Table of contents:
M.2.1. The perpetrator was a military commander; OR
M.P.1. Evidence of a formal military position
M.P.1.1. Evidence of official appointment in the military
M.P.1.2. Evidence of formal grant of authority in the military
M.P.2. Evidence of a chain of command
M.P.2.1. Evidence of different hierarchical levels in the military
M.P.3. Evidence of police officers in command of armed police units
M.P.4. Evidence of persons responsible for paramilitary units not incorporated into the armed forces
Element:
M.2.1. The perpetrator was a military commander; OR
M.P.1. Evidence of a formal military position
Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 1-10:
"1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“Appeals Chamber” and “ICTY” or “Tribunal”, respectively) is seised of appeals from the judgement rendered by Trial Chamber II of the Tribunal (“Trial Chamber”) on 10 June 2010 in the case of Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovcanin, Radivoje Miletić, Milan Gvero, and Vinko Pandurević, Case No. IT-05-88-T (“Trial Judgement”).1"
1. The Trial Judgement was issued confidentially with a public redacted version issued on the same day.
"2. The events giving rise to this case took place in July 1995, in and around Srebrenica and Zepa in the Podrinje region, in the eastern part of Bosnia and Herzegovina (“BiH”).2 The Trial Chamber found that these events followed an intense military assault by the Bosnian Serb Forces (“BSF”) on the United Nations-protected areas of Srebrenica and Zepa in July 1995.3 Bosnian Muslims fled Srebrenica to the nearby town of Potočari, where the women, children, and the elderly were loaded onto packed buses and transported away from their homes in Eastern BiH.4 Thousands of males were detained in horrific conditions and subsequently summarily executed.5 In Zepa, a series of military attacks also led to the removal of the entire Bosnian Muslim population by transport or flight.6"
2. Trial Judgement, paras 1, 86.
3. Trial Judgement, para. 1. The Appeals Chamber notes that the term BSF includes VRS forces, MUP forces, and paramilitary forces associated with the VRS and/or MUP.
4. Trial Judgement, para. 1.
5. Trial Judgement, para. 1.
6. Trial Judgement, para. 1.
"3. The Trial Chamber found that there was a joint criminal enterprise (“JCE”) to murder the able-bodied Bosnian Muslim men from Srebrenica in July 1995 (“JCE to Murder”).7 The Trial Chamber determined that Vujadin Popović, Ljubiša Beara, and Drago Nikolić were participants in the JCE to Murder (“Popović”, “Beara”, and “Nikolić”, respectively).8 The Trial Chamber further found that there was a JCE to forcibly remove the Bosnian Muslim populations from Srebrenica and Žepa (“JCE to Forcibly Remove”),9 and that Radivoje Miletić (“Miletić”) participated in the JCE to Forcibly Remove.10"
7. Trial Judgement, para. 1072. See also Trial Judgement, paras 1047-1071.
8. Trial Judgement, paras 1168, 1302, 1392.
9. Trial Judgement, para. 1087. See also Trial Judgement, paras 1084-1086.
10. Trial Judgement, para. 1718.
"4. According to the Indictment, Popović was born on 14 March 1957 in Popovići, Šekovići Municipality, BiH.11 In 1995, Popović was Chief of Security of the Army of the Republika Srpska (“VRS”) Drina Corps, holding the rank of Lieutenant Colonel.12 Beara was born on 14 July 1939 in Sarajevo, BiH.13 In 1995, Beara was the Chief of the VRS Main Staff’s Administration for Security, holding the rank of Colonel.14 The Trial Chamber found Popović and Beara guilty of genocide, conspiracy to commit genocide, murder as a violation of the laws or customs of war and as a crime against humanity, extermination as a crime against humanity, and persecution as a crime against humanity through murder and cruel and inhumane treatment; it acquitted them of inhumane acts (forcible transfer) as a crime against humanity. 15 However, on the basis of the principles relating to cumulative convictions, the Trial Chamber did not convict them of conspiracy to commit genocide and murder as a crime against humanity.16 Popović and Beara were sentenced to life imprisonment.17"
11. Indictment, para. 6. See also Pre-Trial Brief of the Defence of Vujadin Popovic [sic], 12 July 2006, para. 26(a).
12. Trial Judgement, paras 3, 1090.
13. Trial Judgement, para. 1200.
14. Trial Judgement, paras 3, 1202.
15. Trial Judgement, paras 2104-2105, Disposition, Popović and Beara sections.
16. Trial Judgement, Disposition, Popović and Beara sections.
17. Trial Judgement, Disposition, Popović and Beara sections.
"5. Nikolic was born on 9 November 1957 in Brana Bacic, Bratunac Municipality, BiH.18 In July 1995, Nikolic was the Chief of Security in the 1st Light Infantry Zvornik Brigade (“Zvornik Brigade”) of the VRS Drina Corps, and held the rank of Second Lieutenant.19 Nikolic was found guilty of murder as a violation of the laws or customs of war and as a crime against humanity, extermination as a crime against humanity, and persecution as a crime against humanity through murder and cruel and inhumane treatment.20 The Trial Chamber also found Nikolic guilty of aiding and abetting genocide.21 He was acquitted of inhumane acts (forcible transfer) as a crime against humanity and conspiracy to commit genocide.22 Based on the principles relating to cumulative convictions, the Trial Chamber did not convict him of murder as a crime against humanity.23 The Trial Chamber sentenced Nikolic to 35 years of imprisonment.24"
18. See Indictment, para. 7; Nikolić’s Final Brief, para. 346.
19. Trial Judgement, paras 3, 1337.
20. Trial Judgement, para. 2106, Disposition, Nikolić section.
21. Trial Judgement, para. 2106, Disposition, Nikolić section.
22. Trial Judgement, para. 2106, Disposition, Nikolić section.
23. Trial Judgement, Disposition, Nikolić section.
24. Trial Judgement, Disposition, Nikolić section.
"6. According to the Indictment, Miletić was born on 6 December 1947 in Štović, Foča Municipality, BiH.25 Miletic was the Chief of the VRS Main Staff’s Administration for Operations and Training during the relevant Indictment period.26 In June 1995, he was promoted to the rank of General.27 The Trial Chamber found Miletic guilty of murder as a crime against humanity, inhumane acts (forcible transfer) as a crime against humanity, and persecution as a crime against humanity through forcible transfer, cruel and inhumane treatment, terrorising civilians, and murder; it acquitted him of murder as a violation of the laws or customs of war.28 The Trial Chamber sentenced Miletic to 19 years of imprisonment.29"
25. Indictment, para. 2.
26. Trial Judgement, paras 4, 1622.
27 Trial Judgement, para. 1622. See also Trial Judgement, para. 4.
28. Trial Judgement, para. 2108, Disposition, Miletić section.
29. Trial Judgement, Disposition, Miletić section.
"7. Vinko Pandurevic (“Pandurevic”) was born on 25 June 1959 in Jasik, Sokolac Municipality, BiH.30 During the relevant Indictment period, Pandurević held the rank of Lieutenant Colonel and was the Commander of the Zvornik Brigade of the VRS Drina Corps.31 The Trial Chamber found him guilty of aiding and abetting the murder of ten wounded Bosnian Muslim prisoners from Milići Hospital (“Milici Prisoners”) as a violation of the laws or customs of war and as a crime against humanity.32 The Trial Chamber also found Pandurevic guilty of aiding and abetting inhumane acts (forcible transfer) as a crime against humanity and aiding and abetting persecution as a crime against humanity through aiding and abetting forcible transfer.33 The Trial Chamber further found him guilty under Article 7(3) of the Statute of murder as a violation of the laws or customs of war and as a crime against humanity.34 The Trial Chamber acquitted him of genocide, conspiracy to commit genocide, and extermination as a crime against humanity.35 Pandurevic was sentenced to 13 years of imprisonment.36"
30. Trial Judgement, para. 1839.
31. Trial Judgement, paras 3, 1839, 1841.
32. Trial Judgement, para. 2110, Disposition, Pandurević section.
33. Trial Judgement, para. 2110, Disposition, Pandurević section.
34. Trial Judgement, para. 2110, Disposition, Pandurević section.
35. Trial Judgement, para. 2110, Disposition, Pandurević section.
36. Trial Judgement, Disposition, Pandurević section.
"8. All Appellants were acquitted of the crime of deportation charged under Count 8 of the Indictment.37 Ljubomir Borovčanin (“Borovčanin”) did not appeal his trial convictions or sentence, and the Office of the Prosecutor (“Prosecution”) filed no grounds of appeal against him. Milan Gvero’s (“Gvero”) participation in the appellate proceedings was terminated upon his death.38"
37. Trial Judgement, paras 962, 1198, 1335, 1430, 1723, 2102, Disposition.
38. See infra, Annex I, Procedural History, paras 19-24.
"9. Popović’s appeal brief does not follow the order of the grounds of appeal set out in his notice of appeal but rather raises contentions under ten titles.39 Popović requests that the Appeals Chamber reverse the convictions entered by the Trial Chamber and acquit him on all counts.40 Alternatively, Popović requests that the Appeals Chamber quash all convictions and order a new trial, or reduce his sentence.41 The Prosecution submits that the Appeals Chamber should dismiss Popović’s appeal in its entirety.42"
39. “Introduction”, Popović’s Appeal Brief, paras 1-16; “Errors of law and/or facts related to genocide”, Popović’s Appeal Brief, paras 17-33; “Plan to murder”, Popović’s Appeal Brief, paras 34-168; “Expansion of the plan to ₣murderğ the captured men from the column”, Popovic’s Appeal Brief, paras 169-308; “Ročevići”, Popović’s Appeal Brief, paras 309-335; “Pilica”, Popović’s Appeal Brief, paras 336-351; “Wounded prisoners from the Standard Barracks”, Popović’s Appeal Brief, paras 352-386; “Bišina”, Popović’s Appeal Brief, paras 387-411; “Number of deceased”, Popović’s Appeal Brief, paras 412-481; “Sentencing”, Popović’s Appeal Brief, paras 482-484.
40. Popović’s Notice of Appeal, para. 442.1; Popović’s Appeal Brief, para. 485(A).
41. Popović’s Notice of Appeal, paras 442.2-442.3; Popović’s Appeal Brief, paras 485(B)-(C).
42. Prosecution’s Response Brief (Popović), paras 7, 319.
"10. Beara presents 40 grounds of appeal.43 He argues that the Trial Chamber committed: (1) procedural errors during the course of the trial proceedings;44 (2) errors in respect of his criminal responsibility;45 and (3) errors in sentencing.46 Beara requests that the Appeals Chamber grant him a new trial, dismiss the charges, or substantially reduce the sentence imposed on him.47 In response, the Prosecution submits that Beara’s appeal should be dismissed in its entirety.48"
43. Beara has withdrawn ground of appeal 20. See Beara’s Appeal Brief, p. 78.
44. Beara’s Notice of Appeal, pp. 2-10; Beara’s Appeal Brief, paras 3-58.
45. Beara’s Notice of Appeal, pp. 10-35; Beara’s Appeal Brief, paras 59-309.
46. Beara’s Notice of Appeal, pp. 35-42; Beara’s Appeal Brief, paras 310-347.
47. Beara’s Appeal Brief, para. 347.
48. Prosecution’s Response Brief (Beara), paras 6, 340.
M.P.1.1. Evidence of official appointment in the military
The Prosecutor v. Vlastimir Dordević, Case No. IT-05-87/1, Judgement (TC), 23 February 2011, para. 1898-99:
1898. The Accused was a member of the MUP Collegium and the Joint Command. He had the highest attainable rank, of Colonel-General, within the Ministry and was described (in the finding of the Chamber, accurately) by a witness as "the number two man" in the Ministry. Contrary to the Defence position, and the Accused’s evidence, Aleksandar Vasiljević testified that in mid-May of 1999, Slobodan Milošević referred to ?or?ević, Stojiljković and Stevanović as the persons bearing the highest responsibility for the use of the MUP forces in Kosovo. On 9 July 1999, Milošević issued a Decree awarding the Accused, Stevanović and Lukić with the "Order of the Yugoslav Flag, First Class" for, inter alia, "exceptional results achieved in commanding police units" with respect to the combat of terrorism in Kosovo. The Chamber has no doubt, on the basis of his position and the extent of his involvement in the events in Kosovo, that Vlastimir ?or?ević exercised effective control, both de jure and de facto, over the MUP forces under the RJB in Kosovo throughout 1998 and 1999.
1899. [T]he Accused’s effective control is further evidenced by his involvement in operations on the ground in 1998, his involvement in the arming of local Serbs and the disarming of Kosovo Albanians, his presence and activities in Kosovo at times in 1999, especially during the Indictment period, and finally, his involvement in the operations to conceal the bodies of Kosovo Albanians killed in Kosovo during the Indictment period, discussed separately and in more detail, in the sections below.
The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, paras. 1922, 1964:
"1922. Ndindiliyimana was appointed Chief of Staff of the Gendarmerie by presidential order in June 1992 and took up that position in September 1992.3621 He remained Chief of Staff until 5 June 1994, when he was relieved of his post and appointed ambassador to Germany.3622 Ndindiliyimana left Rwanda in mid-June.3623"
3621 T. 16 June 2008, p. 38.
3622 T. 18 June 2008, p. 68.
3623 T. 18 June 2008, pp. 71-72.
"1964. It is not disputed by the parties in this trial that Bizimungu was simultaneously appointed Chief of Staff of the Rwandan Army and promoted to the rank of Major General on 16 April 19943683 and that he took up his position as Chief of Staff on 19 April 1994.3684 Bizimungu occupied that position until mid-July 1994, when he fled to the former Zaire following the Rwandan government’s defeat by the RPF."
3683 T. 4 December 2007, p. 5.
3684 T. 13 December 2007, p. 4.
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1566:
"1566. By the ministerial order of 10 July 1995, Borov~anin was appointed the commander of a MUP force comprised of the SBP 2nd ?ekovi}i Detachment, the 1st PJP Company from Zvornik, and the Jahorina Recruits."
M.P.1.2. Evidence of formal grant of authority in the military
Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para.1481-1482, 1484:
1481. At the outset, Nizeyimana did not hold the highest military rank at the ESO Camp during the relevant period. Rather, Lieutenant Colonel Tharcisse Muvunyi was appointed Camp Commander on 7 April 1994, replacing Marcel Gatsinzi who had been promoted as the Rwandan army’s Chief of Staff. There is evidence that Muvunyi’s position as the ESO Camp Commander gave him broad de jure authority over the ESO Camp. Moreover, by assuming this post, there is also evidence that Muvunyi acceded to the position of the Butare and Gikongoro operational commander, imbuing him with broad de jure authority over regional military activities. It is undisputed that Muvunyi was Nizeyimana’s de jure superior."
1482. Notwithstanding, the record reflects that Nizeyimana held a leadership position within the ESO Camp from the early 1990s. By April 1994, Nizeyimana possessed the rank of captain. Contemporaneous documentation indicates that Muvunyi was the senior officer in the S2/S3 office prior to 7 April, although it further reflects that Nizeyimana was in this post as well. However, the Defence has conceded, and the evidence firmly reflects that by 7 April, Nizeyimana was the ESO Camp’s S2 officer – charged with military intelligence – as well as the S3 officer – responsible for training and operations. "
1484. However, contemporaneous documentation and evidence indicates that Nizeyimana, given his rank as an officer, had obligations to maintain discipline of lower ranking soldiers. It is undisputed that he was required to report criminal conduct of any subordinate officer. As discussed in greater detail below, credible Prosecution and Defence evidence reflects that Nizeyimana remained a formidable figure within the ESO’s hierarchy, notwithstanding any de jure limitations to his authority. "Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement (TC), 30 June 2006, paras. 696 -698:
"696. One essential element of superior-subordinate relationship is the existence of effective control. It can be based on a de jure, as well as on a de facto position of authority. The superiorsubordinate relationship may be direct as well as indirect. Hence, the nature and extent of any effective control that the Accused may have had over his subordinates responsible for wanton destruction needs to be examined against this background.1974 As regards the Accused’s de jure position as commander, the Trial Chamber recalls the aforementioned narration of events. His de jure position originates from his election as overall commander of the Srebrenica TO Staff upon its formation on 20 May 1992.
697. At the time of the attacks on Ratkovići and Gornji Ratkovići on 21 June 1992 and Brajevina on 27 June 1992, his position remained unchanged. However, on 27 June 1992, the same day Brajevina was attacked, his position as Commander of the Srebrenica TO Staff was confirmed by Sefer Halilović, the Chief of the Supreme Command Staff of ABiH. On 8 August 1992, when the first attack on Ježestica took place, his position was reconfirmed by no less than Alija Izetbegović, the BiH President. The only change in his de jure authority by 7 and 8 January 1993, when the second attack on Ježestica occurred, was his appointment as Commander of the Sub-Region which was proclaimed on 4 November 1992. 698. On a de jure basis, therefore, the Accused was considered as superior to all those Bosnian Muslim armed groups operating in the Srebrenica area during the time period relevant to Count 3 of the Indictment."
M.P.2. Evidence of a chain of command
M.P.2.1. Evidence of different hierarchical levels in the military
A. Legal source/authority and evidence:
The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, paras. 1923-1929:
"1923. The legislative decree of 23 January 1974 entitled "Creation of the Gendarmerie" set out the organisation and functions of the Gendarmerie.3624 Pursuant to that decree, the Chief of Staff was the head of the Gendarmerie, but the Gendarmerie was under the supervisory authority of the Ministry of Defence. The primary function of the Gendarmerie was to maintain public law and order and to enforce the laws in force in Rwanda.3625 However, Article 47 of the decree provided that, in times of war, the Gendarmerie "participates in the defence of the territory" as determined by the Minister of Defence.3626
1924. In times of war, the participation of the Gendarmerie in the defence of territory was triggered by an order of the Minister of Defence to the Chief of Staff of the Gendarmerie. This effectively transferred operational command over the selected gendarmerie units from the Chief of Staff of the Gendarmerie to the Chief of Staff of the Rwandan Army. Those gendarmerie units thus became operational units within the Rwandan Army, and took their orders from the Chief of Staff of the army. The Gendarmerie retained authority over the units deployed to assist the army with regard to administrative and disciplinary matters.3627 Those gendarmerie units that were not deployed to assist the army in combat remained under the full command of the Chief of Staff of the Gendarmerie and continued to fulfil the Gendarmerie’s primary function of maintaining public law and order and enforcing the laws in force in Rwanda.3628
1925. A number of Prosecution and Defence witnesses testified that following the RPF attacks of 7 April 1994, gendarmerie units were placed under the operational command of the Rwandan Army. Prosecution Witness General Roméo Dallaire testified that after 7 April, the country was "reverting to a war footing again … the command of the Gendarmerie was reverting to the command of the army".3629 Prosecution Expert Witness Alison Des Forges likewise testified that a number of gendarmerie units were integrated into the regular army command following the resumption of hostilities on 7 April.3630 Defence Witness Luc Marchal, who was commander of the UNAMIR Kigali secteur, confirmed that Ndindiliyimana no longer had operational command over the majority of gendarmerie units after 7 April.3631 Colonel Léonidas Rusatira, a senior Rwandan Army officer, Witness CBP46, a gendarmerie unit commander in Kigali, and Witness CBP63, who worked closely with Ndindiliyimana in the Gendarmerie in 1994, also confirmed that a number of gendarmerie units passed under the operational command of the army following the RPF attacks of 7 April.3632
1926. AA-2, who was an officer in the General Staff of the Gendarmerie and the liaison to UNAMIR, stated that Ndindiliyimana’s powers were "whittled down" after 7 April. According to AA-2, "all gendarmerie units in Kigali were turned into combat units and placed under army operations control." On the other hand, AA-2 stated that Ndindiliyimana maintained control and authority over the gendarmes who were not in combat zones.3633 AA- 5, the commanding officer of the Kigali Gendarmerie group, confirmed that most of the gendarmes in Kigali were sent to the war front, despite the fact that Kigali was the most "difficult" secteur in terms of maintaining law and order.3634 He further testified that after 7 April, from the operational standpoint his gendarmerie unit was under the General Staff of the Army and their "boss" was the commander of operations for Kigali town. However, from the administrative standpoint, they still took orders from the Gendarmerie.3635 Nzapfakumunsi added that the staff commander of the Gendarmerie retained disciplinary powers over the Kigali gendarmes after 7 April.3636
1927. AA-3, who was a gendarme in Butare, stated that on 21 April 1994, the Ministry of Defence ordered 100 gendarmes from Butare to report to Kigali to fight against the RPF, leaving only 50 gendarmes in Butare.3637 AA-9, who was also a gendarme in Butare, similarly testified that gendarmes from Butare were sent to Kigali to fight the RPF.3638 This was confirmed by Witnesses Nzapfakumunsi,3639 B13,3640 CBP673641 and Ndindiliyimana himself,3642 all of whom testified that two companies of the Gendarmerie from Kibuye and Butare were requested to reinforce the defence of Camp Kacyiru against the RPF onslaught.
1928. There is no doubt that as Chief of Staff of the Gendarmerie, Ndindiliyimana had de jure authority over the entire Gendarmerie. However, based on the evidence outlined above, the Chamber is satisfied that operational command over the majority of gendarmerie units was transferred to the Rwandan Army following the RPF attacks of 7 April 1994. As a result, the scope of Ndindiliyimana’s de jure authority over the majority of gendarmerie units was dramatically reduced. In particular, the Chamber finds that after 7 April, Ndindiliyimana no longer had operational command over the gendarmes who had been deployed to assist the army, although he retained de jure authority over those gendarmes with regard to administrative and disciplinary matters.
1929. Ndindiliyimana retained full de jure authority over the gendarmes who were not deployed to assist the army in combat. In this regard, Ndindiliyimana estimated that after 7 April, he retained full command over approximately 200 gendarmes (100 men in Kigali and 100 men in the rest of the country). The remainder of the gendarmes were engaged in battle under the operational command of the Rwandan Army.3643"
3624 Defence Exhibit 305.
3625 Defence Exhibit 305, article 3.
3626 Defence Exhibit 305, article 47. See also Indictment, para. 20; Prosecution Closing Brief, para. 60; Ndindiliyimana Closing Brief, paras. 116, 230; T. 23 June 2008, pp. 11-13; T. 25 January 2008, pp. 12, 42; 10 T June 2008, p. 28; T. 23 January 2008, pp. 30, 32 (ICS).
3627 T. 17 January 2008, pp. 53-54; T. 23 January 2008, p. 46 (ICS); T. 28 January 2008, p. 6; T. 18 February 2009, pp. 10, 48-50; T. 10 June 2008, p. 28; T. 23 June 2008, pp. 11-13; Ndindiliyimana Closing Brief, para. 255; Chamber’s Exhibit 12A, pp. 11-12. Chamber’s Exhibits 6 through 17 were admitted into evidence on 12 April 2011 pursuant to its Decision on the Admission of Written Statements Disclosed by the Prosecutor Pursuant to Rule 68(1) of the Rules of Procedure and Evidence (with Strictly Confidential Annex). The Chamber notes that the exculpatory statements were disclosed by the Prosecution pursuant to Rule 68 after the
trial had finished. In this regard, the Chamber recalls that a Trial Chamber may, where the Prosecution’s violation of its disclosure obligation is so extensive or occurs at such a late stage of the proceedings that it would violate the right of the accused to trial without undue delay, or where it would be impossible or impractical to recall Prosecution witnesses without effectively re-opening the case in its entirety, opt to draw reasonable inferences from the disclosed material at the stage of its definitive evaluation of the evidence. See Orić Decision on Ongoing Complaints, para. 35.
3628 T. 28 January 2008, p. 43; T. 23 June 2008, pp. 11-13; Ndindiliyimana Closing Brief, para. 123.
3629 T. 6 December 2006, p. 50.
3630 T. 11 October 2006, p. 56.
3631 T. 17 January 2008, pp. 53-54.
3632 Chamber’s Exhibit 16A, p. 15; T. 28 January 2008, pp. 25, 48; T. 23 January 2008, pp. 46-47 (ICS); T. 24
January 2008, pp. 43-44 (ICS).
3633 Chamber’s Exhibit 12A, p. 11; Chamber’s Exhibit 7A, p. 8.
3634 Chamber’s Exhibit 10A, pp. 12-13.
3635 T. 18 February 2009, pp. 10, 48.
3636 T. 18 February 2009, pp. 49-50.
3637 Chamber’s Exhibit 8A, p. 3.
3638 Chamber’s Exhibit 17A, p. 6.
3639 T. 18 February 2009, p. 16.
3640 T. 7 July 2008, p. 48 (ICS).
3641 T. 6 February 2008, p. 41.
3642 T. 18 June 2008, pp. 23-25.
3643 T. 23 June 2008, pp. 11-13; Ndindiliyimana Closing Brief, para. 103.
Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, paras. 418-419:
(ii) Elements for a determination of superior authority
"418. A starting point will be the official position held by the accused. Actual authority however will not be determined by looking at formal positions only. Whether de jure or de facto, military or civilian, the existence of a position of authority will have to be based upon an assessment of the reality of the authority of the accused.
419. A formal position of authority may be determined by reference to official appointment or formal grant of authority. Military positions will usually be strictly defined and the existence of a clear chain of command, based on a strict hierarchy, easier to demonstrate. Generally, a chain of command will comprise different hierarchical levels starting with the definition of policies at the highest level and going down the chain of command for implementation in the battlefield. At the top of the chain , political leaders may define the policy objectives. These objectives will then be translated into specific military plans by the strategic command in conjunction with senior government officials. At the next level the plan would be passed on to senior military officers in charge of operational zones. The last level in the chain of command would be that of the tactical commanders which exercise direct command over the troops."
[B. Evidentiary comment:]
M.P.3. Evidence of police officers in command of armed police units
M.P.4. Evidence of persons responsible for paramilitary units not incorporated into the armed forces
A. Legal source/authority and evidence:
Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), p. 517-518:
"A person "effectively acting as a military commander" is within a wider category than the category of military commanders and may include police officers in command of armed police units, persons responsible for paramilitary units not incorporated into the armed forces, and persons who have assumed de facto control over the armed forces, armed police units, or paramilitary units."
