]"
(ibid., pp. 7-8).
243. In particular, it was
held that in order to be "concerned in the commission of a criminal offence,"
it was necessary to prove:
244. The United States of
America v. Otto Ohlenforf et al., Trials of War Criminals before the Nuremberg
Military Tribunals under Control Council Law No. 10, United States Government
Printing Office, Washington, 1951, vol. IV, p. 3.
245. The tribunal went on to
say:
247. See for instance
the decision of 10 August 1948 of the German Supreme Court for the British Zone
in K. and A., in Entscheidungen des Obersten Gerichtshofes
für die Britische Zone in Strafsachen, vol. I, pp. 53-56; the decision of
22 February 1949 in J. and A., ibid., pp. 310-315;
the decision of the District Court (Landgericht) of Cologne of 22 and
23 January 1946 in Hessmer et al., in Justiz und NS-Verbrechen,
vol. I, pp. 13-23, at pp. 13, 20; the decision of 21 December 1946 of the District
Court (Landgericht) of Frankfurt am Main in M. et al. (ibid.,
pp. 135-165, 154) and the judgement of the Court of Appeal (Oberlandesgericht)
of 12 August 1947 in the same case (ibid., pp. 166-186, 180); as well
as the decision of the District Court of Braunschweig of 7 May 1947 in Affeldt,
ibid., p. 383-391, 389.
248. Trial of Martin Gottfried
Weiss and thirty-nine others, General Military Government Court of the United
States Zone, Dachau, Germany, 15th November-13th December,
1945, UNWCC, vol. XI, p. 5.
249. Trial of Josef Kramer
and 44 others, British Military Court, Luneberg, 17th September-17th
November, 1945, UNWCC, vol. II, p. 1.
250. See Dachau Concentration
Camp case, UNWCC, vol. XI, p. 14:
253. Ibid., p.121.
254. In a similar vein, the
Case against R. Mulka et al. ("Auschwitz concentration camp
case") can be mentioned. Although the court reached the same result, it
nevertheless did not apply the doctrine of common design but instead tended
to treat the defendants as aiders and abettors as long as they remained within
the framework provided by their orders and as principal offenders if they acted
outside this framework. This meant that if it could not be proved that the accused
actually identified himself with the aims of the Nazi regime, then the court
would treat him as an aider and abettor because he lacked the specific intent
to "want the offence as his own" (see in particular the Bundesgerichtshof
in Justiz und NS-Verbrechen, vol. XXI, pp. 838 ff., and especially
pp. 881 ff). The BGH stated, p. 882:
256. Ibid., p. 89.
257. See transcript
in Public Record Office, London, WO 235/58, p. 65 (emphasis added; copy on file
with the International Tribunal’s Library).
258. Ibid., p. 66 (emphasis
added).
259. UNWCC, vol. 1, p. 91.
In addition to Heyer and the escort (Koenen), three civilians were also convicted.
The first of the accused civilians, Boddenberg, admitted to have struck one
of the airmen on the bridge, after one of them had already been thrown over
the bridge, knowing "that the motives of the crowd against them [ the airmen]
were deadly, and yet he joined in" (Transcript in Public Record Office,
London, WO 235/58, p. 67; copy on file with International Tribunal’s Library);
the second, Kaufer, was found to have "beaten the airmen" and taken
"an active part" in the mob violence against them. Additionally, it
was alleged that he tried to pull the rifle away from a subordinate officer
to shoot the airmen below the bridge and that he called out words to the effect
that the airmen deserved to be shot (ibid., pp. 67-68). The third, Braschoss,
was seen hitting one of the airmen on the bridge, descending beneath the bridge
to throw the airman, who was still alive, into the stream. He and an accomplice
were further alleged to have thrown another of the airmen from the bridge (ibid.,
p. 68). Two of the accused civilians, Sambol and Hartung, were acquitted; the
former because the blows he was alleged to have inflicted were neither particularly
severe nor proximate to the airmen’s death (comprising one of the earliest
to be inflicted) and the latter because it was not proved beyond reasonable
doubt that he actually took part in the affray (ibid., pp. 66-67, UNWCC,
vol. I, p. 91).
260. The charge, in a strict
legal sense, was the commission of a war crime in violation of the laws and
usages of war for being "concerned in the killing" of the airmen rather
than murder as this was "not a trial under English law" (ibid.,
at p. 91). For all intents and purposes, however, the charge appeared to be
treated as a murder charge, as it appeared to have been accepted in the course
of the proceedings that "as long as everyone realised what was meant by
the word 'murder’ for the purposes of this trial, [ there …] was [no]
difficulty” (ibid., pp. 91-92).
261. See Charge Sheet,
in U.S. National Archives Microfilm Publications, I (on file with the International
Tribunal’s Library).
262. Ibid., p. 1186
(emphasis added). See also p. 1187.
263. Ibid., p. 1188.
See, further note 240 and accompanying text, with regard to the comments
made regarding causation in the Ponzano case.
264. Ibid., p. 1190
(emphasis added). See also pp. 1191-1194.
265. See e.g. ibid.,
pp. 1201, 1203-1206.
266. See ibid.,
pp. 1234, 1241, 1243.
267. See ibid.,
pp. 1268-1270.
268. The accused Akkerman,
Krolikovski, Schmitz, Wentzel, Seiler and Goebbel were all found guilty on both
the killing and assault charges and were sentenced to death, with the exception
of Krolikovski, who was sentenced to life imprisonment (ibid., pp. 1280-1286).
269. The accused Pointner,
Witzke, Geyer, Albrecht, Weber, Rommel, Mammenga and Heinemann were found guilty
only of assault and received terms of imprisonment ranging between 2 and 25
years (ibid.).
270. See handwritten
text of the (unpublished) judgement, p. 6 (unofficial translation; kindly provided
by the Italian Public Record Office, Rome; on file with the International Tribunal’s
Library). See also Giustizia penale, 1948, Part II, col. 66, no.
71 (containing a headnote on the judgement).
271. See handwritten
text of the (unpublished) judgement, pp. 6-7 (unofficial translation; emphasis
added).
272. See handwritten
text of the (unpublished) judgement, pp. 13-14 (kindly provided by the Italian
Public Record Office, Rome; on file with the International Tribunal’s Library).
For a headnote on this case see Archivio penale, 1949, p. 472.
273. Judgement of 12 September
1946, in Archivio penale, 1947, Part II, pp. 88-89.
274. Judgement of 25 July 1946,
in Archivio penale, 1947, Part II, p. 88.
275. See handwritten
text of the (unpublished) judgement of 5 July 1946, p. 19 (kindly provided by
the Italian Public Record Office, Rome; on file with the International Tribunal’s
Library). See also Giustizia penale, 1945-46, Part II, cols. 530-532.
For cases where the Court of Cassation concluded that the participant was guilty
of the more serious crime not envisaged in the common criminal design, see
Torrazzini, judgement of 18 August 1946, in Archivio penale 1947,
Part II, p. 89; Palmia, judgement of 20 September 1946, ibid.
276. See Giustizia penale,
1950, Part II, cols. 696-697 (emphasis added).
277. See e.g. Court of
Cassation, 15 March 1948, Peveri case, in Archivio penale, 1948,
pp. 431-432; Court of Cassation, 20 July 1949, Mannelli case, in Giustizia
penale, 1949, Part II, col. 906, no.599; Court of Cassation, 27 October
1949, P.M. v. Minafò, in Giustizia penale, 1950, Part II, col.
252, no. 202; 24 February 1950, Montagnino, ibid., col.821; 19
April 1950, Solesio et al., ibid., col. 822. By contrast, in a judgement
of 23 October 1946 the same Court of Cassation, in Minapò et al., held
that it was immaterial that the participant in a crime had or had not foreseen
the criminal conduct carried out by another member of the criminal group (Giustizia
penale, 1947, Part II, col. 483, no. 382).
278. In the Antonini
case (judgement of the Court of Cassation of 29 March 1949), the trial court
had found the accused guilty not only of illegally arresting some civilians
but also of their subsequent shooting by the Germans, as a "reprisal"
for an attack on German troops in Via Rasella, in Rome. According to the trial
court the accused, in arresting the civilians, had not intended to bring about
their killing, but knew that he thus brought into being a situation likely to
lead to their killing. The Court of Cassation reversed this finding, holding
that for the accused to be found guilty, it was necessary that he had not only
foreseen but also willed the killing (see text of the judgement in Giustizia
penale, 1949, Part II, cols. 740-742).
279. The Report of the Sixth
Committee (25 November 1997, A/52/653) and the Official Records of the General
Assembly session in which this Convention was adopted made scant reference to
Article 2 and did not elaborate upon the doctrine of common purpose (see
UNGAOR, 72nd plenary meeting, 52nd sess., Mon. 15 December 1997,
U.N. Doc. A/52/PV.72). The Japanese delegate during the 33rd meeting
of the Sixth Committee nevertheless noted that “some terms used [in the
Convention] such as [ …] ‘such contribution’ (Article 2, para.
3(c)) were ambiguous" (33rd Meeting of the Sixth Committee,
2 December 1997, UNGAOR A/C.6/52/SR.33, p. 8, para. 77). He concluded that his
Government would therefore "interpret 'such contribution’ [ …]
to mean abetment, assistance or other similar acts as defined by Japanese legislation"
(ibid). See also Report of the Ad Hoc Committee established
by General Assembly resolution 51/210 of 17 December 1996, UNGAOR, 52nd
sess., 37th supp., A/52/37.
280. Rome Statute of the International
Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998.
281. "Judgement",
Prosecutor v. Anto Furundzija, Case No.: IT-95-17/1-T, Trial Chamber
II, 10 December 1998, para. 227.
282. Even should it be argued
that the objective and subjective elements of the crime, laid down in Article
25 (3) of the Rome Statute differ to some extent from those required by the
case law cited above, the consequences of this departure may only be appreciable
in the long run, once the Court is established. This is due to the inapplicability
to Article 25(3) of Article 10 of the Statute, which provides that “[n]othing
in this Part shall be interpreted as limiting or prejudicing in any way existing
or developing rules of international law for purposes other than this Statute".
This provision does not embrace Article 25, as this Article appears in Part
2 of the Statute, whereas Article 25 is included in Part 3.
283. See Para. 25(2)
of the Strafgesetzbuch: "Begehen mehrere die Straftat gemeinschaftlich,
so wird jeder als Täter bestraft (Mittäter)". ("If several
persons commit a crime as co-perpetrators, each is liable to punishment as a
principal perpetrator." (unofficial translation)). The German case law
has clearly established the principle whereby if an offence is perpetrated that
had not been envisaged in the common criminal plan, only the author of this
offence is criminally responsible for it. See BGH GA 85, 270. According
to the German Federal Court (in BGH GA 85, 270):
285. See Article 121-7
of the Code pénal, which reads:
286. The principles of common
purpose are delineated, in substance, in the following provisions of the Codice
Penale:
"Article 116: Reato diverso da quello voluto
da taluno dei concorrenti.- Qualora il reato commesso sia diverso da quello
voluto da taluno dei concorrenti, anche questi ne risponde, se l’evento
e conseguenza della sua azione od omissione." ("Crimes other
than that intended by some of the participants.- Where the crime committed
is different from that intended by one of the participants, he too shall answer
for that crime if the event is a consequence of his act or omission."
(unofficial translation)).
287. See R. v. Hyde
[1991] 1 QB 134; R. v. Anderson; R. v. Morris [ 1966] 2 QB 110, in
which Lord Parker CJ held that "where two persons embark on a joint enterprise,
each is liable for the acts done in pursuance of that joint enterprise, than
that includes liability for unusual consequences if they arise from the execution
of the agreed joint enterprise". However, liability for such unusual consequences
is limited to those offences that the accused foresaw that the principal might
commit as a possible incident of the common unlawful enterprise, and further,
the accused, with such foresight, must have continued to participate in the
enterprise (see Hui Chi-Ming v. R. [ 1992] 3 All ER 897 at 910-911).
288. Criminal Code, Section
21(2) reads that where:
289. E.g., in Maine (17 Maine
Criminal Code § 57 (1997), Minnesota (Minnesota Statutes § 609.05 (1998)), Iowa
(Iowa Code § 703.2 (1997)), Kansas (Kansas Statutes § 21-3205 (19997)), Wisconsin
(Wisconsin Statutes § 939.05 (West 1995)). Although there is no clearly
defined doctrine of common purpose under the United States’ Federal common
law, similar principles are promulgated by the Pinkerton doctrine. This doctrine
imposes criminal liability for acts committed in furtherance of a common criminal
purpose, whether the acts are explicitly planned or not, provided that such
acts might have been reasonably contemplated as a probable consequence or likely
result of the common criminal purpose (see Pinkerton v. United States,
328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946); State v. Walton,
227 Conn. 32; 630 A.2d 990 (1993); State of Connecticut v. Diaz,
237 Conn. 518, 679 A. 2d 902 (1996)).
290. Under Australian law,
when two parties embark on a joint criminal enterprise, a party will be liable
for an act which he contemplates may be carried out by the other party in the
course of the enterprise, even if he has not explicitly or tacitly agreed to
the commission of that act (McAuliffe v. R. (1995) 183 CLR 108 at 114).
The test for determining whether a crime falls within the scope of the relevant
joint enterprise is the subjective test of contemplation: "in accordance
with the emphasis which the law now places upon the actual state of mind of
an accused person, the test has become a subjective one, and the scope of the
common purpose is to be determined by what was contemplated by the parties sharing
that purpose" (ibid.).
291. Article 22 of the Penal
Code states:
293. See Judgement,
paras. 127-179, which outlines the background to the conflict in the opstina
Prijedor.
294. Judgement, para. 660.
295. Ibid., para. 370.
296. Ibid.
297. Judgement, para. 633.
298. Ibid.
299. Ibid., para. 634.
300. Ibid., paras. 656-657.
301. Ibid. paras. 658-659.
302. Cross-Appellant’s
Brief, para. 4.9.
303. Skeleton Argument of the
Prosecution, para. 26.
304. Cross-Appellant’s
Brief, para. 4.11; T. 150 (20 April 1999).
305. Cross-Appellant’s
Brief, paras. 4.15 – 4.18.
306. Ibid. paras. 4.22;
T. 152 (20 April 1999).
307. Appellant’s Amended
Brief on Judgement, para. 4.9; T. 227 (20 April 1999).
308. Appellant’s Amended
Brief on Judgement, para. 4.12; T. 229 (20 April 1999).
309. Appellant’s Amended
Brief on Judgement, paras. 4.17 – 4.18.
310. Article 25(1) of the Statute
reads as follows: "The Appeals Chamber shall hear appeals from persons
convicted by the Trial Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or (b) an error
of fact which has occasioned a miscarriage of justice".
311. This requirement had already
been recognised by this Tribunal in the Vukovar Hospital Rule 61 Decision:
313. On the issue of whether
the Statute exceeds customary international law in requiring that there be an
armed conflict, see the Tadic Decision on Jurisdiction, para. 141.
314. Judgement, para. 634.
315. Ibid.
316. Cross-Appellant’s
Brief, para. 4.20.
317. Ibid., para. 4.23.
318. Decision of the Supreme
Court for the British Zone (Criminal Chamber) (9 November 1948), S. StS 78/48,
in Justiz und NS-Verbrechen vol. II, pp. 498-499. The Accused, Mrs. K.
and P., had denounced P’s Jewish wife to the Gestapo for
her anti-Nazi remarks. The defendants’ sole purpose was to rid themselves
of Mrs