CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Arts. 25 and 28 Modes of liability » Command responsibility » M.6. The perpetrator either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit one or more of the crimes..

Element:

M.6. The perpetrator either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit one or more of the crimes..

M.6.1. The perpetrator knew that the forces were committing or about to commit such crimes, OR;

M.6.1.1. Evidence that the person actually knew about such crimes.

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. 1235-1236, 1239-1240:

"1235. The evidence shows that Bruno Stojić was kept informed of the military operations of the HZ H-B armed forces in Prozor at several periods. On 26 October 1992, the SIS sent him a report according to which as of 25 October 1992, the HVO effectively controlled the town of Prozor and the area around Lake Rama.²³⁰⁶ On 6 May 1993, the VOS informed Bruno Stojić of the fact that the ABiH was in the process of attacking HVO defence lines in the Prozor sector.²³⁰⁷"

"2306. P 00653, pp. 1 and 4.

2307. 3D 02515."

"1236. The Chamber did not learn of any additional evidence indicating that Bruno Stojić was informed of, had participated in or contributed in any way to the crimes committed in the Municipality of Prozor as of 26 October 1992."

"1239. The Chamber infers from the order of 14 November 1992 that Slobodan Praljak knew about the fact that members of the HVO Military Police committed thefts in Prozor in October 1992. It notes furthermore that no punitive measures were taken against the perpetrators of the thefts. However, insofar as it was unable to determine that Slobodan Praljak had effective control or command authority over the HVO Military Police present in Prozor at the time, the Chamber cannot find that Slobodan Praljak can be held responsible under Article7(3) of the Statute."

"1240. The Chamber is unaware of any additional evidence indicating that Slobodan Praljak was informed of, had participated in or contributed in any way to the crimes committed in the Municipality of Prozor from 26 October 1992 onwards."

M.P.48. Evidence that the person knew about the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1516-1517:

1516. The record demonstrates that Nizeyimana could also bear superior responsibility for the killings of Rosalie Gicanda and those removed from her home. The Chamber has found that Nizeyimana authorised the killings. The record reflects that Second Lieutenant Jean Pierre Bizimana also reported the killing to Nizeyimana afterward. In addition, the record demonstrates that Nizeyimana and Second Lieutenant Jean Pierre Bizimana were relatively close.

1517. Noting this evidence, as well as Nizeyimana’s position within the ESO hierarchy and the considerable authority he possessed, the Chamber has no doubt that Nizeyimana was in a position to prevent this crime and to take reasonable measures to punish it. Given his prior authorisation, as well as the ensuing report of the crime’s completion, the Chamber has no doubt that Nizeyimana authorised the killing of Rosalie Gicanda, which led to her death and others taken from her residence.

The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, paras. 1949-1950, 1990:

"1949. The Chamber acknowledges that Ndindiliyimana faced difficulties communicating with some gendarmerie units on the ground, particularly during May and June 1994, and that he was not always able to obtain information about the activities of all gendarmes around the country. However, based on the evidence before it, the Chamber is satisfied beyond reasonable doubt that Ndindiliyimana knew or had reason to know that gendarmes under his command had committed the crimes alleged in paragraphs 73 and 76 of the Indictment.

1950. With regard to the gendarmes guarding his family home in Nyaruhengeri, as discussed above, Ndindiliyimana admitted that he "would have known" had those gendarmes participated in the attack at Kansi Parish. The Chamber has also found that Ndindiliyimana was aware of the gathering of Tutsi refugees at Kansi Parish following his two visits on 15 April and on 22 April. With regard to the crimes at St. André College on 13 April, Ndindiliyimana indicated in his testimony that he received information regarding gendarmes’ activities at the college in early April. In light of these admissions, it is reasonable to infer that Ndindiliyimana knew or had reason to know of the crimes that were committed by gendarmes at those locations."

"1990. In relation to the crimes committed at Cyangugu Stadium, the Chamber recalls that the plight of the Tutsi civilians who were detained at the stadium was brought to Bizimungu’s attention by Prudence Bushnell during her telephone conversation with Bizimungu in May1994."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 509:

"509. After examination of the facts presented, the Trial Chamber concludes that Kayishema knew or had reason to know that a large-scale massacre was imminent. The Trial Chamber is convinced of this fact for a number of reasons. First, the Tutsis were the subject of attacks throughout Rwanda by the date of the attack at Mubuga Church […] Second, following Kayishema’s conversation with the Hutu priest, witnessed by a number of Tutsis at the Church, the priest refused the Tutsis access to water and informed them that they were about to die."

ICTY

Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement (TC), 30 June 2006, para. 542:

"542. Against this backdrop, the Trial Chamber is satisfied beyond reasonable doubt that the Accused had actual knowledge of the cruel treatment of Nedeljko Radić, Slavoljub ?ikić, Zoran Branković, Nevenko Bubanj and Veselin ?arac. This finding is based on the credible testimony of Nedeljko Radić and Slavoljub ?ikić, who both gave evidence that the Accused on various occasions visited the cell of the Srebrenica Police Station, the last time on the night prior to the exchange of the group of detainees. On one occasion, the Accused even asked Slavoljub ?ikić why he was bleeding. It has already established that all five detainees were subjected to severe beatings and other abuse, amounting to cruel treatment within the meaning of the Indictment. According to Slavoljub ?ikić, the condition in which the detainees found themselves deteriorated by the day. As a consequence, the Accused could not but have noticed the condition in which the Serb detainees were in and thus, it is of secondary importance whether he, in addition, was aware of their condition when he allegedly negotiated their exchange. The Trial Chamber upholds this conclusion notwithstanding the Defence submission that the conditions for observations at the Srebrenica Police Station were poor.

543. The Trial Chamber is further satisfied beyond reasonable doubt that the Accused had actual knowledge of the murder of Dragutin Kukić. This finding is based on the credible testimony of Nedeljko Radić, who gave evidence that the Accused enquired with the other detainees about the fate of Kukić shortly after his death. In his Interview, the Accused stated that at one point in the fall of 1992, he learned that Mirzet Halilović had killed a Serb detainee at the Srebrenica Police Station. Also in light of any doubts which may arise as to the identity of the perpetrator or the victim,the Trial Chamber finds that actual knowledge thereof is of secondary importance."

Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 618, 619:

"618. The Appeals Chamber has found^{( 1273 )} that the Trial Chamber erred in its interpretation of the "had reason to know" standard , and has corrected it accordingly. As a result, the Appeals Chamber will apply the correct standard to determine whether the Appellant knew or had reason to know of the unlawful conduct of personnel under his command as far as that conduct related to the conditions in the detention facilities. The Appeals Chamber considers that : […]

619. The trial evidence considered above demonstrates that the Appellant on occasion knew of the mistreatment of non-combatant Bosnian Muslims in detention facilities.^{(1283 )}"

1273 - See Chapter III (B) (2), above. […]

1278 - See the discussion of humanitarian orders below. […]

1283 - This finding, and the finding that the Appellant knew that detainees were forced to dig trenches, is one which the Trial Chamber made obiter (Trial Judgement, para. 733). The Appeals Chamber notes that the Prosecution submitted evidence on appeal as rebuttal evidence suggesting that the Appellant allegedly expressed concern that the international community would hear of the deaths of detainees while digging trenches (Ex. PA 56). This exhibit is an order to the Commander of the Ban Jelacic Brigade dated 22 May 1993, in which the Appellant expressed concern about the international community finding out that a Muslim prisoner was killed by a sniper while digging trenches at HVO lines. However, the B/C/S (original) version of this document has a hand-written annotation on it adjacent to the deleted paragraph 3: "ovo ne" meaning "this not". The Appeals Chamber considers that the probative value of this evidence must be assessed in light of the manuscript amendment, and the Appeals Chamber cannot conclude that the Appellant intended to distort news of future such occurrences.

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 309, 310:

"309. First, the Trial Chamber is satisfied that the Accused saw one detainee being beaten."

"310. Secondly, although he denied it,⁸¹⁶ the Accused was personally told about non-Serb detainees being beaten and mistreated.⁸¹⁷ RJ told the Accused that detainees could hear the sounds of beatings coming from the administrative building.⁸¹⁸ The Accused merely said that he had no authority over that part of the building.⁸¹⁹ RJ also told the Accused about the beating of a retarded detainee.⁸²⁰ The Accused said that he would look into the matter.⁸²¹ The Trial Chamber does not accept the denials of the Accused in relation to these issues nor did they cause the Trial Chamber to have any reasonable doubt that the Prosecution witnesses were telling the truth."

"816 - The Accused said that he never heard about any beatings (T 7678).

817 - See for example RJ (T 3860-3867); Ahmet Hadzimusic (T 1979-1981).

818 - RJ (T 3860-3864).

819 - RJ (T 3860-3866).

820 - RJ (T 3865-3866).

821 - RJ (T 3865-3866). Ahmet Hadzimusic gave evidence of having overheard a conversation between two relatives named Cankusic who discussed the disappearance of the sons of one of them, and that one of the two men had reported it to the Accused. According to Hadzimusic, Cankusic asked the Accused where his sons were. The Accused answered that they had been sentenced and taken away to serve their terms. When Cankusic asked the Accused why they had been beaten so much, the Accused attempted to justify the beatings by saying that they had been beaten in order to obtain a confession. This evidence against the Accused was hearsay and, in the absence of any circumstantial support for the statements made to Hadzimusic, the Trial Chamber does not consider it sufficiently credible to base a finding that the Accused had in fact been made aware of those facts: Ahmet Hadzimusic (T 1979-1981, 2012)."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 114:

"114. Five witnesses²²⁰ moreover stated that the accused had witnessed their being abused first-hand, or even encouraged it. Given his training and previous experience at Zenica prison, the accused could not have been unacquainted with the rules relative to the treatment of prisoners and conditions of detention. He had also admitted having knowledge of the Geneva Conventions and their contents.²²¹ The Trial Chamber therefore finds on the basis of the evidence tendered at trial that the accused knew that crimes were being committed in Kaonik prison."

"220 - Witness L, Witness M, Witness T, Witness Dautovic, Witness E, FPT p. 578.

221 - Witness McLeod, FPT p. 104."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 769:

"769. The claim that there was no mistreatment of detainees when he was present was rejected by Vaso Dordic who testified that he was interrogated and assaulted by Hazim Delic in the presence of Mr. Mucic⁸²³. There was also the evidence of Milenko Kuljanin⁸²⁴ who testified that Mr. Mucic was present when he was taken and placed in a manhole. Similarly, Milovan Kuljanin⁸²⁵ and Novica Dordic⁸²⁶ testified that Mr. Mucic was present on occasions when they were released from this manhole."

823. See T. 4355-T. 4356.

824. See T. 5457.

825. See T. 7028.

826. See T. 4161.

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, para. 1252:

"1252. The Chamber is unaware of any additional evidence indicating that Valentin Ćorić was informed that members of the Military Police had committed other crimes, or that he participated in or contributed in any way to the other crimes committed in the Municipality of Prozor as of 26 October 1992."

M.P.49. Evidence that the person knew the perpetrators.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 336, 338:

"In addition, the fact that the highest representatives of the police and the army in the ARK were members of the ARK Crisis Staff, and the de facto authority and close co-operation that the ARK Crisis Staff had with respect to the police and the army respectively is another indicator that the Accused was aware of the actions undertaken by the police and the army.⁸⁶⁹ […]

The Trial Chamber is satisfied that the Accused, who held the positions of authority described above, who presided over the body in charge of coordinating the implementation of the Strategic Plan and who had access to information and kept himself informed through the municipal authorities, the police and the army, had an even more detailed knowledge of the crimes committed than the general public.⁸⁷²"

869. See, VI.B, "The Crisis Staff of the Autonomous Region of Krajina"; VI.C.2, "The authority of the ARK Crisis Staff with respect to the police"; VI.C.3, "The authority of the ARK Crisis Staff with respect to the army". The CSB received reports from the SJBs informing on the events within their municipality and on the actions they were taking to implement the ARK Crisis Staff decisions: ex. P717, "Reports from Prijedor, Bosanski Novi and Sanski Most SJBs to commission set up by Stojan Zupljanin, the head of the CSB and member of the ARK Crisis Staff", dated 18 August 1992.

[…]

872. See in this context, VI .C, "The Authority of the ARK Crisis Staff". On 18 August 1992, the Accused attended a high-level political/police/military meeting in General Talic’s office. One of the matters discussed at this meeting was the closure of Omarska camp, BT-80, T. 15488-15494 (closed session); ex. P1768 (under seal). On 24 September 1992, the Accused attended a meeting in Celinac with General Talic, Stojan Zupljanin, Slobodan Dubocanin and the President of the Kotor Varos Crisis Staff, discussing political and military issues arising out of the situation in Kotor Varos, BT-80, T. 15542 -15543 (closed session); ex. P1768 (under seal). See also ex. P1598, video footage containing an interview by Banja Luka TV with the Accused, containing the following statement: "Being the President of the Crisis Staff of the Autonomous Region, it is my responsibility to tour all the frontlines […] the reason for this visit, is that every Monday I must inform Presidents of the Crisis Staffs about the political situation in this region". The Trial Chamber is satisfied that by traveling to the front, the Accused saw the result of the destruction perpetrated by the Bosnian Serb forces. Moreover, the Accused was involved in the discussions aimed at resolving the problems caused by the Mice paramilitary group in Teslic Municipality: BW-1, T. 23323-23325 (closed session).

Prosecutor v. Clément Kayishema and Obed Ruzidana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 509:

"509. After examination of the facts presented, the Trial Chamber concludes that Kayishema knew or had reason to know that a large-scale massacre was imminent. […] Finally, the attackers included soldiers, gendarmes, and the members of the Interahamwe, all of whom he exercised either de jure or de facto control over."

M.P.50. Evidence that the person knew about the victims.

A. Legal source/authority and evidence:

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 114:

"414. This was further attested to by Witness I’s account of having been beaten one evening by an HVO soldier and summoned the following day by the accused for questioning about the cause of his injuries."

M.6.1.2. Evidence that the person must have known about such crimes.

A. Evidentiary comment:

Judges at the ICTY and ICTR had to give meaning to the terms "knew or had reason to know", which are found in Articles 7(3) and 6(3) of their respective Statutes. In construing the term "knew", in most occasions ICTY and ICTR jurisprudence refers to "must have known" as an expression of the constructive (as opposed to actual) knowledge of the accused. However, some judgements have also made use of the expression "had reason to know" to refer to the constructive knowledge of the accused and are therefore included below.

B. Legal source/authority and evidence:

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, para 2038. But see Appeals Chamber’s findings, Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Judgement (AC), 14 December 2011, para. 657 (Below):

"2039. Furthermore, in the alternative, the Chamber notes that Bagosora also had reason to know that subordinates under his command would commit crimes. On the night of 6 April, Bagosora expressed to Dallaire during the Crisis Committee meeting that his main concern was keeping Kigali secure and calm (III.3.2.1). The next morning, Bagosora spoke with the United States Ambassador about the shootings that could be heard throughout Kigali the previous night (III.3.2.3). He witnessed first-hand the ongoing attack by Rwandan soldiers at Camp Kigali against the 10 Belgian peacekeepers (III.3.4). Moreover, he was informed on the evening of 7 April about the murder of the Prime Minister as well as other prominent or opposition figures, including Father Mahame (III.3.5.2). UNAMIR was receiving reports from military observers about targeted killings by military personnel (III.2.5.5). It is difficult to accept that similar reports were not being provided to Bagosora."

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Judgement (AC), 14 December 2011, para. 657:

"657. The Trial Chamber also found, "in the alternative", that "Bagosora also had reason to know that subordinates under his command would commit crimes".1553 In support of its finding, however, the Trial Chamber relied upon evidence specifically related to crimes perpetrated in Kigali. The Trial Chamber also reasoned that "[i]t is difficult to accept" that reports similar to those received by UNAMIR from military observers "were not being provided to Bagosora". The Appeals Chamber considers that this amounts to speculation on the part of the Trial Chamber. Such speculative reasoning could therefore not form the basis for a finding that Bagosora had reason to know that soldiers from the Rwandan army would commit crimes in Gisenyi town on 7 April 1994."

M.P.51. Evidence that the person knew about related crimes.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 337:

"337. The Accused’s knowledge of the criminal activity that was taken place is also proved by his statements. He publicly spoke out against mass lootings in Mehovci ⁸⁷⁰ and war profiteering.⁸⁷¹"

"870. BT-80, T. 15477 (closed session ).

871. BT-94, T. 24835; BT-11, T. 4037 (closed session)."

M.P.52. Evidence that the person knew the victims.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 311-312:

"311. […] The consequences of the mistreatment upon the detainees, the resulting difficulties that some of them had in walking, and the pain which they were in must have been obvious to everyone.

312. The Trial Chamber does not accept the Accused’s blanket denial of any knowledge of beatings as being credible. It is satisfied that he must have been aware that the detainees, for whose care he was responsible, and some of whom he knew personally,⁸²⁵ were being mistreated. […]"

"825 - See for example Faik Tafro (the Accused, T 7611); Ekrem Zekovic (the Accused, T 7917); Muhamed Lisica (T 7918); RJ (T 7929)."

M.P.53. Evidence that the person was informed about crime scenes.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 334, 335:

"334. The Accused received reports during ARK Crisis Staff meetings from the representatives of municipal Crisis Staffs on the actions they were taking and the problems they were encountering in implementing the ARK Crisis Staff decisions.⁸⁶⁴ The Accused would in turn brief the Presidents of the ARK municipalities attending ARK Crisis Staff meetings on what was happening on the front line.⁸⁶⁵ The Accused himself made it clear, when interviewed by Banja Luka TV in July 1992 in Kotor Varos municipality, where some of the worst crimes had been committed, that he had to keep himself informed of events. He stated that "being the President of the Crisis Staff of the Autonomous Region, it is my responsibility to tour all the frontlines […] the reason for this visit, is that every Monday I must inform Presidents of the Crisis Staffs about the political situation in this region."⁸⁶⁶ At the "frontlines", the Accused was briefed by military personnel in order to gain an understanding of the situation.⁸⁶⁷"

335. Also during July 1992, the Accused, together with others, including Predrag Radic, visited the Prijedor area making "a tour of the combat area and collection centres". In this context, on 17 July 1992, the Accused visited Omarska camp. The Accused publicly stated that "what we have seen in Prijedor is an example of a job well done", adding that "it is a pity that many in Banja Luka, are not aware of it yet, just as they are not aware of what might happen in Banja Luka in the very near future."868

"864. Predrag Radic, T. 22271; Milorad Sajic, T. 23684-23685.

865. Predrag Radic, T. 22271.

866. Ex. P1598, video footage containing an interview by Banja Luka TV with the Accused. See also ex. P1590, "1st KK Forward Command Post War Diary Number 1", dated 24 June – 30 August 1992, which is a diary of events from the 1st Krajina Corps forward command post and related to ‘Operation Corridor 92’. An entry dated 1 July 1992 notes that at 15:00 hrs, the Accused was coming with his escort to visit the Command of the ‘Corridor 92’ Operations Group.

867. Ex. P 1590, "1st KK Forward Command Post War Diary"; ex. P1725, "Conclusions of the ARK Crisis Staff", dated 17 June 1992, item 1; Osman Selak, T. 13111.

868 Ex. P284, "Kozarski Vjesnik newspaper article", entitled "Representatives of the Krajina in Prijedor: It is not easy for anyone", dated 17 July 1992; Predrag Radic, T. 21996-22008.

M.P.54. Evidence that the person took remedial action.

A. Legal source/authority and evidence:

Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 621:

"621. The Appeals Chamber notes the Appellant’s contention that when he learned of unlawful detention, he took remedial action.^{( 1290 )} The Appellant did succeed in having some of these detainees released by 30 April 1993,^{( 1291 )} and others still on 9 May 1993,^{( 1292 )} which does suggest both that he (i) was previously unaware of the unlawful conduct, but that (ii) nevertheless exercised a degree of effective control over the offending units and personnel as found above. The Appeals Chamber considers that this submission establishes that the Appellant knew of conditions of unlawful detention by the time he took the remedial action."

"1290 - Appellant’s Brief, p. 114.

1291 - Ex. D366, an order of 29 April 1993 directing inter alia the "[r]elease of all civilians (men, women and children). arrested during the conflicts between the BH Army and the HVO" and that "[a]ll released civilians must be guaranteed full safety in the locations in your zones of responsibility and you shall be held responsible for the situation your zones…".

1292 - Witness Stewart, T 23,813 (17 June 1999) (Open Session)."

M.P.55. Evidence of the crimes being widely known.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 338:

"338. Finally, the Trial Chamber is satisfied that the nature of the crimes committed in the ARK during the time relevant to the Indictment, including the large scale forcible displacement of the non-Serb civilian population and the armed attacks on non-Serb villages and towns, as well as the extent of the criminal activity throughout the ARK, allow for only one reasonable inference to be drawn, that is that it was common knowledge among the general public in the ARK that these crimes were being committed."

Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 618-619:

"(b) Actual or constructive knowledge

[…]

618. The Appeals Chamber has found^{( 1273 )} that the Trial Chamber erred in its interpretation of the "had reason to know" standard , and has corrected it accordingly. As a result, the Appeals Chamber will apply the correct standard to determine whether the Appellant knew or had reason to know of the unlawful conduct of personnel under his command as far as that conduct related to the conditions in the detention facilities. The Appeals Chamber considers that : […]

619. The trial evidence considered above demonstrates that the Appellant on occasion knew of the mistreatment of non-combatant Bosnian Muslims in detention facilities.⁽¹²⁸³⁾"

"1273 - See Chapter III (B) (2), above. […]

1279 - T 22694 and T 22732 (26 May 1999) (Open Session). At T 18,271, the Appellant acknowledged that he discussed reports of detainees digging trenches with an ICRC observer as early as 5 February 1993, and that he followed up on that report to ensure that it was either not happening, or that it would cease (23 Feb. 1999) (Open Session).

1280 - Ex. P514. Witness Morsink, an ECMM monitor, testified that the HVO was repeatedly informed of these observations by the ECMM; see T 9895 (2 July 1998) (Open Session).

1281 - Ex. P677 and P714.

1282 - Witness HH, T 6833, 6844 (24 Feb. 1998) (Closed Session). See T 22,712 (26 May 1999) (Private Session). The Appellant denies any knowledge of the alleged incidents in that evidence because he was isolated in Kiseljak at that time, T 22,714-5 (26 May 1999) (Private Session).

1283 - This finding, and the finding that the Appellant knew that detainees were forced to dig trenches, is one which the Trial Chamber made obiter (Trial Judgement, para. 733). The Appeals Chamber notes that the Prosecution submitted evidence on appeal as rebuttal evidence suggesting that the Appellant allegedly expressed concern that the international community would hear of the deaths of detainees while digging trenches (Ex. PA 56). This exhibit is an order to the Commander of the Ban Jelacic Brigade dated 22 May 1993, in which the Appellant expressed concern about the international community finding out that a Muslim prisoner was killed by a sniper while digging trenches at HVO lines. However, the B/C/S (original) version of this document has a hand-written annotation on it adjacent to the deleted paragraph 3: "ovo ne" meaning "this not". The Appeals Chamber considers that the probative value of this evidence must be assessed in light of the manuscript amendment, and the Appeals Chamber cannot conclude that the Appellant intended to distort news of future such occurrences."

M.P.56. Evidence related to the organised nature of the crimes

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, para. 2038:

"2038. The Chamber is satisfied that Bagosora had actual knowledge that his subordinates were about to commit crimes or had in fact committed them. As discussed above, it is clear that these attacks were organised military operations requiring authorisation, planning and orders from the highest levels. It is inconceivable that Bagosora would not be aware that his subordinates would be deployed for these purposes, in particular in the immediate aftermath of the death of President Habyarimana and the resumption of hostilities with the RPF, when the vigilance of military authorities would have been at its height. Furthermore, many of these crimes took place in Kigali where Bagosora was based, including the open and notorious slaughter at roadblocks, or in the vicinity of Gisenyi town where Nsenigyumva, the operational commander of Gisenyi, was located."

M.P.57. Evidence relating to the number of the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgment (AC), 3 July 2002, para. 28:

"28. The Trial Chamber further considered "‘knowledge’ [as] an indispensable element of […] the liability of a superior […]", by holding that "the mental element of knowledge [must be] demonstrated beyond reasonable doubt."³⁷ On the basis of this definition, the Trial Chamber found, after examining the direct evidence, that it was not in a position to establish that the Accused had knowledge of the murders of Judith and Bigirimana.³⁸ It therefore proceeded to examine the concept of "knowledge", or the Accused’s mens rea under Article 6(3) of the Statute, on the basis of the available circumstantial evidence, guided by the indicia set down by the Commission of Experts in its Final Report.³⁹

"35 Čelebići Appeals Judgement, par. 238. […]

37 Trial Judgement, para. 967. It follows from this paragraph that a superior’s "knowledge" covers the two standards, namely (1) the Respondent "knew" or (2) the Respondent "had reason to know".

38 Trial Judgement, para. 975.

39 Trial Judgement, para. 968. The Trial Chamber is referring to paragraph 386 of the Čelebići Appeal Judgement, which in turn refers to the following indicia featuring in the said Report (United Nations Commission of Experts Report S/1994/674): the number of illegal acts, the type of illegal acts, the scope of illegal acts, the time during which the illegal acts occurred, the number and type of troops involved, the logistics involved, if any, the geographical location of the acts, the widespread occurrence of the acts, the tactical tempo of operations, the modus operandi of similar illegal acts, the officers and staff involved, and the location of the commander at the time."

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 427:

"427. In relation to the necessary mental element, the first situation where a superior "knew" does not appear to be controversial. Actual knowledge, which may be defined as the awareness that the relevant crimes were committed or were about to be committed, may be established through direct or circumstantial evidence.⁵⁹⁵ Circumstantial evidence will allow for an inference that the superior "must have known" of subordinates’ criminal acts. The Trial Chamber agrees with the Prosecution that the indicia listed by the United Nations Commission of Experts may be used when making such a determination: the number, type, and scope of illegal acts; the time during which they occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; their widespread occurrence ; the tactical tempo of operations; the modus operandi of similar illegal acts; the officers and staff involved and the location of the commander at that time.⁵⁹⁶"

"595 - Celebici Trial Judgement, para. 386: "in the absence of direct evidence of the superior’s knowledge of the offences committed by his subordinates, such knowledge cannot be presumed, but must be established by way of circumstantial evidence."

596 - Commission of Experts Report, para. 58; referred to in Prosecution Final Brief, Annex 4, p. 28 (para. 82); Celebici Trial Judgement, para. 386; Blaškić Trial Judgement, para. 307."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 386:

"386. It is, accordingly, the Trial Chamber’s view that, in the absence of direct evidence of the superior’s knowledge of the offences committed by his subordinates, such knowledge cannot be presumed, but must be established by way of circumstantial evidence. In determining whether a superior, despite pleas to the contrary, in fact must have possessed the requisite knowledge, the Trial Chamber may consider, inter alia, the following indicia, listed by the Commission of Experts in its Final Report:

(a) The number of illegal acts;

[…]

(l) The location of the commander at the time.⁴¹³"

"413. Commission of Experts Report, p. 17 (Exhibit 39)."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 307:

"307. Knowledge may not be presumed ⁵³⁷. However, the Trial Chamber agrees that "knowledge" may be proved through either direct or circumstantial evidence. With regard to circumstantial evidence, the Trial Chamber concurs with the view expressed by the Trial Chamber in the Celebici case and holds that in determining whether in fact a superior must have had the requisite knowledge it may consider inter alia the following indicia enumerated by the Commission of Experts in its Final Report: the number, type and scope of the illegal acts; the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the speed of the operations ; the modus operandi of similar illegal acts; the officers and staff involved ; and the location of the commander at the time.⁵³⁸"

"537 - Celebici Judgement, para. 386. The Trial Chamber notes that in the submission of the Defence, the Prosecution at some stage during the trial argued that knowledge may be presumed in certain circumstances, a position which the Defence opposes. Defence Brief, p. 41-42.

538 - Final Report of the Commission of Experts, para. 58; Celebici Judgement, para. 386."

M.P.58. Evidence relating to the nature of the crimes.

A. Legal source/authority and evidence:

The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T, Judgement (TC), 17 May 2011, para. 1987:

"1987. The accounts offered by Prosecution witnesses regarding the crimes committed by soldiers and Interahamwe against Tutsi civilians at these locations contain a number of circumstantial indicia supporting the inference that Bizimungu must have known of these crimes. These include the modus operandi of the commission of the crimes, the wide scale and frequency of the crimes, the number of people killed, and the fact that the crimes were committed against Tutsi civilians who had gathered at schools, churches, medical centres, stadiums and the offices of local authorities, all of which are located in areas that are not geographically remote. This circumstantial evidence indicates that the crimes were not random acts of errant soldiers and militia unknown to the authorities, but were in fact organised and systematic crimes."

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgment (AC), 3 July 2002, para. 28:

The Trial Chamber further considered "‘knowledge’ [as] an indispensable element of […] the liability of a superior […]", by holding that "the mental element of knowledge [must be] demonstrated beyond reasonable doubt."³⁷ On the basis of this definition, the Trial Chamber found, after examining the direct evidence, that it was not in a position to establish that the Accused had knowledge of the murders of Judith and Bigirimana.³⁸ It therefore proceeded to examine the concept of "knowledge", or the Accused’s mens rea under Article 6(3) of the Statute, on the basis of the available circumstantial evidence, guided by the indicia set down by the Commission of Experts in its Final Report.³⁹

"35 Čelebići Appeals Judgement, par. 238. […]

37 Trial Judgement, para. 967. It follows from this paragraph that a superior’s "knowledge" covers the two standards, namely (1) the Respondent "knew" or (2) the Respondent "had reason to know".

38 Trial Judgement, para. 975.

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 427:

596 - Commission of Experts Report, para. 58; referred to in Prosecution Final Brief, Annex 4, p. 28 (para. 82); Celebici Trial Judgement, para. 386; Blaškić Trial Judgement, para. 307."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 386:

[…]

(b) The type of illegal acts;

[…]

(l) The location of the commander at the time.⁴¹³"

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 307:

538 - Final Report of the Commission of Experts, para. 58; Celebici Judgement, para. 386."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 770:

"770. The crimes committed in the Celebici prison-camp were so frequent and notorious that there is no way that Mr. Mucic could not have known or heard about them."

"413. Commission of Experts Report, p. 17 (Exhibit 39)."

M.P.59. Evidence relating to the scope of the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July 2002, para. 28:

"35 Čelebići Appeals Judgement, par. 238. […]

37 Trial Judgement, para. 967. It follows from this paragraph that a superior’s "knowledge" covers the two standards, namely (1) the Respondent "knew" or (2) the Respondent "had reason to know".

38 Trial Judgement, para. 975.

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 427:

596 - Commission of Experts Report, para. 58; referred to in Prosecution Final Brief, Annex 4, p. 28 (para. 82); Celebici Trial Judgement, para. 386; Blaškić Trial Judgement, para. 307."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 386:

[…]

(l) The location of the commander at the time.⁴¹³"

"413. Commission of Experts Report, p. 17 (Exhibit 39)."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 307:

538 - Final Report of the Commission of Experts, para. 58; Celebici Judgement, para. 386."

M.P.60. Evidence relating to the frequency of the crimes.

A. Legal source/authority and evidence:

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 427:

596 - Commission of Experts Report, para. 58; referred to in Prosecution Final Brief, Annex 4, p. 28 (para. 82); Celebici Trial Judgement, para. 386; Blaškić Trial Judgement, para. 307."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 386:

[…]

(d) The time during which the illegal acts occurred;

[…]

(i) The tactical tempo of operations;

[…]

(l) The location of the commander at the time.⁴¹³"

"413. Commission of Experts Report, p. 17 (Exhibit 39)."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 307:

538 - Final Report of the Commission of Experts, para. 58; Celebici Judgement, para. 386."

staff involved, and the location of the commander at the time."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 770:

"770. The crimes committed in the Celebici prison-camp were so frequent and notorious that there is no way that Mr. Mucic could not have known or heard about them."

M.P.61. Evidence relating to the widespread occurrence of the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July 2002, para. 28:

"35 Čelebići Appeals Judgement, par. 238. […]

37 Trial Judgement, para. 967. It follows from this paragraph that a superior’s "knowledge" covers the two standards, namely (1) the Respondent "knew" or (2) the Respondent "had reason to know".

38 Trial Judgement, para. 975.

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 427:

596 - Commission of Experts Report, para. 58; referred to in Prosecution Final Brief, Annex 4, p. 28 (para. 82); Celebici Trial Judgement, para. 386; Blaškić Trial Judgement, para. 307."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 386:

[…]

(g) The geographical location of the acts;

(h) The widespread occurrence of the acts;

[…]

(l) The location of the commander at the time.⁴¹³"

"413. Commission of Experts Report, p. 17 (Exhibit 39)."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 307:

538 - Final Report of the Commission of Experts, para. 58; Celebici Judgement, para. 386."

Prosecutor v. Clément Kayishema and Obed Ruzidana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 509:

M.P.62. Evidence relating to the number and type of forces involved in the crimes.

A. Legal source/authority and evidence:

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July 2002, para. 28:

"35 Čelebići Appeals Judgement, par. 238. […]

37 Trial Judgement, para. 967. It follows from this paragraph that a superior’s "knowledge" covers the two standards, namely (1) the Respondent "knew" or (2) the Respondent "had reason to know".

38 Trial Judgement, para. 975.

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 427:

596 - Commission of Experts Report, para. 58; referred to in Prosecution Final Brief, Annex 4, p. 28 (para. 82); Celebici Trial Judgement, para. 386; Blaškić Trial Judgement, para. 307."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 386:

[…]

(e) The number and type of troops involved;

(f) The logistics involved, if any;

[…]

(k) The officers and staff involved;

(l) The location of the commander at the time.⁴¹³"

"413. Commission of Experts Report, p. 17 (Exhibit 39)."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 307:

538 - Final Report of the Commission of Experts, para. 58; Celebici Judgement, para. 386."

M.P.63. Evidence relating to the location of the person at the time.

A. Legal source/authority and evidence:

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, paras. 2022, 2033:

"2022. Nzuwonemeye told the Chamber that upon his arrival at the camp, he tried but failed to contact Captain Dukuzumuremyi, whom he had left in charge of the battalion. He then made inquiries to the General Staff and Services Company, but was not told about the involvement of RECCE Battalion soldiers in the attack on the Belgians. In the view of the Chamber, the fact that he inquired about the involvement of RECCE Battalion soldiers in the killings is itself an indication of his notice of the possibility that they were implicated in those killings. Given the short distance between Nzuwonemeye’s office and the location in Camp Kigali where the Belgian soldiers were killed; the fact that the attack involved soldiers from various units based at Camp Kigali; Nzuwonemeye’s presence at the camp for at least two hours during the attack; the use of an MGL from the RECCE Battalion’s arsenal in the attack; as well as the normal command, control and reporting structures within the RECCE Battalion, the Chamber is satisfied that Nzuwonemeye had reason to know about the participation of RECCE Battalion soldiers in that attack."

"2033. The Chamber is also satisfied that Sagahutu had direct knowledge of the involvement of Squadron A soldiers in the killing of the Belgian soldiers. Sagahutu was present, gave Corporals Nzeyimana and Masonga permission to take the MGL, and specifically instructed them to put down the alleged Belgian resistance."

Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008, paras 2038 and 2066:

"2066. Furthermore, the location of the massacres at Nyanza and IAMSEA were near military positions of the Para Commando Battalion, and Kabeza is located near Camp Kanombe where the battalion was based. Moreover, in the case of Nyanza hill, there was extensive radio communication between the Para Commando position at Sonatube junction, Ntabakuze and Rwandan army headquarters concerning a smaller group of refugees stopped there earlier in the day. The Chamber cannot accept that Ntabakuze would not have been informed about the significantly larger group a few hours later."

Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgement (TC), 31 July 2003, para. 460:

"460. […] Considering geographical and temporal circumstances, this means that the more physically distant the superior was from the commission of the crimes, the more additional indicia are necessary to prove that he knew of them. On the other hand, if the crimes were committed next to the superior’s duty-station this suffices as an important indicium that the superior had knowledge of the crimes, and even more so if the crimes were repeatedly committed.^{http://www.un.org/icty/stakic/trialc/judgement/foot.htm#10001000}"

1000. Aleksovski Trial Judgement, para. 80.

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July 2002, para. 28:

"35 Čelebići Appeals Judgement, par. 238. […]

37 Trial Judgement, para. 967. It follows from this paragraph that a superior’s "knowledge" covers the two standards, namely (1) the Respondent "knew" or (2) the Respondent "had reason to know".

38 Trial Judgement, para. 975.

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 427:

596 - Commission of Experts Report, para. 58; referred to in Prosecution Final Brief, Annex 4, p. 28 (para. 82); Celebici Trial Judgement, para. 386; Blaškić Trial Judgement, para. 307."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 386:

[…]

(l) The location of the commander at the time.⁴¹³"

"413. Commission of Experts Report, p. 17 (Exhibit 39)."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 307, 478:

538 - Final Report of the Commission of Experts, para. 58; Celebici Judgement, para. 386."

"478. [I]t is difficult to believe that the accused had no foreknowledge of an attack planned in an area coming within his area of responsibility only a few kilometres from his headquarters, several pieces of evidence disproved the accused’s assertions."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 80:

"80. […] The Trial Chamber deems however that an individual’s superior position per se is a significant indicium that he had knowledge of the crimes committed by his subordinates. The weight to be given to that indicium however depends inter alia on the geographical and temporal circumstances. This means that the more physically distant the commission of the acts was, the more difficult it will be, in the absence of other indicia, to establish that the superior had knowledge of them. Conversely, the commission of a crime in the immediate proximity of the place where the superior ordinarily carried out his duties would suffice to establish a significant indicium that he had knowledge of the crime, a fortiori if the crimes were repeatedly committed."

Prosecutor v. Clément Kayishema and Obed Ruzidana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 510:

"510. Moreover, his identification at the site both before and during the attacks leave the Trial Chamber in no doubt that Kayishema knew of the crimes that were being committed by his subordinates."

M.P.63.1. Evidence of the person touring front lines

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 334, 337:

"334. […] The Accused himself made it clear, when interviewed by Banja Luka TV in July 1992 in Kotor Varos municipality, where some of the worst crimes had been committed, that he had to keep himself informed of events. He stated that "being the President of the Crisis Staff of the Autonomous Region, it is my responsibility to tour all the frontlines […] the reason for this visit, is that every Monday I must inform Presidents of the Crisis Staffs about the political situation in this region."⁸⁶⁶ At the "frontlines", the Accused was briefed by military personnel in order to gain an understanding of the situation.⁸⁶⁷"

[…]

337. The Accused’s knowledge of the criminal activity that was taken place is also proved by his statements. […]"

"866. Ex. P1598, video footage containing an interview by Banja Luka TV with the Accused. See also ex. P1590, "1st KK Forward Command Post War Diary Number 1", dated 24 June – 30 August 1992, which is a diary of events from the 1st Krajina Corps forward command post and related to ‘Operation Corridor 92’. An entry dated 1 July 1992 notes that at 15:00 hrs, the Accused was coming with his escort to visit the Command of the ‘Corridor 92’ Operations Group.

867. Ex. P 1590, "1st KK Forward Command Post War Diary"; ex. P1725, "Conclusions of the ARK Crisis Staff", dated 17 June 1992, item 1; Osman Selak, T. 13111."

Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 618, 619:

(ii) the Appellant testified that he frequently visited the front lines;

[…]

619. The trial evidence considered above demonstrates that the Appellant on occasion knew of the mistreatment of non-combatant Bosnian Muslims in detention facilities.⁽¹²⁸³⁾"[…]

"1273 - See Chapter III (B) (2), above.

[…]

[B. Evidentiary comment:]

M.P.63.2. Evidence of the person’s proximity to detention centres.

A. Legal source/authority and evidence:

Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 618:

(i) the Appellant’s personal proximity to some of the detention centres precludes the finding that he was unaware of the presence of the detainees there;^{( 1274 )}

[…]"

"1273 - See Chapter III (B) (2), above. […]

1274 - On 23 April 1993, the Appellant set up one of his command centres in the former JNA Barracks in Kiseljak, which were also used as a detention centre between April and November of that year; see Trial Judgement, para. 690. The Vitez veterinary station, another detention centre for the period 16 to 20 April 1993, was approximately 900 metres from the Hotel Vitez; see Trial Judgement, para. 694. The Vitez Cultural Centre, used as a detention centre from 16 April 1993, was at most 100 metres from the Hotel Vitez (see Trial Judgement, para. 696, and testimony of Witness BA5, AT 527 (11 Dec. 2003) (Open Session). The SDK building was some 150 metres from the Hotel Vitez; see T 22,719 (26 May 1999) (Open Session). On one occasion on 20 April 1993, 247 detainees from Gacice were in front of the Hotel Vitez; Trial Judgement para. 742; and see below. Throughout this period, the Appellant used the Hotel Vitez as his headquarters. Note is also taken of the testimony of Witness HH, a Military Policeman at the Hotel Vitez who testified that the trench-digging activities in Busovaca were observed by everyone there, as they were so obvious (T 6831) (24 Feb. 1998) (Closed Session)."

[B. Evidentiary comment:]

M.P.63.3. Evidence of the person visiting detention centres.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 335, 337:

"335. Also during July 1992, the Accused, together with others, including Predrag Radic, visited the Prijedor area making "a tour of the combat area and collection centres". In this context, on 17 July 1992, the Accused visited Omarska camp.

[…]

337. The Accused’s knowledge of the criminal activity that was taken place is also proved by his statements. […]"

[B. Evidentiary comment:]

M.P.63.4. Evidence of the person working at detention centres.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 311:

"311. The Trial Chamber notes that the Accused held the position of warden for 15 months, during which time he went to the KP Dom almost every day of the working week. While there he would go to the canteen,⁸²³ the prison yard or elsewhere inside the compound,⁸²⁴ all places where he had plenty of opportunities to notice the physical condition of the non-Serb detainees."

"823 - Several witnesses mentioned that they saw him at the refectory or on his way to the refectory: see for example Rasim Taranin (T 1706); Ahmet Hadzimusic (T 1981); FWS-249 (T 4497-4498); FWS-250 (T 5056, 5068-5069); FWS-109 (T 2409-2410); RJ (T 3892); Ekrem Zekovic (T 3451); FWS-138 (T 2096-2097).

824 - See FWS-139 (T 381); FWS-111 (T 1276); FWS-162 (T 1403); FWS-69 (T 4130); FWS-172 (T 4590); FWS-249 (T 4497-4498). The Accused said that he did not often go through the yard, only "when the need arose" (T 7660). Further, he said that he "usually went to the furniture factory at the time when there were no detained persons in the yard" (T 7677)"

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 114:

"114. The Trial Chamber notes first that the accused lived inside the prison for at least the first period of detention. He must therefore have been aware of the repeated ill-treatment detainees were subjected to.²¹⁸"

"218 Witness Jerkovi}, FPT p. 2131."

[B. Evidentiary comment:]

M.P.64. Not sufficient: evidence of the superior position of the person.

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. 1249:

"1249. The Chamber attaches importance to the fact that, of the witnesses who visited the Music School in Zenica,2765 none mentioned having made personal contact with the Accused Kubura with a view to visiting the Music School, initiating an investigation, lodging a complaint or reporting the situation. The witnesses who were international observers stated that they approached, or were referred to, the 3rd Corps Command in order to obtain information about the School or to have access to it.2766 That observation could be due to the hierarchical structure obtaining in the organisation of the 3rd Corps as regards matters connected with military security. Indeed, as mentioned earlier,2767 the military security service had a dual hierarchical chain of command. In accordance with a "vertical" chain of command, the corps’ military security service obeyed the orders and instructions of the Supreme Command Main Staff Chief of Security. This same chain of command meant that the security service of the corps had the command of the security units subordinated to it. In accordance with a "horizontal" chain of command, the corps’ security service obeyed the orders of the corps commander. Thus, within the 7th Brigade, Nesib Talić, Assistant Commander for Military Security, was responsible not only to the 7th Brigade Commander but also to the 3rd Corps Commander for the Military Security Service. In limited cases, the security bodies were not under a duty to report to the corps commander, to the brigade commander or to the commander of the operations group. Thus in the case in question, Nesib Talić was instructed by the 3rd Corps Assistant Commander for Security to carry out an investigation into the Music School and to notify him of the result of that investigation.2768 That chain of communication therefore did not necessarily mean that the Accused Kubura was informed of the investigation into the Music School or mutatis mutandis of any other question falling with the scope of the vertical chain of command."

2765 The Chamber refers principally to Vlado Adamović, Lars Baggesen, Džemal Merdan, Witness HF and Witness HI.

2766 Lars Baggessen, T(F) p. 7032; Vlado Adamović, T(F) pp. 9479-9483; DH 2098 (under seal), para. 12.

2767 See supra paras. 327 and 333.

2768 Witness HF, T(F) p. 17185.

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 171, 178:

"The Appeals Chamber holds that the external context (i.e. the circumstances in which the detention centre was set up) and the internal context (i.e. the operation of the centre, in particular, the widespread nature of the beatings and the frequency of the interrogations), taken together with the facts […] mean that no reasonable trier of fact could fail to conclude that Krnojelac had reason to know that some of the acts had been or could have been committed for one of the purposes prohibited by the law on torture. Krnojelac had a certain amount of general information putting him on notice that his subordinates might be committing abuses constituting acts of torture."

"178. The Appeals Chamber refers back to the facts accepted by the Trial Chamber - as set out for the previous ground of appeal - regarding the context in which the beatings were committed, the widespread nature of these beatings and Krnojelac's jurisdiction as prison warden over his subordinates, who were the perpetrators of these beatings.²⁵⁶"

"256 - See paragraphs 163 ff. of this Judgement."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 404-405:

"Criminal liability based on superior responsibility will not attach on the basis of strict liability simply because an individual is in a chain of command with authority over a given geographic area.⁶⁶⁹ While the individual’s position in the command hierarchy is considered a significant indicator that the superior knew or had reason to know about the actions of his subordinates, knowledge will not be presumed from the status alone.⁶⁷⁰"

"669 Bagilishema, Judgement, TC, paras. 44-45; Akayesu, Judgement, TC, para. 489 ("[I]t is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.").

670 Bagilishema, Judgement, TC, para. 45."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 308:

"308. These indicia must be considered in light of the accused’s position of command, if established. Indeed, as was held by the Aleksovski Trial Chamber, an individual’s command position per se is a significant indicium that he knew about the crimes committed by his subordinates⁵³⁹."

"539 - Aleksovski Judgement, para. 80."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 80:

"80. Conversely, the Trial Chamber in the Celebici case held that it was not possible to conclude that this presumption was an established principle of customary law at the relevant time. For that reason, "in the absence of direct evidence of the superior’s knowledge of the offences committed by subordinates, such knowledge cannot be presumed".¹³¹ Admittedly , as regards "indirect" responsibility, the Trial Chamber is reluctant to consider that a "presumption" of knowledge about a superior exists which would somehow automatically entail his guilt whenever a crime was allegedly committed. The Trial Chamber deems however that an individual’s superior position per se is a significant indicium that he had knowledge of the crimes committed by his subordinates. The weight to be given to that indicium however depends inter alia on the geographical and temporal circumstances."

"131 - Celebici, para. 386. p. 143."

[B. Evidentiary comment:]

M.6.2. The perpetrator should, owing to the circumstances at the time, have known that the forces were committing or about to commit the crime.

A. General evidentiary comment:

Judges at the ICTY and ICTR had to give meaning to the term "had reason to know", which is found in Articles 7(3) and 6(3) of their respective Statutes. The wording "should have known" is unique to Article 28(a)(i) of the Rome Statute and it cannot be anticipated whether the standard adopted by the ad hoc tribunals will be adopted by the judges of the International Criminal Court when "should have known" is interpreted for the first time. The means of proof indicated below should be considered against this background.

M.6.2.1. Evidence that the person was put on notice of the risk of such crimes.

M.P.65. Evidence that the person was put on notice about related crimes.

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. 1223:

"1223. The Chamber shares the view of the Defence for the Accused Kubura insofar as the information relating to mere rumours circulating in the streets does not suffice to constitute the mens rea of command responsibility within the meaning of Article 7(3) of the Statute. On the other hand, the Chamber finds in this case that Witness Vlado Adamović's conversation with the Accused Hadžihasanović did not specifically relate to rumours but to complaints of arrests and mistreatment at the Music School submitted unofficially to an investigating judge at the Zenica District Military Court by persons close to those who had disappeared.2701 The Chamber considers that, in view of its content and source, the information was of a nature to at least put the Accused Hadžihasanović on notice that there was a real and current likelihood that mistreatment was being or was about to be inflicted by his subordinates at the Music School and that it should have prompted an additional investigation on his part in order to verify whether such crimes had been or were about to be committed."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 169:

"169. The Appeals Chamber does not share the Trial Chamber's opinion that "the fact that the Accused witnessed the beating of Zekovic, ostensibly for the prohibited purpose of punishing him for his failed escape, is not sufficient, in itself, to conclude that the Accused knew or that he had reason to know that, other than in that particular instance, beatings were inflicted for any of the prohibited purposes."²³¹ The Appeals Chamber holds that, while this fact is indeed insufficient, in itself, to conclude that Krnojelac knew that acts of torture were being inflicted on the detainees, as indicated by the Trial Chamber, it may nevertheless constitute sufficiently alarming information such as to alert him to the risk of other acts of torture being committed, meaning that Krnojelac had reason to know that his subordinates were committing or were about to commit acts of torture. […]"

"231 - Ibid., para. 313."

M.P.65.1. Evidence of information about ill-treatment in a detention centre.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 171, 178:

"171. The Appeals Chamber holds that the external context (i.e. the circumstances in which the detention centre was set up) and the internal context (i.e. the operation of the centre, in particular, the widespread nature of the beatings and the frequency of the interrogations), taken together with the facts […] mean that no reasonable trier of fact could fail to conclude that Krnojelac had reason to know that some of the acts had been or could have been committed for one of the purposes prohibited by the law on torture. Krnojelac had a certain amount of general information putting him on notice that his subordinates might be committing abuses constituting acts of torture."

"256 - See paragraphs 163 ff. of this Judgement."

[B. Evidentiary comment:]

M.P.66. Evidence that the person was put on notice about alarming and/or suspicious conditions of his or her subordinates.

M.P.66.1. Evidence of information about the inadequate level of training and instruction of the subordinates.

A. Legal source/authority and evidence:

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 437:

"437. It appears clearly from the Appeals Chamber’s findings that a superior may be regarded as having "reason to know" if he is in possession of sufficient information to be on notice of the likelihood of subordinate illegal acts, i.e., if the information available is sufficient to justify further inquiry. The level of training, or the character traits or habits of the subordinates, are referred to by way of example as general factors which may put a superior on notice that subordinate crimes may be committed."

Prosecutor v Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 238:

"238. […] A showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he "had reason to know". The ICRC Commentary (Additional Protocol I) refers to "reports addressed to (the superior), [...] the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits" as potentially constituting the information referred to in Article 86(2) of Additional Protocol I.³⁴⁰ As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge."

"340 ICRC Commentary (Additional Protocol I), para 3545."

[B. Evidentiary comment:]

M.P.66.2. Evidence of information about the violent or unstable character of the subordinates.

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 404-405:

"404.Criminal liability based on superior responsibility will not attach on the basis of strict liability simply because an individual is in a chain of command with authority over a given geographic area. [669] While the individual’s position in the command hierarchy is considered a significant indicator that the superior knew or had reason to know about the actions of his subordinates, knowledge will not be presumed from the status alone. [670]

405. A superior will be found to possess or will be imputed with the requisite mens rea sufficient to incur criminal responsibility where: (i) the superior had actual knowledge, established through direct or circumstantial evidence, that his subordinates were about to commit, were committing, or had committed, a crime under the Statute;⁶⁷¹ or (ii) the superior possessed information providing notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such offences were about to be committed, were being committed, or had been committed, by subordinates.⁶⁷²"

"669.Bagilishema, Judgement, TC, paras. 44-45; Akayesu, Judgement, TC, para. 489 ("[I]t is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.").

670. Bagilishema, Judgement, TC, para. 45.

671 Bagilishema, Judgement, TC, para. 46; Celebici, Judgement, TC, paras. 384-386.

672 Bagilishema, Motifs de l’Arr?t, AC, para. 28; Celebici, Judgement, AC, paras. 239, 241. See also Bagilishema, Judgement, TC, para. 46, citing Celebici, Judgement, TC, paras. 390-393; Kayishema and Ruzindana, Judgement, TC, para. 228. The Appeals Chamber in Celebici explained that the information must simply be in "the possession of" the superior, and that "it is not required that he actually acquainted himself with the information." Celebici, Judgement, AC, para. 239. Moreover, the information may be of a general nature such as the violent nature of a subordinate. Id., para. 238. The information may also be written or oral and need not be a particular format or a formal report. Id."

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 437:

Prosecutor v Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 238:

"340 ICRC Commentary (Additional Protocol I), para 3545."

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 114:

"114. The accused himself admitted in the course of his conversation with Witness McLeod that some guards whose brothers had been killed at the front tended to take revenge on the detainees.²¹⁹^"

"219 - Witness McLeod, FPT p. 134."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 770:

"770. Despite this, he did not institute any monitoring and reporting system whereby violations committed in the prison-camp would be reported to him, notwithstanding his knowledge that Hazim Delic, his deputy, had a penchant and proclivity for mistreating detainees⁸²⁷."

"827. See Exhibit 101-1, p. 57."

[B. Evidentiary comment:]

M.P.66.3. Evidence of information about substance abuse by the subordinates.

A. Legal source/authority and evidence:

Prosecutor v Dario Kordić and Mario Čerkez, Case No. IT-95-14.2-T, Judgement (TC), 26 February 2001, para. 437:

Prosecutor v Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 238:

"238. …] A showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he "had reason to know". The ICRC Commentary (Additional Protocol I) refers to "reports addressed to (the superior), [...] the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits" as potentially constituting the information referred to in Article 86(2) of Additional Protocol I.³⁴⁰ As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge."

"340 ICRC Commentary (Additional Protocol I), para 3545."

M.P.67. Evidence that the person was put on notice about alarming and/or suspicious circumstances.

M.P.67.1. Evidence of information about the tactical situation.

A. Legal source/authority and evidence:

Prosecutor v Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 238:

"340 ICRC Commentary (Additional Protocol I), para 3545."

[B. Evidentiary comment:]

M.P.67.2. Evidence of information about suspicious deaths.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 178, 179:

"178. […] Thus, as shown by the Prosecution, the Appeals Chamber considers that no reasonable trier of fact could fail to conclude that a certain amount of information was available to Krnojelac which, taken as a whole, was sufficiently alarming and was such as to alert him to the risk of murders being committed inside the prison. First, it appeared that the detainees died as a result of the beatings committed within the KP Dom. As the Trial Chamber observed, all of the deceased persons listed in Schedule C were either beaten to death, shot, or died later as a result of the injuries inflicted by the beating in one of the isolation cells of the KP Dom. […]"

179. The Appeals Chamber holds that these facts constitute sufficiently alarming information such as to require Krnojelac to carry out an additional investigation. Given that he was aware of the beatings and suspicious disappearances and that he saw the bullet holes in the walls, Krnojelac was in a position to ascertain that the perpetrators of the beatings may have committed murders. At the very least, he should have carried out an investigation […]"

[B. Evidentiary comment:]

M.P.67.3. Evidence of information about disappearances.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 178, 179:

"178. […] Furthermore, the Appeals Chamber recalls that the Trial Chamber noted that Krnojelac was aware that detainees were disappearing. The Trial Chamber accepted that, in the month of June 1992, witness RJ told Krnojelac that the detainees could hear the sounds of people being beaten in the administration building and that people were disappearing from the KP Dom overnight."

[B. Evidentiary comment:]

M.P.67.4. Evidence of blood stains and/or bullet holes.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 178, 179:

"178. […] Lastly, the Appeals Chamber is of the opinion that Krnojelac was in a position to see the blood stains spattered along the corridors of the KP Dom and the bullet holes in the walls of the entrance to the administration building. As the Trial Chamber stated, the Accused went to the KP Dom almost every day of the working week. While there he would go to the canteen, the prison yard or elsewhere inside the compound, all places where he had ample opportunity to notice the physical condition of the non-Serb detainees. There can therefore be no doubt that he was also in a position to see the blood stains and bullet holes marking the walls."

[B. Evidentiary comment:]

M.P.67.5. Evidence of information about work being completed in spite of insufficient labour.

A. Legal source/authority and evidence:

Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 618, 619:

(iii) the Appellant’s units were under-manned,^{( 1276 )} yet the trenches continued to be dug pursuant to his orders;^{( 1277 )}

[…]

619. The trial evidence considered above demonstrates that the Appellant on occasion knew of the mistreatment of non-combatant Bosnian Muslims in detention facilities.⁽¹²⁸³⁾"[…]

"1273 - See Chapter III (B) (2), above.

[…]

1277 - Ex. D298 and D301. The Appeals Chamber notes the distinction between ordering one’s subordinates to prepare defensive positions, and ordering that detainees be used for that purpose. […]

[B. Evidentiary comment:]

M.P.67.6. Evidence of communication of a protest by an external actor.

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 418:

"418.That being so, the Chamber will therefore consider whether, in the course of the attack on Srdj on 6 December 1991, what was known to the Accused changed so as to attract the operation of Article 7(3). In the very early stages of the attack, well before the attacking JNA infantry had actually reached the Srdj feature and the fort, at a time around 0700 hours as the Chamber has found, the Accused was informed by the Federal Secretary of National Defence General Kadijevic of a protest by the ECMM [European Community Monitoring Mission] against the shelling of Dubrovnik.¹²⁰⁶ […] While a protest such as had been made to General Kadijevic could perhaps have arisen from shelling targeted at such Croatian defensive positions, the description that Dubrovnik was being shelled, the extremely early stage in the attack of the protest (before sunrise),¹²⁰⁹ and the circumstance that the seriousness of the situation had been thought by the ECMM to warrant a protest in Belgrade at effectively the highest level, would have put the Accused on notice, in the Chamber’s finding, at the least that shelling of Dubrovnik beyond what he had anticipated at that stage by virtue of his order to attack Srdj, was then occurring. This knowledge was of a nature, in the Chamber’s view, that, when taken together with his earlier knowledge, he was on notice of the clear and strong risk that already his artillery was repeating its previous conduct and committing offences such as those charged. In the Chamber’s assessment the risk that this was occurring was so real, and the implications were so serious, that the events concerning General Kadijevic ought to have sounded alarm bells to the Accused, such that at the least he saw the urgent need for reliable additional information, i.e. for investigation, to better assess the situation to determine whether the JNA artillery were in fact shelling Dubrovnik, especially the Old Town, and doing so without justification, i.e. so as to constitute criminal conduct."

"1206. See supra, para 160. […]

1209. The beginning of civil twilight on 6 December 1991 was 0631 hours and sunrise was at 0703 hours, T 8522."

[B. Evidentiary comment:]

M.6.2.2. Evidence that the person had the means to obtain relevant information of such crimes.

A. Legal source/authority and evidence:

Prosecutor v. Rasim Delić, Case No. IT-04-83-T, Judgement (TC), 15 September 2008, paras. 480-481:

"480. As described elsewhere in this Judgement, bulletins were placed in a sealed envelope and sent on a daily basis by the Security Administration to Rasim Delic personally. These bulletins contained sensitive information and had to be returned to the Chief of the Security Administration. Whereas there is evidence that, in Rasim Delic’s absence, the bulletins were delivered to the Chief of Staff or to another senior officer standing in for the Main Staff Commander, it is reasonable to conclude that due to the confidential nature of these documents and the fact that they were addressed to the Main Staff Commander for his special benefit, the information contained therein was routinely conveyed to Rasim Delic.

481. Although the evidence shows that Rasim Delic was in Split on 22 July 1995 and that he visited the KM Kakanj only on 29 July 1995, the Majority is satisfied, in light of the very purpose for which these bulletins were sent, that the information contained in Bulletin 137 of 22 July 1995 was still "available" to Rasim Delic when travelling on official mission."

Prosecutor v Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 226:

"226 […] The Appeals Chamber takes it that the Prosecution seeks a finding that "reason to know" exists on the part of a commander if the latter is seriously negligent in his duty to obtain the relevant information. The point here should not be that knowledge may be presumed if a person fails in his duty to obtain the relevant information of a crime, but that it may be presumed if he had the means to obtain the knowledge but deliberately refrained from doing so. The Prosecution’s argument that a breach of the duty of a superior to remain constantly informed of his subordinates actions will necessarily result in criminal liability comes close to the imposition of criminal liability on a strict or negligence basis. It is however noted that although a commander’s failure to remain apprised of his subordinates’ action, or to set up a monitoring system may constitute a neglect of duty which results in liability within the military disciplinary framework, it will not necessarily result in criminal liability. […]"

"343 - Trial Judgement, para 393."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 179:

"179. The Appeals Chamber holds that these facts constitute sufficiently alarming information such as to require Krnojelac to carry out an additional investigation. Given that he was aware of the beatings and suspicious disappearances and that he saw the bullet holes in the walls, Krnojelac was in a position to ascertain that the perpetrators of the beatings may have committed murders. At the very least, he should have carried out an investigation […]"

[B. Evidentiary comment:]

M.6.2.3. Evidence that the person failed to obtain relevant information of such crimes.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 418:

"418. […] This knowledge was of a nature, in the Chamber’s view, that, when taken together with his earlier knowledge, he was on notice of the clear and strong risk that already his artillery was repeating its previous conduct and committing offences such as those charged. In the Chamber’s assessment the risk that this was occurring was so real, and the implications were so serious, that the events concerning General Kadijevic ought to have sounded alarm bells to the Accused, such that at the least he saw the urgent need for reliable additional information, i.e. for investigation, to better assess the situation to determine whether the JNA artillery were in fact shelling Dubrovnik, especially the Old Town, and doing so without justification, i.e. so as to constitute criminal conduct."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 179: