M.3. The perpetrator had effective command and control, or effective authority and control over the forces that committed the crime.

A. Legal source/authority and evidence:

"367. Since the indicators of effective control are more a matter of evidence than of substantive law, it is not possible to identify an exhaustive list of such indicators in abstracto. As the Appeals Chamber underlined on several occasions, the issue will always turn on the particular facts of the case.940 In this light, the Trial Chamber has scrutinised the evidence, also on the basis of the arguments of the Parties, and ultimately based its conclusion on a number of different indicators which it considered suitable to determine whether effective control in this particular case existed.

 

 

 

940 Blaškic Appeal Judgement, para. 69; Aleksovski Appeal Judgement, paras 73-74; Čelebici Appeal Judgement, para. 206.

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, paras. 192, 193:

"192. Under Article 7(3), a commander or superior is thus the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.

193. The power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment. In many contemporary conflicts, there may be only de facto, self-proclaimed governments and therefore de facto armies and paramilitary groups subordinate thereto. Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment. A tribunal could find itself powerless to enforce humanitarian law against de facto superiors if it only accepted as proof of command authority a formal letter of authority, despite the fact that the superiors acted at the relevant time with all the powers that would attach to an officially appointed superior or commander."

M.3.1.1. Evidence of superior authority

A. Legal source/authority and evidence:

Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-A, Judgment (AC) 29 September 2014, paras. 201-202, 343-346, 348, 376:

"201. With regard to Nizeyimana’s contention that it was Muvunyi, and not him, who had the power to prevent the crimes or punish the culpable ESO soldiers, the Appeals Chamber notes that the Trial Chamber considered that Muvunyi was the Camp Commander⁶⁴⁸ and may have possessed the same effective control in relation to the killing of Gicanda and the others taken from her home.⁶⁴⁹ However, the Trial Chamber reasoned that, in the absence of credible evidence of Muvunyi’s involvement in Gicanda’s killing, this parallel authority did not reasonably eliminate Nizeyimana’s effective control over the perpetrators of the crime.⁶⁵⁰ The Trial Chamber also noted that more than one person may be held responsible for the same crime committed by a subordinate,⁶⁵¹ and that Nizeyimana was required to report the criminal conduct of any subordinate officer.⁶⁵² The Appeals Chamber finds no error in this approach. To the extent that more than one person is found to have effective control over the subordinates who have committed a crime, they may all incur criminal responsibility under Article 6(3) of the Statute for their failure to prevent the crimes of their subordinates or to punish them.⁶⁵³ Furthermore, contrary to Nizeyimana’ssubmission, the Trial Chamber did not accept the Defence evidence that the killing was not an ESO operation, and that Muvunyi knew of the crime and had stated that an investigation would be undertaken.⁶⁵⁴

648. Trial Judgement, para. 1481.

649. Trial Judgement, para. 1518.

650. Trial Judgement, para. 1518.

651. Trial Judgement, para. 1488, referring to Strugar Trial Judgement, para. 365.

652. Trial Judgement, para. 1484.

653. Cf. Bagosora and Nsengiyumva Appeal Judgement, paras. 491, 494, 495.

654. See Trial Judgement, paras. 515-517.

 

202. In concluding that Nizeyimana had effective control over Bizimana, the Trial Chamber considered the fact that Nizeyimana authorized the killing of Gicanda, and that Bizimana reported the crime to him afterwards.⁶⁵⁵ While a superior need not have ordered or authorized a crime to be convicted pursuant to Article 6(3) of the Statute,⁶⁵⁶ proof that an accused is able to issue orders and that his orders are actually followed, are indicators of effective control.⁶⁵⁷ The Trial Chamber further noted the close relationship between Nizeyimana and Bizimana, as well as his positive relationships with several lower ranking officers, which it found highly relevant to Nizeyimana’s ability to exercise effective control over ESO soldiers and cadets.⁶⁵⁸ In addition, the Trial Chamber considered Nizeyimana’s position within the ESO hierarchy and the authority he possessed.⁶⁵⁹ In light of all these factors pointing to Nizeyimana’s effective control over Bizimana, the Appeals Chamber finds that it was reasonable for the Trial Chamber to have found the effective control element satisfied here. Nizeyimana fails to demonstrate an error in the Trial Chamber’s finding.

655. Trial Judgement, paras. 1516, 1517.

656. Bagosora and Nsengiyumva Appeal Judgement, para. 581.

657. See Halilović Appeal Judgement, para. 207.

658. Trial Judgement, paras. 1487, 1500, 1516.

659. Trial Judgement, para. 1517. See also Trial Judgement, paras. 1482, 1486."

 

"343. The Appeals Chamber finds that the Trial Chamber reasonably relied on a plurality of factors to demonstrate Nizeyimana’s de jure authority and effective control, specifically: (i) his undisputed leadership position and rank of Captain and S2/S3 officer within the ESO camp;¹⁰⁶⁰ (ii) his duration of service at the ESO camp, including by comparison to Muvunyi’s limited tenure, and his authority to issue orders to ESO soldiers;¹⁰⁶¹ (iii) his positive relationships with lower ranking, yet influential officers, including Bizimana; (iv) the relative inexperience and youth of ESO cadets; as well as (v) the context surrounding each individual incident.¹⁰⁶²

1060. Trial Judgement, para. 1482.

1061. Trial Judgement, paras. 1486, 1487.

1062. Trial Judgement, paras. 1487, 1499-1502, 1516-1518, 1525-1528, 1560, 1561.

344. In considering these factors, the Trial Chamber specifically took into account Defence submissions regarding the limited responsibilities of an S2/S3 officer, that he had no direct authority over subordinates and retained limited ability to impose punishment,¹⁰⁶³ and thatNizeyimana was outranked at the relevant time by Muvunyi – the Camp Commander, and as such – Nizeyimana’s de jure superior.¹⁰⁶⁴ Nevertheless, the Trial Chamber concluded that the evidence indicated that Nizeyimana had obligations to maintain discipline of lower ranking soldiers and was required to report criminal conduct of subordinates, and that it was undisputed that he was a “formidable figure within the ESO’s hierarchy, notwithstanding any de jure limitations to his authority”,¹⁰⁶⁵ based on his rank, position, and tenure within the ESO command structure, and the manner in which he was perceived by ESO soldiers in general.¹⁰⁶⁶ Furthermore, the Trial Chamber determined that Nizeyimana did not have the material ability “at all times to prevent or punish all crimes committed by all subordinate military personnel at the ESO”,¹⁰⁶⁷ but that he exercised this power under certain circumstances “notwithstanding the possibility that Muvunyi did as well”,¹⁰⁶⁸ and that this would be determined on a case-by-case basis.¹⁰⁶⁹

1063. Trial Judgement, para. 1483.

1064. Trial Judgement, para. 1481. See also, e.g., Trial Judgement, paras. 1528, 1561.

1065. Trial Judgement, para. 1484. See also Trial Judgement, paras. 1486-1488.

1066. Trial Judgement, paras. 1486, 1487.
1067. Trial Judgement, para. 1488 (emphasis in original).

1068. Trial Judgement, para. 1488.

1069. Trial Judgement, para. 1489.

 

345. The Appeals Chamber finds this analysis, in conjunction with the subsequent case-by-case assessments, to be reasonable in establishing Nizeyimana’s effective control and material ability to prevent or punish crimes in each instance. The Appeals Chamber therefore dismisses Nizeyimana’s general contentions that he had no de jure authority or effective control, based on the Trial Chamber’s finding that he “might” have had the ability to prevent and punish the perpetrators of the crimes because of his authority to issue orders and his substantial influence.¹⁰⁷⁰ In this regard, the Trial Chamber’s finding that “the relative inexperience and youth of ESO cadets is another factor that, in some cases, might have given Nizeyimana the material ability to prevent and punish criminal conduct of subordinate ESO soldiers” does not indicate that the Trial Chamber applied the incorrect standard, as it considered that this was simply an additional factor which could have demonstrated his effective control in some cases.¹⁰⁷¹

1070. Trial Judgement, para. 1487.

1071. Trial Judgement, para. 1487.

346. Furthermore, to the extent that Nizeyimana seeks to show that it was not he, but rather Muvunyi, who had the authority and material ability to prevent crimes or punish perpetrators, the Appeals Chamber considers that proof of Muvunyi’s authority does not cast doubt on that of Nizeyimana, as such power is not necessarily exclusive.¹⁰⁷² In this regard, the Trial Chamber explicitly noted Muvunyi’s authority,¹⁰⁷³ and considered Nizeyimana’s arguments in relation to Muvunyi’s relationship with specific ESO soldiers, and his involvement in the relevant events.¹⁰⁷⁴ The Appeals Chamber has considered and dismissed Nizeyimana’s specific arguments in relation to Muvunyi’s role elsewhere in this Judgement.¹⁰⁷⁵ Therefore his submissions concerning Muvunyi’s parallel authority fail in all respects. 

1072. Cf. Bagosora and Nsengiyumva Appeal Judgement, paras. 491, 494, 495.

1073. Trial Judgement, paras. 1481, 1482.

1074. See, e.g., Trial Judgement, paras. 152, 156, 195, 515, 516, 1502, 1518, 1528, 1561, fn. 410.

1075. See supra Sections III.C, III.E."

"348. The Appeals Chamber finds that the Trial Chamber reasonably relied on the “relative inexperience of ESO soldiers” as an indication of Nizeyimana’s effective control over those ESO soldiers involved in the Rwekaza and Uwambaye killings, and the serious bodily harm suffered by Witness ZAV.¹⁰⁸⁰ While on its own this could not have supported a finding that he had the authority and effective control over these ESO soldiers, the Appeals Chamber observes that the Trial Judgement reflects that this was only one of a number of indicators taken into account by the TrialChamber.¹⁰⁸¹ The Appeals Chamber observes that the Trial Chamber based its findings on Nizeyimana’s ability to prevent or punish these crimes on its conclusions regarding his active participation in the events, namely that the soldiers acted on his orders.¹⁰⁸² The Trial Chamber further considered the contextual circumstances surrounding the events, namely: (i) that Rwekaza and Witness ZAV were returned to the roadblock by Nizeyimana after they had already been allowed to pass through; and (ii) the soldiers’ fear of the consequences if they failed to comply with Nizeyimana’s orders.¹⁰⁸³ It is clear from a reading of the Trial Judgement as a whole that the Trial Chamber’s analysis in the legal findings concerning Nizeyimana’s superior responsibility are to be viewed in conjunction with the separate analyses relating to each underlying crime.¹⁰⁸⁴ The Appeals Chamber therefore dismisses this submission.

1080. Trial Judgement, para. 1525.

1081. Trial Judgement, paras. 1525-1527.

1082. Trial Judgement, paras. 1525-1527. See also Trial Judgement, paras. 1519, 1524.

1083. Trial Judgement, paras. 1526, 1527.

1084. Trial Judgement, paras. 1481-1489, 1499-1502, 1516-1518, 1525-1528, 1560, 1561."

"376. In sum, the Prosecution has failed to show that the Trial Chamber erred in finding that the perpetrators of the killings at Butare Hospital – other than the killings of the elderly man and Venancie, which were committed by Niyibizi – were not sufficiently identified as ESO soldiers and, therefore, that Nizeyimana could not be held responsible for these crimes, as it was not proven that he possessed effective control over the perpetrators. Further, with regard to the killings committed by Niyibizi, the Prosecution has failed to demonstrate any error on the part of the TrialChamber in concluding that Nizeyimana was not proven to have the requisite knowledge of these crimes. The Appeals Chamber, therefore, affirms Nizeyimana’s acquittals for the killings at Butare Hospital and dismisses the Prosecution’s remaining arguments."

 

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 459:

"459. The existence of a superior-subordinate relationship is characterised by a formal or informal hierarchical relationship between the superior and subordinate.⁹⁸⁷ The hierarchical relationship may exist by virtue of a person’s de jure or de facto position of authority.⁹⁸⁸ The superior may be a member of the military or a civilian.⁹⁸⁹ The superior-subordinate relationship need not have been formalised or necessarily determined by "formal status alone".⁹⁹⁰ Both direct and indirect relationships of subordination within the hierarchy are possible⁹⁹¹ and the superior’s "effective control" over the persons committing the offences must be established.⁹⁹² Effective control means the "material ability to prevent or punish the commission of the offences".⁹⁹³ "Substantial influence" over subordinates that does not meet the threshold of "effective control " is not sufficient under customary law to serve as a means of exercising command responsibility.⁹⁹⁴ Where a superior has effective control and fails to exercise that power, he can be held responsible for the crimes committed by his subordinates.⁹⁹⁵ A superior vested with de jure authority who does not actually have effective control over his or her subordinates would not incur criminal responsibility pursuant to the doctrine of superior responsibility, whereas a de facto superior who lacks formal letters of appointment or commission but does, in reality, have effective control over the perpetrators of offences might incur criminal responsibility.^996"

 

"987 - Celebici Appeal Judgement, para. 303. See also ICRC Commentary on Additional Protocol I, para. 3544.
988 - Celebici Appeal Judgement, paras 193, 197, (formal letter of commission or appointment is not necessary). A de facto superior must "wield substantially similar powers of control over subordinates" as a de jure superior.
989 - Celebici Appeal Judgement, paras 195-96 and 240; Aleksovski Appeal Judgement, para. 76.
990 - Celebici Trial Judgement, para. 370.
991 - Celebici Appeal Judgement, para. 252.
992 - Celebici Appeal Judgement, para. 197.
993 - Celebici Trial Judgement, para. 378, affirmed in Celebici Appeal Judgement, para. 256.
994 - Celebici Appeal Judgement, para. 266.
995 - Celebici Appeal Judgement, para. 196-98. See also, Aleksovski Appeal Judgement, para. 76.
996 - Celebici Appeal Judgement, para. 197."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para.303:

"303. The Appeals Chamber understands the necessity to prove that the perpetrator was the "subordinate" of the accused, not to import a requirement of direct or formal subordination but to mean that the relevant accused is, by virtue of his or her position, senior in some sort of formal or informal hierarchy to the perpetrator. The ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of the superior-subordinate relationship, will almost invariably not be satisfied unless such a relationship of subordination exists. However, it is possible to imagine scenarios in which one of two persons of equal status or rank – such as two soldiers or two civilian prison guards – could in fact exercise "effective control" over the other at least in the sense of a purely practical ability to prevent the conduct of the other by, for example, force of personality or physical strength. The Appeals Chamber does not consider the doctrine of command responsibility – which developed with an emphasis on persons who, by virtue of the position which they occupy, have authority over others – as having been intended to impose criminal liability on persons for the acts of other persons of completely equal status. ⁴⁷⁷"

"477 - In any event, concepts of accessory criminal liability such as aiding and abetting will potentially apply to persons of moral or personal authority who, by failing to act in such scenarios, have the effect in the circumstances of encouraging the commission of offences. See Furundzija Trial Judgement at para 209; Aleksovski Judgement, para 62."

 

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 59-65:

"59. In view of the above, the Appeals Chamber finds that Miletic has failed to demonstrate that the Trial Chamber committed an error of law invalidating any decision of the Trial Chamber. Accordingly, the Appeals Chamber dismisses sub-ground 2.3 of Miletic’s appeal."

"60. Pandurevic submits that in convicting him for aiding and abetting by omission the murder of the Milici Prisoners on the basis of a failure to discharge a legal duty, the Trial Chamber committed an error of law invalidating his conviction.¹⁷⁹ Pandurević asserts that the Prosecution neither pleaded nor gave any indication during trial that he was charged with having aided and abetted the murder of the Milici Prisoners by omission through a failure to discharge a legal duty.¹⁸⁰"

179. Pandurević’s Appeal Brief, paras 2, 11, 13, 96. See Trial Judgement, para. 1991.

180. Pandurević’s Appeal Brief, paras 2, 16, 94, 99; Pandurević’s Reply Brief, paras 16, 22.

"61. Pandurević advances four main lines of argumentation in support of these submissions. First, he argues that the omission for which he was alleged to be responsible – the failure to prevent harm to prisoners to whom he owed a duty of protection – appeared in the Indictment to be relevant to the charges of JCE, conspiracy to commit genocide, and superior responsibility.¹⁸¹ Second, he contends that between 2006 and 2007, during which most of the Prosecution’s case was heard, the jurisprudence indicated that his alleged failure was relevant to other forms of liability rather than the one for which he was convicted.¹⁸² Third, Pandurevic argues that the contrast between the pleadings against himself and his co-accused, Borovcanin, demonstrates that the Prosecution knew how to unambiguously plead omission through a failure to discharge a legal duty under Article 7(1) of the Statute, but chose not to do so in his case.¹⁸³ Fourth, he submits that the Indictment is not as clear and specific as the culpable omission allegations in the Mrkšić et al. indictment – that Veselin [ljivancanin “permitted JNA soldiers under his command to deliver custody of this group of detainees to other Serb forces who physically committed the crimes charged”¹⁸⁴ – and that it nowhere alleges that Pandurevic “permitted” prisoners to be “delivered” into anyone’s custody.¹⁸⁵"

181. Pandurević’s Appeal Brief, paras 94, 99-104, 116, 118-121. See also Pandurević’s Appeal Brief, para. 113; Pandurevic’s Reply Brief, para. 22.

182. Pandurević’s Appeal Brief, paras 108, 116-117, 122-133; Pandurević’s Reply Brief, paras 23-27. Pandurević concedes that the Prosecution was not prevented from pleading aiding and abetting through a failure to discharge a legal duty, although he claims it was a novel form of aiding and abetting liability, so long as the pleading was sufficiently explicit to provide him with notice of the allegation against him. Pandurević’s Appeal Brief, para. 133. See also Pandurević’s Appeal Brief, paras 98, 114-115.

183. Pandurević’s Appeal Brief, paras 16, 94, 107-108, 114-115, 133; Pandurević’s Reply Brief, paras 17-22, 27. The same contrast is apparent, in Pandurević’s view, in the Prosecution’s Pre-Trial Brief and its Opening Statement. Pandurević’s Appeal Brief, para. 109.

184. Pandurević’s Appeal Brief, para. 110, citing Mrksic et al. Third Consolidated Amended Indictment, para. 11(g) (emphasis removed).

185. Pandurević’s Appeal Brief, paras 2, 16, 105-106, 110-111. See also Pandurevic’s Reply Brief, para. 20. Pandurević also argues that the Indictment does not allege liability based on custody. Pandurević’s Appeal Brief, para. 111.

"62. Pandurević concludes that the Prosecution’s failure to unambiguously plead the form of liability through which he was convicted is inherently prejudicial, and as such, he should not be required to show prejudice.¹⁸⁶ Nonetheless, he submits that the Trial Chamber’s error prejudiced him in that he was deprived of the opportunity to make legal submissions and to adduce evidence uniquely relevant to aiding and abetting by omission.¹⁸⁷"

186. Pandurević’s Appeal Brief, paras 95-96, 135-136. See also Pandurević’s Appeal Brief, para. 16; Pandurevic’s Reply Brief, para. 28. Pandurević also argues that the failure to plead the mode of liability for which he was convicted ought not to be curable. Pandurević’s Appeal Brief, para. 135.

187. Pandurević’s Appeal Brief, paras 16, 95, 137-138; Pandurević’s Reply Brief, para. 28. See also Pandurević’s Appeal Brief, paras 13, 17.

"63. The Prosecution responds that Pandurevic ignores relevant paragraphs of the Indictment, which, when read as a whole, sufficiently informed him that, in addition to JCE, he was being charged with aiding and abetting through acts and omissions, including breaching his duty by failing to protect the Milici Prisoners.¹⁸⁸ The Prosecution further argues that the jurisprudence on which Pandurevic relies does not support his position regarding the state of the law between 2006 and 2007.¹⁸⁹ The Prosecution also argues that the fact that the Indictment gave Borovcanin more detailed notice does not change the fact that Pandurevic had sufficient notice.¹⁹⁰ Finally, the Prosecution argues that the words “permitted” and “delivered” were not necessary for the Indictment to meaningfully inform Pandurevic of the allegations against him.¹⁹¹"

188. Prosecution’s Response Brief (Pandurević), paras 40-45, 47-52, 64. See also Prosecution’s Response Brief (Pandurević), paras 39, 46, 53-54.

189. Prosecution’s Response Brief (Pandurević), paras 40, 55-59.

190. Prosecution’s Response Brief (Pandurević), para. 54.

191. Prosecution’s Response Brief (Pandurević), para. 53.

"64. On the topic of prejudice, the Prosecution submits that Pandurevic raised the alleged defect in the Indictment for the first time on appeal and, as such, bears the burden of showing that his ability to prepare his defence was materially impaired.¹⁹² The Prosecution argues that Pandurevic provided little detail and few relevant arguments in this regard, prepared his case in accordance with the charge of aiding and abetting by omission, and therefore has failed to meet his burden.¹⁹³"

192. Prosecution’s Response Brief (Pandurević), para. 60.

193. Prosecution’s Response Brief (Pandurević), paras 40, 60-64.

"65. The Appeals Chamber recalls that the charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused.¹⁹⁴ An indictment which fails to set forth the specific material facts underpinning the charges against the accused is defective.¹⁹⁵ Whether a fact is “material” cannot be determined in the abstract and depends on the nature of the Prosecution’s case.¹⁹⁶ A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct of the accused.¹⁹⁷"

194. Karemera and Ngirumpatse Appeal Judgement, para. 594; Bizimungu Appeal Judgement, para. 46; Dorđević Appeal Judgement, para. 574; Šainović et al. Appeal Judgement, paras 213, 225, 262.

195. Karemera and Ngirumpatse Appeal Judgement, para. 371; Bizimungu Appeal Judgement, para. 46; Dorđević Appeal Judgement, para. 576; Bagosora and Nsengiyumva Appeal Judgement, para. 96.

196. Dorđević Appeal Judgement, paras 331, 575; Stakić Appeal Judgement, para. 117; Krnojelac Appeal Judgement, para. 132.

 

197. Bagosora and Nsengiyumva Appeal Judgement, para. 132; Krnojelac Appeal Judgement, para. 132. See Bizimungu Appeal Judgement, para. 79; Dorđević Appeal Judgement, para. 575.

M.P.6. Evidence of a formal military position

M.P.6.1. Evidence of official appointment in the military

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.

M.P.6.2. Evidence of formal grant of authority in the military

M.P.7. Evidence of a chain of command

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, paras. 358-365:

"1034. Moreover, the evidence shows that the 7th Brigade carried out the orders of the Accused Hadžihasanović. Accordingly, on 19 January 1993, the Accused Hadžihasanović ordered that all the units of the 3rd Corps maximise their readiness for combat. Following this order, the Commander of killed the six Croats in Dusina. This does not contradict the testimony of the witness who did not say anything about the question as to which members of the ABiH had carried out Vehid Subotić’s order. Consequently, it is not ruled out that Ahmed Helvida was the person who carried out the order to execute. the 7th Brigade, Asim Koričić, ordered all the units of the 7th Brigade to maximise their readiness for combat. That order was carried out by ?erif Patković, the Commander of the 7th Brigade 2^nd Battalion, who, in turn, ordered all the companies and components of the 2nd Battalion to maximise their readiness for combat. These exhibits prove that the orders of the Accused Hadžihasanović went down the chain of command.

Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement (TC), 30 June 2006, para. 529:

"529. Osman Osmanović, in his capacity as Chief of Staff of the Srebrenica Armed Forces, frequently chaired the meetings of that body and called the participants to order,1471 just as Ramiz Bećirović did after 5 February 1993.1472 It appears that Osman Osmanović was also entrusted with a certain amount of independence in taking relevant military decisions on behalf of the Commander.1473 The relationship between a chief of staff and a commander is such that the former reports to the latter, takes orders from him and implements them. In this way, a commander exercises effective control over the chief of staff. There is no evidence that would indicate that the situation was different in the case of Osman Osmanović and Ramiz Bećirović. The Trial Chamber thus finds that, during their respective tenure, they reported directly to the Accused,1474 and that the Accused exercised effective control over them."

1471 Ex. P84, "Memo Pad", meeting of Operations Staff, date unspecified, p. 2, meeting of Srebrenica Armed Forces Staff of 3 October 1992, p. 4, joint meeting of the War Presidency and the Srebrenica Armed Forces Staff of 14 October 1992, p. 7; Hakija Meholjić, T. 6970.

1472 Ex. P84, "Memo Pad", meeting of Srebrenica Armed Forces Staff of 13 January 1993, p. 51, meeting of Srebrenica Armed Forces Staff of 17 May 1993, p. 58, meeting of Srebrenica Armed Forces Staff of 8 July 1993, p. 61.

1473 Hakija Meholjić, T. 6811-6812, 6970.

1474 Nedret Mujkanović, T. 5013, 5053; Bećir Bogilović, T. 6308.

M.P.7.1. Evidence of different hierarchical levels in the military

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. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, para 2018:

"2018. The Official Journal of the Rwandan government, issued in November 1992, listed the various offices within the Ministry of Defence and their respective functions, and also contains an organisational chart depicting the hierarchy and chain of command. It follows from the chart that the Minister of Defence was the direct superior in the chain of command over the directeur de cabinet and the chiefs of staff of the army and gendarmerie. The directeur de cabinet was part of a separate chain of command within the Ministry and was not directly above the chiefs of staff in the hierarchy. A detailed analysis of the list of offices within the Ministry as well as the organisational chart reflects that the post of directeur de cabinet was the most senior one after that of the Minister in the Rwandan Ministry of Defence. The directeur de cabinet was in charge of coordinating and supervising the day to day work of the Ministry. He would replace the Minister in his absence. This occurred in April 1994 when Augustin Bizimana, the Minister of Defence, was on official mission in Cameroon."

M.P.8. Evidence of the capacity to sign orders

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, paras. 358-365:

"358. These general observations notwithstanding, the Chamber considers it necessary to analyse the circumstances in this instance to determine whether the Accused Kubura was de facto commander of the 7th Brigade between early April and 6 August 1993.

359. To this end, the Chamber examined the exhibits signed by the Accused Kubura after the departure of Asim Korićić. First, 14 exhibits signed "for Commander Asim Korićić" between 12 April and 6 August 1993 were examined. With the exception of one,656 all the exhibits signed "for Commander Asim Korićić’ were signed by the Accused Kubura.657

360. To reach this conclusion, the Chamber compared the signature of the Accused Kubura with the signatures on these 14 exhibits. The Accused Kubura’s signature was identified from documents whose authenticity was never contested and which were tendered into evidence by the Defence for the Accused Kubura. These include two documents signed by him as 7th Brigade Chief of Staff,658 one document he signed as Commander before his official appointment in August 1993,659 and three orders signed by him as 7th Brigade Commander after his official appointment in August 1993.660 These documents were tendered into evidence by witnesses for the Defence for the Accused Kubura.661

361. The Chamber notes that the 13 exhibits signed "for Commander Asim Korićić’ by the Accused Kubura deal with different matters. Some of them, such as a proposal for appointments within the 7th Brigade,662 seem to come within the remit of a chief of staff, while others are clearly matters for a brigade commander. The Accused Kubura signed three orders engaging the 7^th Brigade in combat "for Commander Asim Korićić".663

362. Aside from the exhibits signed "for Commander Asim Korićić", the Accused Kubura signed four exhibits as "Commander Amir Kubura" before his official appointment in August 1993. The first is Exhibit DK 41, a reconnaissance plan dated 5 June 1993, authorised by the Accused Kubura; the second is Exhibit P 472 dated 25 July 1993, an order dealing with security matters; the third is Exhibit P 503 dated 4 August 1993, an interim combat report; and the fourth Exhibit, P 502 dated 28 July 1993, deals with the organisation of the NASR Tactical Group ("TG"). This last exhibit is signed by the Accused Amir Kubura as both "Commander of the NASR TG" and "Commander of the 7th Muslim Mountain Brigade".

363. In addition, between 12 April and 6 August 1993, the Accused Kubura signed one exhibit as TG Commander664 and two exhibits as Chief of Staff. One of them, Exhibit DK 24, is a combat order.665

364. Finally, four exhibits were signed "for" the Accused Kubura during the absence of Asim Korićić, either as Chief of Staff or as TG Commander.666

365. Analysis of these exhibits shows that the Accused Kubura exercised the function of 7^th Brigade Commander during the absence of the commander de jure, Asim Korićić. This is established by the fact that he signed 13 of the 14 exhibits "for Commander Asim Korićić" and he signed "Commander Amir Kubura" well before his official appointment on 6 August 1993.

Furthermore, several exhibits signed either by or for Amir Kubura are combat orders: exhibits P 916 and P 917 regarding combat in the Zenica area in mid-April 1993, and Exhibits P 420 and P 577 regarding combat in the Ovnak area at the beginning of June 1993. Combat order DK 24 dated 11 June 1993 is another example."

Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement (TC), 30 June 2006, para. 700:

"700. The Accused maintained in his Interview that his position as commander was one in name only and of moral significance in that he inspired hope and courage among the fighters. However, in regard to the Potočari group, there can be no doubt that he was a commander of substance: he had the material ability to exercise effective control over his group. As regards other groups of fighters, as Commander of the Srebrenica Armed Forces Staff, he issued orders, including appointments of leaders of local groups, and charged specific persons with a specific task."

M.P.8.1. Evidence of signing of release orders

M.P.9. Evidence of the substance of the orders/documents signed and evidence of those documents being acted upon

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, paras. 2028-2029:

"2028. The evidence shows that on 6 April, Sagahutu ordered elements of Squadron A to deploy to sensitive points within Kigali city. In particular, it is clear that Sagahutu carried out orders from Nzuwonemeye to deploy RECCE armoured units to protect specific locations in the Kiyovu neighbourhood of Kigali including Radio Rwanda, the National Bank of Rwanda, the National Telecommunications Centre and the President’s office. One such unit from Squadron A was led by W.O. Boniface Bizimungu and included corporal Fiacre Afrika, a gunner. On Sagahutu’s instructions, this unit was initially deployed to the Milles Collines Junction, near Radio Rwanda, and subsequently to Paul VI Avenue, within close proximity of the Prime Minister’s residence. There is other evidence showing Sagahutu’s de facto authority over Squadron A soldiers: on his instructions, Witnesses DA and HP took ammunition, food and other supplies to W.O. Bizimungu during the latter’s deployment on Paul VI Avenue; Sagahutu gave operational instructions to Bizimungu regarding, inter alia, whether to allow Belgian soldiers access to the Prime Minister’s residence; and significantly, following the Prime Minister’s arrest, Bizimungu asked Sagahutu whether she should be taken to Camp Kigali. Finally, it was on the basis of Sagahutu’s orders that RECCE Battalion soldiers removed the Prime Minister’s body from her residence to Kanombe Hospital on 7 April 1994. The Chamber therefore finds that Sagahutu had de facto authority over RECCE Battalion soldiers from Squadron A who participated in killing the Prime Minister. The Chamber has clear evidence of multiple operational orders issued by him that were dutifully obeyed by his subordinates.

2029. Regarding the killing of the Belgian soldiers, the Chamber is again satisfied that Sagahutu had de facto authority over Corporals Nzeyimana and Masonga, two RECCE Battalion soldiers who were directly involved in the final assault on the Belgians. The Chamber accepts the Prosecution evidence that Sagahutu was present when these two soldiers took the MGL from his office to attack the Belgians. The Chamber is also satisfied that he specifically instructed them to put down any resistance from the Belgians. Sagahutu’s presence at the RECCE office at the time the MGL was taken, his consent to their participation in the attack, as well as his specific instructions to the principal perpetrators (which were acted upon), demonstrate his de facto authority over these soldiers.

M.P.10. Evidence of the formal procedure for appointment to civilian and military offices

M.P.10.1. Evidence of national legislarion

M.P.10.2. Evidence of appointment orders

M.P.11. Evidence of the suspect’s institutional functions

M.P.11.1. Evidence of the official position of the suspect in the overall institutional, political and military organisation

M.P.12. Evidence of the actual duties/tasks performed by the suspect

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, paras. 5822-5823, 5847:

"5822. Although the Prosecution alleges that Kanyabashi exercised de jure authority over the soldiers, it identifies no possible source for such authority. Considering the evidence in its totality, the Chamber concludes that Kanyabashi did not have de jure authority over the soldiers at Matyazo Clinic in late April 1994.

5823. The Chamber recalls, however, that Kanyabashi ordered the soldiers to shoot at the Tutsis sheltering at Matyazo Clinic in late April 1994, and that the soldiers obeyed this order (). Based on this fact, the Chamber finds beyond a reasonable doubt that Kanyabashi exercised effective control over these soldiers on an ad hoc or temporary basis, and that he was in a superior-subordinate relationship over them. The Chamber also considers that Kanyabashi acted with genocidal intent, which was further evidenced by his conduct at the 19 April 1994 swearing-in ceremony ()."

"5847. As for the Interahamwe, the Chamber has found that Ntahobali instructed them to kill Ruvurajabo. They subsequently killed him as ordered (). The Chamber considers that the only reasonable inference to be drawn is that Ntahobali exercised effective control over the Interahamwe present at the roadblock. As such, Ntahobali was in a superior-subordinate relationship to them, on an ad hoc or temporary basis, when they killed Ruvurajabo."

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, paras. 2014-2015:

"2014. The evidence before the Chamber demonstrates that Nzuwonemeye in fact acted as a person of authority over members of the RECCE Battalion during the events in question. On the night of 6 to 7 April, soon after the death of the President, Nzuwonemeye attended a meeting of senior military officers at the Army Headquarters in his capacity as RECCE commander. The next day, Nzuwonemeye again attended a meeting of the most senior officers of the Rwandan Armed Forces at ESM. Nzuwonemeye testified that before his departure for the ESM meeting in the morning of 7 April, he instructed Captain Dukuzumuremyi to be in charge of the battalion. In the Chamber’s view, Nzuwonemeye was not only formally appointed as RECCE Battalion commander, but was also recognised by his peers as the legitimate head and representative of the battalion.

2015. Furthermore, the Chamber believes the evidence of several Prosecution witnesses that soon after the presidential plane crashed on 6 April, Nzuwonemeye convened and addressed an assembly of RECCE Battalion soldiers within Camp Kigali, informed the troops about the death of the President and issued operational instructions to his squadron commanders. Later that evening, after returning from the meeting at the Army Headquarters, Nzuwonemeye met in his office with squadron commanders of the RECCE Battalion, including Sagahutu. Among other things, he ordered Sagahutu to ensure protection of the sensitive points within Kigali. This order was carried out with the deployment of several RECCE armoured vehicles from the camp that evening. Early in the morning of 7 April, Nzuwonemeye ordered the redeployment of RECCE armoured vehicles from sensitive points such as Radio Rwanda to reinforce Presidential Guard troops at the residence of the Prime Minister. This order, which was given to Sagahutu in the latter’s capacity as head of Squadron A, was also carried out. By his own admission, Nzuwonemeye also received a SITREP from Sagahutu on 7 April indicating that his instructions regarding protection of the sensitive points had been carried out. In addition, on the basis of Nzuwonemeye’s instructions, Prosecution Witness ALN and Defence Witness LLO were deployed to provide protection to Nzuwonemeye’s family and subsequently escorted them from Kigali on 11 April 1994. 2016. Based on the factors outlined above, the Chamber finds that Nzuwonemeye exercised de facto authority over all members of the RECCE Battalion from 6 to 7 April; he issued instructions to his subordinates, including Sagahutu, the instructions were carried out and reports were sent back to him in his capacity as commander."

Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 660-661:

"660. Hategekimana exercised de facto authority in many respects. He authorised those persons who wanted to enter the Camp to do so.1259 Together with Bourgmestre Kanyabashi, Hategekimana took the decisions with regard to the refugees in consultation with a civil authority. In this regard, Witness Father Masinzo testified that when he asked Bourgmestre Kanyabashi’s authorisation to take care of the refugees, Hategekimana was present. He further stated that Ngoma Camp soldiers settled the refugees in Matyazo.1260 Witness BYQ also stated that Hategekimana had the power to arrange for the protection of the refugees, since the refugees were located in his area of command.1261 It thus appears that Hategekimana played a key role with regard to the protection of the refugees.

661. Hategekimana furthermore played an active role when important events took place in Ngoma Commune. QCL testified that, after Rugomboka’s abduction and murder, Hategekimana led the soldiers who were surrounding Rugomboka’s house and that he forbade the mourning and the vigil to take place. He put forward security reasons.1262 Hategekimana also refused XR to move the bodies of Mujawayezu and her cousins into the house, asserting that it "was a matter for the [S]tate."1263 Prosecution Witness BYR, a former Ngoma Camp soldier, replied to the Prosecution that Hategekimana was the Camp Commander when he was a soldier there and that Hategekimana was replaced in May 1994. Prosecution Witnesses BYQ, also a former Ngoma Camp, corroborated this. He testified that he saw Hategekimana many times at Ngoma Camp. Defence Witnesses Bernard Uwizeyimana, CBM2 and Faustin Ntilikina also stated that Hategekimana was Ngoma Camp Commander in April 1994. Members of the civilian population such as Prosecution Witnesses QCN and Laurien Ntezimana also knew the Accused as the Commander of the Camp. See T. 9 April 2009 p. 9 and Prosecution Exhibit 18 where Witness BYR wrote the names of Ngoma Camp soldiers he knew when he served there as a soldier; T. 31 March 2009 p. 51; T. 8 July 2009 p. 62, T. 9 July 2009 p. 10; T. 30 June 2009 p. 17-18 and T. 26 March 2009 p. 41: "He was a superior officer, and he often moved around on board a vehicle through the neighbourhoods. He used a green vehicle, and he wore his military uniform. Everyone knew him. Even children knew him. When children would see him pass by, they would say, "That is the commander of Ngoma Camp who is going by." T. 20 March 2009 p. 5: "When I met him in 1994, he was a lieutenant in the Rwandan armed forces, the commander of Ngoma Camp, which was less than 500 metres away from my place of residence."

662. Therefore, the Chamber concludes that Hategekimana was an influential person with respect to his title as the Commander of the Ngoma Camp and the functions he exercised therein. He was the person to refer to in the event of danger in the area and one of his tasks was to ensure security and protection of the local population."

1259 To be able to enter the Camp and to pray with the Roman Catholic members of Ngoma Camp, Father Masinzo had to receive the authorisation of the Camp Commander. See T. 19 March 2009 p. 36.

1260 T. 19 March 2009 p. 3.

1261 T. 31 March 2009 p. 51.

1262 T. 17 March 2009 p. 14.

1263 T. 1 April 2009 p. 67.

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, paras 2025 and 2026:

"2025. Bagosora chaired the meeting of senior military officers at ESM, which commenced on 7 April at 10.15 a.m. (III.3.2.4). The purpose of the meeting was to gather operational commanders of the army and gendarmerie, update them on the prevailing situation, and issue instructions for the maintenance of order. In the Chamber’s view, this is again a much more expansive role than simply chairing a joint meeting of chiefs of staff and Ministry officials, as described in Gasana’s letter of 27 January 1993. Furthermore, Bagosora played the main role at the meeting. When the participants ratified the idea of the Crisis Committee, which had met the previous evening, Bagosora was the one who decided that Ndindiliyimana should chair its subsequent meetings.

2026. The prominence and authority of Bagosora was also apparent in the fact that he was the person Colonel Nubaha approached during the ESM meeting concerning the ongoing attack against the 10 Belgian peacekeepers at Camp Kigali (III.3.2.4). He instructed Nubaha to take care of the problem and then went to the camp to follow up on it (III.3.4). In the Chamber’s view, Bagosora’s actions during the meeting and with respect to the attack on the Belgian soldiers are more similar to that of a commander issuing orders and ensuring their implementation than those of a civilian functionary.2218 After the death of the 10 Belgian peacekeepers at Camp Kigali, Nubaha, the camp commander, was transferred at Bagosora’s request to another post, which was ultimately more significant."

M.P.13. Evidence of the suspect being perceived as having a high public profile and as exercising some authority

The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, paras. 1966-1976:

"1966. In addition to exercising de jure authority over soldiers of the Rwandan Army, the Chamber is satisfied that Bizimungu, while Chief of Staff, exercised de facto authority over soldiers of the Rwandan Army as well as members of the Interahamwe who collaborated with those soldiers in committing the crimes underlying the charges against him. 1967. A review of the evidence indicates that Bizimungu was a well-trained officer with substantial experience in command of the Army.3685 Prior to becoming the Chief of Staff of the Rwandan Army in April 1994, Bizimungu occupied a number of operational and highprofile advisory positions. Among those positions was his role as the commander of the Ruhengeri Para Commando Battalion and his responsibility for the Ruhengeri operational sector.3686 While occupying those positions, Bizimungu played a significant role in commanding the Rwandan government forces during the war against the RPF.

1968. In addition, Bizimungu was appointed to serve in a number of important commissions during his career in the Rwandan Army. The Chamber recalls Bizimungu’s evidence that he was appointed to serve as a member of a military committee that was charged with the responsibility of assessing the political and military situation that prevailed in Rwanda in 1992.3687 This committee was established by James Gasana, who was the Minister of Defence at the time. The Chamber also notes that Bizimungu represented the Rwandan Army in the high command council that was established to oversee the process of forming a new Army composed of both FAR and RPF forces under the auspices of the Arusha Accords.3688 This council was composed of officers from both the Rwandan Army and the RPF.3689

1969. Bizimungu’s ability and power as a commander are also evidenced by the accounts given by a number of Defence witnesses who worked with him at the time. In particular, the Chamber recalls the evidence of Defence Witness Silas Gatambiye, who testified that Bizimungu was held in high regard among the soldiers because he was considered to be a good commander.3690 Witness Gatambiye’s testimony regarding the considerable deference that soldiers accorded Bizimungu as a commander is corroborated by the evidence of Defence Witnesses DB15-6,3691 DB8-193692 and DE4-33.3693 The considerable reputation of Bizimungu as a commander is also supported by Rwandan Minister of Defence, James Gasana, who described Bizimungu in his book as "a highly respected officer, who distinguished himself at the front, and who has the respect of the troops and the population."3694

1970. Bizimungu’s competence as a commander is also demonstrated by his account, which is corroborated to a significant extent by excerpts of Gasana’s book that were tendered into evidence in this trial, that at the end of 1992 he was appointed by the council of ministers, at the request of President Habyarimana, to become a military advisor in the Office of the President. However, Gasana opposed his appointment to that position because his removal from operational engagements at the war front was likely to affect the Rwandan Army’s ability to fight the RPF in the event that hostilities resumed. At Gasana’s insistence, Bizimungu was retained in his position as the commander of the Ruhengeri operational sector.3695

1971. Further demonstrating his authority, as Chief of Staff of the Rwandan Army Bizimungu represented the interim government in a number of meetings with various international figures who visited Rwanda after the resumption of hostilities between the FAR and the RPF. There is clear evidence that Bizimungu met with José Ayala-Lasso, the UN High Commissioner for Human Rights, in the company of General Roméo Dallaire during Ayala-Lasso’s visit to Rwanda on 12 May 1994.3696 Bizimungu testified that he accompanied Ayala-Lasso during a visit to H?tel des Mille Collines, where a number of people had sought refuge from the violence. Bizimungu also met with Bernard Kouchner, a French humanitarian of considerable international standing, during the latter’s visit to Rwanda.3697 On 24 May, Bizimungu met Shaharyar Khan, the UN Secretary General’s Special Envoy to Rwanda, who was accompanied by a senior officer from the DPKO.3698 According to Bizimungu, the objective of Khan’s visit was to get the parties to the Rwandan conflict to agree to a ceasefire.3699

1972. The Chamber notes that the extent of Bizimungu’s authority is clear from his evidence that he had full power to negotiate a ceasefire with the RPF.3700 Bizimungu further testified that following Shaharyar Khan’s visit, plans were made to negotiate a ceasefire. Bizimungu gave evidence that he took part, together with the Minister of Defence, in the deliberations that led to the designation of the officers who were to lead the Rwandan government forces’ delegation in the negotiations for a ceasefire with the RPF.3701 The Chamber considers this to be indicative of his actual authority at the time.

1973. Bizimungu’s prominence is also inferable from the fact that he was sought out by a number of important personalities in order to put an end to the massacres. For example, the Chamber recalls that Prudence Bushnell, the United States Deputy Secretary of State for African Affairs, personally contacted Bizimungu and asked him to prevent the massacres of civilians in Rwanda.3702

1974. The evidence also suggests that General Roméo Dallaire, the force commander of UNAMIR, sought the assistance of Bizimungu in resolving a number of problems such as the evacuation and exchange of refugees between the government forces and the RPF. In particular, the Chamber refers to Bizimungu’s own evidence regarding Dallaire’s consultations with him concerning the evacuation of about 60 refugees from H?tel des Mille Collines in May 1994.3703

1975. The evidence before the Chamber suggests that Bizimungu had a considerable role in leading the combat operations against the RPF and that the Minister of Defence deferred to his recommendations on issues that had a significant bearing on those operations. In this regard, the Chamber refers to Bizimungu’s evidence that he recommended to the Minister of Defence to suspend a number of senior officers whom he considered to be militarily incompetent, which is discussed in detail below.

1976. Having considered the evidence reviewed above, the Chamber finds that Bizimungu exercised de facto authority over soldiers of the Rwandan Army during his tenure as Chief of Staff in 1994."

3685 T. 4 December 2007, pp. 2-5.

3686 T. 4 December 2007, p. 5.

3687 T. 4 December 2007, p. 6; T. 5 December 2007, p. 36.

3688 T. 6 December 2007, pp. 10-12.

3689 T. 6 December 2007, pp. 11-12.

3690 T. 16 April 2007, p. 77.

3691 T. 30 October 2007, p. 28.

3692 T. 5 November 2007, pp. 12-13 (ICS).

3693 T. 16 May 2007, p. 10.

3694 T. 5 December 2007, pp. 51-52.

3695 Defence Exhibit 177; T. 4 December 2007, p. 6.

3696 T. 12 December 2007, pp. 54-55.

3697 See T. 21 November 2006, p. 48.

3698 T. 7 December 2007, p. 6.

3699 T. 7 December 2007, p. 9.

3700 T. 7 December 2007, p. 10.

3701 T. 7 December 2007, p. 9.

3702 Prosecution Exhibit 191; Prosecution Exhibit 192.

M.P.13.1. Evidence of the suspect’s public appearances

M.P.13.2. Evidence of the suspect’s participation in high-profile international negotiations

The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, paras.1930, 1973-1974:

"1930. In his capacity as Chief of Staff of the Gendarmerie, Ndindiliyimana attended a number of meetings with Rwandan military and government officials, UNAMIR representatives and foreign diplomats during the period from 6 April 1994 until he was relieved of his post on 5 June 1994. It is clear from Ndindiliyimana’s activities during this period that he was in fact leading and representing the Gendarmerie and that he was considered by senior military and government officials, both within Rwanda and in the international community, to be the most appropriate person to do so."

"1973. Bizimungu’s prominence is also inferable from the fact that he was sought out by a number of important personalities in order to put an end to the massacres. For example, the Chamber recalls that Prudence Bushnell, the United States Deputy Secretary of State for African Affairs, personally contacted Bizimungu and asked him to prevent the massacres of civilians in Rwanda.3702

1974. The evidence also suggests that General Roméo Dallaire, the force commander of UNAMIR, sought the assistance of Bizimungu in resolving a number of problems such as the evacuation and exchange of refugees between the government forces and the RPF. In particular, the Chamber refers to Bizimungu’s own evidence regarding Dallaire’s consultations with him concerning the evacuation of about 60 refugees from H?tel des Mille Collines in May 1994.3703"

3685 T. 4 December 2007, pp. 2-5.

3686 T. 4 December 2007, p. 5.

3687 T. 4 December 2007, p. 6; T. 5 December 2007, p. 36.

3688 T. 6 December 2007, pp. 10-12.

3689 T. 6 December 2007, pp. 11-12.

3690 T. 16 April 2007, p. 77.

3691 T. 30 October 2007, p. 28.

3692 T. 5 November 2007, pp. 12-13 (ICS).

3693 T. 16 May 2007, p. 10.

3694 T. 5 December 2007, pp. 51-52.

3695 Defence Exhibit 177; T. 4 December 2007, p. 6.

3696 T. 12 December 2007, pp. 54-55.

3697 See T. 21 November 2006, p. 48.

3698 T. 7 December 2007, p. 6.

3699 T. 7 December 2007, p. 9.

3700 T. 7 December 2007, p. 10.

3701 T. 7 December 2007, p. 9.

3702 Prosecution Exhibit 191; Prosecution Exhibit 192.

M.P.13.3. Evidence of external observers such as international monitoring or humanitarian personnel

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 367:

"367. Furthermore, evidence from international observers indicates that the Accused Kubura was perceived as the commander of the 7th Brigade during the period in question."

M.P.13.4. Evidence of the suspect’s statements

M.P.13.5. Evidence of the suspect’s overall behaviour towards subordinates

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1487:

1487. Furthermore, Nizeyimana had positive relationships with several lower ranking, yet influential officers within the ESO Camp, including Second Lieutenant Jean Pierre Bizimana. The Chamber finds this evidence, particularly in light of Muvunyi’s limited tenure at the ESO Camp prior to the genocide, highly relevant to Nizeyimana’s ability to exercise effective control over ESO soldiers and cadets. Moreover, the relative inexperience and youth of ESO cadets is another factor that, in some cases, might have given Nizeyimana the material ability to prevent and punish criminal conduct of subordinate ESO soldiers.

Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 647-649:

"647. In addition to his strength and fitness, and his personal courage, it is significant that Miroslav Radic was the best trained officer in 3 AG; he was indeed the only officer who had graduated from the military academy. He was regarded as a very professional and disciplined commander. By contrast, Miroljub Vujovic was not able to plan combat operations, yet he commanded the main TO element of 3 AG. Miroslav Radic also placed his JNA deputy, Lieutenant Had`ic in charge of the mortar platoon of 3 AG which comprised Leva Supoderica men because they lacked the skill necessary to accurately aim and fire the mortars,2130 and Miroslav Radic himself would often pass orders directly to Lieutenant Had`i} for firing the mortars. Miroslav Radic’s orders were always obeyed.

648. The improvement Miroslav Radic was able to achieve in the motivation and discipline of 3 AG is reflected in the war diary of 1/gmtbr. Initially, around 21 and 22 October 1991 there are reports of the lack of motivation among TOs in 3 AG and of some 42 volunteers requesting to be replaced. This type of entry is not generally to be found after then in respect of 3 AG, although problems continued in other elements of 1 AD. Instead, evidence confirms that there was discipline on Miroslav Radic’s axis of operation.

649. For these briefly stated reasons the Chamber finds that Miroslav Radic had effective control in the relevant sense, which is discussed earlier, of the men of 3 AG at the time relevant to the Indictment."

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1567:

"1567. [...]As is captured on video footage, while in Potocari, Borovcanin acted as a commander, walking with purpose in the crowd, and performing his duties with authority as both Kingori and Van Duijn recognised when they approached him to discuss the issues of the overcrowded White House and the disappearance of the Red Cross tractor, respectively. Based on this, and the unity of command principle of MUP forces re-subordinated to the VRS, the Trial Chamber finds that the Jahorina Recruits were under Borovcanin’s effective control and command while they were in Potocari on 12 and 13 July."

M.P.13.6. Evidence of the suspect’s overall behaviour towards his or her duties

A. Legal source/authority and evidence:

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001,paras. 418-424:

"(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.

420. In relation to military structure, the ICRC Commentary (Additional Protocol I) observes that "there is no part of the army which is not subordinated to a military commander at whatever level". Consequently, "responsibility applies from the highest to the lowest level of the hierarchy, from the Commander-in-Chief down to the common soldier who takes over as head of the platoon to which he belongs at the moment his commanding officer has fallen and is no longer capable of fulfilling his task ."⁵⁸⁶

421. The capacity to sign orders will be indicative of some authority.⁵⁸⁷ The authority to issue orders, however, may be assumed de facto. Therefore in order to make a proper determination of the status and actual powers of control of a superior, it will be necessary to look to the substance of the documents signed and whether there is evidence of them being acted upon. For instance in the Ministries case, the court found that the mere appearance of an official’s name on a distribution list attached to an official document could simply provide evidence that it was intended that he be provided with the relevant information, and not that "those whose names appear on such distribution lists have responsibility for, or power and right of decision with respect to the subject matter of such document."⁵⁸⁸ Similarly, direct signing of release orders would demonstrate authority to release. An accused’s signature on such a document, however, may not necessarily be indicative of actual authority to release as it may be purely formal or merely aimed at implementing a decision made by others.

422. In order to determine the formal powers and duties exercised by political and military superiors an analysis of the formal procedures for appointment to civilian and military offices (through national legislation and appointment orders for instance ) would be a starting point. This will not be sufficient, as it must be shown that the powers are "real" for criminal responsibility to be attached to them. Further, in situations such as that of the armed conflict in Bosnia and Herzegovina, it will often be the case that civilian leaders will assume powers more important than those with which they are officially vested. In these circumstances, de facto powers may exist alongside de jure authority, and may be more important than the de jure powers.

423. In order to assess the individual criminal responsibility of the accused, the Trial Chamber in Karadzic and Mladic turned to an examination "of the position of each of the accused in the overall [institutional, political and military] organisation described [whose purpose was to establish a territory with a homogeneous population] with a view to determining their institutional functions and how they exercised their powers."⁵⁸⁹ After examining the official positions held by the accused, the Trial Chamber turned to a consideration of "the effective exercise of those powers".⁵⁹⁰

424. A superior status, when not clearly spelled out in an appointment order, may be deduced though an analysis of the actual tasks performed by the accused in question. This was the approach taken by the Trial Chamber in Nikolic.⁵⁹¹ Evidence that an accused is perceived as having a high public profile, manifested through public appearances and statements, and thus as exercising some authority, may be relevant to the overall assessment of his actual authority although not sufficient in itself to establish it, without evidence of the accused’s overall behaviour towards subordinates and his duties. Similarly, the participation of an accused in high-profile international negotiations would not be necessary in itself to demonstrate superior authority. While in the case of military commanders, the evidence of external observers such as international monitoring or humanitarian personnel may be relied upon, in the case of civilian leaders evidence of perceived authority may not be sufficient, as it may be indicative of mere powers of influence in the absence of a subordinate structure."

"586. ICRC Commentary (Additional Protocol I), para. 3553 under Article 87.
587. See Celebici Trial Judgement, para. 672.
588. Ministries case (USA v. Von Weizsaecker), 14 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No.10 (1952), p. 693.
589. Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, Case No. IT-95-5-R61/IT-95-18-R61, 11 July 1996, paras. 65-66.
590. Ibid., para. 71.
591. Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, Case No. IT-94-2-R61, 20 Oct. 1995, para. 24. The Trial Chamber appears to have endorsed the witnesses’ evidence in this regard: "The witnesses based their conclusions upon an analysis of the distribution of tasks within the camp. The guards were subjugated to Dragan Nikolic’s orders; nothing, apparently, could be carried out without his consent."

[B. Evidentiary comment:]

M.P.14. Evidence of the site of the crime being located within the suspect’s area of responsibility

M.P.15. Evidence of the perpetrator’s regiment/unit being under the de jure command of the suspect

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, paras. 836-843:

"836. The Chamber draws the following conclusions based on the above.

837. Two different reasons lay behind the decision by competent authorities of the ABiH to create a special formation that would turn the mujahedin into members of the Army. First, it was motivated by the desire to use the mujahedin in the fight against Serbian forces and the HVO. The 3rd Corps proposal dated 12 August 1993 even speaks of the "need" to use them. Second, as discussed elsewhere in the Judgement, the decision was intended to put an end to a group of irregular fighters who used "unlawful combat methods" for which the 3rd Corps did not want to be held accountable.1707

838. The mujahedin expressed their desire to become officially part of the ABiH, which was reflected by a written request to the 3rd Corps.1708 This was either the outcome of previous negotiations between Sakib Mahmuljin and the mujahedin or a desire which existed prior to these talks and was given concrete expression at that time.

839. The ABiH and the mujahedin found common ground and reached a basic agreement to incorporate the mujahedin into the 3rd Corps. This agreement led to the proposal by 3rd Corps Command dated 12 August 1993 and the order of the ABiH Main Staff dated 13 August 1993. The agreement was symbolised by a ceremony at the mujahedin camp to mark the creation of the detachment which was attended by Mehmed Alagic, commander of OG Bosanska Krajina, and Sakib Mahmuljin, intermediary in the negotiations.

840. The outcome of the agreement was that as of mid-August 1993 a mujahedin unit started to operate directly under the authority of the 3rd Corps Command, which could re-subordinate it to 3^rd Corps operational formations.

841. The contents of the three orders dated late August to early December 1993 by which 3^rd Corps Command re-subordinated the El Mujahedin detachment to other formations and the language used in these documents leave no doubt about the detachment’s official existence. The same can be said about the Accused Hadžihasanović letter dated 16 August 1993 to the command of OG Bosanska Krajina and letters exchanged by the command of OG Zapad and 3rd Corps Command in October 1993.1709 Lastly, President Alija Izetbegovic’s decision dated 8 August 1994 regarding the promotion of ABiH members confirms this existence. It seems quite impossible to promote five members of a formation that does not officially exist.

842. The Chamber recalls the testimony of Mustafa Poparic who stated that not all the rules that applied to the formation of units in the ABiH seem to have been observed. Nevertheless, these rules appear to have been more administrative than constitutive. All the parties concerned, including the mujahedin, seem to have considered Delic’s order of 13 August 1993 as an act that de jure established the El Mujahedin detachment. This is why the detachment was able to be resubordinated to other 3rd Corps formations on three occasions. The 3rd Corps engaged the detachment in combat operations even though the administrative procedure regarding the creation of the unit had not been followed. This also explains why President Izetbegovic was able to promote five members of the detachment.

843. The Chamber finds that the El Mujahedin detachment was de jure under the command of the Accused Hadžihasanović as of 13 August 1993.

1703 DH 271.

1704 See supra paras. 810-811.

1705 See supra para. 830.

1706 P 451; D`emal Merdan, T(F) pp. 13171-13172.

1707 See supra para. 552.

1708 P 438/DH 165.5. Videocassette P 482, T(F) p. 8542, says that "the Bosnian Army leadership agreed to their

request".

M.P.15.1. Evidence of the perpetrator’s regiment/unit being under the de jure command of the suspect pursuant to the rules on the training and activities of the regiment/unit

A. Legal source/authority and evidence:

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 598:

"Witness Halim Husic also confirmed that the foreigners in Poljanice Camp were not involved in training the 306th Brigade."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 722-725:

"i. Tihomir Blaškić exercised "effective control" over the perpetrators of the crimes

722. The Trial Chamber recalls that all the detention centres were located in the CBOZ which General Blaškić commanded from 27 June 1992. The perpetrators of the crimes at the detention centres were HVO soldiers and also members of the Military Police.

723. It is not contested that General Blaškić commanded the regular troops of the HVO. The Trial Chamber is moreover convinced that the accused exercised effective control over the Military Police within the meaning of Article 7(3) of the Statute.

724. In this respect, as it has already asserted, the Trial Chamber recalls that General Blaškić was in command of the soldiers and Military Police implicated in the attacks on Ahmici, Loncari and Ocehnici in April 1993. It further affirms that pursuant to the rules on the training and activities of the Military Police, this group was under the authority of the accused as commander of the CBOZ when it came to accomplishing daily operational tasks. As one witness heard by the Trial Chamber explained:

The commander of the Operative Zone vis-à-vis a military policeman, regardless of whether he is in the reserve formation or active formation, could impose only disciplinary measure, and the greatest disciplinary measure that he could take was 15 days’ detention. After a 15-day detention, the military policeman would be returned to his unit and would continue to perform his regular duties. The commander of the Operative Zone, if there was a criminal act in question on the part of the military policeman , the commander could […] make a proposal for the prosecution of that individual and send that request to the military disciplinary judiciary or the chief of the military police, head of the military police administration, for him to undertake such measures.

725. The Trial Chamber thereby concludes that, throughout the period during which the previously described crimes were committed, General Blaškić incontestably held at least the material power to prevent the Military Police from perpetrating crimes or to punish the perpetrators thereof."

"1633 - Witness Blaškić, PT p. 21299.
1634 - D523.
1635 - PT pp. 24020-24021."

[B. Evidentiary comment:]

M.P.15.2. Evidence of command structure

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 379-391:

"2. Findings

(a) Superior-subordinate relationship

(i) Command structure

379. The 2 OG was formed in mid September 1991 by the General Staff of the JNA. It was a temporary formation at the level of an army and was in existence well into 1992. Its geographic area of responsibility included the territory from the Bay of Kotor in the south, to Neretva River in the north and to Mostar in the territory of current day Bosnia and Herezgovina, thus encompassing the city and surroundings of Dubrovnik. Its headquarters were initially located in Kifino Selo, but in October 1991 were relocated to the town of Trebinje in Bosnia and Herzegovina.

380. In September 1991 the commander of the 2 OG was General Jevrem Cokic. In late September or early October 1991 he was replaced by General Ruzinovski. On 12 October 1991 the Accused assumed command of the 2 OG and remained the commander of the 2 OG well into 1992.

381. On 7 October 1991 the 2 OG consisted of the following five units: 37 Corps (the Uzice Corps) under the command of General Milan Torbica; 2 Corps (the Podgorica Corps) under the command of General Dragutin Eremija; 9 VPS (Boka), which on 7 October was under the acting command of Warship-Captain Zec, until Admiral Jokic took over the following day; 472 mtbr (Trebinje Brigade), under the command of Colonel Obrad Vicic, and the newly established 2 Tactical Group active in the region of Konavle, under the command of General Branko Stankovic. The commanders of these units were directly subordinated to the Accused.

382. In October and November 1991 some changes to the command structure of the 2 OG were introduced. As of 21 October 1991 the 2 Tactical Group was disbanded and its units were re-subordinated to other establishments. As a result, the 3/5 mtbr from Podgorica, initially part of the 2 Tactical Group, was re-subordinated to the 9 VPS and remained under the command of the 9 VPS until at least 31 December 1991.

383. Changes were also made with respect to the 472 mtbr. On 25 October 1991 by an order issued by the Accused, the 472 mtbr was removed from direct subordination to the 2 OG and was re-subordinated to the 9 VPS. On 20 November 1991 by an order of Admiral Jokic issued pursuant to a decision of the 2 OG, the 472 mtbr, except for its 3rd Battalion (3/472 mtbr), left the composition of the 9 VPS and was subordinated to the 2 Corps. The 3/472 mtbr remained directly subordinated to the 9 VPS for the remainder of 1991 and well into 1992.

384. As a result of these changes to the command structure of the 2 OG, on 6 December 1991 the 2 OG consisted of the following three units: the 37 Corps, the 2 Corps, and the 9 VPS.

385. The 9 VPS included the following units: the 3/5 mtbr, the 3/472 mtbr, the 3 Light Brigade, the Trebinje Territorial Defence branch and corresponding battalion, some territorial units, and the 107 Coastal Artillery Group (OAG). Initially, the 9 VPS headquarters were located in Kumbor, Montenegro. Subsequently, a forward command post was set up in Kupari, near Dubrovnik. The commander of the 9 VPS was Admiral Jokic.

386. The 3/472 mtbr numbered approximately 700 troops. It consisted of four companies ; three infantry companies each of which had 82mm mortars, and an anti-tank company. It also had a 120 mm mortar battery. From late October 1991 and throughout the remainder of 1991 and well into 1992 the 3/472 mtbr was under the command of Captain Kovacevic, also known as "Rambo."

387. The 3/5 mtbr had a composition similar to that of the 3/472 mtbr. In addition it had a company of armoured carriers. The commander of the 3/5mtbr was Major Srboljub Zdravkovic who, on 5 December 1991, was granted leave and was temporarily replaced by Lieutenant -Colonel Jovanovic, the Brigade’s Chief of Staff. On 5 and 6 December 1991 Lieutenant-Colonel Jovanovic was in temporary command of that unit, but was summarily relieved of that command on the order of Admiral Jokic on the evening of 6 December 1991, i.e. effectively he acted as commander of the 3/5 mtbr only for the time the attack was planned and implemented.

388. The 3rd Light Brigade consisted of 1200 to 1300 men and had weak artillery. It was used for auxiliary tasks and for control of territories. The Trebinje Territorial Defence branch and the corresponding battalions did not participate in combat operations.

389. The 107 OAG had five batteries, including one 85mm howitzer and one 130mm howitzer battery. From the end of October 1991 to early 1992, the 130mm battery and the 85mm battery were located at Cilipi airport. The commander of the 107 OAG was Lieutenant-Colonel Stamenov.

390. Some Defence witnesses suggested that the 9 VPS was within the Military Naval District (VPO) and that their superior military command was the command of the VPO, as might be suggested by some orders the 9 VPS received from the VPO. Indeed, in peacetime the 9 VPS was a regular component of the VPO. However, in the period from October 1991 and well into 1992 the 9 VPS was part of 2 OG and received its combat assignments from the command of the 2 OG. During that period the 9 VPS was no longer under VPO operational control. The VPO may have continued to have some limited connection principally of an administrative character with the 9 VPS in naval matters, but in the Chamber’s finding the evidence establishes that this did not detract from the place of the 9 VPS as a part of the 2 OG.

391. In view of the above, the Chamber is satisfied that on 6 December 1991 the 3/472 mtbr, the 3/5 mtbr, and the 107 OAG, among other units, were directly subordinated to the 9 VPS, which was subordinated to the 2 OG. The 3/472 mtbr, the 3/5 mtbr and the 107 OAG were at the second level of subordination to the 2 OG. The Chamber is satisfied, therefore, and finds that the Accused, as the commander of the 2 OG, had de jure authority over the JNA forces involved in the attack on Srdj and the shelling of Dubrovnik, including the Old Town."

"1103. Admiral Jokic, T 3822; 4586.
1104. Milovan Zorc, T 6564; Exhibit P204, p 26.
1105. Admiral Jokic, T 3822; 4418 ; 4586.
1106. Colonel Jovanovic, T 7040- 7041. Admiral Jokic testified that the 2 OG commanded all units involved in the Dubrovnik operation through May 1992 (Admiral Jokic T 4995).
1107. Admiral Jokic testified that the area of responsibility of the 2 OG included ran to Neretva River, T 4418. Adrien Stringer however believed that it extended to Slano in the north, T 316.
1108. Adrien Stringer testified that at a meeting held on 11 October 1991, General Ruzinovski, who spoke as the commander of the 2 OG outlined the area of command of the 2 OG as running from the Bay of Kotor in the south to Slano in the north and to Mostar in Bosnia and Herezgovina, T 316. See also Admiral Jokic, T 4418; Milovan Zorc, T 6565.
1109. Admiral Jokic, T 3823.
1110. Admiral Jokic, T 3860-3861 ; See also Exhibit P115, a letter of 7 November 1991 addressed to the Headquarters of the 2 OG in Trebinje; On 6 December 1991 Colm Doyle met with the Accused in the command post of the 2 OG in Trebinje, T 1708-1710.
1111. Colonel Svicevic, T 7057-7058 ; Exhibit D44, a document dated 29 September 1991 and signed by General Cokic, the commander of the 2 OG; Captain Nesic, T 8200.
1112. Admiral Jokic, T 3824; See also Adrien Stringer, T 311; 315. At a meeting held on 11 October 1991 General Ruzinovski spoke as a commander of the 2 OG. Colonel Svicevic, T 7058.
1113. Exhibit P135; Admiral Jokic, T 3824; Adrien Stringer, T 339. At a meeting between the ECMM and the JNA held on 14 October 1991 the JNA liaison officer announced that he would refer the discussed matter to the Accused, the new Commanding General, Adrien Stringer, T 339.
1114. Admiral Jokic, T 3831; Per Hvalkof, T 2301-2302; On 6 December1991 the Accused was the senior JNA commander in the area, Colm Doyle, T 1724. See also Colm Doyle, Meeting in February 1992 with the head of the monitoring mission, Ambassador Salgueiro, Colm Doyle, T 1724.
1115. Admiral Jokic, T 3826-3827 ; Exhibit P99. Per Hvalkof testified that the ECMM operational staff prepared organisational charts of the JNA command structure in the respective areas. (T 2215-2216) Based on that information the Accused was the commander of the JNA forces in the region for the entire time between October and December 1991, Per Hvalkov, T 2216-2217.
1116. Admiral Jokic, T 3862; 4502.
1117. Admiral Jokic, T 3845; 3847 ; 4593; Exhibit P100. See also Lieutenant-Colonel Jovanovic, T 8072.
1118. Exhibit D43; Admiral Jokic, T 3837; 3954; 4401-4403; Milovan Zorc, T 6691-6692; Lieutenant-Colonel Pavicic, T 6923-6925.
1119. Exhibit P101; Admiral Jokic, T 3834-3835; 4494; 4595; Milovan Zorc, T 6604-6605; Lieutenant-Colonel Pavicic, T 6895; 6930.
1120. Admiral Jokic, T 3831; Exhibit P100; Milovan Zorc, T 6550; 6688-6689.
1121. Admiral Jokic, T 3831-3832 ; Exhibit P100; Exhibit D46. The units indicated on Exhibit P100 are ground units only; the complete structure of the 9 VPS included also a number of naval forces and is indicated in Exhibit D46. See also Admiral Jokic, T 4485-4493. See also Milovan Zorc, T 6559 with respect to the 3/472 mtbr. With respect to 107 OAG see Captain Pepic, T 7473-7475.
1122. Admiral Jokic, T 3859. See also Frigate-Captain Handzijev, T 7587.
1123. Admiral Jokic, T 3859.
1124. Admiral Jokic, T 3824; See also Exhibit P204, p 19.
1125. Admiral Jokic, T 3836.
1126. Admiral Jokic, T 3845.
1127. Admiral Jokic, T 4095-4096 ; Lieutenant Lemal, T 7346. Lieutenant-Colonel Stojanovic testified that Captain Kovacevic became the commander of the 3rd Battalion on 21 October 1991, T 7796. With respect to Captain Kovacevic remaining in office until at least the end of December 1991, see Admiral Jokic, T 4119; 3833; 4130 and Exhibit P133.
1128. Admiral Jokic, T 3846.
1129. Admiral Jokic, T 3845, Exhibit P100.
1130. Lieutenant-Colonel Jovanovic, T 8075; 8071-8072; 8077; Admiral Jokic, T 8551-8552.
1131. Admiral Jokic, T 4103-4104 ; Lieutenant-Colonel Jovanovic, T 8082.
1132. Colonel Jovanovic, T 8093- 8094; Admiral Jokic, T 8553.
1133. Admiral Jokic, T 3846-3847.
1134. Captain Pepic, T 7473-7474 ; Admiral Jokic, T 4398.
1135. Captain Pepic, T 7474-7475.
1136. Captain Pepic, T 7474.
1137. Captain Drljan, T 7685. Captain Drljan referred to an order that he received on 27 September 1991 from Captain Krstic or Krsto Djurovic, the sector commander, to pull out three patrol boats from Pula, T 7685. See also Exhibit D105, an order issued by Admiral Jokic, the commander of the 9 VPS on the basis of orders from the VPO.
1138. Milovan Zorc, T 6661-6663.
1139. Exhibit P199, an order dated 20 September 1991 from the command of the VPO which does not include the 9 VPS as a unit operationally subordinated to the VPO and does not issue any assignments to the 9 VPS. See also Exhibit P204, pp 19-20.
1140. See infra, para 404."

Prosecutor v. Rasim Delić, Case No. IT-04-83-T, Judgement (TC), 15 September 2008, para. 362:

"362. Several witnesses testified about the de jure subordination of the EMD to the ABiH and about the fact that this unit was incorporated into the 3rd Corps.926 Furthermore, the Trial Chamber recalls that the EMD was referred to in ABiH documents by the military unit number "5689" and was using the stamp with the RBiH coat of arms."

[B. Evidentiary comment:]

M.3.1.2. Evidence of the suspect’s material ability to prevent the commission of the crime

M.P.16. Evidence of the fundamental organizational structure of the force to enable it to control combat operations

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, para 2062:

"2062. The perpetrators of the attacks at Kabeza (III.3.5.4), Nyanza hill (III.4.1.1) and IAMSEA (III.4.1.4) included members of the Para Commando Battalion, as well as its CRAP platoon. The attacks reflect military organisation and, in view of the elite nature of these units as well as their discipline, would only have occurred with the authorisation or orders of higher military authorities, in particular the commander of their battalion, Ntabakuze. As discussed above, the military troops committing crimes were clearly Ntabakuze’s subordinates acting under his effective control."

M.P.16.1. Evidence of the force being received regular combat reports from the units subordinated to it

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 795:

"Fifthly, there is no evidence indicating that the mujahedin sent combat reports or other reports on their activities to those in charge of the combat in which they took part."

M.P.16.2. Evidence of all priniciples of command and control for the armed forces being applied to the force

M.P.16.3. Evidence of the commanders of the subordinate units issued orders to their subordinates units pursuant to orders from the command of the force

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 358-360, 377-379: 

“358. Analysis of the expert report and testimony by Vlado Šakić makes it clear that the objective of his report was to analyse and highlight the difficulties which superiors may encounter in ensuring effective control of their troops. ⁸²³ Thus, Vlado Šakić attempted to explain that, within a group,⁸²⁴ particularly during wartime, the members are difficult to control for several reasons: – within the same group, several types of personalities may conflict with one another (leaders, followers, conformists, etc.).⁸²⁵ Thus, this would make it very difficult to control them individually;⁸²⁶ – when the group becomes too large,⁸²⁷ the superior no longer interacts directly with his subordinates.⁸²⁸ Thus, the commander, no longer having any real contact with his soldiers, would no longer control their actions.⁸²⁹ Moreover, the commanders could anticipate “negative reactions” from their troops to enemy actions only if they possessed adequate knowledge in the field of psychology.⁸³⁰ As most of them would not, it would be difficult for them to control their soldiers;⁸³¹ – the conduct of soldiers rarely stems from orders given by a commander but results from a social situation and the powerful emotional state in which the soldiers find themselves.⁸³²”

823. 3D 03721, pp. 16, 22, 29 and 88.

824. The Chamber notes that Vlado Šakić remained very evasive in his definition of the group but finds that, in most cases, he meant armed groups.

825. 3D 03721, p. 16.

826. 3D 03721, p. 16.

827. The Chamber observes that Vlado Šakić does not specify the size at which a group becomes too large for a commander to have direct interaction with his subordinates.

828. 3D 03721, p. 22.

829. 3D 03721, p. 22.

830. 3D 03721, p. 22.

831. 3D 03721, p. 22.

832. 3D 03721, p. 29.

“359. In his report, Vlado Šakić then applied these principles generally to the conflict in BiH, and explained the difficulties which the “political and military authorities” may have faced in BiH. He thus asserted that, in his opinion, due to the total lack of readiness for the conflict on the part of the “political authorities”, defence groups were formed spontaneously, outside of institutional settings. ⁸³³ These allegedly comprised volunteers and civilians as well as former JNA personnel, which a small proportion of criminals may have joined.⁸³⁴ According to Vlado Šakić, under these circumstances, it was impossible for the “political and military powers” in BiH to establish control over these groups.⁸³⁵”

833. 3D 03721, p. 88.

834. 3D 03721, p. 88.

835. 3D 03721, pp. 88 and 89. The Chamber notes that Vlado Šakić remains quite vague in his expert report as to what he means by the “political and military authorities in BiH”. The Chamber is thus unable to determine whether he means the authorities of BiH, the authorities of Herceg-Bosna, the Serbian authorities or even all these authorities.

“360. Broadly speaking, the Chamber considers that the Praljak Defence presented Vlado Šakić’s expert report as part of its arguments pertaining to the responsibility of the Accused pursuant to Article 7(1) – ordering – and Article 7(3) of the Statute. The Chamber observes that Vlado Šakić concluded in his report inter alia that the groups described earlier as having committed crimes in BiH were not under the control of those in power (whether political or military) and were left to themselves.⁸³⁶”

836. 3D 03721, pp. 88 and 89.

“377. The Chamber observes that, in cross-examining this expert witness, the Prosecution succeeded in casting doubt on his impartiality. By bringing to light the relationship between the Ivo Pilar Institute, which Vlado Šakić continues to direct, and Croatia, and likewise between the Institute and the Croatian intelligence services, the Prosecution succeeded in establishing that close ties united and continue to unite the witness and the Croatian political authorities. The Chamber recalls that allegations about Croatia’s role in the conflict in BiH were frequently debated by the parties. Several witnesses were heard on this topic and numerous documents admitted into the record. Furthermore, the Chamber recalls that experts must provide expertise that is objective, impartial and independent, if they are to assist the Chamber in ruling beyond a reasonable doubt.⁸⁷² Finally, the Chamber recalls that Vlado Šakić’s expert testimony concerns an essential issue in this case: superior responsibility. Under these circumstances, the Chamber must pay particularly close attention to the impartiality of the expert in question. The Chamber thus finds that the ties between the Ivo Pilar Institute, Vlado Šakić, the Croatian Government and the Croatian Intelligence Services cast doubt onto Vlado Šakić’s impartiality as an expert.”

872. See “Experts Under Rule 94 bis of the Rules” in the Chamber‟s treatment of the evidentiary standards.

“378. Moreover, the Chamber notes that insofar as the very credibility of Vlado Šakić and his expert report are concerned, Vlado Šakić’s testimony, his report, the Prosecution’s cross-examination and the questions by the Chamber all brought out important gaps. The Chamber once again stresses that the objective of Vlado Šakić’s report, that is, to analyse the challenges to effective oversight of the troops, is a core issue in determining the responsibility of the Accused under Articles 7(1) – ordering – and 7(3) of the Statute. The Chamber considers it essential, in studying the difficulties associated with the effective control of the troops in this case, to take into consideration the reality of the situation in the HVO command structure in order to draw conclusions with regard to control of the troops by the Accused. The Chamber concludes that, as Vlado Šakić failed to review any document that specifically addresses the BiH conflict and particularly the documents from the HVO command, his report addresses the issue of effective troop control theoretically, without any bearing on the conflict with which the Chamber has been seized. The Chamber therefore finds the credibility and probative value of the report very weak.”

 

“379. Given the doubts in respect of Vlado Šakić’s impartiality, which were brought to the fore primarily during his cross-examination by the Prosecution, and the absence of any concrete, practical review by Vlado Šakić of the facts pertaining to the conflict in BiH and control of the troops by the HVO command, as well as the expert’s evasive conduct during cross-examination, the Chamber finds that it is unable to make use of the said report in the context of this Judgement.”

M.P.17. Evidence of the suspect’s authority to give direct combat orders

ICTY, The Prosecutor v. Perišić, IT-04-81-A, Judgement (AC), 28 February 2013, para. 98-101:

"98. The Appeals Chamber recalls that the Trial Chamber found that SVK forces under Celeketić’s command began to shell Croatian targets on 1 May 1995, and that this shelling encompassed the Zagreb area on 2 May 1995. The shelling of Zagreb continued until 3 May 1995, resulting in deaths and injuries of civilians. According to the Trial Chamber, Celeketić ordered that this shelling take place on the basis of instructions from Marti’, the RSK President.

99. The Trial Chamber also found that during the SVK attacks in Croatia, Perišić instructed Celeketić not to shell Zagreb. However, these instructions were not obeyed, and Perišić explained to Milošević that Celeketić had continued shelling Zagreb pursuant to Martić’s orders and in complete disregard of Perišić’s own instructions to the contrary. Though Perišić told Milošević that he forced Celeketić to stop the shelling, the attack on Zagreb continued for two days, after Perišić’s initial instructions on 1 May 1995.

100. The Appeals Chamber notes that intercepted conversations between Perišić and Milošević suggest neither was convinced that Perišić was able to exercise effective control over Celeketić. In one such intercept, when asked why he could not instruct Celeketić to ignore Martić’s orders, Perišić explained that Celeketić was obedient to Martić. In the Appeals Chamber’s view, this intercept suggests that Perišić did not believe Celeketić to be under his effective control, and that Milošević considered Perišić able to influence but not command Celeketić.

101. The Appeals Chamber recalls that the crimes Perišić was found responsible for failing to punish occurred during the shelling of Zagreb in early May 1995. Any indicia of Perišić’s effective control over the SVK at that specific time are thus particularly significant. The Appeals Chamber observes that during this period, the evidence described above demonstrates that, when Martić and Perišić endorsed directly conflicting courses of action, Celeketić chose to obey orders from Martić and ignore Perišić ’s explicit instructions. In addition, the phone intercepts identified by the Trial Chamber suggest that neither Perišić nor Milošević perceived Celeketić as effectivelycontrolled by Perišić. On its face, Perišić’s inability to control significant actions by Celeketić, an important VJ officer seconded through the 40th PC during the shelling of Zagreb, and apparent acknowledgement that he lacked such power, is inconsistent with exercise of effective control over the Zagreb Perpetrators."

 

Prosecutor v. Momčilo Perišić, Case No. IT-04-81-A, Judgement (AC), 28 February 2013, paras. 98-107:

"98. The Appeals Chamber recalls that the Trial Chamber found that SVK forces under Čeleketic’s command began to shell Croatian targets on 1 May 1995, and that this shelling encompassed the Zagreb area on 2 May 1995.³⁰² The shelling of Zagreb continued until 3 May 1995, resulting in deaths and injuries of civilians.³⁰³ According to the Trial Chamber, Čeleketic ordered that this shelling take place on the basis of instructions from Martic, the RSK President.³⁰⁴"

"302. Trial Judgement, paras. 566-567.

303. Trial Judgement, paras. 568-572.

304. Trial Judgement, para. 585."

"99. The Trial Chamber also found that during the SVK attacks in Croatia, Perišić instructed Čeleketic not to shell Zagreb.³⁰⁵ However, these instructions were not obeyed, and Perišić explained to Milosevic that Čeleketic had continued shelling Zagreb pursuant to Martic’s orders and in complete disregard of Perišić’s own instructions to the contrary.³⁰⁶ Though Perišić told Milosevicthat he forced Čeleketic to stop the shelling,³⁰⁷ the attack on Zagreb continued for two days, after Perišić’s initial instructions on 1 May 1995.³⁰⁸"

"305. See Trial Judgement, paras. 1721-1722, 1763.

306. Trial Judgement, para. 1726, citing Prosecution Exhibit 1286, p. 3 (undated intercepted telephone conversation between Perišić and Milosevic which the Trial Chamber dated to 3 May 1995). See also Trial Judgement, paras. 1725, 1727, 1763.

307. Trial Judgment, para. 1728, citing Prosecution Exhibit 1286, p. 5 (undated intercepted telephone conversation between Perišić and Milosevic which the Trial Chamber dated to 3 May 1995).

308. See Trial Judgement, paras. 567-572, 1721."

 

"100. The Appeals Chamber notes that intercepted conversations between Perišić and Milosevic suggest neither was convinced that Perišić was able to exercise effective control over Čeleketic. In one such intercept, when asked why he could not instruct Čeleketic to ignore Martic’s orders, Perišić explained that Čeleketic was obedient to Martic.³⁰⁹ In the Appeals Chamber’s view, this intercept suggests that Perišić did not believe Čeleketic to be under his effective control, and that Milosevic considered Perišić able to influence but not command Čeleketic."

"309. See Trial Judgement, para. 1726, citing Prosecution Exhibit 1286, p. 3 (undated intercepted telephone conversation between Perišić and Milosevic which the Trial Chamber dated to 3 May 1995). See also Trial Judgement, para. 1727, citing Prosecution Exhibit 1321, pp. 2-3 (undated intercepted conversation between Milosevic and RSK Prime Minister Borislav Mikelic which the Trial Chamber dated to 3 May 1995)."

"101. The Appeals Chamber recalls that the crimes Perišić was found responsible for failing to punish occurred during the shelling of Zagreb in early May 1995.³¹⁰ Any indicia of Perišić’s effective control over the SVK at that specific time are thus particularly significant.³¹¹ The Appeals Chamber observes that during this period, the evidence described above demonstrates that, when Martic and Perišić endorsed directly conflicting courses of action, Čeleketic chose to obey orders from Martic and ignore Perišić’s explicit instructions.³¹² In addition, the phone intercepts identified by the Trial Chamber suggest that neither Perišić nor Milosevic perceived Čeleketic as effectively controlled by Perišić.³¹³ On its face, Perišić’s inability to control significant actions by Čeleketic, an important VJ officer seconded through the 40th PC during the shelling of Zagreb, and apparent acknowledgement that he lacked such power, is inconsistent with exercise of effective control over the Zagreb Perpetrators."

"310. See supra, para. 75.

311. Halilović Appeal Judgement, para. 67; Hadžihasanović et al. Appeal Decision on Jurisdiction, para. 51 (holding that criminal liability as a superior does not attach where crimes occurred prior to assumption of effective control).

312. See supra, paras. 98-99.

313. See supra, para. 100."

"102. As set forth above, two witnesses whom the Trial Chamber considered credible,³¹⁴ and who served as senior SVK officers, testified that Perišić did not issue command orders to them while they were serving in the SVK. Witness Rašeta stated that he was no longer part of the VJ’s chain of command after being assigned to the 40th PC, while Witness Orlic testified that he received no command orders from Perišić after his secondment.³¹⁵"

"314. See supra, para. 94.

315. See supra, para. 91."

"103. In addition, the Trial Chamber noted evidence of Prosecution Witness MP-80, who testified that Perišić did not issue command orders to Čeleketic³¹⁶ and further noted that VJ communications to the SVK prior to the shelling of Zagreb, which raised issues such as weapons handling and material for meetings, used terms associated with encouragement rather than coercion, such as “please”.³¹⁷ The Trial Chamber also referred to reports by Perišić that Dusan Lončar, a VJ officer seconded through the 40th PC and Commander of the SVK 11th Corps, “accepted” approaches Perišić had advocated.³¹⁸ The Appeals Chamber considers that the use of non-coercive terms suggests that Perišić did not exercise effective control over VJ soldiers seconded through the 40^th PC."

"316. Trial Judgement, para. 1714.

317. See Trial Judgement, paras. 1716, citing Prosecution Exhibit 1138 (correspondence dated 19 July 1994 on weapons disassembly from Perišić to SVK Main Staff), 1717, citing Prosecution Exhibit 2177 (letter dated 11 May 1994 from VJ General Staff to SVK Main Staff). See also Trial Judgement, paras. 1710, 1715, 1718.

318. Trial Judgement, para. 1723, citing Prosecution Exhibit 1303, pp. 3-4 (undated intercepted telephone conversation, which the Trial Chamber dated to 1 May 1995, between Perišić and a security guard of Milosevic). See also Trial Judgement, para. 1724, citing Prosecution Exhibit 1373, p. 2 (undated intercepted telephone conversation between Perišić and Milosevic)."

 

"104. The Appeals Chamber notes that Perišić trsmitted an order from Milosevic to, inter alia, the SVK on 7 December 1994, several months prior to the shelling of Zagreb (“7 December Order”), ordering the SVK to facilitate the passage of United Nations aid.³¹⁹ However, the text of the 7 December Order does not demonstrate that it constituted an order by Perišić to individuals falling within the VJ chain of command. First, the 7 December Order was addressed to both Čeleketic,³²⁰ who was a seconded VJ officer, and RSK President Martic, who was not.³²¹ Given that the RSK President was not formally linked to the VJ,³²² the Appeals Chamber considers that Martic’s inclusion in the 7 December Order suggests that the order was not an instruction issued to soldiers falling within the VJ’s chain of command. Second, the 7 December Order invokes Milosevic’s personal authority as President of Serbia and makes no apparent reference to the VJ’s chain of command other than using Perišić as a conduit to pass on the order.³²³ Finally, the Appeals Chamber notes that Čeleketic responded to the 7 December Order by addressing Milosevic directly,³²⁴ thereby bypassing Perišić and the VJ chain of command entirely. In these circumstances, the Appeals Chamber does not consider that the 7 December Order establishes Perišić’s ability to issue command orders to VJ soldiers seconded through the 40th PC."

"319. Trial Judgement, para. 1712, citing Prosecution Exhibit 1800 (the 7 December Order).

320. The Appeals Chamber notes that the 7 December Order is addressed to, inter alia, Major General Milan Oleketić, but considers this to be a typographical error and is satisfied that the 7 December Order was sent to Čeleketic.

321. See Trial Judgement, paras.. 1712, 1763; 7 December Order.

322. See, e.g., Trial Judgement, para. 1763.

323. See 7 December Order (making reference to Milosevic’s authority as President of Serbia).

324. Trial Judgement, para. 1712, citing Prosecution Exhibit 2857 (report from Čeleketic dated 7 December 1994 referring to 7 December Order)."

"105. The Appeals Chamber also notes that Perišić issued an order on 24 March 1995, prior to the shelling of Zagreb, establishing a group of coordinating staff to aid activities of the 40th PC (“24 March Order”).³²⁵ Perišić ordered that this coordinating staff be composed of a mixed group that included VJ members, VJ members seconded to the SVK, a retired VJ officer, and a member of the RSK’s Ministry of Defence.³²⁶ The Appeals Chamber observes that certain individuals to whom the order referred, including the retired officer and the member of the RSK’s Ministry of Defence, were not subject to Perišić’s authority.³²⁷ In addition, the Trial Chamber noted the absence of any evidence that the 24 March Order was actually obeyed.³²⁸ In these circumstances, the Appeals Chamber does not consider that the 24 March Order is capable of supporting the inference that Perišić could issue command orders to soldiers seconded through the 40th PC."

"325. Trial Judgement, para. 1711; Prosecution Exhibit 1925 (24 March Order).

326. Trial Judgement, para. 1711; 24 March Order, pp. 1-3.

327. See Trial Judgement, para. 1711, citing T. 8 June 2009 p. 6762 (testimony by Prosecution Witness Miodrag Starčević).

328. Trial Judgement, para. 1711."

"106. Finally, the Appeals Chamber notes evidence on the record indicating that after the shelling of Zagreb, and after Čeleketic was replaced by Mrksic in mid-May 1995, Perišić issued instructions to soldiers and officers seconded through the 40th PC.³²⁹ Nevertheless, evidence on the record suggests that Perišić had a better relationship with Mrksic than with Čeleketic, and that Mrksic’s compliance with Perišić’s instructions marked a departure from the chain of command obeyed by Čeleketic.³³⁰ The personal relationship between Perišić and Mrksic could plausibly account for Perišić’s increased influence over the SVK after Čeleketic ceased serving as SVK commander. In any event, however, this evidence does not in any way demonstrate that Perišić exercised effective control over the Zagreb Perpetrators at the time of the shelling of Zagreb."

"329. See Trial Judgement, paras. 1730-1734, 1764; Prosecution Exhibit 1340, p. 3 (undated telephone intercept in which Perišić confirms that Mrksic is not taking orders from Martic). See also Prosecution Exhibit 2412, p. 1 (document dated 20 June 1995 responding to an order from Perišić).

330. See Trial Judgement, paras. 1725-1730, 1764. See also Prosecution Exhibit 1340, p. 3 (undated telephone intercept in which Perišić confirms that Mrksic is not taking orders from Martic)."

"107. In sum, the Appeals Chamber is not convinced that Perišić could issue command orders to soldiers seconded through the 40th PC at the time of the shelling of Zagreb. While some evidence does suggest the existence of such power,³³¹ this interpretation of the record is not the only reasonable one, especially given credible direct evidence from Witnesses Raseta and Orlic that VJ soldiers seconded through the 40th PC were not within Perišić’s chain of command.³³²"

"331. See supra, paras. 104-106.

332. See supra, paras. 91, 93-94."

M.P.17.1. Evidence of the suspect’s authority to give direct combat orders to the units under his or her immediate or first level command

The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, para. 1981:

"1981. The fact that Bizimungu had the material ability to restrain members of the Interahamwe is also demonstrated by his own account of his intervention at H?tel des Mille Collines following a report of an attack by Interahamwe against the refugees at the hotel on 17 June.3707 Following his arrival at the hotel, Bizimungu ordered the assailants, who were armed, to halt their attack against the people at the hotel or he would shoot at them. His evidence suggests that the assailants complied with his orders and ceased the attack."

M.P.17.2. Evidence of the suspect’s authority to give direct combat orders to the units under his command at a second or further lower level

M.P.17.3. Evidence of an order bearing the suspect’s name giving tactical instructions for conduct of combat operations

M.P.17.4. Evidence of an order signed on behalf of the suspect assigning specific tasks to the subordinate units

M.P.17.5. Evidence of an order signed on behalf of the suspect to move the subordinate units to a specific location

M.P.17.6. Evidence of an order under the name of the suspect to the subordinate units "strictly" prohibiting attacks

M.P.17.7. Evidence of an order signed by the suspect containing an explicit order not to open fire on a specific place and to retreat to cover units exposed to enemy fire

M.P.18. Evidence of the suspect’s authority to order changes in the command structure of the force

M.P.19. Evidence of the suspect’s authority to represent the force in the negotiations with adversary forces or international observers

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Judgement (AC), 14 December 2011, paras. 450-452:

"450. The Appeals Chamber recalls that indicators of effective control are a matter of evidence showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate.1061 An accused’s superior position and effective control are matters which, along with the other constituent elements of superior responsibility, must be established beyond reasonable doubt on the basis of the totality of the evidence adduced.1062

451. The Appeals Chamber is not persuaded by Bagosora’s submission that, because the meeting with the SRSG was initiated by General Dallaire and because he never attended meetings without another member of the Rwandan Armed Forces, the Trial Chamber erred in considering his representation of the Rwandan Armed Forces in meetings with the international community as evidence of his effective control. As the Trial Chamber correctly observed, regardless of who initiated the meeting, Bagosora was regarded as the appropriate authority to engage in discussions with the international community on behalf of the Rwandan Armed Forces.1063 The fact that other members of the Rwandan Armed Forces accompanied him does not undermine this.

452. Bagosora’s representation of the Rwandan Armed Forces in meetings with the international community is consistent with the fact that, in accordance with the Official Journal, Bagosora was to replace the Minister of Defence in his absence.1064 While this representation of the Rwandan Armed Forces does not on its own demonstrate that Bagosora exercised effective control over the Rwandan Armed Forces, it is indicative of the fact that he played a sufficiently prominent role in the Rwandan Armed Forces to be trusted with discussions with high level contacts. Moreover, the Appeals Chamber notes that the Trial Chamber found that, during the meeting with the SRSG, Bagosora "acted as the representative of the armed forces and refused to consult with the Prime Minister",1065 and was also "clearly acting as an authority of the military during the meeting" with the United States’ Ambassador where the security situation in Kigali was discussed.1066 Bagosora does not demonstrate that the Trial Chamber erred in so finding. Accordingly, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber to have considered this evidence in its assessment of whether Bagosora had effective control over the Rwandan Armed Forces, nor was the weight given by the Trial Chamber to Bagosora’s role in this respect unreasonable."

1061 Strugar Appeal Judgement, para. 254; Bla{ki} Appeal Judgement, para. 69. See also Ori} Appeal Judgement, para. 20; Halilovi} Appeal Judgement, para. 66.

1062 Nahimana et al. Appeal Judgement, para. 789; Ntagerura et al. Appeal Judgement, paras. 172-175, 399.

1063 Trial Judgement, para. 2023. See also Roméo Dallaire, T. 19 January 2004 p. 33 ("Colonel Bagosora was to attend [the meeting at the U.S. Ambassador’s residence on the morning of 7 April 1994]. He was the interlocutor. He was the person of authority and demonstrating that authority and exercising it. So the SRSG clearly said that, yes, Colonel Bagosora had to represent the government, the military situation on the RGF and government side.").

1064 Trial Judgement, para. 2018.

1065 Trial Judgement, para. 668.

1066 Trial Judgement, para. 672.

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, para 2029:

"2029. Bagosora also remained an important liaison in Kigali between the Rwandan government and the international community after 9 April. He testified that Dallaire would contact him when important personalities wanted to meet Rwandan officials. In the first half of May, Bagosora met with Dallaire and the United Nations High Commissioner for Human Rights at the H?tel des Diplomates. Around 13 May, Bagosora also met with Bernard Kouchner to discuss the evacuation of orphans from certain sites in Kigali. Video footage also depicts Bagosora giving Kouchner a tour of the H?tel des Milles Collines to inspect the refugees there. Around 14 May, he accompanied Kouchner to Murambi in Gitarama prefecture, where the government was meeting, to put him in contact with Prime Minister Kambanda. Later that day, he met with Colonel Yaache, of the Ghanaian contingent of UNAMIR, to discuss facilitating the evacuation of the orphans through roadblocks in Kigali (III.5.1). Officials abroad also continued to view Bagosora as a prominent figure in Rwanda. Notably, Prudence Bushnell, the Deputy Assistant Secretary of State for African Affairs of the United States Department of State, personally called Bagosora on 28 April 1994 to ask him to put an end to the massacres."

 

M.P.19.1. Evidence that the suspect made decisions in relation to the requests from adversary forces or international observers

M.P.19.2. Evidence of the suspect’s authority to sign a proposal for normalisation of life including guaranteeing ceasefire and the security of the citizens/cultural monuments in the combat area addressed to adversary forces or international observers

M.P.19.3. Evidence of the communications from adversary forces or international observers regarding the combat lines or breaches of ceasefire being addressed to the suspect

M.P.20. No material relevance to the suspect’s effective control: Evidence of the lower level commanders’ ignorance about the role of the suspect’s command

M.P.21. Evidence of the suspect’s order being acted upon by the subordinate units

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1526-1527:

1526. As noted above, it is significant that the young ESO soldiers at the barrier initially allowed Witness ZAV and Remy Rwekaza, two Tutsis, to pass on the explanation that they intended to see ESO Captain Twagiramungu. However, they were returned to the roadblock by Nizeyimana who then ordered the soldiers to kill them. In describing the soldiers’ reaction, Witness ZAV stated that they ‘couldn’t challenge [their] superior’. Notably, when Rwekaza later offered to pay the soldiers in exchange for his life, they responded that Nizeyimana would kill them unless they complied with his order. Nizeyimana’s actions, which were a necessary condition to the ensuing attack, fully reflect his material ability to prevent and punish this criminal conduct of these ESO soldiers at that moment."

1527. Likewise, the killing of Beata Uwambaye at the same roadblock weeks later further reflects Nizeyimana’s continuing ability to exercise effective control over the young ESO soldiers that manned this barrier. Like the killing of Rwekaza and the attack on Witness ZAV, Uwambaye was led away to be shot and stabbed after Nizeyimana’s orders to ESO soldiers to execute her. Notably, the verbal response to Nizeyimana’s command was from the ESO cadets was ‘Yes sir, Captain’. In the Chamber’s view, this evidence further demonstrates the clear deference Nizeyimana demanded given his superior rank and authority over these young and impressionable soldiers. These facts necessarily demonstrate a material ability to prevent and punish criminal conduct at that moment. Nizeyimana’s conduct, in both instances, reflect that he was aware of the commission of these crimes and did nothing to prevent or punish them."

The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, para. 1981:

"1981. The fact that Bizimungu had the material ability to restrain members of the Interahamwe is also demonstrated by his own account of his intervention at H?tel des Mille Collines following a report of an attack by Interahamwe against the refugees at the hotel on 17 June.3707 Following his arrival at the hotel, Bizimungu ordered the assailants, who were armed, to halt their attack against the people at the hotel or he would shoot at them. His evidence suggests that the assailants complied with his orders and ceased the attack."

Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement (TC), 6 December 2010, para. 663:

"663. Moreover, Hategekimana exercised effective control over the soldiers at the Ngoma Camp because he had the material ability to prevent the crimes committed by them and to punish the perpetrators. As an insider, BYQ testified that Hategekimana had the power to stop Ngoma Camp soldiers from carrying out killings of Tutsi refugees.1264 Evidence indicates that Hategekimana gave orders to his soldiers and these orders were respected. BYQ testified that he was sent once in late April 1994 by Hategekimana to watch over the house of an elderly lady whose residence had been attacked.1265 BYO testified that she saw Hategekimana ordering the soldiers to leave with the refugees from Benebikira convent.1266 In addition, he had the ability to punish the soldiers as the de jure and de facto Commander of the Ngoma Camp. BYQ testified that "had the soldiers left the camp without the Accused’s knowledge, they would have been punished upon their return."1267

1264 T. 31 March 2009 p. 51: "And had the commander, being on the site, and had he refused that such a thing happen, nothing would have been done. The refugees would still be alive." Witness BYP also stated that if the military Secteur under Ngoma Camp had been properly protected, the refugees would not have been killed. Since Hategekimana had the power to prevent the killings, he was the person of reference in case of danger. Father Masinzo spontaneously called the Accused thinking he could protect the refugees; T. 15 April 2009 p. 52: "Moreover, if Hategekimana had told his soldiers as follows, "My soldiers, we are supposed to provide security for Ngoma Camp. We are, therefore, supposed to protect members of the population as we protect the camp," all of that would not have happened. Maybe there were some leaders who were opposed to it"; T. 19 March 2009 p. 11; T. 18 March 2009 p. 65: "As a matter of fact, we were attacked by soldiers under his command—who were under him, rather. So I thought that he was the person who could stop the massacres in Ngoma. If he was in a position to prevent soldiers from killing people, he could also have prevented civilians from killing other people. Well, at least that is what I thought at the time."

1265 T. 31 March 2009 p. 37.

1266 T. 4 May 2009 p. 21.

1267 T. 31 March 2009 p. 44. Punishment could have included jail or dismissal from the army. T. 1 April 2009, p. 50.

M.P.22. Evidence of the suspect being promoted for successfully directing an commanding as indicative of the effective control exercised by the suspect

M.P.23. Evidence of the suspect retaining responsibility for maintaining discipline

M.P.24. Evidence of the suspect retaining responsibility for the promotion and removal of officers

A. Legal source/authority and evidence:

ICTY

ICTY, The Prosecutor v. Perišić, IT-04-81-A, Judgement (AC), 28 February 2013, para. 112-113:

"112. The Appeals Chamber notes the existence of evidence that Perišić had some control over promotions and terminations of service for VJ soldiers serving in the SVK. In particular, Perišić had an extensive role in the "verification" of promotions granted by the SVK to VJ personnel seconded through the 40th PC. In addition, even though Perišić’s power to terminate the careers of VJ soldiers seconded through the 40th PC was circumscribed by law, he possessed a "certain amount of discretion" over this process. The Appeals Chamber is thus satisfied that Perišić exercised influence over the professional development of VJ soldiers and officers seconded to the SVK. The Appeals Chamber also notes that the Trial Chamber reviewed evidence indicating that Perišić was heavily involved in SVK operations through his influence over VJ aid.

113. The Appeals Chamber is satisfied that evidence relating to Perišić’s power over the careers of VJ members seconded to the SVK, as well as evidence regarding Perišić’s involvement in broader SVK operations, demonstrates his influence over VJ soldiers serving in the SVK at the time of the Zagreb Crimes. The Appeals Chamber will consider this evidence in conjunction with the totality of evidence on the record to determine whether effective control is proved."

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 392-405, 414:

"(ii) Effective control

392. As discussed above, the indicators of effective control depend on the specific circumstances of the case. The Chamber turns now to consider whether the evidence in the case establishes that the Accused had the power to prevent the unlawful shelling of the Old Town of Dubrovnik on 6 December 1991, and punish or initiate disciplinary or other adverse administrative proceedings against the perpetrators.

a. Did the Accused have the material ability to prevent the attack on the Old Town of 6 December 1991?

393. At the outset the Chamber notes that while the 2 OG was a newly established unit, it had the fundamental organisational structure to enable it to control combat operations. It received regular combat reports from the units directly subordinated to it, the 9 VPS, the 2nd Corps and the 37th Corps, which were compiled on the basis of reports from their subordinate units down to the level of battalion. All principles of command and control for the armed forces applied to the 2 OG.

394. The command of the 2 OG conducted combat activities through the corps, VPS and the brigade commands. Commanders of units directly subordinated to the 2 OG issued orders to their subordinate units pursuant to orders from the command of the 2 OG. Admiral Jokic, the commander of the 9 VPS, received orders from the command of the 2 OG and issued orders to his subordinate units, including the 3/472 mtbr, 3/5 mtbr and the 107 OAG, in accordance with these orders.

395. As the commander of the 2 OG, the Accused had the authority to give direct combat orders not only to the units under his immediate or first level command, but also to units under his command at a second or further lower level. By way of actual examples, an order of the command of the 2 OG of 24 October 1991 bearing the Accused’s name, gave tactical instructions for conduct of combat operations to the units of the 2 OG, including the 9 VPS and the 472 mtbr. An order dated 23 October 1991 signed on behalf of the Accused assigned specific tasks to the 9 VPS and the 472 mtbr. By the same order, direct combat tasks were given to the 3/472 mtbr. These included an order to move the unit to a specific position.

396. The authority of the Accused to give direct combat orders included, of course, authority to order a unit to ceasefire and to prohibit explicitly attacks on particular targets. Examples are an order from the command of the 2 OG issued on 24 October 1991 under the name of the Accused to the commands of the 2nd Corps, 37th Corps, 9 VPS, and 472 mtbr which "strictly" prohibited attacks on Dubrovnik. Another order from the command of the 2 OG to the 9 VPS signed by the Accused and dated 18 November 1991 contained an explicit order not to open fire on the Old Town of Dubrovnik and to retreat to cover units exposed to enemy fire.

397. The Accused had the power to order re-subordination of units within the structure of the 2 OG. The changes in the command structure of the 2 OG between 7 October and 6 December 1991 were effected by orders of the command of the 2 OG on proposals from subordinate units.

398. The nature and extent of the Accused’s material ability to prevent an attack on Dubrovnik by the JNA forces deployed in the region is further illustrated by his authority to represent the JNA in the negotiations with the ECMM and the Crisis Staff of Dubrovnik. Adrien Stringer testified that after the Accused assumed command of the 2 OG, it was solely the Accused as overall commander who made decisions in relations to ECMM requests. The Accused had the authority to sign on behalf of the JNA a proposal for normalisation of life in Dubrovnik addressed to the ECMM and the Crisis Staff of Dubrovnik, which included an undertaking by the JNA to guarantee an absolute ceasefire of all its units, and an undertaking to guarantee the security of the citizens and the cultural monuments of Dubrovnik. ECMM communications regarding location of the JNA lines or breaches of ceasefire were addressed to the Accused.

399. Some Defence witnesses, who in the autumn of 1991 served as company commanders of units subordinated to the 3/472 mtbr, testified that they received orders only from their superior commander, Captain Kovacevic and that they knew that Captain Kovacevic’s superior commander was the commander of the 9 VPS, Admiral Jokic. At their level they appear not to have been aware of any role of the 2 OG. This evidence is not surprising, especially as the 2 OG was a newly formed temporary structure. As discussed above, the 2 OG generally conducted combat operations via corps, VPS and brigade commands. According to the JNA principle of singleness of command, the command of a corps was the superior competent to issue orders to the corps. While the superior officer had the authority to issue orders to the second or further lower level, this was not the usual practice. In practice it is to be expected that subordinates at the level of company commanders would receive orders from their immediate commanders and may not be aware pursuant to what authority these orders were issued. Therefore, this evidence is not inconsistent with the principles applied in the JNA, as revealed in the evidence, and does not have material relevance to the Accused’s effective control of all units of the 2 OG.

400. The Defence places reliance on the circumstance that the command of the 9 VPS submitted two reports directly to the General Staff of the SFRY without informing the command of the 2 OG. It relies on the "Report on damage in old parts of Dubrovnik" signed by Admiral Jokic and addressed to the Deputy Federal Secretary for National Defence, Admiral Stane Brovet and on the "Action Report of 3/472 mtbr of 6 December 1991", signed by Admiral Jokic and addressed to the "First Administration" and General Simonovic in particular. As has been noted elsewhere in this decision, when the very special circumstances which led to these two reports are considered, their existence does not evidence the normal command structure, or a break-down in the normal structure or affect the relevant powers and duties of the Accused.

401. The Defence also suggests that the frequent changes of the command of the 2 OG and the re-subordination of its units was a factor detracting from the effectiveness of the command system of the 2 OG. While frequent changes of command could be a negative factor for the command and control climate, the evidence does not indicate that these changes had any significant effect in practice on the effectiveness of the Accused’s command of, and authority over, the 2 OG in the relevant period. Relevantly, 9 VPS acted pursuant to orders and decisions from the command of the 2 OG and complied with Accused’s orders. The Chamber notes that, by a decree of the Yugoslav Presidency of 28 November 1991, the Accused was promoted to the rank of Lieutenant-General for inter alia successfully directing and commanding. This was an extraordinary promotion and is indicative of the Accused’s ability to exercise effective control over the troops under his command.

402. As referred to above in the section on command structure, Defence evidence suggests that in the period from October to December 1991, the 9 VPS, which in peacetime was a regular component of the VPO, received and acted on orders from the VPO. Therefore, the question arises whether in the time material to this Indictment the VPO exercised effective control over the 9 VPS.

403. As established earlier, in the period from October 1991 until well into 1992 the 9 VPS was part of the 2 OG. The VPO retained certain authority with respect to areas such as organisation and establishment, troop replenishment, personnel administration for senior officers, logistics supplies and others. By an order of 24 October 1991, the command of 2 OG directed the 9 VPS to consider the need of strengthening of its battleships and accordingly to submit a request for such ships in due course to the command of the VPO. Two reports dealing with logistical matters were sent by the 9 VPS to the command of both the 2 OG and the VPO on 4 and 5 December 1991. This evidence suggests that in the period October to December 1991, the VPO had primarily an administrative role with respect to the 9 VPS.

404. As discussed in the preceding sections, the 9 VPS received its combat assignments from the command of the 2 OG. The VPO had no authority to influence the combat actions of the 9 VPS. Further, the command of the 2 OG retained responsibility for maintaining discipline, and for the promotion and removal of officers. The Chamber’s conclusion from this evidence is that at the material time the VPO had no combat or operational authority over the 9 VPS and did not exercise effective control over 9 VPS units. The limited authority of the VPO in respect of 9 VPS is not shown to have diminished the effectiveness of the Accused’s command of the 2 OG in respect of the events of, and relating to, the attack on 6 December 1991.

405. The Chamber is satisfied that the Accused, as the commander of the 2 OG, had the material ability to prevent the unlawful shelling of the Old Town on 6 December 1991 and to interrupt and stop that shelling at any time during which it continued.

[…]

(iii) Conclusion

414. In view of the above the Chamber is satisfied that as the commander of the 2 OG the Accused had effective control over the perpetrators of the unlawful attack on the Old Town of Dubrovnik of 6 December 1991. The Accused had the legal authority and the material ability to issue orders to the 3/472 mtbr, and all the other JNA forces involved in the attack on Srdj and the shelling of Dubrovnik, including the Old Town, explicitly prohibiting an attack on the Old Town, as well as to take other measures to ensure compliance with such orders and to secure that the Old Town would not be attacked by shelling, or that an existing attack be immediately terminated. Further, the Chamber is satisfied that following the attack of 6 December 1991 the Accused had the legal authority and the material ability to initiate an effective investigation and to initiate or take administrative and disciplinary action against the officers responsible for the shelling of the Old Town."

"1041. Blaškić Appeals Judgement, para 48.
1042. Tadic Appeals Judgement, para 229: "The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crim … and this support has a substantial effect upon the perpetration of the crime." [emphasis added]; Vasilijevic Appeal Judgement, para 102; Blaškić Appeal Judgement, para 45.
1043. Blaškić Appeals Judgement, para 47. See also Krnojelac Trial Judgement, para 88, Kunarac Trial Judgement, para 393.
1044. Blaškić Trial Judgement, para 284; Aleksovski Trial Judgement, para 65; Furundzija Trial Judgement, para 274
1045. Vasiljevic Trial Judgement, para 70.
1046. Simic Trial Judgement, para 162.
1047. Tadic Appeals Judgement, para 229; Aleksovski Appeals Judgement, para 162, referring to the Furundzija Judgement, para 249. Blaškić Appeals Judgement, para 49.
1048. Celebici Trial Judgement, para 328; Tadic Trial Judgement, 676.
1049. Aleksovski Appeals Judgement, para 162.
1050. Blaškić Appeals Judgement, para 50. See also Naletilic Trial Judgement, para 63; Kvocka Trial Judgement, para 255.
1051. Indictment, para 15.
1052. Prosecution Final Brief, para 278.
1053. Defence Final Brief, para 596.
1054. See supra, para 167.
1055. See supra, paras 338 -347.
1056. See infra, para 418.
1057. Exhibit P23.
1058. See infra, paras 428 -429.
1059. See infra, para 444.
1060. Celebici Appeals Judgement, para 195; Celebici Trial Judgement, para 343.
1061. For application of the principle of command responsibility to internal armed conflicts, see Prosecutor v Hadzihasanovic et al., Case No IT-01-47-AR72, Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para 31.
1062. Celebici Trial Judgement, para 346. See also Kordić Trial Judgement, para 401; Blaškić Trial Judgement, para 294; Kovcka Trial Judgement, para 314.
1063. Aleksovski Appeals Judgement, para 76. See also ICRC Commentary on the Additional Protocols, which states that "responsibility for a breach consisting of a failure to act can only be established if the person failed to act when he had a duty to do so.", p 1010. See also the ILC commentary on the 1996 Draft Code of Crimes Against The Peace and Security of Mankind, Report of the International Law Commission on the work of its 48th session, UN doc.A/51/10, p. 36.
1064. Celebici Trial Judgement, para 377.
1065. Celebici Trial Judgement, para 370.
1066. The Appeals Chamber endorsed the finding of the Trial Chamber that "it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences", Celebici Trial Judgement, para 378.
1067. Celebici Appeals Judgement, para 256. In this respect, factors indicative of an accused’s position of authority and how means of effective control may be demonstrated may include the official position held by the accused, his capacity to sign 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. See Kordić Trial Judgement, paras 418-424. The Appeals Chamber has rejected the argument that a superior may be held criminally liable on the basis of his powers of influence as it held that "substantial influence as a means of control in any sense which falls short of possession of effective control over subordinates" (i.e. possession of material ability to prevent or to punish) has no standing of rule of customary law, especially such that may trigger criminal liability. See Celebici Appeals Judgement, para 266.
1068. See infra, para 391.
1069. Celebici Appeals Judgement, para 193.
1070. Celebici Appeals Judgement, para 195.
1071. Celebici Appeals Judgement, para 303.
1072. As stated in the ICRC Commentary in relation to Article 87 of Additional Protocol I dealing with the duty of commanders, "SaC 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." See ICRC Commentary on the Additional Protocols, p 1019.
1073. Kunarac Trial Judgement, para 399.
1074. ICRC Commentary on the Additional Protocols, p 1013. The Military Tribunal hearing the High Command Case similarly held that "ScCriminality 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." United States. v. Wilhelm von Leeb et al., Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. XI, pp 543-544.
1075. United States v. Soemu Toyoda, Official Transcript of the Record of Trial, p 5006 (emphasis added). In this respect, the Trial Chamber further refers to the following finding of the Military Tribunal in the Hostage Case in relation to the defendant Dehner : "The defendant excuses his indifference to all these killings by saying that it was the responsibility of the division commanders. We agree that the divisional commanders are responsible for ordering the commission of criminal acts. But the superior commander is also responsible if he orders, permits, or acquiesces in such criminal conduct. His duty and obligation is to prevent to acts, or if they have been already executed, to take steps to prevent their recurrence." United States v. Wilhelm List et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. XI, p 1298."

 

Prosecutor v. Momčilo Perišić, Case No. IT-04-81-A, Judgement (AC), 28 February 2013, paras. 112-118:

"112. The Appeals Chamber notes the existence of evidence that Perišić had some control over promotions and terminations of service for VJ soldiers serving in the SVK.³⁴⁰ In particular, Perišić had an extensive role in the “verification” of promotions granted by the SVK to VJ personnel seconded through the 40th PC.³⁴¹ In addition, even though Perišić’s power to terminate the careers of VJ soldiers seconded through the 40th PC was circumscribed by law, he possessed a “certain amount of discretion” over this process.³⁴² The Appeals Chamber is thus satisfied that Perišić exercised influence over the professional development of VJ soldiers and officers seconded to the SVK. The Appeals Chamber also notes that the Trial Chamber reviewed evidence indicating that Perišić was heavily involved in SVK operations through his influence over VJ aid.³⁴³"

"340. See Trial Judgement, paras. 866, 933, 1768.

341. See Trial Judgement, paras. 841-866, 1743-1745. See also Trial Judgement, para. 1768.

342. Trial Judgement, para. 1749. See also Trial Judgement, para. 1768.

343. See Trial Judgement, paras. 763-802, 1238-1263, 1750."

"113. The Appeals Chamber is satisfied that evidence relating to Perišić’s power over the careers of VJ members seconded to the SVK, as well as evidence regarding Perišić’s involvement in broader SVK operations, demonstrates his influence over VJ soldiers serving in the SVK at the time of the Zagreb Crimes. The Appeals Chamber will consider this evidence in conjunction with the totality of evidence on the record to determine whether effective control is proved."

"114. Having assessed different types of evidence relevant to Perišić’s effective control, the Appeals Chamber will now consider whether this evidence, assessed in its totality, proves that Perišić possessed effective control over the Zagreb Perpetrators at the time of the Zagreb Crimes. The Appeals Chamber again notes the circumstantial nature of the relevant evidence;³⁴⁴ in these circumstances, a finding of effective control is possible only if that is the sole reasonable inference from this evidence.³⁴⁵"

"344. See Trial Judgement, paras. 1672-1689, 1701-1752, 1755-1769.

345. See Krajisnik Appeal Judgement, para. 202; Stakic Appeal Judgement, para. 219."

"115. Some evidence is consistent with Perišić possessing effective control over soldiers seconded through the 40th PC, including the Zagreb Perpetrators, at the time of the Zagreb Crimes. At the time Zagreb was shelled, Perišić could influence promotions and terminations of seconded VJ soldiers, and, more broadly, the operations of the SVK.³⁴⁶ In addition, there is evidence that Perišić was able to issue orders to soldiers seconded through the 40th PC after the Zagreb Crimes.³⁴⁷ Finally, following the fall of the RSK, Perišić was involved in disciplinary proceedings related to actions by VJ soldiers seconded to the SVK.³⁴⁸"

"346. See supra, paras. 112-113.

347. See supra, para. 106; Trial Judgment, paras. 1733-1734.

348. See supra, para. 109."

"116. Other evidence on the record, however, suggests that during the shelling of Zagreb, Perišić did not possess effective control over VJ soldiers serving in the SVK. Most importantly, the Appeals Chamber notes that Čeleketic, a VJ officer seconded through the 40th PC, ignored Perišić’s instruction not to shell Zagreb and instead complied with the contrary orders of RSK President Martic.³⁴⁹ Considered in isolation, this failure to obey Perišić’s instruction might be dismissed as an exceptional instance of disobedience or rebellion. Yet no evidence proves beyond reasonable doubt that Perišić ever issued a command order to a VJ soldier serving in the SVK prior to the shelling of Zagreb. Similarly, there is no conclusive evidence that Perišić ever disciplined a VJ soldier seconded through the 40th PC prior to the fall of the RSK.³⁵⁰"

"349. See supra, paras. 98-101.

350. See supra, paras. 108-111."

"117. In this context, the Appeals Chamber considers that a reasonable alternative interpretation of the record is that Perišić could influence, but did not possess effective control over, the Zagreb Perpetrators at the time of the shelling of Zagreb. Months after the Zagreb Crimes, Perišić may have acquired effective control over VJ soldiers seconded to the SVK. However, this is of no consequence for purposes of command responsibility under Article 7(3) of the Statute. An accused superior may not be held liable for failure to punish crimes committed by subordinates before he or she assumed command over them.³⁵¹"

"351. See Halilović Appeal Judgement, para. 67; Hadžihasanović et al. Appeal Decision on Jurisdiction, para. 51."

 

"118. Accordingly, a finding that Perišić exercised effective control over the Zagreb Perpetrators at the time of the Zagreb Crimes is not the sole reasonable inference from the totality of the circumstantial evidence in this case. Thus, Perišić’s effective control has not been established beyond reasonable doubt."

M.P.25. Evidence of the suspect’s power to impose disciplinary measure

M.P.26. Evidence of the suspect’s power to make a proposal for the prosecution of the perpetrators of a criminal act of his or her subordinate

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 722-725:

i. Tihomir Blaškić exercised "effective control" over the perpetrators of the crimes

722. The Trial Chamber recalls that all the detention centres were located in the CBOZ which General Blaškić commanded from 27 June 1992. The perpetrators of the crimes at the detention centres were HVO soldiers and also members of the Military Police.

723. It is not contested that General Blaškić commanded the regular troops of the HVO. The Trial Chamber is moreover convinced that the accused exercised effective control over the Military Police within the meaning of Article 7(3) of the Statute.

724. In this respect, as it has already asserted, the Trial Chamber recalls that General Blaškić was in command of the soldiers and Military Police implicated in the attacks on Ahmici, Loncari and Ocehnici in April 1993. It further affirms that pursuant to the rules on the training and activities of the Military Police, this group was under the authority of the accused as commander of the CBOZ when it came to accomplishing daily operational tasks. As one witness heard by the Trial Chamber explained:

The commander of the Operative Zone vis-à-vis a military policeman, regardless of whether he is in the reserve formation or active formation, could impose only disciplinary measure, and the greatest disciplinary measure that he could take was 15 days’ detention. After a 15-day detention, the military policeman would be returned to his unit and would continue to perform his regular duties. The commander of the Operative Zone, if there was a criminal act in question on the part of the military policeman , the commander could […] make a proposal for the prosecution of that individual and send that request to the military disciplinary judiciary or the chief of the military police, head of the military police administration, for him to undertake such measures.

725. The Trial Chamber thereby concludes that, throughout the period during which the previously described crimes were committed, General Blaškić incontestably held at least the material power to prevent the Military Police from perpetrating crimes or to punish the perpetrators thereof.

"1633 - Witness Blaškić, PT p. 21299.
1634 - D523.
1635 - PT pp. 24020-24021."

M.3.1.3. Evidence of the suspect’s material ability to punish the perpetrators of the crime

ICTY, The Prosecutor v. Perišić, IT-04-81-A, Judgement (AC), 28 February 2013, para. 108-111:

"108. The Appeals Chamber recalls that Witness Rašeta, a senior SVK officer, testified that Perišić did not possess immediate disciplinary powers over soldiers seconded through the 40th PC while they served in the SVK. The Appeals Chamber considers that Witness Rašeta’s testimony is supported by the Trial Chamber’s acknowledgement that evidence on the record did not demonstrate that Perišić initiated any disciplinary proceedings against soldiers seconded through the 40th PC before, during, or immediately after the Zagreb Crimes.

109. The Trial Chamber considered evidence suggesting that in the months after the fall of the RSK in August 1995, Perišić was involved in disciplinary proceedings against individuals seconded through the 40th PC, and that these proceedings involved actions taken during service with the SVK. One reasonable interpretation of this evidence is that Perišić always possessed dormant disciplinary powers but only exercised them after the fall of the RSK. However, the Appeals Chamber notes evidence that SVK forces came under direct VJ control after the fall of the RSK. In the Appeals Chamber’s view, an equally reasonable interpretation is that Perišić acquired disciplinary powers over VJ members seconded to the SVK after the Zagreb Crimes were committed.

110. The Appeals Chamber notes the possibility that Perišić could have punished the Zagreb Perpetrators after they rejoined the VJ chain of command following the fall of the RSK. The Appeals Chamber recalls, however, that an accused may not be held liable under Article 7(3) of the Statute for failure to punish crimes committed by a subordinate before the accused assumed command over the subordinate. Thus, the fact that, after the shelling of Zagreb, Perišić may eventually have acquired the power to punish the Zagreb Perpetrators does not expose him to liability for failure to punish the Zagreb Crimes.

111. In these circumstances the Appeals Chamber does not consider that evidence of Perišić’s involvement in disciplinary activities proves that he exercised effective control over the Zagreb Perpetrators at the time of the Zagreb Crimes."

 

Prosecutor v. Momčilo Perišić, Case No. IT-04-81-A, Judgement (AC), 28 February 2013, paras. 108-111:

"108. The Appeals Chamber recalls that Witness Rašeta, a senior SVK officer, testified that Perišić did not possess immediate disciplinary powers over soldiers seconded through the 40th PC while they served in the SVK.³³³ The Appeals Chamber considers that Witness Rašeta’s testimony is supported by the Trial Chamber’s acknowledgement that evidence on the record did not demonstrate that Perišić initiated any disciplinary proceedings against soldiers seconded through the 40th PC before, during, or immediately after the Zagreb Crimes.³³⁴"

"333. See supra, para. 91.

334. See Trial Judgement, paras. 1674-1689."

"109. The Trial Chamber considered evidence suggesting that in the months after the fall of the RSK in August 1995,³³⁵ Perišić was involved in disciplinary proceedings against individuals seconded through the 40th PC, and that these proceedings involved actions taken during service with the SVK.³³⁶ One reasonable interpretation of this evidence is that Perišić always possessed dormant disciplinary powers but only exercised them after the fall of the RSK.³³⁷ However, the Appeals Chamber notes evidence that SVK forces came under direct VJ control after the fall of the RSK.³³⁸ In the Appeals Chamber’s view, an equally reasonable interpretation is that Perišić acquired disciplinary powers over VJ members seconded to the SVK after the Zagreb Crimes were committed."

"335. Trial Judgement, para. 171.

336. See Trial Judgement, paras. 1675-1689.

337. See Trial Judgement, para. 1759.

338. See Trial Judgement, para. 1734. See also Trial Judgement, para. 294."

"110. The Appeals Chamber notes the possibility that Perišić could have punished the Zagreb Perpetrators after they rejoined the VJ chain of command following the fall of the RSK. The Appeals Chamber recalls, however, that an accused may not be held liable under Article 7(3) of the Statute for failure to punish crimes committed by a subordinate before the accused assumed command over the subordinate.³³⁹ Thus, the fact that, after the shelling of Zagreb, Perišić may eventually have acquired the power to punish the Zagreb Perpetrators does not expose him to liability for failure to punish the Zagreb Crimes."

"349. See supra, paras. 98-101."

"111. In these circumstances the Appeals Chamber does not consider that evidence of Perišić’s involvement in disciplinary activities proves that he exercised effective control over the Zagreb Perpetrators at the time of the Zagreb Crimes."

 

 

M.P.27. Evidence of the suspect’s authority to issue orders and instructions relating to discipline

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 859:

859. The Chamber also notes that the Accused Had`ihasanovi} endeavoured to train his troops in military discipline, which implied respecting orders1722 and the constant communication of information within the military hierarchy.1723 The Presidency of the Republic of Bosnia and Herzegovina provided the legislative framework to ensure that military discipline was respected in the ranks of the ABiH.1724 The Supreme Command issued orders to ensure that discipline prevailed within the ABiH and requested that reports be made on certain actions which came to its attention."

M.P.27.1. Evidence of an order prohibiting the unauthorised movement of soldiers from units and positions

M.P.27.2. Evidence of an order clarifying the procedure for gathering of war booty, the misappropriation of which was considered a serious offence

M.P.28. Evidence of the suspect’s authority to seek an increase of the number of military police

M.P.28.1. Evidence that subordinate officers put forward a request for mobilization of additional military police to the suspect

M.P.29. Evidence of the suspect’s authority to apply disciplinary measures prescribed by law

M.P.29.1. Evidence of an obligation of commading officers of all levels of units to ensure that the information about the violation reached the prosecution authorities

M.P.29.2. Evidence of a superior commander’s authority and obligation to check whether the military police had been informed of the violation, and whether the military police had notified the prosecutor

M.P.30. Evidence of the military court system being available

M.P.31. Evidence of cases of criminal proceedings initiated against soldiers from the suspect’s forces

Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 896-899:

"896. Witnesses who were members of the ABiH military police nonetheless testified that in spite of the difficulties the military units had to deal with – shortages of manpower and appropriate materiel or owing to special incidents on the ground – the units took numerous measures to identify the perpetrators of unlawful acts, recover stolen property and find evidence to make their reports to the district military prosecutors.1834 According to Witness Semir Saric, the military police were able to identify a very high percentage of perpetrators.

897. The military police units filed numerous criminal complaints with the military prosecutors for offences committed by members of the ABiH, HVO or civilians. The 3rd Corps Military Police Battalion was responsible for filing most of the complaints with the district military prosecutors.

From 14 September 1992 to 1 March 1994, the 3rd Corps Military Police Battalion filed 377 criminal reports involving 804 identified and 20 unidentified persons.The 17th Brigade filed some 30 complaints for crimes committed by its members.

898. The complaints covered different offences, ranging from theft, aggravated theft, usurpation of identity, manslaughter, murder, rape, insubordination, falsification of official documents, abuse of power, fraud or desertion.1839 The complaints received by the Military Prosecutor’s Office in Travnik were essentially crimes against the armed forces but also crimes against property and persons (murder).1840 According to Witness Sead Zeric, the District Military Prosecutor’s office in Travnik did not receive any reports from the ABiH regarding arson, war crimes or crimes against humanity committed by its soldiers or on ABiH soldiers mistreating prisoners. Witness Sead Zeric explained, inter alia, that a limited number of reports concerned the murder of Croats or HVO soldiers by ABiH soldiers.1841

899. It did happen, however, that following investigations by military police units, no complaint was filed with the district military prosecutors but that disciplinary measures were taken instead by the commander of the brigade to which the offender belonged. The follow-up to these investigations might depend on the gravity of the offence or the situation on the ground. Thus, according to Witness Osman Menkovi}, minor offences resulted in disciplinary measures taken by the brigade commander, while more serious crimes were the subject of a report filed by the military police with the military prosecutor.1842 Furthermore, owing to the Travnik District Military Court’s lack of efficiency and difficult communications with Travnik caused by combat, the 306th Brigade military police undertook disciplinary measures more often than it filed complaints with the District Military Prosecutor in Travnik."

M.P.32. Evidence of the absence of cases of criminal proceedings initiated against soldiers from the suspect’s forces with regard to the crimes at hand

M.P.33. Evidence of the suspect’s authority with regad to the removal of officers

M.P.34. Evidence of the suspect’s certain authority with regard to the promotion of officers

M.P.34.1. Evidence of the suspect’s authority to approve and submit his recommendation with regard to the promotion of officers

M.P.34.2. Evidence of the suspect’s authority to oppose a regular promotion of officers

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 392, 406-414:

"(ii) Effective control

392. As discussed above, the indicators of effective control depend on the specific circumstances of the case. The Chamber turns now to consider whether the evidence in the case establishes that the Accused had the power to prevent the unlawful shelling of the Old Town of Dubrovnik on 6 December 1991, and punish or initiate disciplinary or other adverse administrative proceedings against the perpetrators.

[…]

b. Did the Accused have the material ability to punish the perpetrators?

406. In addition to his authority over all units of the 2 OG in operational matters, as the commander of the 2 OG the Accused’s authority included authority to issue orders and instructions relating to discipline to the units of the 2 OG, including the 9 VPS. On 1 November 1991 the command of the 9 VPS issued an order governing life and work of units in combat, which among other measures, prohibited the unauthorized movement of soldiers from units and positions and required the commanders of subordinate units to ensure unconditional execution of orders and responsible execution of duties. This order was given on the basis of explicit orders from the 2 OG, following an incident that highlighted the need to improve combat security. The "Plan of Measures and Activities Aimed at Developing and Maintaining Order, Discipline and Morale of Units in the Next Period" issued by the command of the 9 VPS on 4 December 1991 was in line with orders issued by the 2 OG and was intended to eliminate existing problems with discipline. By an order of 22 January 1992, issued as an addendum to an order of the command of the 2 OG, the command of the 9 VPS further clarified the procedure for gathering of war booty, the misappropriation of which was considered a serious offence. While this was issued after 6 December 1991, it provides an illustration of the working of the command structure in the 2 OG and the complementary relationship of the role of the 9 VPS in such matters, a role which did not detract from the ultimate power and authority of the Accused as commander of the 2 OG.

407. The Accused also had authority to seek an increase of the number of military police. It is suggested in the evidence that the 2 OG did not have sufficient military police. It is noted that subordinate officers put forward a request for mobilization of additional military police to the Accused because he had the authority to seek reinforcements. Milovan Zorc testified to the rather obvious proposition that if a commander of an OG needed a greater number of military police, he should have requested them.

408. As the commander of the 2 OG, the Accused had authority to apply all disciplinary measures prescribed by law. If a criminal offence had been committed, commanding officers of all levels of units had an obligation to ensure that the information about the violation reached the prosecution authorities. If a lower level commander had not complied with this obligation, the superior commander leading the operation personally had the authority and the obligation to check whether the military police had been informed of the violation, and whether the military police had notified the prosecutor.

409. The Defence submits that at the material time the military courts in the region were not functioning. Indeed, the military court covering the area of Dubrovnik, which in peacetime was located in Split, was relocated to the Bay of Kotor in October 1991, and as a consequence, at least for a month was not functioning. The evidence does not suggest, however, that this was a material issue in October 1991 or thereafter. The unavailability of a military court did not exonerate a commander from his duty to ensure that information about an offence was communicated to the judicial authorities. According to the rules and practice of the JNA, if a military court was not available, the higher military court and the military prosecution should determine the court to be seized with the matter. If the higher court is also not available, the commander had the responsibility to refer the information further up the chain of command to the Federal Secretariat of National Defence. At the time material to this Indictment, in addition to the military court in Split, there were military courts in Ljubljana, Zagreb, Sarajevo, Belgrade, Nis and Skopje, so there was not a complete breakdown in the military court system.

410. Indeed, there were cases of criminal proceedings initiated against soldiers from the 2 OG. Veselin Simovic, a reserve soldier of the 2 OG was indicted by the Military Prosecutor of Sarajevo for murdering 7 Croat civilians in the village of Kijev Do, Trebinje municipality. There were about 68 indictments filed with the military court in Tivat, many of which dealt with looting and arson, and about 150 criminal reports for robbery. There were, however, no indictments related to the shelling of the Old Town of Dubrovnik in October and November 1991, nor, as discussed elsewhere, to the shelling of 6 December 1991, or to other breaches of international humanitarian law.

411. According to the laws of the SFRY, in peacetime, the authority to appoint or to recall battalion commanders was reserved for the highest level of command, the Federal Secretary of National Defence. However, during combat operations the removal of an officer could be quickly effected through transfer and appointment to other duties as a personnel change resulting from "the needs of service." These measures were in the power and capacity of the Accused as Commander of the 2 OG.

412. In addition, as the commander of the 2 OG, the Accused could also ensure the replacement of a subordinate commander during combat operations by recommending to the Federal Secretary of National Defence the removal of the officer supported by an explanation for his recommendation.

413. Similarly, as the commander of the 2 OG, the Accused had certain powers with respect to promoting officers under his command. A proposal for a promotion of an officer for successful performance of tasks, the so-called extraordinary promotion, had to be submitted to the Federal Secretary of National Defence through the chain of command, which, in the case of the promotion of Captain Kovacevic for example, which occurred 8 days after 6 December 1991, would have required the Accused as commander of the 2 OG to approve and then to submit his recommendation to the Federal Secretary. A regular promotion, i.e. promotion for time served at certain rank, was decided by the Federal Secretary, but in this case, the commander of the 2 OG had the power to oppose it.

(iii) Conclusion

414. In view of the above the Chamber is satisfied that as the commander of the 2 OG the Accused had effective control over the perpetrators of the unlawful attack on the Old Town of Dubrovnik of 6 December 1991. The Accused had the legal authority and the material ability to issue orders to the 3/472 mtbr, and all the other JNA forces involved in the attack on Srdj and the shelling of Dubrovnik, including the Old Town, explicitly prohibiting an attack on the Old Town, as well as to take other measures to ensure compliance with such orders and to secure that the Old Town would not be attacked by shelling, or that an existing attack be immediately terminated. Further, the Chamber is satisfied that following the attack of 6 December 1991 the Accused had the legal authority and the material ability to initiate an effective investigation and to initiate or take administrative and disciplinary action against the officers responsible for the shelling of the Old Town."

"1076. Report of the International Law Commission on the work on its forty-eight session, 6 May-26 July 1996, UN doc. A/51/10, p 37.
1077. Blaškić Trial Judgement, para 303, referring to Aleksovski Trial Judgement, para 106.
1078. Celebici Trial Judgement, para 386.
1079. Celebici Trial Judgement, para 386. See also Kordić Trial Judgement, para 427 and Blaškić Trial Judgement, para 307.
1080. Celebici Trial Judgement, para 393.
1081. Blaškić Appeals Judgement, para 62, Celebici Appeals Judgement, para 226.
1082. Celebici Trial Judgement, para 393.
1083. Celebici Trial Judgement, para 393; Kordić Trial Judgement, para 437.
1084. Celebici Appeals Judgement, para 241; Blaškić Appeals Judgement, para 62.
1085. Celebici Appeals Judgement, para 238.
1086. Kordić Trial Judgement, para 437.
1087. Celebici Trial Judgement, para 395 (footnotes omitted). See also Kordić Trial Judgement, para 443.
1088. Blaškić Appeals Judgement, para 83.
1089. Blaškić Appeals Judgement, para 83; Kordić Trial Judgement, paras 445-446.
1090. Hostages Case, 11 TWC 759, p 1290. The defendant Rendulic was held responsible for acts of his subordinates for reprisals against the population, in the light of, inter alia, the fact that he made no attempt to secure additional information (after receiving reports indicating that crimes have been committed). Similarly, in holding the defendant Dehner responsible, the military tribunal considered the fact that the defendant made no effort to require reports showing that hostages and reprisal prisoners were shot in accordance with international law. p 1298; 1271.
1091. Hostages Case, 11 TWC 759, p 1311. With respect to the responsibility of the defendant Lanz for reprisal carried out by his subordinates the military tribunal held: "This defendant, with full knowledge of what was going on, did absolutely nothing about it. Nowhere an order appear which has for its purpose the bringing of the hostage and reprisal practice within the rules of war… As commander of eth XXII Corps it was his duty to act and when he failed to do so and permitted these inhumane and unlawful killings to continue, he is criminally responsible." p 1311.
1092. High Command Case, 11 TWC 1, p 623. In finding the defendant Hans von Salmuth responsible, the military tribunal held inter alia that "it appears that in none of the documents or the testimony herein that the defendant in anyway protested against or criticized the action of the SD or requested their removal or punishment." (emphasis added). Similarly, in the Hostage Case the military tribunal found the defendant Wilhelm List responsible inter alia in the light of the fact that "(n(ot once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts." Hostage Case, 11 TWC 759, p 1272.
1093. The Tokyo Judgment, The International Military Tribunal for the Far East, Volume I, p 452. The International Military Tribunal for the Far East held with respect to the defendant Kimura that "(h(e took no disciplinary measures or other steps to prevent the commission of atrocities by the troops under his command."
1094. The Tokyo Judgment, The International Military Tribunal for the Far East, Volume I, p 448. The Tokyo judgment found that the defendant Hirota "was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented..."
1095. The Tokyo Judgment, The International Military Tribunal for the Far East, Volume I, p 452.
1096. Additional Protocol I, Article 87(3).
1097. ICRC Commentary on the Additional Protocols, paras 3560-3561, p 1022."

[B. Evidentiary comment:]

M.P.35. Evidence of the suspect’s power to impose disciplinary measure

M.P.36. Evidence of the suspect’s power to make a proposal for the prosecution of the perpetrators of a criminal act of his or her subordinate

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 722-725:

i. Tihomir Blaškić exercised "effective control" over the perpetrators of the crimes

722. The Trial Chamber recalls that all the detention centres were located in the CBOZ which General Blaškić commanded from 27 June 1992. The perpetrators of the crimes at the detention centres were HVO soldiers and also members of the Military Police.

723. It is not contested that General Blaškić commanded the regular troops of the HVO. The Trial Chamber is moreover convinced that the accused exercised effective control over the Military Police within the meaning of Article 7(3) of the Statute.

724. In this respect, as it has already asserted, the Trial Chamber recalls that General Blaškić was in command of the soldiers and Military Police implicated in the attacks on Ahmici, Loncari and Ocehnici in April 1993. It further affirms that pursuant to the rules on the training and activities of the Military Police, this group was under the authority of the accused as commander of the CBOZ when it came to accomplishing daily operational tasks. As one witness heard by the Trial Chamber explained:

The commander of the Operative Zone vis-à-vis a military policeman, regardless of whether he is in the reserve formation or active formation, could impose only disciplinary measure, and the greatest disciplinary measure that he could take was 15 days’ detention. After a 15-day detention, the military policeman would be returned to his unit and would continue to perform his regular duties. The commander of the Operative Zone, if there was a criminal act in question on the part of the military policeman , the commander could […] make a proposal for the prosecution of that individual and send that request to the military disciplinary judiciary or the chief of the military police, head of the military police administration, for him to undertake such measures.

725. The Trial Chamber thereby concludes that, throughout the period during which the previously described crimes were committed, General Blaškić incontestably held at least the material power to prevent the Military Police from perpetrating crimes or to punish the perpetrators thereof.

"1633 - Witness Blaškić, PT p. 21299.
1634 - D523.
1635 - PT pp. 24020-24021."