M.5. The military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit that matter to the competent authorities for investigation and prosecution.

M.5.1. The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent the commission of such crime; OR

M.P.37. Evidence of the person’s failure to issue all necessary and reasonable orders to prevent the commission of the crimes.

Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-A, Judgment (AC) 29 September 2014, para. 205:

"205. The Appeals Chamber further notes that, in support of its conclusions on Nizeyimana’s superior responsibility, the Trial Chamber relied on its findings that Nizeyimana both authorized Gicanda’s killing and was subsequently informed about the successful completion of the operation.⁶⁶⁴ It clearly follows from this analysis that the Trial Chamber considered that Prosecution evidence pointing to the fact that Nizeyimana authorized the crime was circumstantial evidence that Nizeyimana would not have prevented or punished the culpable subordinates. Furthermore, the Trial Chamber took into account Defence evidence that Bizimana was never punished for this crime.⁶⁶⁵ The Appeals Chamber does not see an error in the Trial Chamber’s conclusion that the only reasonable inference from the record was that Nizeyimana had failed to prevent, or punish his subordinates for the killing of Gicanda and the others taken from her home. The Appeals Chamber thus dismisses Nizeyimana’s arguments on his superior responsibility.

664. Trial Judgement, paras. 1516, 1517.

665. Trial Judgement, para. 517, referring to Witness RWV11, T. 2 June 2011 pp. 34, 35. See Trial Judgement, fn. 3862."

M.P.37.1. Evidence of the person’s failure to issue an order to prevent the commission of the crimes.

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Judgement (AC), 14 December 2011, paras. 672-674:

672. With respect to Bagosora’s submission that the Trial Chamber’s findings about his level of authority and knowledge imply that he could only have given general directives, the Appeals Chamber recalls that a superior’s duty is discharged when he has taken "necessary and reasonable" measures in the context of a particular situation.1582 Contrary to what Bagosora suggests, the existence of a crisis situation does not relieve the superior of his duty. Necessary and reasonable measures are such that can be taken within the competence of a commander as evidenced by the degree of effective control he wielded over his subordinates.1583 It bears noting that what constitutes necessary and reasonable measures is not a matter of substantive law but of evidence.1584

673. Bagosora relies upon Exhibits DB66, DB67, and DB103 to demonstrate that he discharged his duty to prevent the crimes by issuing "general instructions".1585 The Appeals Chamber notes that although the Trial Chamber considered these exhibits elsewhere in the Trial Judgement, it did not expressly consider whether these "general instructions" could have satisfied Bagosora’s duty to prevent the crimes for which he was convicted.1586

674. The Appeals Chamber is not convinced that, had these exhibits been considered in relation to Bagosora’s duty to prevent the crimes, a reasonable trier of fact could have found that they raised reasonable doubt regarding Bagosora’s failure to take necessary and reasonable measures to prevent crimes he knew were about to be committed. Exhibit DB103 is a communiqué issued by the Ministry of Defence in the immediate aftermath of the President’s death and which Bagosora signed in his capacity as directeur de cabinet. This communiqué called on the population to stay calm and remain at home until further notice and for the armed forces to remain vigilant.1587 Exhibit DB67 is a communiqué issued on behalf of the Rwandan Armed Forces and signed by Bagosora as directeur de cabinet relaying the decisions taken at the 7 April ESM Meeting chaired by Bagosora. The communiqué addressed the creation of the Crisis Committee and conveyed the desire to restore calm and security throughout the country, but the only threat of punishment expressed was for acts of vandalism.1588 Exhibit DB66 is the minutes of the 6 April Meeting chaired by Bagosora (as well as the 7 April meeting with the SRSG), indicating that "[t]he purpose of the [6 April Meeting] was to take urgent security measures to forestall any upheaval, reassure the population, and maintain the peace during this period of power vacuum". While these exhibits show that general statements were made about restoring calm and security, the Appeals Chamber recalls that Bagosora, the highest military authority at the time with effective control over the military, had actual knowledge that his subordinates were about to commit each of the attacks.1590 In these circumstances, the Appeals Chamber considers that the mere issuance of such general statements does not suffice to constitute "necessary and reasonable" measures of prevention. Furthermore, it recalls that a superior need not necessarily know the exact identity of his subordinates who perpetrate crimes in order to incur liability under Article 6(3) of the Statute."

1582 See Ori} Appeal Judgement, para. 177; Hadžihasanovi} and Kubura Appeal Judgement, para. 151; Halilovi} Appeal Judgement, para. 63; Bla{ki} Appeal Judgement, para. 417.

1583 Bla{ki} Appeal Judgement, para. 72. See also Ori} Appeal Judgement, para. 177; Halilovi} Appeal Judgement, para. 63.

1584 Ori} Appeal Judgement, para. 177; Hadžihasanovi} and Kubura Appeal Judgement, para. 33; Halilovi} Appeal Judgement, para. 63; Bla{ki} Appeal Judgement, para. 72.

1585 Bagosora Appeal Brief, paras. 197, 198, fn. 94. See also AT. 31 March 2011 p. 44. Bagosora also submits that the meetings held on 6 and 7 April 1994, in particular those held with UNAMIR, further indicate that attempts were made to restore security. See Bagosora Appeal Brief, paras. 198, 199; AT. 1 April 2011 p. 20. Bagosora refers to the "minutes of the meetings held on 6 and 7 April" as evidence, but does not point to any specific exhibit. See Bagosora Appeal Brief, para. 198. The Appeals Chamber understands that Bagosora is referring to Exhibit DB66.

1586 See Trial Judgement, paras. 2040, 2041.

1587 Exhibit DB103B1 (First communiqué of 7 April 1994) ("The Minister of Defence requests the people of Rwanda not to lose courage in the wake of this painful incident [i.e. the death of the Head of State] and to refrain from any actions that could undermine national security. He specially requests the Armed Forces to remain vigilant, to ensure the security of the people and to keep up the courage and clear-sightedness that they have always shown in difficult times. I also recommend to the population to stay at home and to await new orders.").

1588 Exhibit DB67A (Second communiqué of 7 April 1994) ("[L]es participants à la réunion ont pris les décisions et recommandations suivantes: 1. Mettre tout en oeuvre en collaboration avec les autres services concernés, pour que lasituation dans le pays se normalise rapidement. ? cet effet, les membres des Forces Armées sont invités instamment à se dépanner et à faire montre de retenue et de discipline pour réconforter la population et ramener le calme dans le pays.

[…] 4. Les cadres supérieurs des Forces Armées Rwandaises invitent la population à rester calme et à se refuser à toute politisation de nature à attirer les haines et les violences de tous ordres. La population, en particulier la jeunesse doit se garder des actes de vandalisme sous peine de s’exposer à une sévère répression. 5. Suite aux problèmes liés à l’insécurité, les participants à la réunion demandent aux autorités préfectorales d’examiner la situation de sécurité dans leurs ressorts y compris le couvre-feu si de besoin. Ils réitèrent leur invitation à la population de supporter courageusement les dures épreuves que nous traversons pour que le calme revienne sans tarder.").

1589 Exhibit DB66 (Minutes of the meeting of the directeur de cabinet, gendarmerie Chief of Staff, Ministry of Defence officers, army and gendarmerie senior staff on the night of 6-7 April 1994), para. 2.

1590 See supra, paras. 524, 660.

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 422:

"422. Hence, when the Accused was informed by General Kadijevic around 0700 hours of the ECMM protest, that put the Accused directly on notice of the clear likelihood that his artillery was then already repeating its earlier illegal shelling of the Old Town.¹²¹⁹ […] In combination they give rise, in the Chamber’s finding to a strong need to make very expressly clear, by an immediate and direct order to those commanding and leading the attacking forces, especially the artillery, the special status of the Old Town and the existing prohibitions on shelling it, and of the limitations or prohibition, if any, on shelling the Old Town intended by the Accused on 6 December 1991. This should have been starkly obvious. The evidence contains no suggestion whatever that any such order was issued by the Accused […]"

"1219. See supra, para 418. […]"

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:

"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons:

[B. Evidentiary comment:]

M.P.37.2. Evidence of the person’s failure to clarify and remind subordinates of existing restraints and orders.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 421:

"421. […] It remains relevant, however, that nothing had been done by the Accused before the attack on Srdj commenced to ensure that those planning, commanding and leading the attack, and especially those commanding and leading the supporting artillery, were reminded of the restraints on the shelling of the Old Town, or to reinforce existing prohibition orders. […]

The extent of the Accused’s existing knowledge of the October and November shelling of the Old Town,¹²²⁰ of the disciplinary problems of the 3/472 mtbr¹²²¹ and of its apparent role, at least as revealed by Admiral Jokic’s November investigation, in the November shelling of Dubrovnik, especially the Old Town,¹²²² and of his failure to clarify the intention of his order to attack Srdj in regard to the shelling of Dubrovnik or the Old Town are each very relevant."

"1220. In particular, there is evidence that the events in October and November 1991 received broad media coverage. See Exhibits P215, P216 and P19. On 9 November 1991, Per Hvalkof, the Deputy Head of the ECMM Regional Centre in Split, sent two letters to the Accused, informing him that the ECMM monitors in Dubrovnik had reported shelling in the Old Town, T 2143; see Exhibit P61, tab 10 and tab 11. See also Exhibit P62, tab13, Exhibit P61, tab 14; Exhibit P61 tab 15; Per Hvalkof, T 2151-2152; 2154.

1221. The Chamber heard evidence that in the period October to December 1991 there were problems with discipline in the units of the 2 OG, in particular, incidents of unauthorised opening of fire, refusal to carry out orders, looting, arson and drinking. An order signed by the Chief of Staff of the 9 VPS Warship-Captain Zec on 8 October 1991 referred to incidents of impermissible conduct of soldiers including "wanton arson and destruction of facilities, plundering, violent behaviour, drunkenness and refusal to carry out orders." (Exhibit P105; See also Admiral Jokic, T 3873-3875) Another order, issued by Admiral Jokic on 31 October 1991 required all units subordinated to the 9 VPS to take specific measures to improve discipline. (Exhibit P107, Admiral Jokic, T 3877-3880; T 4512-4513) The reasons for the issuance of this order, as indicated in the order itself, were the observations by organs of the 9 VPS that "orders were not getting through to those ultimately carrying them out" and that there were "unlawful acts, wilfulness (sic), abuse and failure to follow and carry out orders" (Exhibit P107, p 1). See also Exhibit P108.

1222. Admiral Jokic gave evidence that he conducted an investigation into the shelling of the Old Town in November 1991, which led him to conclude that the 3/472 mtbr, under the command of Captain Kovacevic, and possibly the artillery of the 472 mtbr, had been at the time in a position to shell the Old Town of Dubrovnik, T 3996-3998. Admiral Jokic testified that he then expressly requested the removal of both the commander and the chief of staff of the 472 mtbr before the Accused’s chief of staff, Admiral Kandic and the Accused. His request was not approved, T 3999."

[B. Evidentiary comment:]

M.P.37.3. Evidence of the person’s failure to issue an order to stop the commission of the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 429:

"429. […] In the Chamber’s finding, first, the failure of the Accused to order the cessation of the attack on Srdj at the same time as the ceasefire order was given to most JNA artillery units, had what was a virtually inevitable consequence in the circumstances. As the JNA infantry attack on Srdj was still being maintained, the Croatian defensive artillery in Dubrovnik had need to continue their support of the desperately situated Croatian defenders on Srdj. Without Croatian mortar fire on the attacking JNA forces surrounding the fort, it seems inevitable that Srdj would have fallen to the JNA. The Chamber would note that, to the Croatian forces, the continued attack on Srdj no doubt appeared in itself to be a breach of the ceasefire by the JNA. The effect of the continued Croatian artillery firing on the attacking JNA troops at Srdj, inevitably, was that the JNA artillery continued to fire."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:

"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons:

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:

"117. Far from ordering guards to cease the assaults, the accused sometimes even took part in them, as attested to by Witnesses L and M.²²⁹"

"229 As seen previously, the testimony by Witnesses T and Dautovi} was not taken into consideration. For further details concerning these testimonies see infra III, B."

[B. Evidentiary comment:]

M.P.37.4. Evidence of the person’s failure to ensure communication of and compliance with an order to stop the commission of the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 429, 434:

"429. […] Secondly, the failure of the Accused to ensure that his ceasefire order for 1115 hours reached all active JNA artillery led to the continued firing by the 3/5 mtbr mortars on the northwestern parts of Dubrovnik. This also constituted a serious breach of the ceasefire by the JNA. In the face of this provocation, in such tense circumstances, continued Croatian artillery firing was inevitable. That in turn, had the practical effect of ensuring the resumption of full JNA artillery firing not long after 1115 hours.[…]

434. While the finding of the Chamber is that the Accused did not order that the attack on Srdj be stopped when he spoke to Admiral Jokic around 0700 hours on 6 December 1991, the Chamber would further observe that had he in truth given that order, the effect of what followed is to demonstrate that the Accused failed entirely to take reasonable measures within his material ability and legal authority to ensure that his order was communicated to all JNA units active in the attack, and to ensure that his order was complied with. This failure, alone, would have been sufficient for the Accused to incur liability for the acts of his subordinates pursuant to Article 7(3), even if he had ordered at about 0700 hours that the attack on Srdj be stopped."

[B. Evidentiary comment:]

M.P.38. Evidence of the person’s failure to speak to subordinates about the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:

"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]

M.P.39. Evidence of the person being in denial of the commission of the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 430:

"430. The ongoing firing after 1115 hours continued until after 1500 hours, and even later. The evidence discloses no further action to stop the JNA firing while the infantry attack on Srdj continued. For much of the afternoon the Accused was in Belgrade with Admiral Jokic. Rather than there being active measures to stop the attack by those left in Command during his absence, a message, sent in his name but perhaps in his absence by his command, to Dubrovnik in the early afternoon purported to deny that there had been any shelling of the Old Town by JNA artillery since the 1115 hours ceasefire, and contended that any damage being suffered was being caused by the Croatian forces.¹²⁴⁸ This highly provocative communication not only entirely misrepresented what was in truth occurring at that time, it precludes any inference of there being efforts then underway to cease JNA artillery firing, either on the orders of the Accused or by those left in command of the 2 OG during his absence in Belgrade."

"1248. Exhibit P23. Minister Rudolf, T 5602-5604."

M.P.40. Evidence of the person’s participation in the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:

"117. Far from ordering guards to cease the assaults, the accused sometimes even took part in them, as attested to by Witnesses L and M.²²⁹"

"229 As seen previously, the testimony by Witnesses T and Dautovi} was not taken into consideration. For further details concerning these testimonies see infra III, B."

M.5.2. The perpetrator failed to take the necessary and reasonable measures within his or her power to repress the commission of such crime; OR

M.P.41. Evidence of the person’s failure to issue all necessary and reasonable orders to repress the commission of the crimes.

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, paras. 1993-2011:

"1993. Based on the evidence adduced in this trial, the Chamber is satisfied that Bizimungu, despite his effective control over soldiers and Interahamwe, failed to prevent the crimes detailed above or to punish his subordinates for their role in those crimes. In reaching this finding, the Chamber has considered Bizimungu’s claim that his material ability to prevent and punish crimes was considerably affected by the ongoing combat with the RPF and other adverse factors related to the war.

1994. The Chamber notes that a determination of a superior’s failure to prevent the commission of crimes or punish its perpetrators is not an objective test drawn in the abstract. Rather, the Chamber must consider the actual situation of the commander and the means available to him at the time when the underlying crimes were committed.

1995. The Chamber recalls that Bizimungu claimed repeatedly during his testimony that due to the ongoing combat with the RPF, it was difficult for him to prevent and punish crimes.3715 He testified that his situation was further exacerbated by desertions from the Army and a lack of reserve troops,3716 and that the availability of adequate reserves would have allowed gendarmerie units, most of which were deployed to the war front, to be relieved from combat engagements and to resume their normal duties of maintaining order.3717 Bizimungu also claimed that his means of communication and the number of staff available to him diminished as the war progressed.3718 He testified that this confluence of factors impaired his ability to exercise command with respect to the crimes that were being committed against civilians. He claimed, therefore, that a cessation of hostilities was necessary for him to effectively restore order; however, the RPF refused to agree to a ceasefire.

1996. While the Chamber has considered the impact of the prevailing situation on Bizimungu’s exercise of effective control over Rwandan Army soldiers and Interahamwe, it is not persuaded that the ongoing war with the RPF negated his material ability to prevent and/or punish the crimes underlying the charges against him to the extent that he could not reasonably be expected to address those crimes. In terms of resources, the Chamber recalls that Bizimungu admitted in the course of his testimony that as of April 1994, the forces under his command numbered between 39,000 and 40,000 soldiers.3719 Not all of those troops were engaged in combat operations against the RPF. For example, Bizimungu admitted that in Cyangugu he had troops that were not engaged in combat.3720

1997. In addition, the fact that Bizimungu managed to suspend a number of senior officers of the Rwandan Army while serving as Chief of Staff indicates that he had the material ability to prevent and punish crimes. The Chamber recalls Bizimungu’s evidence that on his recommendations, the Minister of Defence suspended Nkundiye, who was the Mutara operational sector commander, and Colonels Ndendinga and Munyamegama.3721 According to Bizimungu, he proposed the suspension of those officers in order to stabilise the command structure and ensure disciplinary control over his subordinates.3722 He also testified that around 18 or 19 May 1994, he requested the Minister of Defence to appoint Colonel Ndindingira to become the commander of the Mugesera operational sector.3723 However, Bizimungu later requested the suspension of Ndindingira because the latter had failed to stabilise the situation in Mugesera and had disobeyed Bizimungu’s specific operational instructions.3724

1998. The Chamber has also taken note of Bizimungu’s evidence that following reports that soldiers in Bugesera had committed unlawful acts, he proposed that the officer in command of those soldiers be suspended, and subsequently that officer was, in fact, replaced.3725 The Chamber considers this evidence to be a telling indication of Bizimungu’s ability to prevent and/or punish the crimes that underlie the charges against him. 1999. The fact that representatives of the UN, the United States government and Human Rights Watch considered Bizimungu to be capable of halting the massacres in Rwanda reinforces the Chamber’s finding. The Chamber has already considered the evidence regarding the meetings between Bizimungu and these international figures in other parts of the Judgement. The Chamber finds it unlikely that these high-profile representatives would have directed their requests for the cessation of the massacres against civilians to Bizimungu unless they thought he was capable of acting on their requests.

2000. Further evidencing Bizimungu’s material ability to prevent and punish crimes are his intervention at the H?tel des Mille Collines, discussed above,3726 his issuance of firm instructions via telegram to the commander of the Gisenyi operational sector to arrange for the evacuation of clergymen to Goma following reports that those clergymen were being held against their wishes in Gisenyi,3727 and his issuance of instructions via telegram to the Camp Bigogwe commander to stop plans to attack Tutsi civilians who had sought refuge at the camp.3728

2001. Bizimungu’s intervention to stop Lieutenant Colonel Sebahire, the commander of the Rulindo operational sector, from being ousted from his position on account of his rumoured links with the RPF also adds weight to the Chamber’s finding that Bizimungu had the material ability to prevent and punish crimes.3729 Due to Bizimungu’s intervention, Sebahire remained in his position as the operational sector commander.3730

2002. Based on the evidence set out above, the Chamber is not persuaded that Bizimungu’s material ability to prevent and punish crimes was substantially affected due to the war with the RPF. His own testimony strongly suggests that he had the ability to prevent the largescale killings committed by soldiers and Interahamwe. Having reviewed the entirety of his evidence, the Chamber considers that Bizimungu’s failure to prevent or punish the crimes underlying the charges against him may be explained by his culpable indifference to Tutsi lives and his decision to relegate the protection of civilian lives to a position of less importance than the prosecution of the war against the RPF.

2003. His order of priorities is clearly evidenced by the selective manner in which he chose to wield his considerable authority. The Chamber notes that while Bizimungu was willing to take the necessary steps to get a number of senior officers suspended because of operational lapses while prosecuting the war, he was unwilling to employ his authority to restrain his subordinates or sanction them for crimes committed against Tutsi civilians. His evidence suggests that he refrained from adopting stern disciplinary measures against his subordinates because of concerns that such action would have negative consequences for his effort to fight the RPF.

2004. This tendency is exemplified by Bizimungu’s explanations for his failure to take any action against Major Mpiranya, the commander of the Presidential Guard, whose subordinates were accused of perpetrating the killing of a number of high-profile Rwandan politicians. Bizimungu himself admitted to having known of the implication of Presidential Guard soldiers in crimes.3731 Bizimungu testified that he refrained from taking any action against Mpiranya, who was engaged in combat against the RPF at the time, because of concerns that such action may have had a negative effect on the war campaign against the RPF.3732 In his evidence, Bizimungu intimated that Mpiranya was likely to face disciplinary measures after the end of the war.3733 However, Prosecution Exhibit 202, a report of a meeting of former officers of the Rwandan Armed Forces chaired by Bizimungu in September 1994 while in exile in the former Zaire, indicates that Mpiranya was included in the reorganised Rwandan Armed Forces led by Bizimungu and that he was actually assigned some responsibilities within that force.

2005. The Chamber further recalls that Bizimungu stated, "People died, Prime Minister Agathe died, blue berets died, other people died … do you really think that one could have a grip over such impunity, over such acts? ... we are fighting ... when somebody is killed, you don’t look around you, he is dead. You carry on".3734 In the Chamber’s opinion, this is a clear indication that he viewed the protection of civilian lives as less important than military considerations. The Chamber considers that the protection of civilian lives cannot simply be subordinated to other considerations, military or otherwise. Even in a desperate situation, the protection of civilians is of fundamental importance. As stated above, the Chamber is not satisfied the ongoing war with the RPF negated Bizimungu’s material ability to prevent and punish crimes to such an extent that he could not reasonably be expected to take measures to protect civilian lives. Under these circumstances, the Chamber finds no plausible explanation for Bizimungu’s gross failure to honour his duties as a commander other than his disregard for civilian lives.

2006. Bizimungu’s implausible assessment of the situation in Rwanda at the time of the events relevant to the charges in the Indictment is indicative of his indifference to the lives of Tutsi civilians. The Chamber recalls that in the face of a considerable body of evidence to the contrary, Bizimungu asserted that although there were sporadic killings on some days during his tenure as the Chief of Staff of the Rwandan Army, it would be incorrect to "make the generalisation" that those killings were continuous and connected massacres.3735 He testified that allegations of massacres committed by his subordinates were lies concocted by the RPF and its allies,3736 and he characterised the massacres of Tutsi civilians as "on and off killings that took place here and there" and nothing more than "a situation of unrest in which some people perished".3737

2007. In assessing Bizimungu’s superior responsibility, the Chamber has considered the measures that Bizimungu claimed to have taken in order to stop the killings. In particular, the Chamber recalls his evidence that on 22 April 1994, a few days after he took up his post as Chief of Staff of the Army, he issued a radio broadcast addressed to soldiers and civilians calling for the maintenance of order.3738 Bizimungu also claimed to have sent a letter on 1 May 1994 to the Minister of Defence emphasising the need to address the disturbances that were occurring in the country.3739 Bizimungu further testified to having repeatedly asked the Prime Minister to intervene to get the political parties to restrain their respective militias, especially the Interahamwe, from committing crimes.3740 In support of this contention, Bizimungu’s Defence Counsel referred to a document authored by Jean Kambanda in which the latter confirms having been requested repeatedly by Bizimungu and General Kabiligi to urge the political parties to stop the Interahamwe from killing civilians in the country.3741 Bizimungu also claimed to have sent telegrams and issued written instructions to various units of the Army emphasising the importance of maintaining discipline.3742

2008. The Chamber notes that international law does not provide a detailed list of preventive mechanisms or modes of punishment that a superior is bound to adopt in order to fulfil his duties. The law only requires that a superior adopt measures that are necessary and reasonable in order to prevent or punish crimes committed by his subordinates. A determination of what constitutes necessary and reasonable measures in a specific case will depend on the circumstances of that case, and in particular on the extent of the superior’s material ability to take action to prevent or punish crimes.3743

2009. After careful consideration, the Chamber is not satisfied that the measures that Bizimungu purported to have taken are sufficient to relieve him of criminal responsibility as a superior. Given the scale of the crimes committed by his subordinates, the means available to him and the extent of his authority as suggested by the evidence, the Chamber finds that it was open to Bizimungu to adopt additional measures in order to avert the large-scale crimes committed against Tutsi civilians and/or to punish the perpetrators of those crimes who were his subordinates. The Chamber therefore considers that the measures adopted by Bizimungu fall far below what could be deemed necessary and reasonable given the means available to him.

2010. The insufficiency of the measures adopted by Bizimungu is demonstrated by the fact that none of the measures that he claims to have taken included disciplinary or punitive actions against his subordinates for their implication in crimes. His refusal to punish the offenders must have been viewed by his subordinates as implicit acquiescence on the part of the Army’s high command in their crimes. In the view of the Chamber, this would have greatly diminished the force of the numerous orders and instructions that Bizimungu claimed to have issued to his troops regarding discipline.

2011. For reasons articulated above, the Chamber is satisfied that Bizimungu had the material ability to prevent and/or punish crimes. Nonetheless, he failed to honour his obligations as a commander.

3715 T. 13 December 2007, pp. 31-32.

3716 T. 12 December 2007, pp. 64-66.

3717 T. 7 December 2007, p. 3; T. 11 December 2007, pp. 35-36.

3718 T. 11 December 2007, p. 41.

3719 T. 13 December 2007, pp. 1-2.

3720 T. 12 December 2007, pp. 84-85.

3721 T. 11 December 2007, p. 39.

3722 T. 11 December 2007, p. 39.

3723 T. 13 December 2007, p. 26.

3724 T. 13 December 2007, p. 26.

3725 T. 12 December 2007, p. 75.

3726 T. 7 December 2007, pp. 12-15.

3727 T. 13 December 2007, p. 58.

3728 T. 13 December 2007, p. 58.

3729 T. 13 December 2007, pp. 25-26.

3730 T. 13 December 2007, p. 26.

3731 T. 6 December 2007, p. 25.

3732 T. 13 December 2007, p. 24.

3733 T. 13 December 2007, p. 25.

3734 T. 13 December 2007, p. 24.

3735 T. 14 December 2007, pp. 22-23.

3736 T. 12 December 2007, pp 58-59, 68-69.

3737 T. 13 December 2007, pp. 18, 31.

3738 T. 11 December 2007, pp. 34-35.

3739 T. 11 December 2007, p. 35.

3740 T. 11 December 2007, p. 35.

3741 T. 11 December 2007, p. 36.

3742 T. 13 December 2007, p. 27.

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, para. 793:

"793. Bagosora’s testimony, as corroborated by Witnesses RO-6 and RO-3, suggests that the rioting soldiers refused to heed his calls for calm, and he withdrew from the camp. The Chamber does not find this evidence persuasive, bearing in mind their interest in distancing themselves from the crimes. In addition, the Chamber has also viewed the attack and the Defence evidence considering that the camp remained well guarded during the attack and that the guard posts were in fact reinforced as the events escalated. At no point did Bagosora or other military officers order the use of force to quell a highly volatile situation, notwithstanding the presence of the Reconnaissance Battalion, an elite unit at the camp. It is also noteworthy that a significant number of high-ranking military officials were meeting a few hundred metres away at ESM. Furthermore, the Chamber is satisfied that Bagosora had the means to quash the attack on the peacekeepers. In these circumstances, the Chamber finds that there was a clear failure by Bagosora to prevent the killing of the Belgian peacekeepers and that his inaction, in fact, had the effect of encouraging the assailants. Indeed, the attack escalated shortly after Bagosora’s departure as the assailants used powerful weapons to finish off the surviving peacekeepers."

 

Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 1245-1251:

 

"1245. As Judge Antonetti deems that Valentin Ćorić did not have effective control over members of the Military Police, the reasoning that follows was adopted by the majority."

"1246. The Chamber recalls that it noted that on 25 October 1992 a part of the Military Police unit from Livno and Tomislavgrad that was in Prozor under the command of Zdenko Andabak illegally seized approximately 30 vehicles and probably stole other property.²³²⁶"

"2326. P 00648."

"1247. In a report dated 25 October 1992, sent to the Military Police Administration, Ţeljko Šiljeg expressly asked Valentin Ćorić to conduct an investigation into the Military Police unit under Zdenko Andabak’s command²³²⁷ and to take whatever punitive measures were necessary against the persons who had committed these thefts.²³²⁸ On 14 November 1992, Slobodan Praljak and Valentin Ćorić issued an order, among others to Zdenko Andabak, for all vehicles "taken away" by the Military Police to be returned to their owners.²³²⁹ Some of the "stolen" or "confiscated" vehicles were indeed returned to their owners.²³³⁰ The Chamber recalls, however, that it has no knowledge of any punitive measures taken against members of the Military Police who committed thefts of vehicles and were under Zdenko Andabak’s command. In fact, the Chamber noted that Zdenko Andabak was promoted to chief of the General Military and Traffic Police Department four months later by Bruno Stojić, on the recommendation of Valentin Ćorić.²³³¹"

"2327. P 00648, Zdenko Andabak, T(F), pp. 50903 and 50904.

2328. P 00648. See also P 00721, p. 1.

2329. 3D 00424.

2330. Witness BM, T(F), p. 7069, closed session.

2331. P 01460."

"1248. As attested to by the order of 14 November 1992, which was enforced, Valentin Ćorić had effective control over members of the Military Police present in Prozor in October 1992. The report of 25 October 1992 and the order of 14 November 1992 show that Valentin Ćorić knew that the vehicles had been seized illegally. The Chamber deems that the return of property to its owners does not constitute a "reasonable" measure by way of which Valentin Ćorić would have discharged his obligation to punish. Moreover, the Chamber infers from the promotion of Zdenko Andabak in February 1993 that Valentin Ćorić failed to inquire about the crimes or to launch an investigation, establish the facts and alert the relevant authorities to them."

"1249. The Chamber established furthermore that from 24 to at least 30 October 1992 when there were no combat activities, HVO soldiers and members of the HVO Military Police destroyed about 75 Muslim houses in the town of Prozor, torching them with jerry cans filled with gasoline, and destroyed other property such as vehicles belonging to Muslims, whereas not one of the houses belonging to Croats was burned down or damaged.²³³² The Chamber notes that in an undated report addressed to Valentin Ćorić, Zdenko Andabak mentions that numerous houses were damaged as a result of the combat in Prozor on 25 October 1992.²³³³"

"2332. See "Damage and Burning of Property and Houses Belonging to Muslims After the Takeover of the Town of Prozor" in the Chamber's factual findings with regard to the Municipality of Prozor.

2333. P 00536, p. 3." 

"1250. The Chamber recalls that Valentin Ćorić had effective control over members of the Military Police present in Prozor in October 1992. Moreover, information contained in Zdenko Andabak's undated report and in the report of 25 October 1992 from Ţeljko Šiljeg – describing the discipline problems of military policemen involved in the illegal seizure of vehicles in Prozor – were sufficiently alarming to warrant an additional investigation. The Chamber deems that Valentin Ćorić had means of knowing which of the above crimes had been committed by members of the Military Police. The Chamber infers from the promotion of Zdenko Andabak that Valentin Ćorić refrained from taking the necessary and reasonable measures to discharge his duty to punish these crimes."

"1251. In view of the above, the Chamber finds that Valentin Ćorić is guilty under Article 7(3) of the Statue for the following counts regarding the Municipality of Prozor in October 1992:

Count 15: Inhumane acts under Article 5 of the Statute.

Count 16: Inhuman treatment under Article 2 of the Statute.

Count 17: Cruel treatment under Article 3 of the Statute.

Count 19: Extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, under Article 2 of the Statute.

Count 20: Wanton destruction of cities, towns or villages, or devastation not justified by military necessity under Article 3 of the Statute.

Count 23: Plunder of public or private property, under Article 3 of the Statute.²³³⁴"

 

 

"2334. The Chamber recalls that it was unable to retain Count 22 in regard to the theft of the 30 vehicles due to the fact that the theft did not amount to extensive appropriation of property."

 

M.P.41.1. Evidence of the person’s failure to discipline subordinates.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:

"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]

(iv) He failed to punish those guards who would have been identified, had he carried out an investigation, as being responsible for the beatings or to take steps to have them punished."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 772:

"772. Zdravko Mucic did not take reasonable or appropriate action to prevent crimes committed within the Celebici prison-camp or punish the perpetrators thereof. There is no evidence suggesting that he ever took appropriate action to punish anyone for mistreating prisoners. Indeed, there is evidence demonstrating that the guards were never disciplined. For example, Milovan Kuljanin⁸²⁸ stated that he never witnessed the punishment of any guard. Indeed, there were no disciplinary measures for the mistreatment of prisoners in Celebici.⁸³⁰"

"828. See T. 7163-T. 7164. […]

830. See T. 6715."

 

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 1855-1862, 1869-1878, 1886-1899, 1906-1916, 1925-1947:

"1855. The Appeals Chamber considers it appropriate to address two related submissions as a preliminary matter: (1) Pandurevic’s contention that the Trial Chamber reversed the burden of proof with respect to the period of 15 July 1995 onwards; and (2) the Prosecution’s effective request for summary dismissal of the first and second sub-grounds of appeal concerning the period of 4 to 15 July 1995 as no conviction resulted from the Trial Chamber’s finding regarding this period."

"1856. It is clear that there was no conviction entered for Pandurević concerning the period of his absence as the Trial Chamber found that the knowledge requirement for superior responsibility under Article 7(3) of the Statute had not been met for the period prior to 12:00 p.m. on 15 July 1995.⁵²⁶² However, there was a conviction for the period 15 to 16 July 1995 and it is to this that Pandurevic’s challenge refers. It is based on the argument that the Trial Chamber first erred in finding that he had effective control over the Zvornik Brigade from 4 to 15 July 1995 and subsequently required him to demonstrate that he lost said effective control, thus reversing the burden of proof for the later period. If this argument were to succeed, Pandurevic would have successfully demonstrated an error of law which could possibly have an impact on the verdict. Thus, the Appeals Chamber will address the contention that the Trial Chamber erred in finding that Pandurevic exercised effective control over the Zvornik Brigade from 4 to 15 July 1995.⁵²⁶³ The Appeals Chamber will then consider the argument that the Trial Chamber reversed the burden of proof in finding that Pandurevic had effective control from 15 July 1995 onwards."

5262. Trial Judgement, para. 2037. The Appeals Chamber notes, however, that the Prosecution, in ground 2(e) of its appeal, has requested the Appeals Chamber to enter convictions in the 4-15 July 1995 period related to Pandurevic’s alleged failure to punish his subordinates for crimes committed on 13 and 14 July 1995. See Prosecution’s Appeal Brief, paras 105, 167-168, 185-186. In light of the Prosecution’s appeal, the Appeals Chamber will consider Pandurevic’s ground of appeal regarding whether he exercised effective control over his subordinates in this period.

5263. See infra, paras 1886-1887.

"1857. As to Pandurevic’s contention that the Trial Chamber erred in law by taking an unduly formalistic approach to effective control in concluding that he had the material ability to exercise control, the Appeals Chamber recalls that to be found criminally liable pursuant to Article 7(3) of the Statute, a superior must be shown to have exercised effective control over those of his or her subordinates who have committed crimes.⁵²⁶⁴ Effective control has been defined to mean the material ability to prevent offences or punish the offender.⁵²⁶⁵ The concept of material ability necessarily takes into account all factors which might impede a superior’s ability to prevent and punish.⁵²⁶⁶ In circumstances where a superior would not be able to perform the functions necessary to prevent or punish, the superior could not be said to possess the material ability required to exercise effective control."

5264. Ndahimana Appeal Judgement, para. 38; Perisic Appeal Judgement, para. 87; Čelebići Appeal Judgement, paras 196-198.

5265. Ndahimana Appeal Judgement, para. 38; Perisic Appeal Judgement, para. 87; Orić Appeal Judgement, para. 20; Čelebići Appeal Judgement, paras 197-198.

5266. The Appeals Chamber notes that indiscipline amongst subordinates and the non-compliance with orders from a superior are factors that have been considered in determining whether an accused can exercise effective control. See Strugar Appeal Judgement, paras 257-258; Hadžihasanovic and Kubura Appeal Judgement, para. 230; Blaškić Appeal Judgement, para. 499.

"1858. In this regard, the Trial Chamber noted that: the test of effective control relates to the relationship between the individuals and is not limited to a consideration of whether actual control is being exercised at any given moment. Otherwise the responsibility would be significantly narrowed – restricted to those who were in control and not reaching those who could have taken that control to prevent these crimes or punish them. Thus, in assessing effective control for these purposes, the issue is not whether the superior was in command or exercising control at any given moment but rather whether he or she had the material ability to prevent or punish the perpetrators of the crimes. It is this ability that evidences a superior-subordinate relationship. As stated by the Appeals Chamber even more specifically, “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”. ⁵²⁶⁷ The Appeals Chamber is satisfied that the Trial Chamber accurately recounted the law that effective control requires the material ability to prevent or punish the commission of subordinates’ offences."

5267. Trial Judgement, para. 2023, citing Čelebići Trial Judgement, para. 378. While the Trial Judgement mistakenly attributes to the Appeals Chamber the statement it quotes from the Čelebići Trial Judgement, it is noted that this statement was indeed affirmed on appeal. Čelebići Appeal Judgement, para. 197.

"1859. In applying the law to the facts, the Trial Chamber was: satisfied that while this absence [during the period 4 to 15 July] clearly limited what Pandurevic knew about the actions of his Brigade and to some extent narrowed the reasonable measures available to him, it did not in any way alter his ability to control the Brigade in terms of a superiorsubordinate relationship. Whether physically at Standard Barracks or elsewhere, Pandurevic, at all times, retained the ability to exercise control over the Zvornik Brigade. Whether he chose to do so or whether there may have been communication problems in no way changed the superiorsubordinate relationship that existed. Specifically, while his contact with the Brigade during his absence was very limited and the subject matter discussed marginal, that contact evidences that he did not hesitate to continue to assert his authority with respect to the Brigade when he deemed it necessary to do so. […] The Trial Chamber has also found that during the same time period, Obrenovic, as Deputy Commander, was in command of the Zvornik Brigade, with respect to those units which remained in the Zvornik area at that time. However, the Trial Chamber further finds that this situation did not interfere with Pandurevic’s relationship to members of the Brigade, including Obrenovic himself. As noted above, Obrenovic assumed command as Deputy Commander, just as he would do on any other occasion. In fulfilling his command functions, Obrenovic gave orders and received commands without contacting Pandurevic and without any intervention from him. However, this evidences only that Obrenovic was in command at that point in time and responsible for the actions of the troops under his command. But this does not change the fact that Obrenovic was still a subordinate of Pandurevic, as were all members of the Zvornik Brigade.⁵²⁶⁸ Contrary to Pandurevic’s submission, the Trial Chamber clearly did not limit itself to a consideration of his “theoretical capacity” to command or impose “a de jure standard on a question that should be assessed according to practical realities”.⁵²⁶⁹ Rather, it took into account his assignment away from the Zvornik Brigade and expressly considered the way in which his material ability to exercise control was limited by factors such as geographical location, communication problems, and the command exercised by Obrenovic over the Zvornik Brigade during the relevant period. It was only upon consideration of these practical limitations that the Trial Chamber drew any conclusion with respect to his criminal responsibility. Accordingly, Pandurevic has not demonstrated that the Trial Chamber erred in its application of the law regarding material ability."

"1860. Next, with regard to Pandurevic’s contention that the Trial Chamber erred in law because effective control cannot be exercised in reality without adequate reporting and information, the Appeals Chamber recalls that there is no definitive list of indicators of effective control. Indicators considered will necessarily depend on the case and are a matter of evidence showing that the accused had the power to prevent or punish the alleged perpetrators where appropriate.⁵²⁷⁰"

5268. Trial Judgement, paras 2029-2030 (internal references omitted).

5269. See Pandurevic’s Appeal Brief, paras 173-174.

5270. Ndahimana Appeal Judgement, para. 53; Perisic Appeal Judgement, para. 87; Bagosora and Nsengiyumva Appeal Judgement, para. 450; Strugar Appeal Judgement, para. 254; Blaskic Appeal Judgement, para. 69.

"1861. To the extent that Pandurevic is contending that the Trial Chamber failed to recognise or consider reporting as an indicator of effective control in the instant case,⁵²⁷¹ the Appeals Chamber notes that the Trial Chamber expressly identified the broad category of “information flow”, which would clearly encompass reporting, as relevant in principle to the establishment of a superiorsubordinate relationship.⁵²⁷² It went on to consider this factor when finding that “while [Pandurevic’s] contact with the Brigade during his absence was very limited and the subject matter discussed marginal, that contact evidences that he did not hesitate to continue to assert his authority with respect to the Brigade when he deemed it necessary to do so”.⁵²⁷³ The Appeals Chamber therefore dismisses this contention as being without merit."

5271. See Pandurevic’s Appeal Brief, p. 63. Pandurevic’s contention may also be understood as challenging the weight given by the Trial Chamber to reporting and information in reaching its conclusion, and the reasonableness of its decision. This argument alleges an error of fact and will be addressed in the following sub-ground.

5272. Trial Judgement, para. 2024.

5273. Trial Judgement, para. 2029. See also Trial Judgement, para. 2031.

"1862. Accordingly, Pandurevic has failed to demonstrate that the Trial Chamber erred in law with respect to its interpretation and application of the standard of effective control. The Appeals Chamber, Judge Niang dissenting, therefore dismisses his sub-ground of appeal 2.1."

"1869. It is not contested that until 4 July 1995 Pandurevic exercised effective control over his subordinates in the Zvornik Brigade. On that date, he undertook a new assignment commanding TG-1, leading approximately 400 men for the purposes of the Krivaja-95 military operation in Srebrenica.⁵²⁹⁴ During this period he was regularly in touch with Krstic regarding TG-1’s operations and orders, but had very limited contact with the Zvornik Brigade until he and his forces were ordered back to Zvornik by Krstic on 15 July 1995.⁵²⁹⁵ Given the fundamental change from Pandurevic’s regular duties during this period, the Appeals Chamber considers that it would not be reasonable to assume that his material ability to control his subordinates at the Zvornik Brigade remained unaffected. Rather, some concrete indication that he remained able to issue orders and take decisions would be necessary to support such a conclusion."

5294. Trial Judgement, paras 1843-1844.

5295. Trial Judgement, paras 1845, 1849-1851, 1853-1856, 1858-1859, 2029, 2031.

"1870. Pandurevic limits his challenge to the finding that he possessed de facto authority over the Zvornik Brigade during his period of absence. The Trial Chamber’s finding in this respect appears to have rested upon a number of different bases. First, with respect to the duration of Pandurevic’s tenure as commander, the Trial Chamber relied generally upon the control that he had established over time since his appointment as Zvornik Brigade Commander.⁵²⁹⁶ Accepting that this control was indeed established by 4 July 1995, which is not contested by Pandurevic here, the Appeals Chamber considers that the fact that he exercised de facto control prior to his period of absence is not sufficient on its own to demonstrate the continuation of his ability to control during this absence in which he was performing functions wholly unrelated to his normal command. However, it could be considered relevant in combination with other evidence of such continued ability."

5296. Trial Judgement, para. 2028.

"1871. Second and expressly challenged by Pandurevic, ⁵²⁹⁷ the Trial Chamber relied upon its finding that “while his contact with the Brigade during his absence was very limited and the subject matter discussed marginal, that contact evidences that [Pandurevic] did not hesitate to continue to assert his authority with respect to the Brigade when he deemed it necessary to do so”.⁵²⁹⁸ This finding was based on two instances of contact: (1) on 5 July 1995, Pandurevic contacted the Zvornik Brigade Command to request that missing grenades be supplied to the “tank company”;⁵²⁹⁹ and (2) on 7 July 1995, he called to request that some teaching materials be photocopied and delivered to the students of the School of Technology. ⁵³⁰⁰ The Trial Chamber itself qualified the subject matter of these contacts as marginal and found that the restricted contact clearly limited what he knew about the actions of his brigade.⁵³⁰¹ Accordingly, the Appeals Chamber holds that a reasonable trier of fact could have concluded on this basis “that [Pandurevic] did not hesitate to continue to assert his authority with respect to the Brigade when he deemed it necessary to do so”.⁵³⁰²"

5297. See supra, para. 1864.

5298. Trial Judgement, para. 2029. See also Trial Judgement, para. 2031.

5299. Trial Judgement, para. 1845.

5300. Trial Judgement, para. 1846.

5301. Trial Judgement, para. 2029.

5302. See Trial Judgement, para. 2029.

"1872. On a related point, Pandurevic submits that the Trial Chamber failed to consider the effect that the lack of substantive communication had on the indicia of effective control. This contention is without merit. The Trial Chamber expressly considered this in finding that “[his] absence clearly limited what Pandurevic knew about the actions of the Brigade”.⁵³⁰³ Further, it made a number of findings concerning the established reporting lines in the Zvornik Brigade which support the conclusion that even when Pandurevic was at the Brigade Command, information generally flowed through Obrenovic, leaving the former to exercise his command through the latter.⁵³⁰⁴ Specifically with respect to the Military Police, the Trial Chamber found that while Pandurevic, as the Brigade Commander, was in command of the Military Police, the Commander of the Military Police Company reported directly to the Chief of Staff and Nikolic as Chief of Security.⁵³⁰⁵ The Trial Chamber sufficiently considered this point and Pandurevic has failed to show that the lack of communication had an impact on his material ability to exercise effective control."

5303. Trial Judgement, para. 2029.

5304. Trial Judgement, para. 157. The Trial Chamber found that, in an order dated 21 March 1994, Pandurević had reformed the organisation of the Zvornik Brigade with the result that certain units were not under the brigade commander’s direct command but reported directly to the Chief of Staff and the assistant commanders or chiefs, who would report to him. Further, it found that Pandurevic was still in command of these units, but through the intermediary of the Chief of Staff and the assistant commanders or chiefs, who would report to him.

5305. Trial Judgement, para. 158.

"1873. Third, the Trial Chamber considered the role of Obrenovic and his relationship with Pandurevic. The Trial Chamber found that as Deputy Commander, Obrenovic was in command of the Zvornik Brigade during Pandurevic’s absence, giving orders and receiving commands without either contacting Pandurevic or being subject to any intervention from him.⁵³⁰⁶ In the view of the Trial Chamber, the assumption of command functions by the Deputy Commander was to be expected during a temporary absence of the Brigade Commander⁵³⁰⁷ and simply demonstrated that Obrenovic was in command at that point in time and responsible for the actions of the troops under his command.⁵³⁰⁸ The Trial Chamber concluded that Obrenovic and other members of the Zvornik Brigade were still subordinate to Pandurevic and that it was open to Pandurevic to retake command at any point, as he did on 15 July 1995.⁵³⁰⁹"

5306. Trial Judgement, para. 2030.

5307. Trial Judgement, para. 2027.

5308. Trial Judgement, para. 2030.

5309. Trial Judgement, paras 2030-2031.

"1874. The Appeals Chamber considers that Pandurevic was subject to strict orders from his superior regarding a full-time assignment to command TG-1. This assignment was quite clearly not at Pandurevic’s discretion, having been ordered by a superior to undertake it. During the assignment, he regularly received updated orders as to the immediate tasks to be carried out, all away from the Zvornik Brigade Command. Further, when he raised his view about operations affecting the Zvornik Brigade, he was expressly told to restrict himself to TG-1 matters.⁵³¹⁰ When he did eventually return to the Zvornik Brigade Command on 15 July 1995, it was pursuant to an explicit order from Krstic.⁵³¹¹ Given these circumstances, the Appeals Chamber considers that a reasonable trier of fact could not have concluded that Pandurevic could have retaken command at any point in the particular sense of returning to the Zvornik Brigade Command. This does not preclude a finding that Pandurevic nonetheless had the material ability to exercise effective control."

5310. Trial Judgement, para. 1855.

5311. Trial Judgement, para. 1859.

"1875. In this regard, the Trial Chamber relied on PW-168’s testimony that [REDACTED].⁵³¹² Regarding Pandurevic’s challenge to the credibility of this evidence, the Appeals Chamber recalls that trial chambers are best placed to assess the credibility of a witness, and further recalls that a trial chamber may reasonably accept some but reject other parts of a witness’s testimony.⁵³¹³ Moreover, the Appeals Chamber reiterates that it will not lightly disturb a trial chamber’s broad discretion in weighing witness evidence.⁵³¹⁴ Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s finding that, [REDACTED], PW-168’s evidence, given in examination-inchief, regarding Obrenovic’s actions in this period was credible. This evidence gives a strong indication that Obrenovic, the person exercising command in Pandurevic’s absence, considered that his de jure superior should know about, and provide instructions with respect to, the involvement of Zvornik Brigade members in the murder operation. Notably, it concerns a time when Pandurevic was dedicated to his TG-1 assignment away from the Zvornik Brigade."

5312. Trial Judgement, para. 2030, referring to PW-168, T. 15830-15833 (closed session) (26 Sept 2007).

5313. Sainovic et al. Appeal Judgement, paras 294, 437. See also Second Muvunyi Appeal Judgement, para. 26.

5314. Sainovic et al. Appeal Judgement, para. 1384.

"1876. The Appeals Chamber notes that there are two other findings of the Trial Chamber that support the conclusion that Pandurevic maintained the ability to exercise control over the Zvornik Brigade’s operations during his absence. First, Obrenovic tried to contact Pandurevic on 15 July 1995 about the proposal to let the 28th Division pass through their territory, but was unable to reach him because he was on his way to the Zvornik Brigade Command.⁵³¹⁵ Second, Pandurević himself acknowledged that he “could have issued orders” to the Zvornik Brigade members he spoke with on the telephone in the morning of 15 July 1995, prior to his return to the Standard Barracks.⁵³¹⁶ While both instances took place following Krstic’s order for Pandurevic to return to the Zvornik area, when viewed in light of PW-168’s testimony regarding 13 July 1995, they reasonably support a conclusion that Pandurevic possessed de facto control during his absence."

5315. Trial Judgement, para. 553, referring to PW-168, T. 15873 (closed session) (26 Sept 2007).

5316. Trial Judgement, para. 2031. See also Trial Judgement, paras 1859-1860.

"1877. The Appeals Chamber turns to Pandurevic’s contention that the Trial Chamber implied a duty for commanders to request information even when they are not on notice of the risk of criminal activity by subordinates. The Trial Chamber expressly found that Pandurevic would have been under a duty to give orders (such as requesting information) only “had the information he received at that time alerted him to criminal activity on the part of his Brigade”.⁵³¹⁷ Further, the Trial Chamber concluded: that there is insufficient evidence that prior to his return to the Standard Barracks on 15 July, Pandurevic knew or had reason to know that his subordinates had committed or were committing crimes in relation to the detention, execution, and burial of the Bosnian Muslim prisoners in the area of Zvornik. The Trial Chamber therefore finds that the knowledge requirement for superior responsibility under Article 7(3) has not been met for the period prior to 12 p.m. on 15 July.⁵³¹⁸ In reaching this conclusion, the Trial Chamber did not require a commander to request information unless he or she is on notice of possible criminal activity, consistent with the Tribunal’s jurisprudence.⁵³¹⁹ Thus, the Appeals Chamber is not persuaded by Pandurevic’s contention."

5317. Trial Judgement, para. 2031.

5318. Trial Judgement, para. 2037.

5319. Bagilishema Appeal Judgement, para. 28. See Čelebići Appeal Judgement, paras 238-239.

"1878. In view of the above, the Appeals Chamber, Judge Niang dissenting, finds that the Trial Chamber did not err in concluding that the evidence demonstrated that Pandurevic maintained the ability to exercise control over both Obrenovic and the rest of the Zvornik Brigade during his period of absence. Accordingly, Pandurevic has failed to demonstrate that the Trial Chamber erred in fact in this regard and the Appeals Chamber, Judge Niang dissenting, therefore dismisses his sub-ground of appeal 2.2."

"1886. At the outset, the Appeals Chamber must resolve the apparent challenge raised at the Appeal Hearing that Pandurevic presented a new ground of appeal. The Appeals Chamber observes that in the relevant portions of his written submissions there are no references to Exhibit 7DP00417 or the various testimonies Pandurevic referred to at the Appeal Hearing.⁵³⁴² The Appeals Chamber considers that Pandurevic’s references to specific evidence do not constitute a new argument but are merely elaborations of his argument that Mladic interrupted the chain of command. The Appeals Chamber therefore dismisses the Prosecution’s procedural objection."

5342. See Pandurevic’s Appeal Brief, paras 186-202; Pandurevic’s Reply Brief, paras 62-69. The Appeals Chamber also notes that at the Appeal Hearing, the Prosecution had sufficient time to prepare a response to this argument and responded to it on the merits. Appeal Hearing, AT. 406 (5 Dec 2013). The Appeals Chamber observes that Pandurevic presented this argument on 4 December 2013 and that the Prosecution responded to it the following day.

"1887. The Appeals Chamber will next address, as a preliminary matter, Pandurevic’s submission that the Trial Chamber in effect reversed the burden of proof with respect to the period of 15 July 1995 onwards by first erring in finding that he had effective control over the Zvornik Brigade from 4 to 15 July 1995, and then requiring Pandurevic to demonstrate that he lost this effective control."

"1888. The Appeals Chamber recalls that the burden of proof in respect of charges against an accused before this Tribunal lies with the Prosecution.⁵³⁴³ With respect to Pandurevic’s challenge to his de facto control, in general the Trial Chamber found that, “[w]hile he had arrived to an undisciplined brigade, which demonstrated a distinct lack of respect for authority, under his command and, certainly by 1995, the Zvornik Brigade was under the clear authority of Pandurevic”.⁵³⁴⁴ The Trial Chamber then separately found that Pandurevic maintained the material ability to exercise control over the Zvornik Brigade during his absence from brigade command from 4 to 15 July 1995. As discussed above, it did not err in making this finding.⁵³⁴⁵ Having clearly established that in July 1995 Pandurevic had the material ability to exercise control over his subordinates, regardless of whether he was present at the brigade command, the Trial Chamber was under no obligation to re-examine the same question for the period of 15 July 1995 onwards immediately following his return. Rather, it was open to the Trial Chamber to consider whether any contra-indicator may have resulted in Pandurevic losing de facto control at that time. Accordingly, Pandurevic has failed to demonstrate that the Trial Chamber reversed the burden of proof."

5343. D. Milocevic Appeal Judgement, para. 60. See also Limaj et al. Appeal Judgement, para. 63; Kamuhanda Appeal Judgement, para. 167; Kajelijeli Appeal Judgement, paras 41-42.

5344. Trial Judgement, para. 2028 (internal reference omitted).

5345. See supra, paras 1874-1878.

"1889. Regarding Pandurevic’s submission that effective control cannot be imputed from de jure control and a return to the Zvornik area, the Appeals Chamber reiterates that the Trial Chamber did not impute anything from his return to the Zvornik area. Rather, the Trial Chamber established on the basis of the evidence that Pandurevic had the material ability to exercise control over his subordinates in July 1995, regardless of whether he was present at the brigade command.⁵³⁴⁶ This finding concerned both his de jure and de facto authority. Pandurevic’s submission is therefore unpersuasive and dismissed."

5346. Trial Judgement, paras 2027-2031. See also supra, paras 1869-1877.

"1890. The Appeals Chamber now turns to the primary contention that Pandurevic’s command authority over the Zvornik Brigade was “interrupted” or negated by the exercise of command authority by Beara and Popovic on behalf of Mladic."

"1891. The Trial Chamber found that at the relevant time, two parallel chains of instruction were functioning with respect to the Zvornik Brigade Security Organ. Pandurevic possessed both de jure and de facto authority over his subordinates, and in particular the Zvornik Brigade Security Organ, along the regular command line.⁵³⁴⁷ Pursuant to the professional chain of command, the Zvornik Brigade Security Organ was subordinate to Popovic, but only with respect to matters associated with security or intelligence.⁵³⁴⁸ Security Organ officers such as Nikolic therefore had two chains of command which legally co-existed. Notably, the professional chain of command did not supersede the regular command chain.⁵³⁴⁹"

5347. Trial Judgement, paras 121, 155, 2027, 2033.

5348. Trial Judgement, paras 155, 1091.

5349. Trial Judgement, para. 121.

"1892. The Appeals Chamber turns to Pandurevic’s contention that his authority along the regular command chain was effectively negated because instructions were issued by Popovic and Beara on the authority of Mladic via the professional chain of command.⁵³⁵⁰ The Appeals Chamber recalls that 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”.⁵³⁵¹ Thus, the exercise of effective control by one commander does not necessarily exclude effective control being exercised by a different commander.⁵³⁵² Accordingly, Pandurevic’s contention is dismissed."

5350. The Appeals Chamber understands that the regular chain of command concerned activities controlled by the unit of which the Zvornik Brigade Security Organ formed a part, while the professional chain of command concerned professional or counter-intelligence activities controlled centrally by the Security and Intelligence Organs of the Superior Command. See Trial Judgement, para. 155.

5351. Nizeyimana Appeal Judgement, para. 201.

5352. Nizeyimana Appeal Judgement, paras 201, 346.

"1893. In this regard, the Appeals Chamber considers that Exhibit 7DP00417, the Provisional Service Regulations of the VRS, and the specific testimonies Pandurevic referred to at the Appeal Hearing do not undermine the Trial Chamber’s conclusion that he had effective control. Pandurevic argues that the relevant parts of Exhibit 7DP00417 “might relate to mixed units of soldiers under a commander from an outside institution” like this situation of mixed units under the command of Beara and Popovic. ⁵³⁵³ The Appeals Chamber observes, however, that Pandurevic recognises that the regulations only “might” apply in this context and that “army regulations as to ad hoc command structures in mixed or disrupted units are separate and distinct from legal considerations as to an accused’s ability to exercise effective control”.⁵³⁵⁴ Nonetheless, the Appeals Chamber considers, assuming arguendo that such evidence demonstrates that Beara and Popovic may have intervened in the chain of command in Zvornik, that this does not demonstrate an error by the Trial Chamber regarding Pandurevic’s ability to exercise effective control.⁵³⁵⁵"

5353. Appeal Hearing, AT. 374 (4 Dec 2013).

5354. Appeal Hearing, AT. 374, 376 (4 Dec 2013).

5355. See supra, para. 1892. See also Nizeyimana Appeal Judgement, paras 201, 346.

"1894. Regarding the testimonies of Witnesses Dragutinovic, Galic, and Trivic, the Appeals Chamber observes that Pandurevic provides no references or arguments related to this evidence and therefore dismisses this aspect of his contention as unsubstantiated. As to Stanisic’s evidence, the Appeals Chamber notes that he testified that “[he] suppose[d]” that if a higher commander arrived, that commander would have responsibility.⁵³⁵⁶ In this regard, Pandurevic noted that this testimony was merely Stanisic’s “perception as to who he was answerable”.⁵³⁵⁷ Furthermore, Stanisic’s testimony that he would be subordinate to a higher command if it arrived, does not lead to the conclusion that Pandurevic would therefore be stripped of the ability to exercise effective control.⁵³⁵⁸ But even assuming that it did, this conclusion does not necessarily apply to, let alone resolve, the issue at hand: whether Beara’s and Popovic’s arrival at Zvornik interrupted the chain of command, and thus demonstrate an error by the Trial Chamber regarding Pandurevic’s ability to exercise effective control."

5356. Ostoja Stanišić, T. 11705 (17 May 2007).

5357. Appeal Hearing, AT. 375 (4 Dec 2013) (emphasis added).

5358. See Appeal Hearing, AT. 375 (4 Dec 2013); Nizeyimana Appeal Judgement, paras 201, 346.

"1895. Moreover, as to Pandurevic’s contention that the Trial Chamber “just ignored” this evidence,⁵³⁵⁹ the Appeals Chamber recalls that: It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record. It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence.⁵³⁶⁰ In light of: (1) the Trial Chamber’s extensive discussion regarding Pandurevic’s superiorsubordinate relationship;⁵³⁶¹ (2) the fact that, as Pandurevic himself noted, Exhibit 7DP00417 “was discussed extensively at trial”; and (3) that the Trial Chamber explicitly reviewed Exhibit 7DP00417 when laying out the VRS command structure,⁵³⁶² the Appeals Chamber considers that there is no indication that the Trial Chamber completely disregarded this evidence."

5359. Appeal Hearing, AT. 374 (4 Dec 2013).

5360. Kvocka et al. Appeal Judgement, para. 23 (internal reference omitted). See Dorđević Appeal Judgement, fn. 2527; Sainovic et al. Appeal Judgement, para. 658.

5361. Trial Judgement, paras 2021-2035.

5362. Appeal Hearing, AT. 374 (4 Dec 2013); Trial Judgement, para. 106 & fn. 254.

"1896. Accordingly, Pandurevic’s claim may only be sustained by a demonstration on the facts that his own clearly established de facto authority was in practice negated by Popovic and Beara’s instructions. Even assuming arguendo that Popovic and Beara were in fact exercising effective control over the Zvornik Brigade by 15 July 1995, Pandurevic has failed to demonstrate that their exercise of such control negated his own de facto authority.⁵³⁶³"

5363. See also supra, paras 1874-1878.

"1897. In related arguments, Pandurevic submits that he did not have the de jure authority to countermand orders from Mladic because he was the latter’s subordinate, and that in any event he did not have the practical capacity to usurp Mladic’s authority within the necessary time frame. The Appeals Chamber considers that, as Zvornik Brigade Commander with knowledge of the murder operation as of 15 July 1995, Pandurevic was legally obligated to take the necessary and reasonable measures to prevent further crimes or to punish the perpetrators thereof. He was required to abide by the rules of international humanitarian law when fulfilling his duties.⁵³⁶⁴ When faced with manifestly unlawful orders that were issued by his superiors – orders that were invalid domestically and which were in violation of the laws of war – he was legally obligated to ensure that international humanitarian law was applied.⁵³⁶⁵ In this regard, it was wrong for Pandurevic to do nothing.⁵³⁶⁶ Contrary to his submission that taking action would have required the use of force, there is evidence that it was possible to refuse to participate in the murder operation without having to resort to armed confrontation, even for a commander.⁵³⁶⁷ As commander, it was clearly within his ability to issue orders to his own brigade. Accordingly, Pandurevic could have issued orders to the Zvornik Brigade troops to refrain from participating in the murder operation, as well as countermand any illegal orders issued by Obrenovic or any other subordinate in this regard."

5364. Ex. P00409, “Regulations on the Application of the Rules of International Law of War in the Armed Forces of the SFRY”, Article 3 (“The commanders of units […] shall be responsible for the application of the international laws of war. The officer in charge shall institute proceedings against persons who violate the international laws of war for the pronouncement of the penalties prescribed by the law.”); Ex. P00416, “Order on the Application of the Rules of the International Law of War in the Army of the Serbian Republic of Bosnia and Herzegovina”, Article 1 (“In an armed conflict, the Army of the Serbian Republic of Bosnia and Herzegovina […] shall apply and respect the rules of the international law of war”); Ex. 1D01289, “Provisional Service Regulations of the Army of the Serbian Republic”, Article 3 (“members of the Army shall abide by the provisions of international humanitarian law”); Ex. 7D00717, “Rules regarding Brigade Commanders’ Authority”, Article 10 (“The commander is responsible for the overall situation in the brigade or regiment, for the correct and lawful work of the command organs”) (emphasis added).

5365. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Vol. I, Rule 154: Every combatant has a duty to disobey a manifestly unlawful order.

5366. See also Trial of Wilhelm von Leeb et al., Judgement of 28 October 1948, United States Military Tribunal, Nuremberg, Law Reports of Trials of War Criminals, Vol. XII, p. 75 (an officer is required to do more than stand by, while his subordinates execute a criminal order of his superiors which he knows is criminal).

5367. In particular, there is evidence that on 15 July 1995, Beara complained to both Živanović and Krstić that Lieutenant Colonel Radomir Furtula ignored a commander’s order, and informed Krstić that the MUP would not do anything (Trial Judgement, paras 1281-1282, fn. 327), and that Borovčanin stated at a meeting at Zvornik Brigade Command on 15 July 1995 that he did not want the MUP units he commanded to participate in guarding prisoners (Trial Judgement, para. 1464). See also Trial Judgement, paras 421 (three individuals refuse an order to execute prisoners), 488 (soldiers refused to shoot a boy), 540 (eight members of the 10th Sabotage Detachment refuse an order to go to the Pilica Cultural Centre in order to execute Bosnian Muslims detained there).

"1898. Contrary to Pandurevic’s suggestion,⁵³⁶⁸ there is no minimum number of subordinates that are required to be involved in the commission of crimes in order to trigger a commander’s responsibility. Further, the fact that crimes may be substantially beyond prevention does not relieve a commander of his duty to prevent those which may still be prevented. While Pandurevic would indeed have needed to act quickly, issuing orders requires little time and responsibility for this could have been delegated if necessary. Finally, reliance on the Blagojevic and Jokic Trial Judgement in this case is not apt. The case is distinguishable in a number of ways.⁵³⁶⁹ The Appeals Chamber therefore considers that Pandurevic issuing orders to the Zvornik Brigade to refrain from participating in the murder operation would have been reasonable under the circumstances."

5368. Pandurevic’s Reply Brief, para. 67 (“The murders which had yet to be committed […] were substantially beyond prevention and/or involved minimal participation of the Brigade”.).

5369. For example, in the Blagojevic and Jokic case, partcipation was by a multi-unit task force under a direct order of the Drina Corps, thus skipping the intermediate level of brigade command. See Blagojevic and Jokic Trial Judgement, paras 411, 413, 415, 795.

"1899. Accordingly, the Appeals Chamber, Judge Niang dissenting, concludes that the Trial Chamber did not err in finding that Pandurevic exercised effective control over men who were performing tasks at the direction of Beara and Popovic. The Appeals Chamber, Judge Niang dissenting, thus dismisses Pandurevic’s sub-ground of appeal 2.3."

"1906. The Appeals Chamber recalls that a trial chamber is required to make findings on those facts which are essential to the determination of guilt on a particular count.⁵³⁸⁷ While it need not articulate every step of its reasoning, a trial chamber must indicate clearly the legal and factual findings on the basis of which it reached the decision either to convict or acquit an individual.⁵³⁸⁸ The absence of any specific findings by the Trial Chamber on the question of Pandurevic’s liability for failure to prevent the crime of persecution through the Zvornik Brigade members’ cruel and inhumane treatment of Bosnian Muslim prisoners necessitates the conclusion that the Trial Chamber failed to provide a reasoned decision in writing.⁵³⁸⁹ Having identified an error of law, the Appeals Chamber will now review the relevant factual findings of the Trial Chamber, and when necessary the evidence in the trial record.⁵³⁹⁰"

5387. Hadžihasanovic and Kubura Appeal Judgement, para. 13.

5388. Hadžihasanovic and Kubura Appeal Judgement, para. 13; Čelebici Appeal Judgement, para. 481.

5389. Article 23(2) of the Statute; Rule 98 ter(C) of the Rules; Kordic and Čerkez Appeal Judgement, paras 383-385. Cf. Bizimungu Appeal Judgement, para. 19.

5390. See supra, para. 18.

"1907. The Trial Chamber found that, in the period between 13 July and the morning of 16 July 1995, members of the Zvornik Brigade participated in guarding the detained Bosnian Muslim prisoners and in transporting the prisoners to execution sites in the area of Zvornik. This participation specifically included guarding prisoners held at the Grbavci School in Orahovac, the Kula School, and the Rocevic School.⁵³⁹¹ The prisoners were packed into the detention centres and had little, if any, food, water, or medical treatment.⁵³⁹² One prisoner was compelled to drink his own urine.⁵³⁹³ The lack of toilet facilities meant that some prisoners had to relieve themselves where they stood.⁵³⁹⁴ The prisoners were subjected to physical and verbal abuse, and could often hear screams, moans, and bursts of gunfire.⁵³⁹⁵ Based on these findings, the Trial Chamber was satisfied that the Bosnian Muslim men detained in Zvornik, among other places, were subjected to cruel and inhumane conditions, constituting “a serious attack on their human dignity” and inflicting on them “serious mental and physical suffering and injury”.⁵³⁹⁶ In light of the established factual findings, the Appeals Chamber is also convinced that the conditions which the Bosnian Muslim prisoners were subjected to in detention sites in Zvornik amounted to the infliction of cruel and inhumane treatment."

5391. Trial Judgement, para. 2017. See Trial Judgement, paras 476-478, 481, 483, 514-520, 522, 527-528, 531, 534.

5392. Trial Judgement, para. 993. See Trial Judgement, paras 478, 495-496, 518, 529. See also supra, para. 1847.

5393. Trial Judgement, fn. 1799.

5394. Trial Judgement, paras 478, 496 & fn. 1805, 529.

5395. Trial Judgement, paras 480, 495, 497, 529.

5396. Trial Judgement, para. 994.

"1908. Furthermore, the Trial Chamber found that members of the Zvornik Brigade participated in the cruel and inhumane treatment described above by guarding the prisoners to ensure that they did not escape.⁵³⁹⁷ The Appeals Chamber also considers that, by loading prisoners onto trucks, sometimes together with the dead bodies of other Bosnian Muslims, to be taken for execution, Zvornik Brigade members inflicted cruel and inhumane treatment on the men and boys.⁵³⁹⁸ The severe mental harm perpetrated upon these persons, whose fate must have been obvious to them, is evident in the Trial Chamber’s finding that the prisoners were often blindfolded and their hands were tied, and the evidence of a participating Zvornik Brigade member that “[t]hey were half dead, exhausted, without water or bread. Nobody – nobody begged for their lives.”⁵³⁹⁹ The Appeals Chamber notes the finding of the Trial Chamber that Zvornik Brigade members had “significant involvement” in the events at the Rocevic School.⁵⁴⁰⁰ It further notes the findings of the Trial Chamber that the guarding of the prisoners in the schools of the Zvornik area by members of the Zvornik Brigade formed part of the modus operandi of the Serb campaign in Srebrenica aimed at eliminating the Bosnian Muslim males of the enclave. ⁵⁴⁰¹ In the circumstances of this case, the Appeals Chamber finds that the involvement of Zvornik Brigade members in the guarding of the Bosnian Muslim prisoners in the schools in the Zvornik area as well as their participation in loading the prisoners onto trucks to be taken for execution substantially contributed to the infliction and perpetuation of the appalling conditions of detention that amounted to cruel and inhumane treatment."

5397. Trial Judgement, paras 515-516, 518, 528 & fns 531, 534, 1941.

5398. See Trial Judgement, paras 516-518, 531, 534.

5399. Trial Judgement, paras 518, 534.

5400. Trial Judgement, para. 522.

5401. See Trial Judgement, paras 1063, 1075, 2017, 2043.

"1909. All of the victims of cruel and inhumane treatment in the detention sites in Zvornik were Bosnian Muslims.⁵⁴⁰² The only reason they were subjected to this treatment was because they belonged to the Muslim population of Srebrenica.⁵⁴⁰³ The detentions formed part of a general discriminatory attack on the Bosnian Muslim population of Srebrenica and were a prelude to the systematic murder of the prisoners.⁵⁴⁰⁴ The evidence demonstrates that those Zvornik Brigade members present at the schools were aware of the fact that all the prisoners were Bosnian Muslims and of the cruel and inhumane treatment to which they were subjected.⁵⁴⁰⁵ Like the Trial Chamber, the Appeals Chamber is thus satisfied that the infliction of such treatment was carried out with the intention to discriminate against the Bosnian Muslims on political, racial, or religious grounds,⁵⁴⁰⁶ or with an awareness of the discriminatory context in which the crime was to be committed."

5402. Trial Judgement, paras 993-995, 1191, 1329, 1424, 1592.

5403. See Trial Judgement, para. 995.

5404. Trial Judgement, paras 1004, 1960. See Trial Judgement, paras 1861, 1882, 1948, 1959, 2037, 2040.

5405. Trial Judgement, paras 507, 511, 518, 527, 529, 531; PW-142, T. 6462 (29 Jan 2007); Slavko Peric, T. 11375- 11376 (11 May 2007).

5406. See Trial Judgement, para. 995.

"1910. The Appeals Chamber recalls that the “reason to know” standard pursuant to Article 7(3) of the Statute is met if the superior possessed information sufficiently alarming to justify further inquiry.⁵⁴⁰⁷ This information does not need to provide specific details about the unlawful acts committed or about to be committed but may consist of general information which would put a superior on notice of possible unlawful acts by his subordinates.⁵⁴⁰⁸"

5407. Strugar Appeal Judgement, para. 298.

5408. Krnojelac Appeal Judgement, para. 154; Čelebici Appeal Judgement, para. 238.

"1911. The findings of the Trial Chamber establish that as of noon on 15 July 1995 following his conversation with Obrenovic, Pandurevic knew that Zvornik Brigade members were involved in the guarding, execution, and burial of large numbers of Bosnian Muslim prisoners who had been brought into the Zvornik area.⁵⁴⁰⁹ He was specifically informed that there were “enormous problems” in carrying out these tasks.⁵⁴¹⁰ Soon afterwards, at 2:00 p.m. on 15 July 1995, Pandurevic received further specific information from Grujic that the prisoners were being kept in the schools in the area.⁵⁴¹¹ In response to this news, he assured Grujic that he would check on the situation of the prisoners in the area.⁵⁴¹² Pandurevic’s knowledge of the involvement of members of the Zvornik Brigade in the guarding of the prisoners in schools in the Zvornik area is confirmed by the 15 July Report, which makes specific reference to the “additional burden for [the Zvornik Brigade of] […] the large number of prisoners distributed throughout schools in the brigade area”.⁵⁴¹³"

5409. Trial Judgement, paras 1861, 1959-1960, 2037-2038.

5410. Trial Judgement, para. 1861.

5411. Trial Judgement, para. 1865.

5412. Trial Judgement, para. 1865.

5413. Ex. P00329 “Zvornik Brigade Daily Interim Combat Report signed by Vinko Pandurevic, 15 July 1995”. See Trial Judgement, paras 1948-1949.

"1912. While Pandurevic may not have had detailed information about the conditions of detention at the schools, the Appeals Chamber recalls that under superior responsibility, it need only be established that a superior had general information which would put him on notice of possible unlawful acts by his subordinates.⁵⁴¹⁴ Given his awareness of the large numbers of Bosnian Muslim prisoners being detained in the schools and guarded by members of the Zvornik Brigade as well as the crucial fact that the detention of the prisoners was a precursor to their planned murder,⁵⁴¹⁵ the Appeals Chamber finds that Pandurevic had sufficiently alarming information to justify further inquiry into the conditions in which the prisoners were being kept and the involvement of his subordinates in perpetuating such conditions. At this point in time, Pandurevic had reason to know of the risk that his subordinates might participate in the cruel and inhumane treatment of the prisoners through their role in guarding them."

5414. See supra, para. 1910.

5415. Trial Judgement, paras 1960, 2037.

"1913. The findings of the Trial Chamber demonstrate that Pandurevic was personally aware of the overall discriminatory design of the Serb campaign in Srebrenica, since he: (1) was aware of the indiscriminate attack on the Bosnian Muslim population of the Srebrenica enclave; (2) knew of the discriminatory intent with which the forcible transfer was committed; (3) knew that by participating in the attack on the enclave, he was assisting in the commission of persecution; and (4) had sufficient information from which to infer the discriminatory intent on the part of other members of the VRS against Bosnian Muslims, including Popović, whom he was specifically told had organised the transportation of the prisoners from Bratunac to Zvornik for execution.⁵⁴¹⁶ The Appeals Chamber finds that in light of his personal awareness of such a persecutory plan against the Bosnian Muslims in Srebrenica, from the time he was informed at noon on 15 July 1995 about the involvement of his subordinates in guarding the prisoners prior to their execution, he had sufficient notice of the risk that Bosnian Muslim males might be subjected to cruel and inhumane treatment during their detention by his subordinates because of their political, racial, or religious affiliation. In addition, Pandurevic’s knowledge that the source of the orders related to the detention of the prisoners was Mladic and that they were implemented through Popovic, together with his awareness of the pre-execution purpose of the detention, satisfies the Appeals Chamber that he knew of specific circumstances in addition to the general discriminatory context of the Main Staff’s operation that amounted to sufficiently alarming information to trigger superior responsibility for the crime of persecution.⁵⁴¹⁷"

5416. Trial Judgement, paras 2088, 2098. See also Trial Judgement, paras 1861, 1960; supra, paras 1908-1909.

5417. See Krnojelac Appeal Judgement, para. 184.

"1914. The Appeals Chamber notes that Pandurevic, being physically present at the Standard Barracks on 15 and 16 July 1995, had the material ability to order his subordinates not to participate in guarding the Bosnian Muslim prisoners, or at the very least to inquire into the conditions at the schools where the prisoners were being detained so as to address the risk that his subordinates might be participating in the cruel and inhumane treatment of the prisoners.⁵⁴¹⁸ The evidence indicates that the prisoners detained at the Rocevic School were not transported to the execution site at Kozluk until the late afternoon of 15 July 1995.⁵⁴¹⁹ This gave Pandurevic a few hours in which he might have made the relevant inquiries or issued orders. In this time, Pandurevic made only one attempt to inquire: asking Ljubo Bojanovic, an officer from the Zvornik Brigade Operations Organ who arrived at the Kitovnice IKM later that day, if he had information about the situation of the prisoners who were brought to the Zvornik area.⁵⁴²⁰ The Appeals Chamber considers that based on the alarming information Pandurevic received from Obrenovic and Grujic,⁵⁴²¹ merely asking Bojanovic if he had any information is insufficient to discharge his duty to investigate under Article 7(3) of the Statute."

5418. Trial Judgement, para. 2050.

5419. Trial Judgement, paras 516-518.

5420. Trial Judgement, paras 1866 & fn. 5598, 2045-2046.

5421. See supra, para. 1911. See also Trial Judgement, paras 1866, 2045.

"1915. Those prisoners detained at the Kula School continued to be guarded by Zvornik Brigade members throughout the night of 15 July 1995, and were not moved to the execution site at the Branjevo Military Farm until around 10:00 a.m. the next morning.⁵⁴²² Pandurevic therefore had ample time and opportunity to initiate action to prevent his subordinates stationed at the Kula School from participating in the persecution of the Bosnian Muslim prisoners through cruel and inhumane treatment. However, Pandurevic took no such action.⁵⁴²³"

5422. Trial Judgement, paras 531-536.

5423. Trial Judgement, paras 2044-2046, 2048, 2050-2051.

"1916. In light of the foregoing, the Appeals Chamber, Judge Niang dissenting, finds beyond reasonable doubt that Pandurevic failed to take the necessary and reasonable measures to prevent his subordinates from participating in persecution through cruel and inhumane treatment from noon on 15 July to 16 July 1995 at the Ročević and Kula Schools, as required to discharge his duty under Article 7(3) of the Statute. Thus, the Appeals Chamber, Judge Niang dissenting, grants the Prosecution’s sub-ground of appeal 2(d). Pandurevic’s acquittal on this charge is hereby reversed and the Appeals Chamber, Judge Pocar dissenting, enters a new conviction in respect of Count 6."

"1925. The Appeals Chamber notes, at the outset, that the Trial Chamber did not err in its express articulations of the legal standard for liability for failing to fulfil the duty to punish under Article 7(3) of the Statute.⁵⁴⁵⁷ As to whether the Trial Chamber erred in any implicit legal findings made in its interpretation of what constitutes “necessary and reasonable measures” to punish, the Appeals Chamber observes the reasoning of the Trial Chamber that the “normal avenues open to a Commander were effectively unrealistic in [Pandurevic’s] situation” because of the involvement of his superiors in the planning, ordering, and execution of the crimes committed by his subordinates.⁵⁴⁵⁸ In particular, the likely interference of the Main Staff in the proper functioning of the Military Prosecutor in relation to any potential proceedings against Pandurevic’s subordinates for their role in the crimes rendered the option of reporting to the Military Prosecutor – either directly or through the Brigade’s Security Organ – not realistic or practical for Pandurevic in the circumstances.⁵⁴⁵⁹ The Trial Chamber further held that: there is no evidence of an alternative independent avenue being open to him. Despite these obvious limitations, Pandurevic did take some measures to address the crimes that had occurred through his Interim Combat Reports of 15 and 18 July and by raising the issue with Krstić in person on 27 July. In most instances, such action would be insufficient to fulfil the obligation on a superior to punish. However, the Trial Chamber is satisfied that, in these very particular and extraordinary circumstances, there were no other reasonable means available to Pandurevic and within his material ability to pursue punishment for the crimes committed in the murder operation. Furthermore, there is no evidence before the Trial Chamber that this situation significantly changed later during Pandurevic’s remaining time as Commander of the Zvornik Brigade so as to provide him with other options in terms of necessary and reasonable measures.⁵⁴⁶⁰"

5457. See Trial Judgement, paras 1043-1046, 2053, 2058.

5458. Trial Judgement, para. 2063.

5459. Trial Judgement, paras 2056-2057.

5460. Trial Judgement, para. 2064.

"1926. Inherent in the Trial Chamber’s reasoning are two legal findings. The first is that a measure that would ordinarily be considered necessary and reasonable – such as reporting crimes committed by a superior’s subordinates to a competent authority or up the chain of command – may in certain circumstances be unreasonable if the evidence indicates that such a competent authority may be subject to interference by the persons or bodies responsible for ordering or planning the crimes. The second legal finding is that measures that would normally not be sufficient to fulfil the duty to punish might in certain circumstances be considered as the only necessary and reasonable measures available. The Appeals Chamber will consider whether either of these implicit legal findings amount to an error of law."

"1927. Turning to the first finding, the Appeals Chamber recalls that the duty to punish will be fulfilled when necessary and reasonable measures to punish perpetrators have been taken.⁵⁴⁶¹ “Necessary” measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and “reasonable” measures are those reasonably falling within the material powers of the superior.⁵⁴⁶² The Appeals Chamber understands the Trial Chamber’s references to what was “reasonable” to in fact be covering “necessary” and “reasonable” measures.⁵⁴⁶³"

5461. Bagosora and Nsengiyumva Appeal Judgement, para. 683; Boskoski and Tarculovski Appeal Judgement, para. 230; Halilovic Appeal Judgement, para. 175.

5462. Oric Appeal Judgement, para. 177; Halilovic Appeal Judgement, para. 63; Blaskic Appeal Judgement, para. 417. In considering such measures within the context of Article 7(3) of the Statute, the Appeals Chamber has relied on the corresponding provisions in Articles 86 and 87 of Additional Protocol I. See Hadžihasanović and Kubura Appeal Judgement, para. 33; Halilović Appeal Judgement, para. 63 & fn. 167. See also Blagojević and Jokić Appeal Judgement, para. 281 (recalling that “criminal responsibility under Article 7(3) is based primarily on Article 86(2) of [Additional] Protocol I”); Čelebići Appeal Judgement, para. 237 (observing that Article 86(2) of Additional Protocol I is “interpret[ed]” by Article 87 of Additional Protocol I “as far as the duties of the commander or superior are concerned”). The Appeals Chamber has previously looked to Articles 86 and 87 of Additional Protocol I in so far as they reflect customary international law, which is the applicable law of the Tribunal. Prosecutor v Enver Had`ihasanovic, Mehmed Alagić and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, paras 28-29. See also Halilović Appeal Judgement, para. 63.

5463. See Trial Judgement, para. 2056: “Given that Pandurevic had information about Nikolic’s involvement in the murder operation, the Trial Chamber finds that it was unreasonable under the circumstances for him to report the matter to the Security Organ.” (internal references omitted; emphasis added). See also Trial Judgement, para. 2063 (“In light of this fact [that the crimes had been ordered by the Main Staff, particularly Mladic and the Security Branch], the Trial Chamber considers that Pandurevic had limited options in terms of reasonable means available to him and within his material ability in order to discharge his duty to punish crimes committed during that operation.”) (emphasis added).

"1928. With regard to what constitutes reasonable measures, the Appeals Chamber agrees that the obligation to take measures is restricted to those that are feasible, so that no responsibility attaches to a superior for whom the fulfilment of the duty to punish was not possible in the prevailing circumstances.⁵⁴⁶⁴ It is well-established in the case law of the Tribunal that the determination of what is materially possible in terms of fulfilling the duty to punish is primarily linked to the question of a superior’s effective control.⁵⁴⁶⁵ In the Celebici case, the Trial Chamber interpreted the term “necessary and reasonable measures” to be limited to measures, which are within someone’s power, as no one can be obliged to perform the impossible.⁵⁴⁶⁶ This finding was upheld by the Appeals Chamber in the Blaskic case. ⁵⁴⁶⁷ The focus on the superior’s personal sphere of power to assess feasibility is also in line with Article 86 of Additional Protocol I which refers to the taking of “all feasible measures within [a superior’s] power”.⁵⁴⁶⁸"

5464. Čelebići Trial Judgement, para. 395. See Article 86(2) of Additional Protocol I, referring to the responsibility of a superior for failing to “take all feasible measures within their power to prevent or repress the breach”; Commentary on Additional Protocols, para. 3548 (“[Article 86] reasonably restricts the obligation upon superiors to ‘feasible’ measures, since it is not always possible to […] punish the perpetrators.”).

5465. Blaskic Appeal Judgement, para. 72; Čelebići Appeal Judgement, para. 198. See Bagosora and Nsengiyumva Appeal Judgement, para. 672.

5466. Čelebići Trial Judgement, para. 395.

5467. Blaskic Appeal Judgement, para. 417.

5468. The measures concerned are described in the Commentary on Additional Protocols as those “‘within [a superior’s] power’ and only those”. Commentary on Additional Protocols, para. 3548. The ICRC Customary International Humanitarian Law Study similarly finds as a customary rule the criminal responsibility of commanders and other superiors who “did not take all necessary and reasonable measures in their power […] to punish the persons responsible”. Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Vol. I, Rule 153, p. 558 (emphasis added).

"1929. The Trial Chamber interpreted “necessary and reasonable measures” as synonymous with “realistic” and “practical” options, which it determined by reference to factors external to Pandurević’s own material powers, that is, the likely interference of the Main Staff with any proceedings initiated by the Military Prosecutor.⁵⁴⁶⁹ While the Appeals Chamber agrees that feasibility relates to what is realistic and practical in the circumstances,⁵⁴⁷⁰ it considers that when used in the context of command responsibility, the assessment must remain anchored in the material powers of the superior. However, in the case at hand, the Trial Chamber’s finding that it was not possible for Pandurevic to act was based on the doubtful independence of any potential proceedings.⁵⁴⁷¹ The Appeals Chamber recalls its finding in the Hadžihasanovic and Kubura case that a superior’s responsibility should not turn on the competent authority’s possible failure to initiate criminal proceedings.⁵⁴⁷² If the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, this entails that such a report would not be sufficient to fulfil the obligation to punish offending subordinates.⁵⁴⁷³ It does not mean that the action of reporting becomes impossible in the circumstances."

5469. Trial Judgement, paras 2056-2057, 2063. See also Trial Judgement, fn. 6043: “The Trial Chamber considers that this evidence tends to indicate that an investigation by the Military Prosecutor would not have produced a genuine result and thus that it is unlikely that an effort by Pandurević to report to the Military Prosecutor would have led to the investigation or punishment of members of the Zvornik Brigade for their involvement in the murder operation.”.

5470. A number of States (e.g. Canada, Germany, Ireland, Italy, Netherlands, and Spain) included the definition of “feasible” in Article 86 of Additional Protocol I as meaning that which is “practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations” in statements that accompanied their instruments of ratification to Additional Protocol I. Canada, Reservations made at the time of ratification of the 1977 Additional Protocol I, 20 November 1990, § 5; Germany, Declarations at the time of ratification of the 1977 Additional Protocol I, 14 February 1991, § 2; Ireland, Declarations and Reservations made in relation to 1977 Additional Protocol I, 19 May 1999, § 6; Italy, Declarations made at the time of ratification of the 1977 Additional Protocol I, 27 February 1986, § 2; Netherlands, Declarations made at the time of ratification of the 1977 Additional Protocol I, 26 June 1987, §2; Spain, Interpretative declarations made at the time of ratification of the 1977 Additional Protocol I, 21 April 1989, § 3. Although used in a different context (in relation to “feasible precautions”), this definition of “feasible” is codified in Article 3(10) of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), adopted at Geneva, 10 October 1980, as amended on 3 May 1996.

5471. Trial Judgement, paras 2056-2057, 2063-2064.

5472. Hadžihasanovic and Kubura Appeal Judgement, para. 154.

5473. Boskoski and Tarculovski Appeal Judgement, para. 234.

"1930. In regards to the Trial Chamber’s analysis of whether Pandurevic failed to take necessary measures, the Appeals Chamber notes the Trial Chamber’s reasoning that “it is evident that referring the matter to the Security Organ, to [Pandurevic’s] direct superior or even to the Commander of the VRS for investigation and punishment in the usual manner was not possible when all of them were implicated in planning, ordering and executing these horrific crimes”.⁵⁴⁷⁴ In so finding, the Trial Chamber would appear to be relying on the legal holding it made earlier in the Trial Judgement that “when the most which could be done by a superior would be to report the illegal conduct of subordinates to the very persons who had ordered it, the superior cannot be found responsible under Article 7(3)”.⁵⁴⁷⁵ In the view of the Appeals Chamber, this legal holding should be narrowly construed. In Krstic, the Appeals Chamber applied this reasoning in obiter dicta with the limited purpose of articulating why responsibility under Article 7(1) of the Statute best encapsulated Krstic’s criminality.⁵⁴⁷⁶ Significantly, though, this comment in no way disturbed the finding in the Krstic Trial Judgement that Krstic had failed in his obligation to punish his subordinates in relation to the crimes they committed by not reporting the crimes to the competent authorities, including the Military Prosecutor’s office.⁵⁴⁷⁷ While the Appeals Chamber accepts that reporting on crimes committed by one’s subordinates to a military organ directly involved in the ordering, planning, and execution of the crimes may not be necessary,⁵⁴⁷⁸ this reasoning cannot be extended to other military authorities which were not so involved."

5474. Trial Judgement, para. 2063.

5475. Trial Judgement, para. 1046, referring to, inter alia, Krstic Appeal Judgement, fn. 250.

5476. Krstić Appeal Judgement, fn. 250.

5477. Krstic Trial Judgement, paras 649-652. No conviction under Article 7(3) of the Statute was entered for Krstic in view of his conviction under Article 7(1) of the Statute. 5478. See, e.g., Ntagerura et al. Appeal Judgement, para. 345.

"1931. The Appeals Chamber is mindful of the complex situation facing commanders during armed conflict when their subordinates have committed crimes upon the orders of the top echelons of the military and political structures. However, international law requires commanders to take some action to punish their subordinates for committing crimes, even in these circumstances.⁵⁴⁷⁹ In the view of the Appeals Chamber, the Trial Chamber’s finding of impossibility of action due to the likely interference of the Main Staff in any potential investigation by the Military Prosecutor⁵⁴⁸⁰ does not comport with the legal standard of an unreasonable or unnecessary measure under Article 7(3) of the Statute."

5479. See Article 87(3) of Additional Protocol I requires “any commander”, who is aware of his subordinates committing crimes, “to initiate disciplinary or penal action against violators”. The commentary to this provision notes that “₣tğhe object of these texts is to ensure that military commanders at every level exercise the power vested in them, both with regard to the provisions of the Conventions and the Protocol, and with regard to other rules of the army to which they belong”. Commentary on Additional Protocols, para. 3562. As stated by the United States Military Tribunal in the Von Leeb case, “[u]nder basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal violates a moral obligation under International Law. By doing nothing he cannot wash his hands of international responsibility”. Trial of Wilhelm von Leeb et al., Judgement of 28 October 1948, United States Military Tribunal, Nuremberg, Law Reports of Trials of War Criminals, Vol. XII, pp. 75, 106.

5480. Trial Judgement, para. 2057.

"1932. The Appeals Chamber now turns to the second implicit legal finding on the duty to punish, namely whether measures that would ordinarily be considered insufficient to fulfill the duty to punish might in certain circumstances be considered as the only necessary and reasonable measures available. The Appeals Chamber affirms that what constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.⁵⁴⁸¹ This means that the assessment of measures taken, in view of the material ability of the superior, must be evaluated on a case-by-case basis.⁵⁴⁸² That being said, the Tribunal’s case law has established a minimum standard for measures that may fulfil the duty to punish. A trial chamber must look at what steps were taken to secure an adequate investigation capable of leading to the criminal prosecution of the perpetrators.⁵⁴⁸³ In this respect, it is well accepted that a superior’s duty to punish the perpetrators of a crime includes at least an obligation to investigate possible crimes, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities.⁵⁴⁸⁴ In respect of merely reporting crimes, this would only suffice to fulfil the duty to punish if such a report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.⁵⁴⁸⁵ The Appeals Chamber notes that the duty of commanders to report to competent authorities is specifically provided for under Article 87(1) of Additional Protocol I, and that the duty may also be deduced from the provision of Article 86(2) of Additional Protocol I. ⁵⁴⁸⁶ In addition, Article 87(3) of Additional Protocol I specifies that where a commander is aware that his subordinates have committed breaches of the Conventions or the Protocol, he must “initiate disciplinary or penal action against violators thereof”. While these provisions indicate that the report by a commander must be made to a body tasked with investigation and punishment, in military practice such reports may sometimes be made either directly to the competent authorities or through a superior officer.⁵⁴⁸⁷ The crucial point is that in order to constitute a necessary and reasonable measure to punish, the commander’s report must be sufficient to trigger the action of the competent authorities."

5481. Bagosora and Nsengiyumva Appeal Judgement, para. 672; Oric Appeal Judgement, para. 177; Halilovic Appeal Judgement, para. 63; Blaškić Appeal Judgement, para. 72.

5482. Boskoski and Tarculovski Appeal Judgement, para. 259; Hadžihasanovic and Kubura Appeal Judgement, para. 33; Blaškić Appeal Judgement, para. 417.

5483. Halilovic Appeal Judgement, para. 182; Strugar Trial Judgement, para. 378 (undisturbed on appeal, see Strugar Appeal Judgement, especially para. 378, referring to Strugar’s failure to provide “an adequate investigation”).

5484. Halilovic Appeal Judgement, para. 182. See also Bagosora and Nsengiyumva Appeal Judgement, para. 510.

5485. Boskoski and Tarculovski Appeal Judgement, paras 231, 235, 270. See also Hadžihasanovic and Kubura Appeal Judgement, para. 154.

5486. Blaškić Appeal Judgement, para. 69.

5487. The Appeals Chamber notes that the applicable law of the Republika Srpska at the relevant time provided for the option of a superior officer to inform the military prosecutor “directly or through a higher-ranking officer” of his subordinates’ crimes. Ex. 6D00218, “Law on Military Courts”, Article 65.

"1933. As indicated by the above, a particular measure can only be regarded as necessary and reasonable where it has been shown to be capable of contributing to investigating or punishing the crimes in the circumstances which prevailed at the time. This is so even if the result ultimately falls short of punishment.⁵⁴⁸⁸ The Appeals Chamber finds that the Trial Chamber erred in law by failing to consider if the measures Pandurevic took were in fact capable of contributing to an investigation or punishment of those who committed the crimes or whether those measures were so inadequate as to render meaningless the superior’s obligation to punish crimes."

5488. Bagosora and Nsengiyumva Appeal Judgement, para. 683.

"1934. Having identified two implicit errors of law in the Trial Chamber’s interpretation of the standard of liability for failure to punish under Article 7(3) of the Statute, the Appeals Chamber will now review the relevant factual findings of the Trial Chamber and, when necessary, evidence contained in the trial record, in line with the correct legal standard. The Trial Chamber found that Pandurevic did not punish or take any disciplinary measures against his subordinates for their criminal conduct in relation to the detention and execution of Bosnian Muslim males in the area of Zvornik in July 1995.⁵⁴⁸⁹ The Trial Chamber found that the responsibility for investigating criminal acts within a VRS brigade generally fell within the authority of the Security Organ and Military Police,⁵⁴⁹⁰ which suggests that the competence to conduct investigations lay outside Pandurevic’s direct powers. While, as a superior officer, Pandurevic was obliged under the law to take steps to preserve the crime scene and collect information useful for any criminal proceedings,⁵⁴⁹¹ the Appeals Chamber accepts that such a measure may have been practically impossible in the circumstances given the direct involvement of the Main Staff in the ordering, planning, execution, and attempted cover-up of the crimes."

5489. Trial Judgement, para. 2053.

5490. Trial Judgement, para. 2055.

5491. Ex. 4DP00420 “Decree on Law of Court Martial”, Art. 65.

"1935. The Trial Chamber further found that Pandurevic did not request the Military Prosecutor’s Office or the Zvornik Brigade CPS to conduct an investigation into possible crimes committed by his subordinates,⁵⁴⁹² in spite of obligations under domestic law to do so.⁵⁴⁹³ The Appeals Chamber notes that, although it was Nikolic, the Chief of Security in the Zvornik Brigade, who normally issued an order for the CPS to conduct an investigation, it was technically possible for Pandurevic, the Brigade Commander, to issue an order for an investigation directly.⁵⁴⁹⁴ Even if Pandurevic directly engaged the CPS, however, this service was still required to report to Nikolic, who would in turn report to Pandurevic. ⁵⁴⁹⁵ This effectively gave control over any work of the CPS to Nikolic. Given that Pandurevic knew about Nikolic’s involvement in the crimes committed by his subordinates through conversations with Obrenovic on 16 and 17 July 1995,⁵⁴⁹⁶ the Appeals Chamber finds that in these particular circumstances, it was reasonable for Pandurevic to consider that reporting the crimes to the CPS was not a realistic option.⁵⁴⁹⁷ "

5492. Trial Judgement, para. 2054.

5493. Trial Judgement, para. 2055. See also Ex. 4D00503, “Expert Report on Ristivogevic on Jurisdiction, Powers and Conduct of Members of the Armed Forces of the Republika Srpska”, para. 5.7; Ex. 4DP00420, “Decree on Law of Court Martial”, Art. 65; Ex. P00028 “Guidelines for Determining Criteria for Criminal Prosecution”, p. 8; Ex. P00409, “Regulations on the Application of International Laws of War in the Armed Forces of the SFRY”, Art. 21.

5494. Trial Judgement, paras 2055-2056. See also Trial Judgement, paras 160-161. Within the Zvornik Brigade Nikolić was formally subordinated to Pandurevic, the Brigade Commander. Trial Judgement, para. 155.

5495. Trial Judgement, para. 160.

5496. Trial Judgement, para. 2056, referring to Trial Judgement, paras 1879, 1889.

5497. The Trial Chamber noted that Pandurević testified to the effect that “it was pointless for him to report to the Security Organ any suspected criminal act regarding the prisoners because he knew that ‘the Superior Commands of the Security Organs’ were involved”. Trial Judgement, para. 2060.

"1936. In respect of the option of reporting directly to the Military Prosecutor, the Appeals Chamber notes that – unlike the CPS – this body fell under the administration of the Ministry of Defence.⁵⁴⁹⁸ The Trial Chamber observed that there was very little evidence presented on the functioning of the Military Prosecutor,⁵⁴⁹⁹ but it found that Gvero, Assistant Commander in the VRS Main Staff, “retained some degree of control or monitoring power over the work of the military courts even after 1993”.⁵⁵⁰⁰ In the Trial Chamber’s view, this indicated that the Military Prosecutor was in fact not independent of the Main Staff, which made this option not realistic for Pandurevic. ⁵⁵⁰¹ The Appeals Chamber recalls that the correct legal standard for assessing necessary and reasonable measures is whether an option falls within a superior’s material powers in the circumstances.⁵⁵⁰² Pandurevic had the legal competence to report directly or through his superior officer to the Military Prosecutor about crimes committed by his subordinates.⁵⁵⁰³ The Appeals Chamber notes that the Trial Chamber’s finding on Gvero’s scope of influence over the Military Prosecutor’s Office was based on the evidence of Manojlo Milovanović that Gvero “was to monitor the work of military courts in contact with an appropriate section in the Ministry of Defence”.⁵⁵⁰⁴ In the view of the Appeals Chamber, this evidence only supports the Trial Chamber’s finding that Gvero retained monitoring power, but it does not support the contention that he had any degree of control over the work of the Military Prosecutor. Furthermore, there is no evidence or findings related to Pandurevic’s knowledge of any possible Main Staff interference in the work of the Military Prosecutor.⁵⁵⁰⁵ The Trial Chamber’s finding on this possible interference was therefore speculative. Furthermore, as noted above, commanders who suspect their subordinates to have committed crimes are required to report to the competent authorities, even if the result falls short of punishment. The Appeals Chamber finds, therefore, that the option of Pandurevic reporting directly to the Military Prosecutor about the crimes committed by his subordinates was a reasonable and necessary measure to punish in the circumstances."

5498. Trial Judgement, para. 2057, fn. 6042.

5499. Trial Judgement, para. 2057.

5500. Trial Judgement, fn. 6042.

5501. Trial Judgement, para. 2057.

5502. See supra, para. 1928.

5503. Trial Judgement, para. 1573 & fn. 4875.

5504. Trial Judgement, fn. 6042, citing Manojlo Milovanovic, T. 12246-12247 (30 May 2007).

5505. Pandurevic’s comment expressed to Obrenovic that “with Mladic up there, we are all doomed” was said in the context of the conversation relating to Mladic’s role in the ordering of the crimes. It was not mentioned with regard to any influence he or other Main Staff members might have had in influencing the work of the Military Prosecutor. Trial Judgement, para. 2060, citing PW-168, T. 15950 (closed session) (27 Sept 2007).

"1937. While Pandurevic could have reported directly to the Military Prosecutor, he could also have fulfilled his duty to report to the competent authorities by reporting to his higher ranking officer, Krstic, so that he would take the appropriate punitive actions against his subordinates. Pandurevic argues that this is precisely what he did by means of the Two Interim Combat Reports and his raising the issue of the execution of prisoners in Zvornik with Krstic in person on 27 July 1995.⁵⁵⁰⁶ The Appeals Chamber notes that neither of the Two Interim Combat Reports mentions any crimes committed by his subordinates.⁵⁵⁰⁷ Even when viewed in conjunction with Pandurevic’s conversation with Obrenovic on 23 July 1995 when they discussed the executions that had been carried out in the Zvornik area,⁵⁵⁰⁸ the reports do not convey in any respect a necessity to investigate and prosecute his subordinates. Pandurevic’s explanation at trial that he included mention of the prisoners in the 18 July 1995 report because he believed an investigation should be launched is not supported by the wording of the report.⁵⁵⁰⁹ In fact, Pandurevic’s comments to Obrenovic about the 18 July 1995 report suggest that the report was supposed to clearly show that it was the Main Staff that was responsible for the situation in the area, not the Zvornik Brigade, which was merely following orders.⁵⁵¹⁰ Far from being a report that would give reason to Krstic to initiate an investigation and prosecution of his subordinates, Pandurevic’s comments suggest that he was using the report as a way to distance the Zvornik Brigade from blame."

5506. Pandurevic’s Response Brief, para. 267. Pandurevic testified at trial that since he had no authority to investigate officers from higher commands, “[a]ll I could do was to inform the corps commander and to expect him to initiate the appropriate mechanisms and to launch an investigation into these crimes”. Trial Judgement, fn. 6052, citing Vinko Pandurevic, T. 31111-31112 (9 Feb 2009).

5507. Ex. P00329, “Zvornik Brigade Interim Combat Report, signed by Vinko Pandurevic, 15 July 1995”, para. 4 referring to “the large number of prisoners distributed throughout schools in the brigade area” which created “[a]n additional burden” for the Zvornik Brigade. Ex. P00334, “Zvornik Brigade Interim Combat Report, signed by Vinko Pandurević, 18 July 1995”, pp. 2-3 stated, in relevant part: It is inconceivable to me that someone brought in 3,000 Turks of military age and placed them in schools in the municipality, in addition to the 7,000 or so who have fled into the forests. This has created an extremely complex situation and the possibility of the total occupation of Zvornik in conjunction with the forces at the front. These actions have stirred up great discontent among the people and the general opinion is that Zvornik is to pay the price for the taking of Srebrenica.

5508. Trial Judgement, paras 1910, 2061, referring to PW-168, T. 15949-15950 (closed session) (27 Sept 2007).

5509. See Vinko Pandurević, T. 31125-31126 (9 Feb 2009). See supra, note 5507.

5510. Pandurević stated in response to Obrenovic’s comment that “still, it was all happening here at our area”, “It’s all the Drina Corps area and it’s also the area of the Main Staff. What is more [Mladic] ordered they did it. Whoever reads the report, it will be clear to them.” PW-168, T. 15950 (closed session) (27 Sept 2007). See Trial Judgement, para. 1910.

"1938. With respect to Pandurevic’s conversation with Krstic on 27 July 1995, the Appeals Chamber notes the finding of the Trial Chamber that during this conversation Pandurević asked Krstic if he had any more specific information about the prisoners executed in Zvornik, to which Krstic responded that it was not Pandurevic’s concern and that he would deal with the problem in the appropriate way.⁵⁵¹¹ The Appeals Chamber recalls that a report up the line of command may constitute a necessary and reasonable measure to punish only where such a report is likely to trigger penal or disciplinary action. In addition, whether a report to the appropriate authorities is sufficient to discharge the obligation to punish offending subordinates depends on the circumstances of each case.⁵⁵¹² In the present case, according to the account given by Pandurević, he merely asked Krstic if he had further information about the execution of prisoners in Zvornik.⁵⁵¹³ Pandurevic made no direct or indirect reference to the need to initiate penal or disciplinary action, to inform the Military Prosecutor, or to trigger any punitive measure whatsoever. Indeed, Pandurevic never made any formal or informal report to Krstic about the crimes in which he suspected his subordinates had participated.⁵⁵¹⁴ His inquiry to Krstic about the executions in the course of a 15 minute conversation primarily about the military situation of the Zvornik Brigade cannot suffice to constitute a report likely to trigger judicial action.⁵⁵¹⁵ Krstic’s response that the matter was not Pandurevic’s concern and that he would deal with it in the appropriate manner does not change this analysis. The Appeals Chamber notes the Trial Chamber’s findings that reporting to Pandurevic’s immediate superior, i.e. Krstic, was not realistic given the latter’s involvement in the crimes and that “[i]n most instances, such action would be insufficient to fulfil the obligation on a superior to punish”.⁵⁵¹⁶ The Appeals Chamber considers that a duty to punish is not fulfilled where a commander was content to rely on assurances which he knew would not be or were not being implemented.⁵⁵¹⁷ The Appeals Chamber finds that, in such circumstances, Pandurevic’s brief conversation with Krstic cannot be considered to be sufficient to fulfil his obligation to take necessary and reasonable measures to punish."

5511. Trial Judgement, paras 1915, 2062.

5512. Boskoski and Tar~ulovski Appeal Judgement, para. 234; Blaskic Appeal Judgement, para. 72.

5513. Trial Judgement, paras 1915, 2062.

5514. As found above, the Appeals Chamber does not consider the Two Interim Combat Reports to constitute such formal reports since they contain no mention of any suspected crimes allegedly committed by Pandurevic’s subordinates.

5515. See Vinko Pandurevic, T. 31179 (10 Feb 2009).

5516. Trial Judgement, paras 2063-2064.

5517. See The Tokyo Judgment, International Military Tribunal for the Far East, 29 April 1946-12 November 1948, in B.V.A. Röling, C.F. Rüter (eds.), Vols I-II (1977), Vol I, p. 448. See also Boskoski and Tar~ulovski Appeal Judgement, para. 234; Strugar Appeal Judgement, paras 232, 236, 238.

"1939. Another option for Pandurevic – to report the crimes of his subordinates to a competent authority provided by the law at the time – was to report to the MUP.⁵⁵¹⁸ The Appeals Chamber notes that the finding of the Trial Chamber that “there is no evidence of an alternative independent avenue being open to [Pandurevic]” ⁵⁵¹⁹ stands in marked contrast to the Trial Chamber’s earlier finding in relation to the liability under Article 7(3) of the Statute for Borovcanin that “[e]ven if [Borovcanin] determined that Mladic, Krstic, and others in the VRS were involved and thought it useless to report the crimes to them, he had the option and obligation of reporting through his MUP chain of command”.⁵⁵²⁰"

5518. See Ex. 4D00503 “Expert Report by Ristivogevic on Jurisdiction, Powers and Conduct of Members of the Armed Forces of the Republika Srpska”, paras 5.7-5.8.

5519. Trial Judgement, para. 2064.

5520. Trial Judgement, para. 1575.

"1940. The Appeals Chamber observes that in finding that Borov~anin had the option to report to the MUP, the Trial Chamber noted that this was in his chain of command. Although Pandurevic was a VRS commander, not a MUP officer, the option of reporting to the MUP also remained available to him under the applicable law. The Trial Chamber considered that: if an officer for some reason is unable to inform the competent authorities of the commission of a crime, he still carries out his duty by informing another organ, which formally has no jurisdiction, and which then has an obligation and ability to pass that information on to the competent authorities.⁵⁵²¹ The Appeals Chamber observes that, while the relevant war-time legislation made the Military Prosecutor the competent authority to which the relevant crimes should be reported, the MUP investigative, prosecutorial, and judicial systems remained fully functioning.⁵⁵²² In these circumstances, it was necessary and reasonable for Pandurevic to report the crimes committed by his subordinates to the MUP so that they could investigate or pass it on to the competent authority.⁵⁵²³"

5521. Trial Judgement, fn. 4879, referring to Ex. 4D00503 “Expert Report by Ristivogevic on Jurisdiction, Powers and Conduct of Members of the Armed Forces of the Republika Srpska”, paras 5.7-5.8.

5522. Trial Judgement, para. 1573; Ex. 6D00218, “Law on Military Courts”, Art. 65; Ex. 4DP00420, “Decree on Law of Court Martial”, Art. 65; Ex. P00423, “Law on the Mandatory Reporting of Crimes against Humanity and International Law”, Art. 1; Ex. P00422, “Decree on the Promulgation of the Law of the Implementation of the Law on Regular Courts during an Imminent Threat of War or a State of War”, Art. 1, “Law on the Implementation of the Law on Criminal Proceedings During an Imminent Threat of War of a State of War”, Art. 1, “Law on the Implementation of the Law on the Execution of Criminal Sanctions During an Imminent Threat of War or a State of War”, Art. 2, “Law on the Implementation of the Law on the Public Prosecutor’s Office During an Imminent Threat of War or a State of War”, Art. 1.

5523. See, e.g., Hadžihasanovic and Kubura Appeal Judgement, para. 154.

"1941. The Appeals Chamber is satisfied that Pandurevic had notice of the Prosecution’s case on his duty to punish, including the option of reporting to the MUP. While the Prosecution’s Pre-Trial Brief set out a non-exhaustive list of possible measures which Pandurevic could have taken,⁵⁵²⁴ evidence at trial was specifically led on the option of reporting crimes to organs other than the competent authority, including the MUP, and Pandurevic had the opportunity to cross-examine and respond to such testimony.⁵⁵²⁵ Conversely, the Appeals Chamber accepts that Pandurevic did not have adequate notice as to the Prosecution’s argument regarding the option of reporting to the Tribunal, which was not raised or alluded to in the Prosecution’s Pre-Trial Brief, at trial, or in the Prosecution’s Final Brief. Accordingly, the Appeals Chamber will not consider it."

5524. Prosecution’s Pre-Trial Brief, para. 256.

5525. See, e.g., Milan Vojinovic, T. 23720-23721 (21 July 2008); Branislav Ristivojevic, T. 28078 (12 Nov 2008).

"1942. With respect to the option of imposing disciplinary sanctions, the Appeals Chamber notes that the Trial Chamber found that Pandurevic had not taken any disciplinary measure,⁵⁵²⁶ although it made no finding as to whether the imposition of disciplinary sanctions on his subordinates would have constituted necessary and reasonable measures to punish in the circumstances.⁵⁵²⁷ The Appeals Chamber recalls that the use of disciplinary measures may in certain circumstances be sufficient for a superior to discharge his duty to punish crimes under Article 7(3) of the Statute.⁵⁵²⁸ In the present case, Pandurevic had the legal competence to impose disciplinary sanctions on his subordinates for breaches of military discipline.⁵⁵²⁹ Ordinarily, disciplinary proceedings would not be initiated within the Zvornik Brigade when there was suspicion that a criminal offence has been committed.⁵⁵³⁰ The imposition of a disciplinary sanction did not, however, preclude a matter from being subsequently dealt with by the military justice system.⁵⁵³¹ Given the grave nature of the crimes in which Pandurevic’s subordinates were suspected of participating, imposing disciplinary sanctions for serious breaches of military discipline may well have been a necessary means for Pandurevic to explicitly express his condemnation of the actions of his subordinates, but it would have been insufficient to constitute an appropriate or adequate means to punish.⁵⁵³² The Appeals Chamber therefore finds that while initiating the disciplinary offence procedure was an option Pandurevic could have taken, such action on its own would not have satisfied the obligation to take necessary and reasonable measures to punish his subordinates in the circumstances of the situation. Consequently, his failure to institute such measures will not be considered for the purpose of determining his responsibility under Article 7(3) of the Statute."

5526. Trial Judgement, para. 2053.

5527. The Trial Chamber emphasised instead that a superior is not required to dispense punishment personally but may discharge his or her duty to punish by initiating an investigation and reporting the matter to competent authorities. Trial Judgement, para. 2053.

5528. Hadžihasanovic and Kubura Appeal Judgement, para. 33.

5529 Ex. 7D00370, “Law on the Army”, Arts 67, 68, 79, 92.

5530 Trial Judgement, fn. 6039.

5531. The Appeals Chamber notes the evidence of Nebojša Jeremić that if the Zvornik Brigade had already instituted disciplinary procedures, then they would be suspended upon a suspicion that a criminal act had been committed and the case would be forwarded to the responsible Military Prosecutor’s Office. Nebojša Jeremić, T. 10471 (24 Apr 2007); Trial Judgement, fn. 6039. However, the Trial Chamber also found that Nikolić initially ordered Jeremić to draft an order giving VRS soldiers Neško \okić and Slobodan \okić, who helped four Bosnian Muslims, 60 days’ military imprisonment on behalf of the Brigade Commander, although Nikolic ended up ordering only three days’ detention, and in addition, a criminal complaint was made to the Military Prosecutor for aiding the enemy. Trial Judgement, paras 586-587 & fn. 2144; Nebojša Jeremić, T. 10474 (24 Apr 2007).

5532. See Boskoski and Tarculovski Appeal Judgement, para. 235; Hadžihasanovic and Kubura Appeal Judgement, para. 152. The Appeals Chamber notes that the highest sentence available for “disciplinary offences”, considered the most serious violations of military discipline, was correctional custody of up to 20 days. See Ex. 7D00370, “Law on the Army”, Arts 63, 68. At trial, Nebojša Jeremić gave evidence that military detention of up to 60 days was sometimes handed down. See, e.g., Nebojša Jeremić, T. 10420-10421 (24 April 2007).

"1943. While the Appeals Chamber is satisfied that the above-noted options were available to Pandurević, it recalls that a commander is liable for failure to fulfil the duty to punish only where he has failed to adopt any measure or where the measures he adopted could not be regarded as reasonable and adequate.⁵⁵³³ The Trial Chamber found that Pandurevic “did take some measures to address the crimes”.⁵⁵³⁴ Nonetheless, in the view of the Appeals Chamber, the measures taken by Pandurevic as found by the Trial Chamber do not meet the minimum threshold of “reasonable and necessary measures” to punish under Article 7(3) of the Statute."

5533. See Hadžihasanovic and Kubura Appeal Judgement, paras 152-153.

5534. Trial Judgement, para. 2064.

"1944. The Trial Chamber found that Pandurevic “took some measures to investigate and gather further information about the crimes that occurred in the area of Zvornik and any involvement of his subordinates in the commission of those crimes”. ⁵⁵³⁵ These measures consisted of a conversation with Obrenovic on 16 July 1995 about the situation of the prisoners in the Zvornik area, Pandurevic’s subsequent ordering of Obrenovic to gather more information about the killings, and his conversation with Obrenovic and Jokic on 18 July 1995 during which Jokic confirmed that engineering machinery belonging to the Zvornik Brigade was used in the burial of bodies of executed prisoners.⁵⁵³⁶ As noted above, it is not sufficient for a superior to simply try to ascertain the facts – not only must the investigation be adequate but it must be accompanied by an action either to sanction the subordinates directly or, if the superior lacks that power, to report the suspicion of crimes to a competent authority.⁵⁵³⁷ Pandurevic’s attempts to investigate the crimes as found by the Trial Chamber were of questionable adequacy and were not followed by any action to report the suspected crimes of his subordinates to the competent authority either directly or through his superiors."

5535. Trial Judgement, para. 2059.

5536. Trial Judgement, para. 2059. See also Trial Judgement, paras 1879-1881, 1883.

5537. See supra, para. 1932.

"1945. In light of the foregoing, the Appeals Chamber, Judge Niang dissenting, finds beyond reasonable doubt that Pandurevic failed to take the necessary and reasonable measures to punish his subordinates as required to discharge his duty under Article 7(3) of the Statute. The Appeals Chamber, Judge Niang dissenting, therefore grants sub-ground 2(e) of the Prosecution’s appeal and finds Pandurevic responsible as a superior for the following crimes of his subordinates: (1) between 13 July and the morning of 16 July 1995, members of the Zvornik Brigade guarded Bosnian Muslim prisoners at the Grbavci, Kula, and Rocevic Schools, and transported them to execution sites at Orahovac and Kozluk, thereby participating in their persecution through cruel and inhumane treatment between 13 and 16 July 1995 as well as aiding and abetting their murders between 14 and 16 July 1995; (2) at least one member of the Zvornik Brigade shot prisoners on 14 July 1995 at the execution site in Orahovac and at least one member of the Zvornik Brigade shot prisoners at the execution site in Kozluk on 15 July 1995, thereby committing murder; and (3) on 14 July 1995, members of the Zvornik Brigade Engineering Company dug graves at Orahovac while the killings took place, thereby aiding and abetting the murder of the Bosnian Muslim prisoners executed there on the same day.⁵⁵³⁸"

5538. Trial Judgement, paras 2017-2018 and references cited therein; supra, paras 1907-1914.

"1946. However, the Appeals Chamber, Judge Niang dissenting, has found Pandurevic responsible for aiding and abetting extermination as a crime against humanity, murder as a violation of the laws or customs of war, and persecution through murder as a crime against humanity, for the killing of Bosnian Muslim prisoners during part of this period, from noon on 15 July to 16 July 1995, and the Appeals Chamber, Judge Pocar dissenting, has consequently entered new convictions against Pandurevic for these crimes. The Appeals Chamber will therefore not enter a conviction under Article 7(3) for the same crimes under Counts 3, 5, and 6, as it would be improper to enter convictions under Article 7(3) of the Statute in addition to convictions under Article 7(1) of the Statute for the same counts and the same set of facts. Furthermore, the Appeals Chamber, Judge Niang dissenting, has found Pandurevic responsible for aiding and abetting extermination as a crime against humanity (Count 3) and, Judge Pocar dissenting, has entered a new conviction for this crime. Consequently, a conviction for murder as a crime against humanity (Count 4) pursuant to Article 7(3) of the Statute will not be entered, as murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.⁵⁵³⁹"

5539. See supra, paras 1804, 1806.

"1947. Accordingly, the Appeals Chamber, Judge Pocar dissenting, enters new convictions against Pandurević under Article 7(3) of the Statute for failing to punish the crimes perpetrated by his subordinates between 13 July 1995 and noon on 15 July 1995, under Counts 3 (extermination as a crime against humanity), 5 (murder as a violation of the laws or customs of war), and 6 (persecution through murder as a crime against humanity). These convictions are limited to the crimes of his subordinates perpetrated prior to noon on 15 July 1995, i.e. aiding and abetting the murder of the Bosnian Muslim prisoners from the Grbavci, Ročević, and Kula Schools by detaining them and by transporting some of them to Orahovac; and murdering Bosnian Muslim prisoners at Orahovac on 14 July 1995 and aiding and abetting their murders by digging graves.⁵⁵⁴⁰ The Appeals Chamber, Judge Pocar dissenting, further enters a new conviction against Pandurević under Count 6 for failure to punish persecution as a crime against humanity through cruel and inhumane treatment, as perpetrated by his subordinates during the entire period from 13 July to 16 July 1995 through guarding Bosnian Muslim prisoners at the Grbavci, Kula, and Rocevic Schools, and transporting them to execution sites at Orahovac and Kozluk.⁵⁵⁴¹"

5540. See supra, para. 1945 & note 5538. The Appeals Chamber excludes the crimes of Pandurević’s subordinates for which the Trial Chamber’s factual findings do not establish with sufficient precision whether they occurred before or after noon on 15 July 1995.

5541. See supra, para. 1945 & note 5538.

[B. Evidentiary comment:]

M.P.41.2. Evidence of a subordinate being promoted rather than disciplined.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 436, 437, 441:

"436. […] The disciplinary consequences of the investigation was said to be that a battalion commander had been relieved of his command. Contrary to what may have been understood by many at the time, it is now clear that this battalion commander was not the commander who led the attack on Srdj and the shelling, i.e. Captain Kovacevic of the 3/472 mtbr. As indicated elsewhere in this decision, it was Lieutenant-Colonel Jovanovic of the 3/5 mtbr.¹²⁶² […]

437. […] Rather than being subjected to disciplinary or other adverse action, it was Captain Kovacevic who was in fact promoted only 8 days after 6 December 1991.^1269"

"1262. Lieutenant-Colonel Jovanovic, T 8094; Exhibit D65; Admiral Jokic, T 8553. See supra, para 174. […]

1269. See infra, para 441."

"441. […] There is no suggestion in the evidence of any attempt by the Accused to stop the promotion."

[B. Evidentiary comment:]

M.P.41.3. Evidence of the person’s failure to resist an attempt to usurp his or her authority.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 445:

"445. While it is not the finding of the Chamber, we would also observe that had it been the case that the Accused understood that General Kadijevic, in some way, had purported to usurp the Accused’s power and authority to investigate and discipline the conduct of forces under his command in respect of the events of 6 December 1991, that would not have been sufficient in the circumstances to relieve the Accused of his responsibility as Commander of 2 OG, or to excuse him for failing to take appropriate investigative and disciplinary action. What had occurred necessitated, in the Chamber’s view, positive efforts by the Accused to seek to take effective investigative and disciplinary measures against those under his command who had been responsible for the shelling of the Old Town, and those who had failed to take appropriate steps to ensure that the shelling was stopped. Had the Accused attempted to do so, but had found that General Kadijevic prevented or hampered his efforts, continued further efforts and protests by the Accused to insist that action be taken would have been appropriate.¹²⁸³ In the end the remedy of resignation from the JNA would have been appropriate in the circumstances. Of course, none of these things occurred."

"1283. See supra, para 374."

[B. Evidentiary comment:]

M.P.42. Evidence of the person’s failure to speak to subordinates about the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:

"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]

(iii) He failed to speak to his subordinates about the mistreatment of detainees."

M.P.43. Evidence of the person creating an atmosphere of lawlessness.

A. Legal source/authority and evidence:

Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 627-628:

"627. The Appeals Chamber notes that on at least two occasions, the Appellant responded to allegations of mistreatment of detainees by HVO personnel.⁽¹³⁰⁵⁾ There were also instances of his exercising military discipline over HVO personnel for misconduct or the commission of crimes,⁽¹³⁰⁶⁾ albeit according to the HVO procedure of referring it to the proper authorities.⁽¹³⁰⁷⁾ Aside from these examples, however, there is insufficient evidence to suggest that the Appellant initiated a systematic, effective process for punishing perpetrators of detention-related crimes in the area of his command and over whom he exercised effective control, crimes which he knew or had reason to know were being or had been committed.⁽¹³⁰⁸⁾

628. In particular, there is no evidence that, on becoming aware of the detention and treatment of the detainees in the Vitez Cultural Centre and the Vitez veterinary hospital, the Appellant punished those responsible. The Appeals Chamber finds that the Trial Chamber’s conclusion that the Appellant knew or had reason to know that these practices were extant in those locations, and that he failed to punish the personnel responsible who were under his effective command and control, was a conclusion that a reasonable trier of fact could have made."

"1305 - He ordered an investigation into the alleged rape of a detainee at Dubravica (T 19,211–19,214) (17 Mar. 1999) (Open Session) and was later informed that an investigation had been initiated. He further ordered an investigation of two HVO personnel involved in the deaths of two detainees who had been engaged in trench-digging at the time; see T 22,968-9 (26 May 1999) (Open Session). The Appellant was however unable to submit documentary evidence of these instances.

1306 - See above and see Witness Watkins, AT 320 (9 Dec. 2003) (Open Session).

1307 - See also Trial Judgement, para. 474, where the Appellant was found to have given an order "on 18 January 1993 for the attention of the regular units of the HVO, the independent units and the MP 4th Battalion instructing them to make sure that all soldiers prone to criminal conduct were not in a position to do any harm" (citing Appellant’s testimony, T 18,125-18,126 (23 Feb. 1999) (Open Session); and Witness Marin, T 12,089-12,090 (24 Sept. 1998) (Open Session)). The Appellant later distributed a reminder, but neither order had any effect.

1308 - Respondent’s Brief, para. 3.31. There are in fact two examples to the contrary. First, the Appellant failed to discipline Duško Grubešic, the deputy commander of the NSZ Brigade in Busovaca, for failing to prevent forced trench-digging by detainees, during which two detainees were killed on the front lines (T 22,699 et seq. (26 May 1999) (Open Session)). Appellant: "I personally did not issue disciplinary measures towards those perpetrators of the crime", T 22,703 (26 May 1999) (Open Session). The Appellant maintained that he did all he could to initiate an investigation.) A further example is the Appellant’s failure to discipline Ivica Rajic for his involvement in crimes committed in Stupni Do (AT 320–321) (9 Dec. 2003) (Open Session)."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 50:

"50. The Chamber is of the view that, in the case of failure to punish, a superior’s responsibility may arise from his or her failure to create or sustain among the persons under his or her control, an environment of discipline and respect for the law. For example, in Celebici, the Trial Chamber cited evidence that Mucic, the accused prison warden, never punished guards, was frequently absent from the camp at night, and failed to enforce any instructions he did happen to give out.⁵³ In Blaškić, the accused had led his subordinates to understand that certain types of illegal conduct were acceptable and would not result in punishment.⁵⁴ Both Mucic and Blaškić tolerated indiscipline among their subordinates, causing them to believe that acts in disregard of the dictates of humanitarian law would go unpunished. It follows that command responsibility for failure to punish may be triggered by a broadly based pattern of conduct by a superior, which in effect encourages the commission of atrocities by his or her subordinates.⁵⁵"

"53 See Celebici (TC) paras. 772f.

54 See Blaškić paras. 487 and 494-495.

55 This position is evident not only from the case-law, but also from the aim of Article 6(3), which is not that the crimes of subordinates should be punished but that superiors should ensure that the crimes do not occur. See also In re Yamashita pp. 14-16; Akayesu para. 691; Celebici (TC) paras. 772f; Blaškić paras. 487f."

M.P.44. Evidence of the person’s participation in the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, para. 2040. But see Appeals Chamber’s findings, Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Judgement (AC), 14 December 2011, paras. 667-670 (Below).

"2040. As noted above, these attacks were clearly organised and authorised or ordered at the highest level of the Rwandan military. Therefore, Bagosora failed in his duty to prevent the crimes because he in fact participated in them. There is also absolutely no evidence that the perpetrators were punished afterwards."

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Judgement (AC), 14 December 2011, paras. 667-670:

"667. The Trial Chamber found that "Bagosora failed in his duty to prevent the crimes because he in fact participated in them" since "these attacks were clearly organised and authorised or ordered at the highest level of the Rwandan military".

668. The Appeals Chamber recalls that, in its factual findings, the Trial Chamber found that Bagosora ordered the assaults on the Prime Minister and the official figures killed in the Kimihurura neighbourhood, and that he ordered or authorised the killings perpetrated in Gisenyi town, including the killing of Alphonse Kabiligi, at Nyundo Parish, and at Mudende University. However, the Appeals Chamber has found that the Trial Chamber erred in finding that Bagosora ordered or authorised the killings committed in Kigali, or that he could be held responsible for the killings committed in Gisenyi prefecture.1577

669. In relation to the other crimes for which Bagosora was found to bear superior responsibility, the Appeals Chamber observes that the Trial Chamber entered factual findings to the effect that Bagosora knew of these killings, but not that he ordered or authorised them.1578 As such, absent any further reasoning, the Trial Chamber’s conclusive legal finding that "Bagosora failed in his duty to prevent the crimes because he in fact participated in them" since "these attacks were clearly organised and authorised or ordered at the highest level of the Rwandan military" neither reasoned nor factually supported in relation to the killings committed at Centre Christus, Kabeza, Kibagabaga Mosque, the Saint Josephite Centre, Karama Hill, Kibagabaga Catholic Church, and Gikondo Parish.

670. The Appeals Chamber therefore finds that there is no finding or sufficient evidence that Bagosora ordered or authorised any of the killings for which he was found to bear superior responsibility. In view of this, the Appeals Chamber finds that the Trial Chamber erred in relying on the fact that Bagosora must have ordered or authorised the crimes to conclude that he bore superior responsibility for failing to prevent them."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:

"117. Far from ordering guards to cease the assaults, the accused sometimes even took part in them, as attested to by Witnesses L and M.²²⁹"

229 As seen previously, the testimony by Witnesses T and Dautovi} was not taken into consideration. For further details concerning these testimonies see infra III, B.

M.P.45. Evidence of the person’s failure to initiate an investigation.

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. 1061 and 1238:

"1061. The Chamber finds that the Accused Hadžihasanović was unable to carry out his own criminal investigation or to influence how the case was dealt with by Judge Mirsad Strika or the competent prosecutor. Given that the 3rd Corps Military Police informed the investigating judge of the arrival of the bodies at the Zenica morgue, thereby referring the matter to the appropriate military judicial authority, it cannot be concluded that the Accused Hadžihasanović did not take the necessary and reasonable measures under Article 7(3) of the Statute."

"1238. Moreover, several witnesses stated before the Chamber that the 3rd Corps Command did not initiate any proceedings, whether disciplinary or criminal, against the perpetrators of the acts in question. Thus, Osman Hasanagić, the 7th Brigade officer responsible for legal affairs, stated that his section never had to deal with offences committed by members of the 7th Brigade against civilians either since he took up his duties or before that time.Next, Vlado Adamović, an investigating judge at the Zenica District Military Court from 1993 to 1994, stated that he was not aware of a single case ever being opened as a result of unofficial complaints by civilians relating to mistreatment at the Zenica Music School. Hilmo Ahmetović, a judge in the Zenica District Military Court between October 1993 and July 1996, likewise stated that he had never received any criminal report concerning the Music School. Witness HF confirmed that 3rd Corps Command had not lodged any criminal complaint against the perpetrators of cruel treatment at the School."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:

"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons:

(i) He failed to investigate the allegations of beatings, when he would inevitably have ascertained the identity of those responsible for many of those beatings (including those individuals from outside the KP Dom)."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 488, 491, 492, 494:

"488. The accused stated that he sought the help of international organisations, especially the ECMM and UNPROFOR, in carrying out the investigation and that he never obtained this help ¹⁰⁵¹. However, international observers who gave evidence before the Trial Chamber challenged this version of events. The witnesses Stewart and Morsink testified that the accused had never sought their help ¹⁰⁵². On the contrary, Colonel Stewart complained on 24 April that no investigating commission had been set up yet: "No-one has yet taken responsibility, and no commission has been formed; This is a political catastrophe for the HVO; The HVO wants to destroy the Muslims" ¹⁰⁵³.

[…]

491. Colonel Stewart once again asked about the setting up of an investigating commission at a meeting with Anto Valenta and Tihomir Blaškić on 4 May 1993 ¹⁰⁵⁴. The witness Stewart stated that no investigation had been initiated before his departure on 10 May ¹⁰⁵⁵. There was another meeting on 9 May in the presence of his replacement, Colonel Duncan, then Commander of the Prince of Wales Regiment in Central Bosnia ¹⁰⁵⁶. The accused allegedly explained to Colonel Duncan that the crimes committed at Ahmici had been carried out either by Muslims wearing HVO uniforms or by Muslim extremists who were out of control, or even by Serbs who could have infiltrated the HVO controlled zone ¹⁰⁵⁷. The witness Duncan said he asked once again for an investigation to be set up and 25 May was agreed as the date for completion of the investigation and publication of the results ¹⁰⁵⁸. According to the witness Duncan, that investigation was never carried out ¹⁰⁵⁹. Likewise, the witness Morsink stated that the ECMM had never received the findings of the investigation which was supposed to have been undertaken into the events in Ahmici ¹⁰⁶⁰.

Thus there were many occasions on which the accused could have asked for help from the international authorities. However, far from having been asked for such help, the authorities had, on the contrary, had to get in touch with the accused and to insist on an investigation being carried out.

492. The accused maintained that as early as 24 April, he had asked the SIS representative, Anto Sliskovic, to carry out the investigation. However, no evidence was adduced of this request. General Blaškić testified that he had made the request orally¹⁰⁶¹, through the intermediary of his subordinate Marin ¹⁰⁶². The witness Marin did not mention such an order however. His request was in any event never fulfilled. He testified that he again met the SIS representative on 8 May and reiterated his request. It was only on 10 May that the accused gave a written order ¹⁰⁶³, that is to say after the bodies had been buried, the surviving eyewitnesses released from the Dubravica detention centre and Colonel Stewart replaced by Colonel Duncan. That order asked Anto Sliskovic to submit his report by 25 May at the latest ¹⁰⁶⁴. The report submitted on that date was, even in the view of the accused, "not complete" ¹⁰⁶⁵ […]"

"494. In sum, no soldier has ever been convicted for the crimes at Ahmici, Pirici, ?antici and Nadioci. The Defence witness Marin recognised that no member of the HVO or of any other unit of the Croatian forces had ever been punished for crimes committed against the Muslim population or their possessions after the Ahmici massacres ¹⁰⁷⁰. The witness Morsink testified that he had never seen the HVO authorities carry out investigations into the atrocities against the Muslims ¹⁰⁷¹. ^"

"1049 - Witness Blaškic, PT pp. 18081-18083 and 18093. See also PT pp. 16084-16086.

1050 - Witness Marin, PT pp. 13351-13354.

1051 - Witness Blaškic, PT p. 18286; Defence Brief, p. 29.

1052 - Witness Stewart, PT p. 22227.

1053 - P456/58; witness Marin, PT p. 13331.

1054 - Witnesses Stewart, PT pp. 22216 and 22235; Blaškic, PT pp. 18296.

1055 - Witnesses Stewart, PT p. 22218.

1056 - Witness Duncan, PT pp. 9231-9232.

1057 - Witness Duncan, PT p. 9244. The accused has always denied saying this. However, what he is alleged to have said here echoes what he said in Danas magazine on 5 October 1993 (P380).

1058 - Witness Duncan, PT p. 9245.

1059 - Witness Duncan, PT pp. 9245-9246.

1060 - Witness Morsink, PT p. 9922. […]

1061 - The accused explained in that connection that it was very rare for him to give a written order to his closest colleagues: "these exceptional situations [...] were telling proof in their own right that I was not fully satisfied with the action that I ordered previously" (witness Blaškic, PT p. 21514).

1062 - Witness Blaškic, PT p. 21516. Marin appeared as a defence witness and gave evidence to the Trial Chamber for several weeks.

1063 - P456/59 and D341 (same document); witness Blaškic, PT p. 18357.

1064 - Witness Blaškic, PT p. 18358.

1065 - D608 and D342. See also PT p. 22536.

[…]

1070 - Witness Marin, PT p. 13317.

1071 - Witness Morsink, PT p. 9916."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 772:

"772. […] Witness T, who worked at the camp between June and November 1992, testified that he never knew of any investigations into the deaths of any of the thirteen prisoners who died whilst he was there⁸²⁹."

"829. See T. 6711."

M.P.46. Evidence of the person’s failure to conduct a satisfactory investigation.

Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 1241-1244:

"1241. The Chamber notes that on 21 October 1992, Milivoj Petković drafted a situation report²³¹⁵ in which he stated that the situation in Prozor and Gornji Vakuf was tense; that it could degenerate into a conflict at any moment and that all security measures had been taken to prevent clashes between the HVO and the ABiH, without however specifying the nature of those measures.²³¹⁶"

"2315. However, the Chamber does not know the recipient(s) of the consolidated report.

2316. 4D 00897, p. 2."

"1242. The HVO attacked the town of Prozor on 23 and 24 October 1992 and took control of the town and its environs as of 24 October 1992.²³¹⁷ On 24 October 1992, Milivoj Petković ordered the HVO military units in several municipalities, including Prozor, to negotiate an unconditional cease-fire with the ABiH and to form mixed patrols to monitor the situation.²³¹⁸ On 25 October 1993, combat continued throughout the day and Milivoj Petković was informed in an SIS report he received on 26 October 1992 that the town and the area around Lake Rama had been taken.²³¹⁹ According to the SIS report dated 26 October 1992, the HVO made multiple negotiation offers which the ABiH rejected.²³²⁰"

"2317. See "Takeover of Prozor Town" in the Chamber's factual findings with regard to the Municipality of Prozor. 

2318. P 00644.

2319. See "Takeover of Prozor Town" in the Chamber's factual findings with regard to the Municipality of Prozor. See also P 00653.

2320. P 00653, p. 3."

"1243. After the town of Prozor was taken by the HVO, Milivoj Petković received reports from senders whose identity the Chamber does not know about the torching and destruction of Muslim houses in the Municipality of Prozor and issued, in response, an order dated 31 October 1992, in which he forbade the destruction and torching of Muslim houses, stating that such acts would create serious problems because they were being reported by foreign media.²³²¹ The Chamber recalls that between the morning of 24 October 1992 and until at least 30 October 1992, HVO soldiers and members of the HVO Military Police destroyed and torched approximately 75 Muslim homes in the town of Prozor.²³²² The Chamber also recalls that on 24 October 1992, military policemen of the 1st and 2nd companies of the 2nd Military Police Battalion and "local" HVO forces entered the town, and that on the evening of 24 October the town was under the control of the Military Police.²³²³ Nevertheless, the Chamber was unable to find beyond reasonable doubt that the torching was perpetrated by military policemen of the 1st and 2nd companies of the 2nd Military Police Battalion."

"2321. P 00679. See also 3D 00131. Under this order, Petar Kolakusić, the assistant commander of the Rama Brigade and chief of military operations for the Rama Brigade, prohibited all combat units operating in Prozor Municipality from wilfully setting fires or destroying private property.

2322. See "Damage to and Burnings of Property and Houses Belonging to Muslims after the Takeover of the Town of Prozor" in the Chamber's factual findings with regard to the Municipality of Prozor.

2323. See "Takeover of Prozor Town" in the Chamber's factual findings with regard to the Municipality of Prozor."

"1244. On 28 October 1992, following the events of October 1992, Milivoj Petković ordered, the setting up of an HVO investigation commission in Prozor.²³²⁴ The commission, created on 3 November 1992 by Ţeljko Šiljeg, commander of the North West OZ, was supposed to shed light on the events in Prozor in October 1992.²³²⁵ The Chamber does not have any additional information enabling it to confirm that the commission was actually set up and that it did in fact investigate those events. Furthermore, the evidence does not support a finding that the units responsible for the crimes in Prozor in October 1992 were also responsible for other crimes in the municipalities and during the period relevant to the Indictment. Consequently, in dubio pro reo, the Chamber must find that Milivoj Petković did in fact fulfil his duty as commander by investigating and taking appropriate measures against the perpetrators of the crimes in Prozor in October 1992 as soon as he learnt of them. Therefore, the Chamber cannot find that the Accused was responsible for these acts.

"2324. 4D 00901.

2325. 4D 00901 and 4D 00903." 

 

 

 

M.P.46.1. Evidence of failing to preserve and collect evidence.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 436:

"436. While assurances of a thorough investigation, and that the perpetrators of the attack would be disciplined, were given to the international, Croatian government and Dubrovnik representatives by Admiral Jokic,¹²⁵⁹ it seems that only a few written statements and reports were obtained in the day or two after 6 December 1991.¹²⁶⁰"

"1259. Minister Rudolf, T 5612, Exhibit P61, tab 33; Per Hvalkof, T 2204, Exhibit P61, tab 35.

1260. Admiral Jokic testified that he asked for written reports from the Battalion Commander, the Chief of Staff Warship -Captain Zec, Lieutenant-Colonel Kovacevic and Captain Kozaric,T 4094-4095. Lieutenant -Colonel Jovanovic was also asked to submit a written report to the command of the 9 VPS at around 1400 hours on 6 December, T 8087-8088; Exhibit D108. Captain Nesic testified that on 7 December 1991 officers from the command of the 9 VPS visited the soldiers of the 3/472 mtbr and spoke to them, T 8187. See also Exhibit D112. Lieutenant Lemal also testified that on 6 December officers of the 9 VPS visited his unit to discuss what had happened during that day and the moral of the troops, T 7420-7422."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 488:

"488. The efforts made by the accused to see that the crimes committed were investigated and the perpetrators prosecuted and punished were also hardly convincing. In particular, the accused did not attempt to contact the commander of the Military Police, Pasko Ljubicic, although he suspected from the outset that the Military Police had committed the crimes ¹⁰⁴⁹. Nor did he take any measures to seal off the area and ensure that evidence was preserved, despite being required to do so by Article 60 of the military discipline regulations. He did not, for example, order an autopsy on any body before it was buried ¹⁰⁵⁰, and did not attempt to interview any survivors although they were detained at the school in Dubravica. […]"

"1049 - Witness Blaškic, PT pp. 18081-18083 and 18093. See also PT pp. 16084-16086.

1050 - Witness Marin, PT pp. 13351-13354. […]"

[B. Evidentiary comment:]

M.P.46.2. Evidence of misrepresenting the truth.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 436:

"436. While assurances of a thorough investigation, and that the perpetrators of the attack would be disciplined, were given to the international, Croatian government and Dubrovnik representatives by Admiral Jokic,¹²⁵⁹ it seems that only a few written statements and reports were obtained in the day or two after 6 December 1991.¹²⁶⁰ These apparently supported the view, in essence, that the attack on Srdj was the spontaneous reaction of Captain Kovacevic of the 3/472 mtbr to provocations by Croatian forces at Srdj during the night of 5/6 December 1991. He acted alone and contrary to orders in carrying out the attack on Srdj. Further, while there had been some shelling of Dubrovnik, this was in support of the attack on Srdj and was apparently targeted at active Croatian military positions. The extent of the shelling and the damage it caused, especially to the Old Town, were significantly downplayed.¹²⁶¹"

"1259. Minister Rudolf, T 5612, Exhibit P61, tab 33; Per Hvalkof, T 2204, Exhibit P61, tab 35.

1260. Admiral Jokic testified that he asked for written reports from the Battalion Commander, the Chief of Staff Warship -Captain Zec, Lieutenant-Colonel Kovacevic and Captain Kozaric,T 4094-4095. Lieutenant -Colonel Jovanovic was also asked to submit a written report to the command of the 9 VPS at around 1400 hours on 6 December, T 8087-8088; Exhibit D108. Captain Nesic testified that on 7 December 1991 officers from the command of the 9 VPS visited the soldiers of the 3/472 mtbr and spoke to them, T 8187. See also Exhibit D112. Lieutenant Lemal also testified that on 6 December officers of the 9 VPS visited his unit to discuss what had happened during that day and the moral of the troops, T 7420-7422.

1261. See supra, para 174."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 492:

"492. […] The report submitted on that date was, even in the view of the accused, "not complete" ¹⁰⁶⁵. The report concluded in fact that the attack had been initiated by Muslim forces whose artillery shots were alleged to have been the cause of most of the material damage suffered by these villages. The report also indicated the presence of "men in black" whose military affiliation was not specified and who were deemed to be responsible for the pillage and the murders. According to the report, this was the action of Muslim forces who had thus sought to draw the international community’s attention to the suffering of the Muslim population and consequently get an international force into the region. According to the report, there had been sixty or so victims of the fighting in Ahmici, which figure is much below the finding of the ECMM on 15 May 1993 ¹⁰⁶⁶. It was only on 17 August that the accused asked the SIS to carry out a second investigation and to finish it by 30 September at the latest ¹⁰⁶⁷. The accused however testified that that report had never been communicated to him, Anto Sliskovic having informed him on 30 September that the results of the investigation, including the names of the guilty parties, had been transmitted to the SIS in Mostar and that the affair was no longer any of his concern ¹⁰⁶⁸."

"1065 - D608 and D342. See also PT p. 22536.

1066 - That report found that there had been at least 103 victims.

1067 - Witness Blaškic, PT pp. 18401-18405 and 18695-18705; D342 and D343; witness Marin PT pp. 13368-13369

1068 - Witness Blaškic, PT p. 18807."

[B. Evidentiary comment:]

M.5.3. The perpetrator failed to take the necessary and reasonable measures within his or her power to submit the matter to the competent authorities for investigation and prosecution.

M.P.47. Evidence of the person’s failure to report the crimes.

A. Legal source/authority and evidence:Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Judgement (AC), 14 December 2011, para. 510:

"510. The Appeals Chamber is concerned that the Trial Chamber failed to explicitly consider whether Bagosora had the material ability to punish culpable subordinates in the Trial Judgement. The Appeals Chamber considers that this amounts to a failure to provide a reasoned opinion. Nonetheless, the Appeals Chamber recalls that even where a superior personally lacks disciplinary or sanctioning powers, the duty can be fulfilled by reporting the crimes to the competent authorities to trigger investigation or disciplinary action.1214 In light of Bagosora’s senior position in the Ministry of Defence, and his access to senior military officers, as demonstrated by his attendance at meetings with them, even if he did not have direct sanctioning powers, he nonetheless had the ability to report the incidents to the relevant military officers to trigger investigations."

 

1214 See Boškovski and Tar~ulovski Appeal Judgement, paras. 231, 232

"1575. In addition, there is no evidence that Borovcanin reported what he witnessed at Kravica Warehouse to his superiors in the VRS and/or the MUP so that the matter could be fully investigated by the competent authorities. The Trial Chamber notes that the incident at issue is the murder of a busload of Bosnian Muslim prisoners following the "burnt-hands" incident. Borovcanin had no prior knowledge of the plan to murder. Thus, at that point in time, he had no knowledge or reason to know that Krstic, his immediate superior in the Srebrenica operation, was involved. Yet, despite having the opportunity, he never raised the matter with Krstic when he spoke to him on the phone on the 13 July in the evening. Even if he determined that Mladic, Krstic, and others in the VRS were involved and thought it useless to report the crimes to them, he had the option and obligation of reporting through his MUP chain of command. After the Srebrenica operation, Borovcanin could also have reported up to Saric, his MUP commander. He had sent at least one report to the MUP on 13 July, so further contact would have been possible and reasonable. In his contemporaneous reports to his MUP superiors, the Kravica Warehouse murders are conspicuous by their absence. Rumours of what had happened in Kravica Warehouse spread fast in the days following 13 July, and there was clearly a need for a proper investigation of what had happened there. This would have been evident to Borovcanin, a policeman by profession and one with an outstanding reputation. Furthermore, it was necessary and reasonable for him to ensure that he reported what he knew so that the competent authorities could investigate further."

The Prosecutor v. Milan Milutinovic et al., Case No. IT-05-87, Judgement (TC), 26 February 2009, para. 123

123. In addition to proving the existence of all the common elements discussed above, the Prosecution, in order to establish the first form of responsibility under Article 7(3)—the failure to prevent—must prove that the accused failed to take the necessary and reasonable measures to prevent his subordinates’ commission of crimes or underlying offences in spite of a material ability to do so.

For example, if the accused’s material ability to intervene merely allows that he report imminent or ongoing crimes or underlying offences of which he knows or has reason to know to the competent authorities, then such reporting may be sufficient to satisfy his duty to prevent.

In order to establish the second form of responsibility under Article 7(3)—the failure to punish—the Prosecution must prove that the accused failed to take the necessary and reasonable measures within his material ability to ensure that punishment was dispensed upon his subordinates for having committed the crime or underlying offence for which the accused is charged.

If an accused superior’s actual and legal powers allow him to dispense punishment upon his subordinates himself, he may incur Article 7(3) liability. If such powers do not allow him to dispense punishment, however, he may be able to avoid Article 7(3) liability by simply undertaking an investigation, or by forwarding the information in his possession to his own superior or to the prosecutorial authorities.

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:

"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]

(v) He failed to report their abuses to a higher authority."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:

"117. Despite the authority he had, the accused took no measures to prevent the crimes committed. Nor did the accused use everything in his power to attempt to punish the guards responsible for them. None of the reports transmitted to the military police commander or to the president of the Travnik military tribunal²²⁶ dealt with the assaults committed by guards or HVO soldiers within Kaonik prison. The secretary specified before the Trial Chamber that she had never drawn up a report exposing any crimes by guards.²²⁷ Further, the president of the military tribunal said that the detention unit and the military tribunal could have contacted at any time by telephone or fax or by using military equipment, even when communications were cut off at the time of the events in January 1993.²²⁸ This means that the accused was always able to take measures against guards guilty of crimes."

"226 Exhibit D-25 is relative to a report by the accused concerning the unauthorised entry of a member of the military police into the compound complex; Exhibit D-22 is relative to a report notifying the Travnik military tribunal that two detainees had been killed outside of the prison.

227 Witness Vujica, FPT p. 2364.

228 Witness Percinli}, FPT p. 2005."