CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Arts. 25 and 28 Modes of liability » Ordering » M.2. The perpetrator gave an express or implied order to a subordinate or other person over whom the perpetrator was in a position of authority.

Element:

M.2. The perpetrator gave an express or implied order to a subordinate or other person over whom the perpetrator was in a position of authority.

M.2.1. The suspect gave an expressed or implied order

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1503-1504:

1503. The Chamber recalls its findings that soldiers, including around 11 ESO soldiers and Chief Warrant Kanyashyamba, participated in the attack on Cyahinda Parish around 18 April 1994 that resulted in the killing of thousands of displaced civilians who were primarily Tutsis. The Chamber has concluded that the actions of the ESO soldiers played a direct role in the killing of the Tutsis there.

1504. Moreover, the Chamber has determined that the only reasonable conclusion was that Nizeyimana both contributed to the planning of this military operation and that he authorised the participation of ESO soldiers in it. These conclusions were made in light of the fact that Nizeyimana visited the Cyahinda parish the preceding day, his tenure as the S2/S3 officer in charge of intelligence and operations, and the ESO’s role as the operational command for the Butare and Gikongoro region. The Chamber also considered relevant evidence that Nizeyimana both issued orders to, and held power over, Kanyashyamba.

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-T , Judgement (TC), 3 August 2010, para. 455. But see Appeals Chamber’s findings, Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-A, Judgement (AC), 14 December 2011, paras. 197, 206 (Below):

"455. No one expressly heard Ntawukulilyayo give instructions to the soldiers he brought to Kabuye hill. However, his prominent role in removing Tutsis from Gisagara market to Kabuye hill and his direct involvement in transporting assailants to there leads the Majority to the only reasonable conclusion that he ordered the assailants that he brought there to kill the Tutsi refugees.644 This finding accepts the possibility that similar orders may have benn given by other civilian or military authorities. Nonetheless, Ntawukulilyayo’s position of authority, direct involvement and presence at the hill, even if brief, would have compelled the assailants to whom he had issued orders to kill."

644 Circumstantial evidence can be used to prove a mode of liability such as ordering. See Galić Appeal Judgement, paras. 177-178, 389.

Prosecutor v. Dominique Ntawukulilyayo, Case No. ICTR-05-82-A, Judgement (AC), 14 December 2011, paras. 197, 206:

"197. As such, paragraphs 7 and 8 of the Indictment provide a very clear and precise indication that, with respect to the killings at Kabuye hill on or about 23 April 1994, both committing and aiding and abetting were being pursued. If the Prosecution had intended to charge Ntawukulilyayo with ordering the killings at Kabuye hill in addition to committing and aiding and abetting them, it should have provided an equally clear and precise indication to this effect. To the extent that ordering did form part of the Prosecution’s case, the Appeals Chamber considers that the specification of certain modes of liability in individual paragraphs created more ambiguity with respect to the pleading of ordering than if the Prosecution had failed to specify any modes of liability within the particular paragraphs at all."

"206. Based on the foregoing, the Appeals Chamber concludes that the Trial Chamber erred in finding that Ntawukulilyayo was charged with ordering the 23 April 1994 killings at Kabuye hill, and in subsequently convicting him for those killings on the basis of this mode of criminal responsibility."

M.2.1.1. Evidence of orders issued by the chain of command that has control over its military machines

M.P.1. Evidence of crimes being committed in a similar pattern

M.P.1.1. Evidence of the pattern of sniping and shelling attacks against civilians

M.P.2. Evidence of the crimes being committed in a widespread and systematic fashion

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1532-1533:

1532. The Chamber observes that there is no direct evidence demonstrating that Nizeyimana ordered or authorised this particular killing. Notwithstanding, the Chamber considers it significant that it occurred on the same day when Nizeyimana ordered ESO soldiers manning a roadblock just down the road to kill two Tutsis. Indeed, the Chamber has no doubt that the Hotel Faucon roadblock was among a network of geographically proximate roadblocks manned by ESO soldiers – including those at the Gikongoro / Cyangugu and Kigali roads junction and at Chez Bihira – that were turned towards the task of identifying and eliminating Tutsis, at least by the last third of April 1994.

1533. In the Chamber’s view, the open and notorious manner in which Tutsis were being targeted at these roadblocks, which were only a short distance apart, cannot reasonably be understood as coincidence. The only reasonable inference is that the instructions Nizeyimana issued at Gikongoro / Cyangugu and Kigali roads junction were necessarily transmitted and consistent with those issued to the Hotel Faucon roadblock down the road. Nizeyimana’s proven conduct in relation to killings and attack at the Gikongoro / Cyangugu and Kigali roads junction barrier is sufficient to establish that he similarly approved of and authorised the killings of Tutsi at the Hotel Faucon roadblock as well, which, by implication, included Pierre Claver Karenzi. The Chamber has no doubt that the ESO soldier who killed Karenzi did so knowing he had the full support of Nizeyimana. Given his considerable authority and high rank within the ESO’s hierarchy, such approval and authorisation significantly and substantially contributed to this killing. The Chamber also considers that this conduct establishes that Nizeyimana possessed genocidal intent and was aware of the physical perpetrator’s genocidal intent as well.

M.P.3. Evidence of the duration of the period over which crimes being committed

M.P.3.1. Evidence of the crimes being committed over a long period of time

M.P.4. Evidence of the effective implementation of cease-fire agreement/complaints

M.P.4.1. Evidence of the reduction of fire after cease-fire agreements or after complaints were lodged

M.P.4.2. Evidence of the speed of implementation of cease-fire agreements

M.P.5. Evidence of the members of armed forces being well-coordinated

M.P.5.1. Evidence of highly co-ordinated attacks from different locations

M.P.6. Evidence of resume or increase of fire when demands from military authorities were not met

M.P.7. Evidence of the use of certain types of weapons or the sheer amount of ammunition fired without direct military purpose

M.P.8. Evidence of a campaign of sniping and shelling attacks against civilians

M.P.8.1. Evidence of the frequency of the sniping and shelling attacks against civilians

M.P.8.2. Evidence of the intensity of the sniping and shelling attacks against civilians

M.P.8.3. Evidence of the geographical spread of the sniping and shelling attacks against civilian

M.2.1.2. Evidence of orders issued by the suspect

ICC, The Prosecutor v. Charles Ble Goude , ICC-02/11-02/11, Decision on the confirmation of charges (PTC), 11 December 2014, para. 111-113:

"111. With respect to the latter, the Chamber notes that on 19 March 2011 Charles Ble Goude publicly appealed to the youth to enrol in the army. He indicated that the purpose of his call was to legitimise their fight and their taking up weapons on behalf of Laurent Gbagbo. On 21 March 2011, the youth responded massively by gathering at the General Staff, but no integration of new recruits into the armed forces actually took place.

"112. In addition to the calls to recruit the youth into the army, during this time period, Charles Ble Goude also undertook other activities aimed at the mobilisation of the youth for the struggle to preserve power. On 26-27 March 2011, a mass rally was held at the Place de la Republique in Plateau in order to mobilise the pro-Gbagbo youth. There is evidence that youth in Abidjan were increasingly armed at the time, and that the violence against perceived supporters of Alassane Ouattara, in particular at roadblocks, intensified. There is also evidence which links such violence to the public appearances of Charles Ble Goude.

113. According to the evidence, these activities, which were primarily led by Charles Ble Goude, were coordinated with Laurent Gbagbo and the inner circle. For example, there is evidence that the call to the youth to enrol in the army was coordinated with Laurent Gbagbo and the inner circle. In addition, on 18 March 2011 Laurent Gbagbo issued a statement through his spokesperson in which he called on Ivorians to take greater responsibility and for stronger collaboration between citizens and security forces, so that all suspect presences could be neutralised, and on 9 April 2011 a government communique was issued, stating, inter alia, that the President was calling on the people to continue the resistance."

Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-A, Judgment (AC) 29 September 2014, paras.195-196, 275-276:

"195. The Appeals Chamber considers that Nizeyimana has failed to demonstrate that no reasonable trier of fact could have concluded that Nizeyimana authorized the killing when considering the evidence that: (i) Nizeyimana ordered Bizimana and Gakwerere to take action with respect to Gicanda;⁶³⁰ (ii) following the abduction of Gicanda, the soldiers communicated by radio and stopped at the ESO before continuing on to kill Gicanda^;631 (iii) Bizimana subsequently reported to Nizeyimana that Gicanda had been killed and stated “Mission accomplished. We killed Rose Gicanda”;⁶³² and (iv) Bizimana did not try to hide the killing from his superiors but rather boasted about it openly at a bar.⁶³³Further, the Trial Chamber reasonably considered that its conclusion was bolstered by Nizeyimana’s position, his closeness with Bizimana, the fact that Bizimana had committed crimes upon his orders days earlier, and that there was no evidence that Nizeyimana reported the crime despite knowing of it.⁶³⁴

630. Trial Judgement, paras. 470, 491, 514.

631. Trial Judgement, paras. 460-463, 512.

632. Trial Judgement, para. 507. See also Trial Judgement, paras. 506, 508.

633. Trial Judgement, para. 513.

634. Trial Judgement, paras. 511, 515.

196. In light of the foregoing, the Appeals Chamber finds that Nizeyimana has failed to demonstrate that there was another reasonable conclusion available from the evidence which favoured him and therefore dismisses his arguments."

"275. While the factors relied upon by the Trial Chamber could reasonably have given rise to the inference that Nizeyimana approved of or authorized the killing of Tutsis at the Hotel Faucon roadblock, and therefore Karenzi’s killing, the Appeals Chamber is not convinced that it was the only reasonable inference available from the evidence. Unlike the killing of Remy Rwekaza and Beata Uwambaye and the attack on Witness ZAV, where the Trial Chamber found that Nizeyimana was present and ordered the killings,⁸⁵⁷ there is no direct evidence of Nizeyimana’s presence or involvement at the Hotel Faucon roadblock⁸⁵⁸or the killing of Karenzi specifically. While the Trial Chamber was entitled to rely on circumstantial evidence, the mere facts that these roadblocks were located close to one another and a similar pattern of killings was occurring at those roadblocks are insufficient to establish, as the only reasonable inference, that Nizeyimana’s orders to kill two Tutsis at the Gikongoro/Cyangugu and Kigali roads junction roadblock “were necessarily transmitted and consistent with those issued at the Hotel Faucon roadblock”.⁸⁵⁹There is no evidence, direct or circumstantial, of such a transmission from one roadblock to another. The Appeals Chamber finds that other reasonable inferences can be drawn from the evidence, including that the ESO soldier who killed Karenzi acted under the direct instructions of a superior present at the Hotel Faucon roadblock, or that he did so on his own initiative. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in concluding that Nizeyimana contributed to the killing of Karenzi. It therefore need not consider the remainder of Nizeyimana’s arguments in relation to this event.

857. See Trial Judgement, paras. 1519, 1520.

858. The Trial Chamber found that Witness ZBH’s evidence that Nizeyimana issued orders at the Hotel Faucon roadblock was “far from dispositive”, particularly as it lacked sufficient details concerning when this might have taken place, and is at odds with the witness’s prior confession in 2003. Trial Judgement, para. 838.

859. See Trial Judgement, para. 1533.

276. For the foregoing reasons, the Appeals Chamber grants Nizeyimana’s Twenty-Sixth Ground of Appeal and reverses his convictions for genocide, murder as a crime against humanity and as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II in relation to the killing of Pierre Claver Karenzi at the Hotel Faucon roadblock around 21 April 1994. The impact of these reversals, if any, on sentencing will be considered in the relevant section below. The Appeals Chamber dismisses Nizeyimana’s Twenty-Fifth, Twenty-Seventh, and Twenty-Eighth Grounds of Appeal, and Forty-Second and Forty-Third Grounds of Appeal, in part."

M.P.9. Evidence of the suspect's knowledge of crimes committed by forces under his command

M.P.9.1. Evidence of complaints about the crimes addressed to the suspects

M.P.10. Evidence of the forces under the command of the suspect being well functioning and disciplined

M.P.10.1. Evidence of the efficient and effective the reporting and monitoring systems of the forces under the command of the suspect

M.P.11. Evidence that the forces had acted within the framework of the suspect's orders

M.P.12. Evidence of oral orders being issued on a daily basis by the suspect or the chain of command

M.P.12.1. Evidence that the suspect ended his morning and evening briefings at the Corps command by issuing oral instructions and orders

M.P.13. Evidence of the crimes being committed in a widespread and systematic fashion

M.P.14. Evidence of the crimes being committed over a long period of time

M.P.15. Evidence of the crimes being committed in a similar pattern

M.P.16. Evidence of the content of the orders

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1519-1520, 1524:

1519. In its factual findings, the Chamber concluded that Nizeyimana ordered ESO soldiers to kill Remy Rwekaza and Witness ZAV, both Tutsis, at the Gikongoro / Cyangugu and Kigali roads junction roadblock, on or about 21 April 1994. The soldiers shot and killed Rwekaza. Witness ZAV was shot, but survived, and the Chamber has concluded that he suffered serious bodily harm. Likewise, the Chamber has found that Nizeyimana ordered ESO soldiers to kill Beata Uwambaye, a Tutsi, at the same barrier around 5 May. The soldiers carried out Nizeyimana’s instructions and killed Uwambaye. In all instances, the victims were in civilian clothing and unarmed."

1520. Through his presence and orders at the roadblock, Nizeyimana substantially and significantly contributed to the killings of Remy Rwekaza and Beata Uwambaye, as well as the shooting of Witness ZAV. His position of authority among the relatively young ESO soldiers and his instructions to execute these Tutsis played a decisive role in these crimes. Indeed, as it relates to the incident of 21 April 1994, Nizeyimana’s contribution of stopping Rwekaza and Witness ZAV after they were allowed through the roadblock, returning them to the barrier and then ordering their execution was a necessary condition to the ensuing murder and assault committed by the ESO soldiers."

1524. The Chamber concludes that Nizeyimana is responsible, pursuant to Article 6 (1) of the Statute, for ordering the killing of Remy Rwekaza and Beata Uwambaye and causing serious bodily and mental harm to Witness ZAV. The facts equally support the conclusion that Nizeyimana participated in a basic joint criminal enterprise to kill Tutsis at this roadblock. However, the Chamber considers that ‘ordering’, which is also a direct form a responsibility, most appropriately captures Nizeyimana’s criminal participation in these specific events."

M.P.17. Evidence of the general context in which the crimes perpetrated fit

M.2.2. The order was given to a subordinate or other person over whom the suspect was in a position of authority.

A. Legal source/authority and evidence :

Prosecutor v. Ephrem Setako, Case No. ICTR-04-81-A, Judgement (AC), 28 September 2011, para. 240:

"240. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence.539 A person in a position of authority may incur responsibility for ordering if the order has a direct and substantial effect on the commission of the illegal act.540 No formal superior-subordinate relationship between the accused and the perpetrator is required.541 The authority envisaged by ordering under Article 6(1) of the Statute may be informal or of a purely temporary nature.542 It is sufficient that there is proof of a position of authority on the part of the accused that would compel another person to commit a crime.543 Whether such authority exists is a question of fact.544

539 See, e.g., Kalimanzira Appeal Judgement, para. 213; Semanza Appeal Judgement, paras. 361, 363.

540 See Renzaho Appeal Judgement, para. 315; Nahimana et al. Appeal Judgement, paras. 481, 492; Gacumbitsi Appeal Judgement, para. 185; Kamuhanda Appeal Judgement, para. 75; Kayishema and Ruzindana Appeal Judgement, para. 185.

541 Nahimana et al. Appeal Judgement, fn. 1162; Semanza Appeal Judgement, para. 361; Kordi} and Čerkez Appeal Judgement, para. 28; Boškoski and Tarčulovski Appeal Judgement, para. 164.

542 Semanza Appeal Judgement, para. 363.

543 Semanza Appeal Judgement, para. 361; Boškoski and Tarčulovski Appeal Judgement, para. 164.

544 Semanza Appeal Judgement, para. 363.

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, paras. 197,201,202:

"197. With regard to Athanase Seromba’s responsibility for ordering genocide as well as extermination, whilst agreeing with the Trial Chamber that the superior-subordinate relationship required to establish this form of participation in a criminal offence does not need to be formal, the Prosecution contests the Trial Chamber’s finding according to which such relationship can only be established by proving "effective control" over the subordinates.464 In the Prosecution’s opinion, such an approach constitutes an error of law since it shows confusion between Articles 6(1) and 6(3) of the Statute.465 Trial Chamber’s acceptance of the evidence of Witness CDL shows that nothing was done without the consent of Athanase Seromba.469"

"201. The Appeals Chamber recalls that

[…] superior responsibility under Article 6(3) of the Statute is a distinct mode of responsibility from individual responsibility for ordering a crime under Article 6(1) of the Statute. Superior responsibility under Article 6(3) of the Statute requires that the accused exercise "effective control" over his subordinates to the extent that he can prevent them from committing crimes or punish them after they committed the crimes. To be held responsible under Article 6(1) of the Statute for ordering a crime, on the contrary, it is sufficient that the accused have authority over the perpetrator of the crime, and that his order have a direct and substantial effect on the commission of the illegal act.479

202. In light of the above, the Appeals Chamber finds that the Trial Chamber erred in law when it considered effective control as an element necessary to prove that Athanase Seromba participated in the crimes by "ordering", within the meaning of Article 6(1) of the Statute."

471 AT. 26 November 2007 p. 38.

472 Seromba’s Respondent’s Brief, para. 71. See also id., paras. 73, 74.

473 AT. 26 November 2007 p. 16.

474 AT. 26 November 2007 pp. 22, 25.

475 Seromba’s Respondent’s Brief, para. 72. Athanase Seromba also submits that he was not the leader of those who had attacked the parish (AT. 26 November 2007 p. 17).

476 AT. 26 November 2007 pp. 20, 29.

477 Seromba’s Respondent’s Brief, para. 72.

478 AT. 26 November 2007 p. 26.

M.P.18. 479 Kamuhanda Appeal Judgement, para. 75 (footnotes omitted).Evidence of the suspect’s order addressed to a military unit regardless of the unit being under the direct authority of the suspect.

M.P.18.1. Evidence of the suspect’s order proclaiming his or her authority over a military unit.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 442-443, 452, 519-521:

"a. The accused’s control over the Viteska brigade and the Home Guard (Domobrani)

442. There is no doubt whatsoever that the Viteska Brigade was directly answerable to the accused ⁹²² . The order of 16 April, which triggered the attack, again stated this ⁹²³.

443. The Domobrani also were under the direct orders of the accused ⁹²⁴ . On 6 April at 10:00 hours, he called a meeting of all the Domobrani commands of the villages of Travnik, Vitez, Novi Travnik, Kresevo, Fojnica, Kakanj, Vares, ?ep ce, Zavidovici, Maglaj and Usora so that they could work out the arms and materiel which each had at its disposal. The accused stated again, in the order calling the meeting, that "the commands of the Domobrani units are responsible to me for the conduct of the command" ⁹²⁵."

"923 - The accused said again in order D269 that "Personally responsible to me for the execution of the given assignment is the commander of the HVO Brigade Vitez, Mario Cerkez".

924 - See in particular: P769: document issued by the Croatian Defence Council in Mostar (signed by General Milivoj Petkovic) dated 8 February 1993 setting up the national guard. Paragraph 1.7 of that document states: "after being formed, the units shall be under the command of the appropriate operations zone commander". According to that document, the Domobrani were formed in order to support the regular army forces. P770 (p. 3): this document, issued by the accused and dated March 1993, stated that the Domobrani were directly responsible to the operational zone commander. P773, order of Zvonko Vukovic dated 13 March 1993, para. 2: "Command and leadership of the home guard shall be exercised by the provisional commands of the home guard units of the municipalities. These units and commands shall be under the command of the commander of the Central Bosnia Operative Zone".

925 - P777."

"452. The Trial Chamber further finds that the accused gave orders with regard to the special units. Thus, on 26 September 1992, the accused gave an order providing for training for the special units⁹⁴³. Accordingly, an order of 16 January 1993 was addressed to several special units, including the Vitezovi, and to the Military Police 944 . Order 01-1-217/93 dated 18 January 1993 was addressed to all commands of all the brigades of the HVO and to the independent units of the Central Bosnia Operative Zone⁹⁴⁵ . A number of orders of March 1993 were addressed to the HVO brigades and to the special units, in particular the Vitezovi, and the Military Police Fourth Battalion⁹⁴⁶ . General Blaskic stated as follows in one of his orders: "brigade and independent unit commanders shall be responsible to me for carrying out the order" 947 . Other orders, dating from June 1993, which were addressed by the accused to the independent units, were submitted to the Trial Chamber 948 . The three orders submitted by the Defence as described above constitute further examples."

"943 - P456/2 and witness Marin, PT pp. 12901-12903.

944 - P456/6 of 16 January 1993, 11:40 hours. General Blaskic explained that those units had been temporarily assigned to him for those combats on the basis of an order from General Petkovic dated 15 January 1993 (Witness Blaskic, PT pp. 18156-18157)

945 - D208; witnesses Blaskic, PT p. 18125 and Marin PT, p. 12090.

946 - D42, D211, P456/16; witnesses Blaskic, PT p. 18358; Marin PT p. 12110: order of 17 March 1993 sent to commanders of the HVO brigades, to independent units, to the Vitezovi, to the Military Police in Vitez and to the HVO civilian representatives (for information). D358: order of 18 March so as to ensure that ECMM had freedom of movement. That order was addressed to ECMM representatives in Zenica for information, to commanders of the HVO brigades, to commanders of independent units, to the commander of the Military Police Fourth Battalion and to the person in charge of the police department in Travnik (witness Blaskic, PT p. 18366)

947 - D42, D211, P456/16 (emphasis added).

948 - P422, point 4: request to HVO brigades and to independent units, including the Military Police, the Vitezovi and the Zutis, to report any developments in the situation on the ground and on the efforts taken to achieve a cease-fire agreement (witness Morsink, PT, p. 9883). P423 and P443: orders given by Blaskic to all the commanders of HVO brigades, to the Military Police Fourth Battalion and to the special unit of the Vitezovi (witness Morsink, PT, p. 9884)."

"a. The accused’s orders or reports as evidence of a relationship of subordination

519. During the course of 1993, the accused drafted many orders addressed, amongst others, to the Vitezovi. According to General Blaskic, the relationship of subordination between the Vitezovi and the command of the Central Bosnia Operative Zone applied only for the duration of the assigned mission for each order given to the Vitezovi . The relationship of subordination did not apply for the whole of the period between 16 April 1993 and the Washington Accords. During that period, the Vitezovi were solely assigned to the CBOZ command without being permanently legally subordinate to it, according to the accused ¹¹³⁶.

520. The Trial Chamber is unable to accept the distinction made by the accused. By analyzing General Blaskic’s orders to the Vitezovi chronologically, the Trial Chamber was able to conclude that he exercised effective control over the Vitezovi for the whole of 1993 at least, or in any event as from 19 January ¹¹³⁷. The Trial Chamber considers that the distinction between the notion of temporary subordination and that of permanent attachment is a legal fiction, at least as far as the accused’s ability to give orders directly to the Vitezovi or to send a report on their potentially criminal activities to the competent authorities is concerned.

"1136 - Witness Blaškic, PT pp. 18111-18112.

1137 - P456/6; P456/16; D42; D267; P456/26; D77; D359; P456/27; D78; D39; P456/30; P456/31; P456/32; P456/33; P456/34; P456/37; P456/40; D384; P456/41; D389; D391. According to General Blaškic, the Vitezovi unit was broken up on 15 January 1994."

[B. Evidentiary comment:]

M.P.19.1. Evidence of the content of the order with regard to the organisation of the troops.

M.P.19.2. Evidence of the content of the order with regard to the conduct of the troops.

M.P.19.3. Evidence of the content of the order asking to organise the lines of defence.

M.P.19.4. Evidence of the content of the order asking to establish a record of conscript.

M.P.19.5. Evidence of the content of the order asking to carry out a shooting test.

M.P.19.6. Evidence of the content of the order asking to draw up thorough assessments of the situation.

M.P.19.7. Evidence of the content of the order asking to submit a list of soldiers killed during the fighting.

M.P.19.8. Evidence of the content of the order asking to submit the on the demographic structure of the pre-war populations by zone of responsibility in the form of a report.

M.P.19.9. Evidence of the content of the order asking to prepare a combat action and to hold the front line.

M.P.19.10. Evidence of the content of the order with regard to the general conduct management of the troops (e.g., asking to protect civilian population, to ensure the free access of the ICRC, etc.).

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 522-525:

"a. The accused’s orders or reports as evidence of a relationship of subordination

[…]

522. By analysing the content of the orders, the Trial Chamber was able to confirm that General Blaskic exercised effective control over the Vitezovi and that there was a permanent relationship of subordination between Blaskic and those troops. The Trial Chamber notes that the orders often related to aspects of organisation ¹¹³⁸ and conduct ¹¹³⁹ of the troops and therefore, owing to their content, were of a permanent nature, and that in any event they clearly went beyond the context of a specific operation.

523. The Vitezovi seemed to have participated to the same extent as the regular HVO troops in the implementation of the troops’ general organization. On 13 February 1993, General Blaskic asked the Vitezovi, inter alia, to organize their lines of defence, to establish "a complete record of conscripts", to carry out "a shooting test with the civilian and military police units" and to draw up additional and thorough assessments of the situation in cooperation with HVO chairmen, Heads of the Offices for defence matters and Commanders of police stations in the brigade’s zone of responsibility ¹¹⁴⁰. On 3 May 1993, General Blaskic asked the Vitezovi to submit a list of the Croatian soldiers killed during the fighting with the ABiH ¹¹⁴¹ and, on 26 May 1993, he enjoined those same troops to submit the data on the demographic structure of the pre-war populations by zone of responsibility in the form of a report ¹¹⁴².

524. The Vitezovi also received orders with regard to the general conduct management of the troops. On 21 April 1993, General Blaskic asked the HVO regular troops as well as the special intervention forces to protect the civilian population and to ensure that the ICRC had free access and that the injured received medical treatment ¹¹⁴³. On 17 June 1993, General Blaskic demanded that arrests of civilians during military actions cease and asked for religious effects to be protected. On that occasion, he stated that the brigade and independent unit commanders should be answerable to him for implementing that order and asked those commanders to let him know that it was being properly applied by way of regular reports ¹¹⁴⁴.

525. More fundamentally, the Vitezovi obeyed preparatory orders given by General Blaskic. On 16 January 1993, the accused gave the Vitezovi an order to intensify the preparations for combat at the highest level of all the HVO formations in the CBOZ ¹¹⁴⁵. On 15 April 1993, General Blaskic enjoined the Vitezovi to prepare for an action by the ABiH troops from Stari Vitez towards the Vitez headquarters, in the event that there would be a break through the front line. He therefore ordered the Vitezovi to hold a front line between Stari Vitez and his headquarters, a few hundred meters away from the Muslim quarter ¹¹⁴⁶.

[B. Evidentiary comment:]

M.P.20. Evidence showing that a military unit not being under the direct authority of the suspect actually obeyed the orders.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 525:

M.P.21. Evidence of the high level of organisation of the troops.

M.P.21.1. Evidence of the clear hierarchy of the military units.

M.P.21.2. Evidence of the clear division of the area of activity of each military unit.

M.P.21.3. Evidence of precise organisation charts defining every member’s tasks and areas of responsibility.

M.P.22. Evidence of the high level of the training of the troops.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 446:

"446. Yet the accused congratulated himself on several occasions on how perfectly well organised and controlled his troops were ⁹²⁹. The witness Mujezinovic also stated that in Vitez, the HVO had very well organised and very well armed troops ⁹³⁰. According to several international observers, the HVO had very precise organisation charts defining everyone’s tasks and areas of responsibility. The hierarchy seemed very clear, with each unit having a number, an area of activity and a grade ⁹³¹. The witness Bower stated that the military personnel were generally well trained since they had been trained in the JNA, which provided for two years of military service ⁹³²."

"929 - See in particular P647, dated 21 October 1992: "the activities of our forces are organised, fully co-ordinated and controlled by the command"; P456/32, dated 7 May 1993: "command and control function properly and all missions precede in a planned fashion according to orders, with detailed knowledge of the situation, full co-ordination and control".

930 - Witness Mujezinovic, PT of 20 August 1997 p. 1742.

931 - PT p. 23689.

932 - Witness Bower, PT p. 9782."

M.P.23. Evidence of sufficient means of communication.

M.P.23.1. Evidence of a fax machine.

M.P.23.2. Evidence of access to a local telecommunication network.

M.P.23.3. Evidence of access to an intelligence network.

M.P.23.4. Evidence of access to satellite communication system.

M.P.23.5. Evidence of radio equipment.

M.P.23.6. Evidence of the troops’ control over all the communication centers.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 447-448:

"447. The Defence further maintained that the accused had insufficient means of communication. Being blocked in the basement of Hotel Vitez, he claimed he had only two telephones and a packet-transmission system, which did not enable him to maintain constant contact with all the troops deployed on the ground.

448. According to the witness Duncan, on the contrary, the accused had a fax machine available to him together with access to a local telecommunication network⁹³³. He also had access to an intelligence network and a Motorola satellite communication system⁹³⁴. An ECMM observer accordingly found that the communications facilities available to the Bosnian Croat army were generally relatively good⁹³⁵. According to the witness Morsink, the HVO controlled all the communication centres covering the municipality of Vitez and decided who could have access to the network⁹³⁶. According to that witness, the HVO officers carried mobile radios⁹³⁷of the sort carried by Croatian soldiers during the attack on 16 April. Witness Baggesen, for his part, mentioned that radio equipment was present at the Hotel Vitez. ⁹³⁸"

"933 - Witness Duncan PT pp. 9062-9063.

934 - Witness Duncan PT p. 9062-9063.

935 - PT p. 23712.

936 - Witness Morsink, PT pp. 9908-9909. According to the witness Baggesen (PT of 21 August 1997, pp. 1878-1879), the postal services were under ABiH control in Zenica and HVO control in Travnik, Vitez and Kiseljak.

937 - Witness Morsink, PT p. 9908-9909.

938 - Witness Baggesen, PT of 22 August 1997, p. 1895."

[B. Evidentiary comment:]-*9-

M.P.24. Evidence of a military unit being located in a geographic area of responsibility of the suspect.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 451:

"451. The Trial Chamber first notes that it is inconsistent with military principles for the commander of an operational area not to have authority over all the troops acting within the confines of his area of responsibility. Witness Baggesen explained, for example, that "there was no doubt that those troops were commanded by General Blaskic. This is because, normally in the army, when a person is in command of a specific area of responsibility, he commands ipso facto all the military units located in that area" ⁹⁴¹. The accused himself admitted that that organisation was contrary to the principle of unity of command, albeit that principle was applied in the JNA ⁹⁴²."

"941 - Witness Baggesen, PT of 22 August 1997, pp. 1901-1902.

942 - Witness Blaskic, PT p. 18070: "in the JNA, you had unity of command and unity of responsibility, which meant that in one single area there is a single commander and that he commands all forces. For instance, a commander of a brigade in the JNA had direct command over the military police company". See also PT p. 18074."

M.P.25. Evidence showing the effectiveness of the suspect’s command.

M.P.25.1. Evidence of a military unit being an integral part of the troops.

M.P.25.2. Evidence of an order attaching a military unit to the suspect and forbidding any independent action.

M.P.25.3. Evidence showing that even a superior of the suspect not being able to give orders to a military unit without the suspect.

M.P.25.4. Evidence of the frequency of the meetings between the commander of a military unit and the suspect.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 526-528:

"b. The other evidence that there existed a relationship of subordination

526. Some independent observers pointed out how effective General Blaskic’s command of the Vitezovi was¹¹⁴⁷. The witness Whitworth stated that those units formed an integral part of the HVO’s strategy in the Lasva Valley and that they "came under the command of General Blaskic and were used […] in actually carrying out the HVO’s military intention, establishing , strengthening and regaining ground lost to the ABiH" ¹¹⁴⁸ .

527. In the Trial Chamber’s view, the Vitezovi came under the accused’s command responsibility regardless of the legal form of their link with the Defence Ministry . An order dated 19 January 1993 ¹¹⁴⁹drawn up by Lieutenant-General Milivoj Petkovic, the HVO Chief-of-Staff, indicated that the Vitezovi were "attached in all matters" to General Blaskic and that any independent action on their part was forbidden. A witness heard by the Trial Chamber further explained that he and General Blaskic were the only two authorities who could have commanded the Vitezovi¹¹⁵⁰. The witness acknowledged that the Defence Minister could theoretically have given the Vitezovi orders, but stated that, in practice, he considered that it would have been impossible for the Minister to give orders without General Blaskic or himself knowing about them ¹¹⁵¹. He stated that the Vitezovi were attached to the operative zone and that he had never received any report saying that it was practically impossible to command those units ¹¹⁵²:

528. Lastly, the commander of the Vitezovi, Darko Kraljevic, explained in a letter dated 15 April 1993 that his troops came under "the unified system of command and control in the SB /Central Bosnia/ OZ /Operative Zone/" ¹¹⁵⁴. The frequency of the meetings between the accused and the commander of the Vitezovi is evidence that such a system existed. On 15 April 1993, Darko Kraljevic went to the Hotel Vitez and had a meeting with Tihomir Blaskic ¹¹⁵⁵. The witness Kavazovic stated that he saw Darko Kraljevic three times at the Hotel Vitez in June, July and September 1992 1156 . Likewise, witness HH testified that Darko Kraljevic often went to the Hotel Vitez for meetings with General Blaskic ¹¹⁵⁷."

"1147 - Witness Baggesen, PT of 22 August 1997, pp. 1901-1902 ; witness Buffini, PT pp. 5636-5637.

1148 - Witness Whitworth, PT p. 10237.

1149 - P666 "Protest" addressed to the Vitez TO and the 325th ABiH Brigade.

1150 - PT p. 24171.

1151 - PT p. 24171.

1152 - PT pp. 24186-24204.

1153 - PT pp. 24198-24199.

1154 - P456/20.

1155 - P276.

1156 - Witness Kavazovic, PT of 26 August 1997, pp. 2305-2306.

1157 - Witness HH, PT pp. 6809-6810."

[B. Evidentiary comment:]