Table of contents:
M.P.24.3. Evidence of the superiors failure to issue an order to stop the commission of the crimes.
M.P.25. Evidence of the superiors failure to speak to subordinates about the crimes.
M.P.26. Evidence of the superior being in denial of the commission of the crimes.
M.P.27. Evidence of the superiors participation in the crimes.
M.P.28.1. Evidence of the superiors failure to discipline subordinates.
M.P.28.2. Evidence of a subordinate being promoted rather than disciplined.
M.P.28.3. Evidence of the superiors failure to resist an attempt to usurp his or her authority.
M.P.29. Evidence of the superiors failure to speak to subordinates about the crimes.
M.P.30. Evidence of the superior creating an atmosphere of lawlessness.
M.P.31. Evidence of the superiors participation in the crimes.
M.P.32. Evidence of the superiors failure to initiate an investigation.
M.P.33. Evidence of the superiors failure to conduct a satisfactory investigation.
M.P.33.1. Evidence of failing to preserve and collect evidence.
M.P.33.2. Evidence of misrepresenting the truth.
M.P.34. Evidence of the superiors failure to report the crimes.
Element:
A. General evidentiary comment:
This standard of failure to act is arguably the same as the standard of failure to act for military commanders or persons effectively acting as military commanders. Accordingly, ICTY and ICTR jurisprudence on both commander and superior responsibility is indicated below.
Prosecutor v. Sefer Halilovic, Case No, ICTY-IT-01-48-T, Judgement (TC), 16 November 2005, para. 66:
"89. As noted above, what the duty to prevent entails in a particular case will depend on the superior’s material ability to intervene in a specific situation. In establishing individual responsibility of superiors military tribunals set up in the aftermath of World War II have considered factors such as the superior’s failure to secure reports that military actions have been carried out in accordance with international law,202 the failure to issue orders aiming at bringing the relevant practices into accord with the rules of war,203 the failure to take disciplinary measures to prevent the commission of atrocities by the troops under their command,204 the failure to protest against or to criticise criminal action,205 and the failure to insist before a superior authority that immediate action be taken.206 The Tokyo Trial held that a superior’s duty may not be discharged by the issuance of routine orders and that more active steps may be required.207"
204 The Tokyo Judgement, pp. 49,809. The Tokyo Judgement held with respect to the defendant Kimura that "[h]e took no disciplinary measures or other steps to prevent the commission of atrocities by the troops under his command", ibid.
205 High Command case, p. 623. In finding the defendant Hans von Salmuth responsible, the military tribunal held inter alia that "it appears that in none of the documents or the testimony herein that the defendant in anyway protested against or criticized the action of the SD or requested their removal or punishment", ibid. (emphasis added). Similarly, in the Hostage case the military tribunal found the defendant Wilhelm List responsible inter alia in the light of the fact that "[n]ot once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts", ibid., p. 1272.
206 The Tokyo Judgement p. 49, 791. The Tokyo Judgement found that the defendant Hirota (ibid.): was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented.
207 In particular, the Tokyo Judgement found that (ibid., p. 49, 80): The duty of an Army commander in such circumstances is not discharged by the mere issue of routine orders […]. His duty is to take such steps and issue such orders as will prevent thereafter the commission of war crimes and to satisfy himself that such orders are being carried out.
"1005. Nyiramasuhuko argues that by finding her responsible for ordering rapes and killings pursuant to Article 6(3) of the Statute, the Trial Chamber unreasonably convicted her for her direct participation in the crimes in a manner that is contrary to the concept of superior responsibility because it is intended to criminalise the failure of a person to act.2346 Specifically, Nyiramasuhuko asserts that “ t he Trial Chamber erred in illogically applying effective control standards in circumstances pertaining to responsibility under Article 6(1), since it is self-evident that a person cannot prevent or punish the execution of an order given by that person.”2347
2346. Nyiramasuhuko Notice of Appeal, paras. 5.7, 7.8, 7.10; Nyiramasuhuko Appeal Brief, paras. 755, 768, 929, 930, 932; Nyiramasuhuko Reply Brief, paras. 204, 206-208.
2347. Nyiramasuhuko Appeal Brief, para. 932.
1006. The Prosecution responds that the Trial Chamber acted in accordance with the jurisprudence by considering evidence of Nyiramasuhuko’s orders to the Interahamwe as indicative of her superior responsibility, and that such evidence may be used to establish responsibility pursuant to both Articles 6(1) and 6(3) of the Statute.2348
2348. Prosecution Response Brief, paras. 427-430.
1007. Nyiramasuhuko fails to demonstrate that the Trial Chamber erred in relying on her orders to the Interahamwe and their compliance with these orders as evidence establishing her superior responsibility for these crimes. She further does not substantiate her contention that it is improper to find an accused criminally responsible as a superior pursuant to Article 6(3) of the Statute where his conduct also meets the requirements of other forms of responsibility under Article 6(1) of the Statute and to convict an accused on this basis when a conviction under Article 6(1) of the Statute has not been entered.2349 Nyiramasuhuko’s contention in this regard is dismissed without further consideration.
2349. Nyiramasuhuko fails to refer to any relevant jurisprudence in support of her contention. See Nyiramasuhuko Appeal Brief, para. 929, referring to The Prosecutor v. Protais Zigiranyirazo, Case No. ICTR-2001-73-R72, Decision on Defence Motions (i) Objecting to the Form of the Third Amended Indictment and (ii) Requesting the Harmonisation or Reconsideration of the Decision of 2 March 2005, 22 September 2005, para. 5. See also Nyiramasuhuko Reply Brief, para. 207.
1008. Accordingly, the Appeals Chamber dismisses Nyiramasuhuko’s contentions that the Trial Chamber erred in finding her responsible as a superior for failing to prevent the killing of refugees abducted from the Butare Prefecture Office perpetrated by Interahamwe following her orders and punish the Interahamwe who committed them and in convicting her pursuant to Article 6(3) of theStatute in relation to the rapes committed by the Interahamwe following her orders at the Butare Prefecture Office."
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 422:
"422. Hence, when the Accused was informed by General Kadijevic around 0700 hours of the ECMM protest, that put the Accused directly on notice of the clear likelihood that his artillery was then already repeating its earlier illegal shelling of the Old Town.1219 […] In combination they give rise, in the Chamber’s finding to a strong need to make very expressly clear, by an immediate and direct order to those commanding and leading the attacking forces, especially the artillery, the special status of the Old Town and the existing prohibitions on shelling it, and of the limitations or prohibition, if any, on shelling the Old Town intended by the Accused on 6 December 1991. This should have been starkly obvious. The evidence contains no suggestion whatever that any such order was issued by the Accused […]"
"1219. See supra, para 418. […]"
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:
"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons:
(ii) He failed to take any appropriate measures to stop the guards from beating and mistreating detainees when, as the warden and their superior, he was obliged to do so. In particular, the Accused failed to order the guards to stop beating detainees and to take appropriate measures so that other individuals from outside the KP Dom would not be in a position to mistreat detainees.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 421, 422:
"421. It remains relevant, however, that nothing had been done by the Accused before the attack on Srdj commenced to ensure that those planning, commanding and leading the attack, and especially those commanding and leading the supporting artillery, were reminded of the restraints on the shelling of the Old Town, or to reinforce existing prohibition orders. […]
422. The extent of the Accused’s existing knowledge of the October and November shelling of the Old Town,1220 of the disciplinary problems of the 3/472 mtbr1221 and of its apparent role, at least as revealed by Admiral Jokic’s November investigation, in the November shelling of Dubrovnik, especially the Old Town,1222 and of his failure to clarify the intention of his order to attack Srdj in regard to the shelling of Dubrovnik or the Old Town are each very relevant."
"1220. In particular, there is evidence that the events in October and November 1991 received broad media coverage. See Exhibits P215, P216 and P19. On 9 November 1991, Per Hvalkof, the Deputy Head of the ECMM Regional Centre in Split, sent two letters to the Accused, informing him that the ECMM monitors in Dubrovnik had reported shelling in the Old Town, T 2143; see Exhibit P61, tab 10 and tab 11. See also Exhibit P62, tab13, Exhibit P61, tab 14; Exhibit P61 tab 15; Per Hvalkof, T 2151-2152; 2154.
1221. The Chamber heard evidence that in the period October to December 1991 there were problems with discipline in the units of the 2 OG, in particular, incidents of unauthorised opening of fire, refusal to carry out orders, looting, arson and drinking. An order signed by the Chief of Staff of the 9 VPS Warship-Captain Zec on 8 October 1991 referred to incidents of impermissible conduct of soldiers including "wanton arson and destruction of facilities, plundering, violent behaviour, drunkenness and refusal to carry out orders." (Exhibit P105; See also Admiral Jokic, T 3873-3875) Another order, issued by Admiral Jokic on 31 October 1991 required all units subordinated to the 9 VPS to take specific measures to improve discipline. (Exhibit P107, Admiral Jokic, T 3877-3880; T 4512-4513) The reasons for the issuance of this order, as indicated in the order itself, were the observations by organs of the 9 VPS that "orders were not getting through to those ultimately carrying them out" and that there were "unlawful acts, wilfulness (sic), abuse and failure to follow and carry out orders" (Exhibit P107, p 1). See also Exhibit P108.
1222. Admiral Jokic gave evidence that he conducted an investigation into the shelling of the Old Town in November 1991, which led him to conclude that the 3/472 mtbr, under the command of Captain Kovacevic, and possibly the artillery of the 472 mtbr, had been at the time in a position to shell the Old Town of Dubrovnik, T 3996-3998. Admiral Jokic testified that he then expressly requested the removal of both the commander and the chief of staff of the 472 mtbr before the Accused’s chief of staff, Admiral Kandic and the Accused. His request was not approved, T 3999."
[B. Evidentiary comment:]
M.P.24.3. Evidence of the superior’s failure to issue an order to stop the commission of the crimes.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 429:
"429. In the Chamber’s finding, first, the failure of the Accused to order the cessation of the attack on Srdj at the same time as the ceasefire order was given to most JNA artillery units, had what was a virtually inevitable consequence in the circumstances. As the JNA infantry attack on Srdj was still being maintained, the Croatian defensive artillery in Dubrovnik had need to continue their support of the desperately situated Croatian defenders on Srdj. Without Croatian mortar fire on the attacking JNA forces surrounding the fort, it seems inevitable that Srdj would have fallen to the JNA. The Chamber would note that, to the Croatian forces, the continued attack on Srdj no doubt appeared in itself to be a breach of the ceasefire by the JNA. The effect of the continued Croatian artillery firing on the attacking JNA troops at Srdj, inevitably, was that the JNA artillery continued to fire."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:
"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons:
(ii) He failed to take any appropriate measures to stop the guards from beating and mistreating detainees when, as the warden and their superior, he was obliged to do so. In particular, the Accused failed to order the guards to stop beating detainees and to take appropriate measures so that other individuals from outside the KP Dom would not be in a position to mistreat detainees.
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:
"117. Far from ordering guards to cease the assaults, the accused sometimes even took part in them, as attested to by Witnesses L and M.229"
229 As seen previously, the testimony by Witnesses T and Dautovi} was not taken into consideration. For further details concerning these testimonies see infra III, B.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1565-66:
1565. Instead, Ngirumpatse chose to either use unreasonably vague language that completely ignored the unfolding genocide being perpetrated by his subordinates, or make unreasonably abstract requests that killings be stopped. Instead of ordering the Kigali Interhamwe to immediately stop massacring innocent Tutsi civilians, Ngirumpatse, the individual with ultimate authority over this group, squandered his first opportunity to prevent the killings by deliberately restricting his address to comments like: "opt for the path of security;" "see to other people’s security;" "leave the roads;" "thieves should stop stealing;" "instead of doing evil...provide security for others, especially the weak ones;" "we have dispatched people...to free the roads so that they could provide security for others instead of robbing and attacking them;" "we should fight those who attack us...not those who are not armed;" and "members must know that those...attacking them are the Inkotanyi...not the ordinary citizen."
1566. His only references to killings were: "no political party has ever asked its members to indulge in killing" and "killers should stop killing". While the latter literally requests an end to "killings", the Chamber considers that it falls markedly short of a reasonable measure for preventing an ongoing genocide. This is particularly the case when the person making the declaration is the individual with the ultimate authority over the perpetrators. When confronted with a situation where a superior is aware that his subordinates are committing genocide, there is no room for ambiguity when taking a measure to prevent the crime. In this regard, "killers should stop killing" is unreasonably ambiguous. If Ngirumpatse had been genuinely interested in taking a measure to prevent the genocide being committed by his subordinates, the only reasonable message he could have given is: "the Interahamwe must stop massacring Tutsis immediately". He did not give that message.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 429, 434:
"429. Secondly, the failure of the Accused to ensure that his ceasefire order for 1115 hours reached all active JNA artillery led to the continued firing by the 3/5 mtbr mortars on the northwestern parts of Dubrovnik. This also constituted a serious breach of the ceasefire by the JNA. In the face of this provocation, in such tense circumstances, continued Croatian artillery firing was inevitable. That in turn, had the practical effect of ensuring the resumption of full JNA artillery firing not long after 1115 hours.[…]
434. While the finding of the Chamber is that the Accused did not order that the attack on Srdj be stopped when he spoke to Admiral Jokic around 0700 hours on 6 December 1991, the Chamber would further observe that had he in truth given that order, the effect of what followed is to demonstrate that the Accused failed entirely to take reasonable measures within his material ability and legal authority to ensure that his order was communicated to all JNA units active in the attack, and to ensure that his order was complied with. This failure, alone, would have been sufficient for the Accused to incur liability for the acts of his subordinates pursuant to Article 7(3), even if he had ordered at about 0700 hours that the attack on Srdj be stopped."
[B. Evidentiary comment:]
M.P.25. Evidence of the superior’s failure to speak to subordinates about the crimes.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:
"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]
(iii) He failed to speak to his subordinates about the mistreatment of detainees."
M.P.26. Evidence of the superior being in denial of the commission of the crimes.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 430:
"430. The ongoing firing after 1115 hours continued until after 1500 hours, and even later. The evidence discloses no further action to stop the JNA firing while the infantry attack on Srdj continued. For much of the afternoon the Accused was in Belgrade with Admiral Jokic. Rather than there being active measures to stop the attack by those left in Command during his absence, a message, sent in his name but perhaps in his absence by his command, to Dubrovnik in the early afternoon purported to deny that there had been any shelling of the Old Town by JNA artillery since the 1115 hours ceasefire, and contended that any damage being suffered was being caused by the Croatian forces.1248 This highly provocative communication not only entirely misrepresented what was in truth occurring at that time, it precludes any inference of there being efforts then underway to cease JNA artillery firing, either on the orders of the Accused or by those left in command of the 2 OG during his absence in Belgrade."
"1248. Exhibit P23. Minister Rudolf, T 5602-5604."
M.P.27. Evidence of the superior’s participation in the crimes.
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:
"117. Far from ordering guards to cease the assaults, the accused sometimes even took part in them, as attested to by Witnesses L and M.229"
"229 As seen previously, the testimony by Witnesses T and Dautovi} was not taken into consideration. For further details concerning these testimonies see infra III, B."
Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, para. 79:
"79. The Appeals Chamber observes that a great portion of Ndahimana’s submissions before the Appeals Chamber is devoted to explaining the various measures that he took to prevent the attacks against the Tutsi refugees in Nyange Church, 203 or the measures that he took to punish before or while the 15 April attack was unfolding. 204 However, Ndahimana was not convicted for failure to prevent the crimes perpetrated by the communal policemen on 15 April 1994, but for his failure to punish the communal policemen for those crimes. 205 The Appeals Chamber recalls that failure to punish is a legally distinct concept and a separate basis for incurring criminal responsibility as a superior than failure to prevent. 206 A conviction on the basis of superior responsibility pursuant to Article 6(3) of the Statute due to a superior’s failure to punish his subordinates for their criminal conduct is based on the superior’s failure to take measures after the commission of the crimes, while a conviction for a superior’s failure to prevent crimes by subordinates is premised on the superior’s failure to take measures before the commission of the crimes. 207 The Appeals Chamber, therefore, fails to see how Ndahimana’s argument that he took measures to prevent the 15 April attack, even if accepted, would invalidate his conviction on the basis of superior responsibility under Article 6(3) of the Statute for failing to punish his culpable subordinates."
203 See Ndahimana Notice of Appeal, paras. 22, 23, 27-30; Ndahimana Appeal Brief, paras. 80-100, 148, 167, 168.
204 See Ndahimana Appeal Brief, paras. 166-168, 170, 171; Ndahimana Reply Brief, paras. 66, 69, referring to Ndahimana’s alleged request to the prefect on 11 April 1994, the steps he took to punish perpetrators of pre-15 April attacks, and his meeting with the prefect in the afternoon of 15 April 1994.
205 See Trial Judgement, para. 767.
206 See Hadzihasanović and Kubura Appeal Judgement, para. 259.
207 See Bagosora and Nsengiyumva Appeal Judgement, para. 642; Hadzihasanović and Kubura Appeal Judgement, para. 259; Blaškić Appeal Judgement, para. 83.
Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, paras. 761-762:
"761. According to established jurisprudence, the duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate’s crime if he acquires the knowledge that such crime is being prepared or planned, or has reason to know thereof. The duty to prevent and the duty to punish are two distinct legal obligations.
762. The Majority has considered the evidence of Witnesses Kayishema, Anicet Tumusenge and Witness ND13 that on 15 April 1994, after 2 p.m., Ndahimana went to request reinforcements from the préfet because Nyange church had been attacked several times, but that the préfet could not assist him. The gendarmes of the Kibuye gendarmerie camp had left to go to Kigali and there was no fuel or vehicles. As expressed elsewhere, the Majority does not believe the evidence allows it to infer what the actual purpose of Ndahimana’s travel to the préfecture was that day (Chapter III, Section 5.3.3). However, that the accused had knowledge that the church was being attacked and that he requested the help of gendarmes does not show that he took any measure to prevent the commission of the crime. The bourgmestre’s command responsibility over the gendarmes will be addressed below."
M.P.28.1. Evidence of the superior’s failure to discipline subordinates.
A. Legal source/authority and evidence:
Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, paras. 80, 82-84:
"80. Equally irrelevant and without merit are Ndahimana’s contentions regarding his alleged reports to Prefect Kayishema. Indeed, nothing in Defence Witness Kayishema’s testimony or in any other piece of evidence invoked by Ndahimana indicates that the alleged reports were sent after the 15 April attack and mentioned the participation of policemen in the attack.208 As only measures taken by Ndahimana after the 15 April attack would have been relevant to the question whether he took measures to punish his subordinates, it was reasonable for the Trial Chamber not to consider the reports as evidence that Ndahimana did take such measures.
208. See Ndahimana Appeal Brief, paras. 101-106, 165, 166, 168, referring to Exhibit D1, Exhibit D13, Witness ND13, T. 17 January 2011 pp. 17, 18, and Clément Kayishema, T. 18 April 2011 p. 41."
"82. The Trial Chamber discussed the evidence on the record on the demotion of Brigadier Mbakilirehe as part of its discussion on Ndahimana’s effective control. In that section, the Trial Chamber found that neither the evidence relied upon by the Prosecution nor the evidence supporting Ndahimana’s position was conclusive, holding that “whether [the brigadier] was actively participating in the killings or whether he was reluctant to do so is not clearly established by the evidence, nor are the reasons for his demotion.”215 On appeal, Ndahimana repeats the arguments he made before the Trial Chamber regarding the reasons for the brigadier’s demotion, but he does not make any argument as to why the Trial Chamber’s aforementioned finding was erroneous and should be set aside. Absent any arguments as to why the Trial Chamber’s relevant finding should be overturned, the Appeals Chamber rejects Ndahimana’s contention that the demotion should have been considered by the Trial Chamber as a genuine measure to punish the brigadier for his participation in the 15 April killings.
215. Trial Judgement, para. 745.
83. Finally, the Appeals Chamber considers that Ndahimana’s contention that the chaotic situation in Rwanda “after the RPF invaded the country” deprived him of control over his subordinates and posed objective difficulties in any effort to discipline them216 relates to the issue of effective control, which the Trial Chamber found that Ndahimana possessed even after 15 April 1994.217 In any event, irrespective of the reasons for the demotion, the very fact that Ndahimana could order the demotion of Brigadier Mbakilirehe on 29 April 1994 evinces his material ability to impose disciplinary sanctions on his subordinates in the aftermath of the 15 April attack.
216. See Ndahimana Appeal Brief, para. 175.
217. See supra, Section IV.A.2.
84. As a result, the Appeals Chamber concludes that Ndahimana has not demonstrated an error in the Trial Chamber’s finding that he failed to punish the communal policemen for their participation in the 15 April attack."
Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, paras.81-82:
"81. The only measure Ndahimana claims to have taken in the aftermath of the 15 April attack is the demotion of Brigadier Mbakilirehe on 29 April 1994.209 The Appeals Chamber observes that the brigadier’s demotion is not disputed.210 The parties do dispute, however, the reasons for that demotion. While Ndahimana alleges that he demoted the brigadier because of his participation in the 15 April attack,211 the Prosecution points to evidence showing that the demotion was not a disciplinary measure.212 The Appeals Chamber notes evidence on the record contradicting Ndahimana’s view; two witnesses, Defence Witness Kayishema and Prosecution Witness CDL, indeed denied that the brigadier was demoted as a punishment for taking part in the 15 April attack.213 Witness CDL even testified that the brigadier was punished because he was not "active enough during the attacks", not because he participated in them.214
82.The Trial Chamber discussed the evidence on the record on the demotion of Brigadier Mbakilirehe as part of its discussion on Ndahimana’s effective control. In that section, the Trial Chamber found that neither the evidence relied upon by the Prosecution nor the evidence supporting Ndahimana’s position was conclusive, holding that "whether [the brigadier] was actively participating in the killings or whether he was reluctant to do so is not clearly established by the evidence, nor are the reasons for his demotion." .215 On appeal, Ndahimana repeats the arguments he made before the Trial Chamber regarding the reasons for the brigadier’s demotion, but he does not make any argument as to why the Trial Chamber’s aforementioned finding was erroneous and should be set aside. Absent any arguments as to why the Trial Chamber’s relevant finding should be overturned, the Appeals Chamber rejects Ndahimana’s contention that the demotion should have been considered by the Trial Chamber as a genuine measure to punish the brigadier for his participation in the 15 April killings".
209 See Ndahimana Appeal Brief, paras. 169-175. In the Trial Judgement, the Trial Chamber also refers to and dismisses as vague and uncorroborated allegations made by Prefect Kayishema during his testimony that he received reports by Ndahimana on the killings perpetrated on 15 and 16 April 1994. See Trial Judgement, para. 764. Ndahimana, however, does not mention any such post-attack reports on appeal. The only reports he claims to have submitted to the prefect about the perilous condition of the Tutsi refugees were submitted either during a meeting held on 11 April 1994 or in the afternoon of 15 April 1994, before Ndahimana was informed about the commencement of the attacks against the Tutsis at Nyange Parish. See Ndahimana Appeal Brief, paras. 166-168; Ndahimana Reply Brief, paras. 66-69. See also Ndahimana Appeal Brief, paras. 92-100.
210 Ndahimana recognises that the brigadier was demoted on 29 April 1994. See Ndahimana Appeal Brief, para. 173.
211 See Ndahimana Appeal Brief, paras. 169-174.
212 See Prosecution Response, para. 129.
213 Witness CDL, T. 12 November 2011 pp. 22, 23 and Clément Kayishema, T. 18 April 2011 pp. 39, 40, cited in Trial Judgement, para. 745.
214 Witness CDL, T. 12 November 2011 pp. 22, 23, cited in Trial Judgement, para. 745.
215 Trial Judgement, para. 745.
The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1554-55, 1568:
1554. On account of his substantial de facto authority over administrative personnel in the ministries controlled by the MRND, such as Col. Théoneste Bagosora, the Chamber is convinced that he could have prevented them from facilitating further attacks and killings by removing them from office. This much is clear on account of his proven ability to ensure that Bagosora was not removed from office prematurely.
1555. Moreover, the Chamber is sure that Ngirumpatse could have punished offenders among the administrative personnel in the ministries controlled by the MRND. With his considerable de facto authority, he could have ordered offenders jailed or removed them from the programme and their office, among other measures.
1568. Accordingly, Ngirumpatse failed in his duty to prevent the crimes because he in fact participated in them. Moreover, there is no indication that his subordinates who perpetrated the crimes were punished afterwards. Thus, the Chamber rejects Ngirumpatse’s argument that he stretched himself to the limit to use his influence to restore security and peace and save human lives.
Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 519-520:
"519. With respect to criminal conduct by police, and the law and jurisprudence which the Chamber has considered earlier in this Judgement, it is clear that in the context of Article 7(3) and, in particular, in the case of a superior who does not have personal power to punish subordinates, such as political leaders, what is required is that there be a report to the competent authorities which is likely to give rise to an investigation or the initiation of appropriate proceedings. The superior’s responsibility is to take active steps to ensure that offenders will be punished. These issues will be considered in more detail.
520. With respect to the prospect of disciplinary proceedings within the MoI, the Chamber would observe that, for the reasons just expressed, it is not necessary that the Minister have the personal power to punish or sanction. If there are established bodies or procedures for disciplinary measures the responsibility of the minister as the superior is to report to the appropriate authorities as discussed earlier. In this respect, contrary to a Defence submission, the Chamber finds that not only did the Minister have the power to make decisions on a proposal prepared by the disciplinary commission under the Collective Agreement.1957 He could also initiate proceedings before this commission. Further, the Chamber is not able to accept the evidence and submissions that reserve police are not subject to the established disciplinary procedures. The evidence and submissions to this effect appear to take too narrow a view of the statutory scheme by which reserves, when called up for duty, are engaged as other police, although remunerated pursuant to special statutory scheme for reserves, and the true effect of provisions such as Article 46(2) of the Law on Internal Affairs, which provides:
During the time of conducting the duties and tasks, the members of the reserve composition have the responsibilities and authorisations of authorised officials, as mentioned in Article 24 of this law.
Article 24 provides:
The employees of the Ministry who have special responsibilities and authorisations determined by law are authorised officials.
It also provides that all police and operative employees of the Ministry are authorised officials."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:
"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]
(iv) He failed to punish those guards who would have been identified, had he carried out an investigation, as being responsible for the beatings or to take steps to have them punished."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 772:
"772. Zdravko Mucic did not take reasonable or appropriate action to prevent crimes committed within the Celebici prison-camp or punish the perpetrators thereof. There is no evidence suggesting that he ever took appropriate action to punish anyone for mistreating prisoners. Indeed, there is evidence demonstrating that the guards were never disciplined. For example, Milovan Kuljanin828 stated that he never witnessed the punishment of any guard. Indeed, there were no disciplinary measures for the mistreatment of prisoners in Celebici.830"
"828. See T. 7163-T. 7164. […]
830. See T. 6715."
[B. Evidentiary comment:]
M.P.28.2. Evidence of a subordinate being promoted rather than disciplined.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 436-437 and 441:
"436. […] The disciplinary consequences of the investigation was said to be that a battalion commander had been relieved of his command. Contrary to what may have been understood by many at the time, it is now clear that this battalion commander was not the commander who led the attack on Srdj and the shelling, i.e. Captain Kovacevic of the 3/472 mtbr. As indicated elsewhere in this decision, it was Lieutenant-Colonel Jovanovic of the 3/5 mtbr.1262 […]
437. […] Rather than being subjected to disciplinary or other adverse action, it was Captain Kovacevic who was in fact promoted only 8 days after 6 December 1991.1269
[…]
441. […] There is no suggestion in the evidence of any attempt by the Accused to stop the promotion."
"1262. Lieutenant-Colonel Jovanovic, T 8094; Exhibit D65; Admiral Jokic, T 8553. See supra, para 174. […]
1269. See infra, para 441.
[B. Evidentiary comment:]
M.P.28.3. Evidence of the superior’s failure to resist an attempt to usurp his or her authority.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 445:
"445. While it is not the finding of the Chamber, we would also observe that had it been the case that the Accused understood that General Kadijevic, in some way, had purported to usurp the Accused’s power and authority to investigate and discipline the conduct of forces under his command in respect of the events of 6 December 1991, that would not have been sufficient in the circumstances to relieve the Accused of his responsibility as Commander of 2 OG, or to excuse him for failing to take appropriate investigative and disciplinary action. What had occurred necessitated, in the Chamber’s view, positive efforts by the Accused to seek to take effective investigative and disciplinary measures against those under his command who had been responsible for the shelling of the Old Town, and those who had failed to take appropriate steps to ensure that the shelling was stopped. Had the Accused attempted to do so, but had found that General Kadijevic prevented or hampered his efforts, continued further efforts and protests by the Accused to insist that action be taken would have been appropriate.1283 In the end the remedy of resignation from the JNA would have been appropriate in the circumstances. Of course, none of these things occurred."
"1283. See supra, para 374".
[B. Evidentiary comment:]
M.P.29. Evidence of the superior’s failure to speak to subordinates about the crimes.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:
"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]
(iii) He failed to speak to his subordinates about the mistreatment of detainees."
M.P.30. Evidence of the superior creating an atmosphere of lawlessness.
A. Legal source/authority and evidence:
Prosecutor v Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 627-628:
"627. The Appeals Chamber notes that on at least two occasions, the Appellant responded to allegations of mistreatment of detainees by HVO personnel.(1305) There were also instances of his exercising military discipline over HVO personnel for misconduct or the commission of crimes,(1306) albeit according to the HVO procedure of referring it to the proper authorities.(1307) Aside from these examples, however, there is insufficient evidence to suggest that the Appellant initiated a systematic, effective process for punishing perpetrators of detention-related crimes in the area of his command and over whom he exercised effective control, crimes which he knew or had reason to know were being or had been committed.(1308)
628. In particular, there is no evidence that, on becoming aware of the detention and treatment of the detainees in the Vitez Cultural Centre and the Vitez veterinary hospital, the Appellant punished those responsible. The Appeals Chamber finds that the Trial Chamber’s conclusion that the Appellant knew or had reason to know that these practices were extant in those locations, and that he failed to punish the personnel responsible who were under his effective command and control, was a conclusion that a reasonable trier of fact could have made."
"1305 - He ordered an investigation into the alleged rape of a detainee at Dubravica (T 19,211–19,214) (17 Mar. 1999) (Open Session) and was later informed that an investigation had been initiated. He further ordered an investigation of two HVO personnel involved in the deaths of two detainees who had been engaged in trench-digging at the time; see T 22,968-9 (26 May 1999) (Open Session). The Appellant was however unable to submit documentary evidence of these instances.
1306 - See above and see Witness Watkins, AT 320 (9 Dec. 2003) (Open Session).
1307 - See also Trial Judgement, para. 474, where the Appellant was found to have given an order "on 18 January 1993 for the attention of the regular units of the HVO, the independent units and the MP 4th Battalion instructing them to make sure that all soldiers prone to criminal conduct were not in a position to do any harm" (citing Appellant’s testimony, T 18,125-18,126 (23 Feb. 1999) (Open Session); and Witness Marin, T 12,089-12,090 (24 Sept. 1998) (Open Session)). The Appellant later distributed a reminder, but neither order had any effect.
1308 - Respondent’s Brief, para. 3.31. There are in fact two examples to the contrary. First, the Appellant failed to discipline Duško Grubešic, the deputy commander of the NSZ Brigade in Busovaca, for failing to prevent forced trench-digging by detainees, during which two detainees were killed on the front lines (T 22,699 et seq. (26 May 1999) (Open Session)). Appellant: "I personally did not issue disciplinary measures towards those perpetrators of the crime", T 22,703 (26 May 1999) (Open Session). The Appellant maintained that he did all he could to initiate an investigation.) A further example is the Appellant’s failure to discipline Ivica Rajic for his involvement in crimes committed in Stupni Do (AT 320–321) (9 Dec. 2003) (Open Session)."
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 50:
"50. The Chamber is of the view that, in the case of failure to punish, a superior’s responsibility may arise from his or her failure to create or sustain among the persons under his or her control, an environment of discipline and respect for the law. For example, in Celebici, the Trial Chamber cited evidence that Mucic, the accused prison warden, never punished guards, was frequently absent from the camp at night, and failed to enforce any instructions he did happen to give out.53 In Blaskic, the accused had led his subordinates to understand that certain types of illegal conduct were acceptable and would not result in punishment.54 Both Mucic and Blaskic tolerated indiscipline among their subordinates, causing them to believe that acts in disregard of the dictates of humanitarian law would go unpunished. It follows that command responsibility for failure to punish may be triggered by a broadly based pattern of conduct by a superior, which in effect encourages the commission of atrocities by his or her subordinates.55"
"53 See Celebici (TC) paras. 772f.
54 See Blaskic paras. 487 and 494-495.
55 This position is evident not only from the case-law, but also from the aim of Article 6(3), which is not that the crimes of subordinates should be punished but that superiors should ensure that the crimes do not occur. See also In re Yamashita pp. 14-16; Akayesu para. 691; Celebici (TC) paras. 772f; Blaskic paras. 487f."
M.P.31. Evidence of the superior’s participation in the crimes.
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:
"117. Far from ordering guards to cease the assaults, the accused sometimes even took part in them, as attested to by Witnesses L and M.229"
229 As seen previously, the testimony by Witnesses T and Dautovi} was not taken into consideration. For further details concerning these testimonies see infra III, B.
M.P.32. Evidence of the superior’s failure to initiate an investigation.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:
"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons:
(i) He failed to investigate the allegations of beatings, when he would inevitably have ascertained the identity of those responsible for many of those beatings (including those individuals from outside the KP Dom)."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 489-492, 494:
"489. The accused stated that he sought the help of international organisations, especially the ECMM and UNPROFOR, in carrying out the investigation and that he never obtained this help 1051. However, international observers who gave evidence before the Trial Chamber challenged this version of events. The witnesses Stewart and Morsink testified that the accused had never sought their help 1052. On the contrary, Colonel Stewart complained on 24 April that no investigating commission had been set up yet: "No-one has yet taken responsibility, and no commission has been formed; This is a political catastrophe for the HVO; The HVO wants to destroy the Muslims" 1053.
[…]
490. Colonel Stewart once again asked about the setting up of an investigating commission at a meeting with Anto Valenta and Tihomir Blaskic on 4 May 1993 1054. The witness Stewart stated that no investigation had been initiated before his departure on 10 May 1055. There was another meeting on 9 May in the presence of his replacement, Colonel Duncan, then Commander of the Prince of Wales Regiment in Central Bosnia 1056. The accused allegedly explained to Colonel Duncan that the crimes committed at Ahmici had been carried out either by Muslims wearing HVO uniforms or by Muslim extremists who were out of control, or even by Serbs who could have infiltrated the HVO controlled zone 1057. The witness Duncan said he asked once again for an investigation to be set up and 25 May was agreed as the date for completion of the investigation and publication of the results 1058. According to the witness Duncan, that investigation was never carried out 1059. Likewise, the witness Morsink stated that the ECMM had never received the findings of the investigation which was supposed to have been undertaken into the events in Ahmici 1060.
491. Thus there were many occasions on which the accused could have asked for help from the international authorities. However, far from having been asked for such help, the authorities had, on the contrary, had to get in touch with the accused and to insist on an investigation being carried out.
492. The accused maintained that as early as 24 April, he had asked the SIS representative, Anto Sliskovic, to carry out the investigation. However, no evidence was adduced of this request. General Blaskic testified that he had made the request orally1061, through the intermediary of his subordinate Marin 1062. The witness Marin did not mention such an order however. His request was in any event never fulfilled. He testified that he again met the SIS representative on 8 May and reiterated his request. It was only on 10 May that the accused gave a written order 1063, that is to say after the bodies had been buried, the surviving eyewitnesses released from the Dubravica detention centre and Colonel Stewart replaced by Colonel Duncan. That order asked Anto Sliskovic to submit his report by 25 May at the latest 1064. The report submitted on that date was, even in the view of the accused, "not complete" 1065 […]"
"494. In sum, no soldier has ever been convicted for the crimes at Ahmici, Pirici, ?antici and Nadioci. The Defence witness Marin recognised that no member of the HVO or of any other unit of the Croatian forces had ever been punished for crimes committed against the Muslim population or their possessions after the Ahmici massacres 1070. The witness Morsink testified that he had never seen the HVO authorities carry out investigations into the atrocities against the Muslims 1071.
"1049 - Witness Blaškic, PT pp. 18081-18083 and 18093. See also PT pp. 16084-16086.
1050 - Witness Marin, PT pp. 13351-13354.
1051 - Witness Blaškic, PT p. 18286; Defence Brief, p. 29.
1052 - Witness Stewart, PT p. 22227.
1053 - P456/58; witness Marin, PT p. 13331.
1054 - Witnesses Stewart, PT pp. 22216 and 22235; Blaškic, PT pp. 18296.
1055 - Witnesses Stewart, PT p. 22218.
1056 - Witness Duncan, PT pp. 9231-9232.
1057 - Witness Duncan, PT p. 9244. The accused has always denied saying this. However, what he is alleged to have said here echoes what he said in Danas magazine on 5 October 1993 (P380).
1058 - Witness Duncan, PT p. 9245.
1059 - Witness Duncan, PT pp. 9245-9246.
1060 - Witness Morsink, PT p. 9922. […]
1061 - The accused explained in that connection that it was very rare for him to give a written order to his closest colleagues: "these exceptional situations [...] were telling proof in their own right that I was not fully satisfied with the action that I ordered previously" (witness Blaškic, PT p. 21514).
1062 - Witness Blaškic, PT p. 21516. Marin appeared as a defence witness and gave evidence to the Trial Chamber for several weeks.
1063 - P456/59 and D341 (same document); witness Blaškic, PT p. 18357.
1064 - Witness Blaškic, PT p. 18358.
1065 - D608 and D342. See also PT p. 22536.
[…]
1070 - Witness Marin, PT p. 13317.
1071 - Witness Morsink, PT p. 9916."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 772:
"772. […] Witness T, who worked at the camp between June and November 1992, testified that he never knew of any investigations into the deaths of any of the thirteen prisoners who died whilst he was there829."
"829. See T. 6711."
M.P.33. Evidence of the superior’s failure to conduct a satisfactory investigation.
M.P.33.1. Evidence of failing to preserve and collect evidence.
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 436:
"436. […] While assurances of a thorough investigation, and that the perpetrators of the attack would be disciplined, were given to the international, Croatian government and Dubrovnik representatives by Admiral Jokic,1259 it seems that only a few written statements and reports were obtained in the day or two after 6 December 1991.1260"
"1259. Minister Rudolf, T 5612, Exhibit P61, tab 33; Per Hvalkof, T 2204, Exhibit P61, tab 35.
1260. Admiral Jokic testified that he asked for written reports from the Battalion Commander, the Chief of Staff Warship -Captain Zec, Lieutenant-Colonel Kovacevic and Captain Kozaric,T 4094-4095. Lieutenant -Colonel Jovanovic was also asked to submit a written report to the command of the 9 VPS at around 1400 hours on 6 December, T 8087-8088; Exhibit D108. Captain Nesic testified that on 7 December 1991 officers from the command of the 9 VPS visited the soldiers of the 3/472 mtbr and spoke to them, T 8187. See also Exhibit D112. Lieutenant Lemal also testified that on 6 December officers of the 9 VPS visited his unit to discuss what had happened during that day and the moral of the troops, T 7420-7422."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 488:
488. The efforts made by the accused to see that the crimes committed were investigated and the perpetrators prosecuted and punished were also hardly convincing. In particular, the accused did not attempt to contact the commander of the Military Police, Pasko Ljubicic, although he suspected from the outset that the Military Police had committed the crimes 1049. Nor did he take any measures to seal off the area and ensure that evidence was preserved, despite being required to do so by Article 60 of the military discipline regulations. He did not, for example, order an autopsy on any body before it was buried 1050, and did not attempt to interview any survivors although they were detained at the school in Dubravica. […]"
"1049 - Witness Blaškic, PT pp. 18081-18083 and 18093. See also PT pp. 16084-16086.
1050 - Witness Marin, PT pp. 13351-13354. […]"
[B. Evidentiary comment:]
M.P.33.2. Evidence of misrepresenting the truth.
A. Legal source/authority and evidence:
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, paras. 436:
"436. […] While assurances of a thorough investigation, and that the perpetrators of the attack would be disciplined, were given to the international, Croatian government and Dubrovnik representatives by Admiral Jokic,1259 it seems that only a few written statements and reports were obtained in the day or two after 6 December 1991.1260 These apparently supported the view, in essence, that the attack on Srdj was the spontaneous reaction of Captain Kovacevic of the 3/472 mtbr to provocations by Croatian forces at Srdj during the night of 5/6 December 1991. He acted alone and contrary to orders in carrying out the attack on Srdj. Further, while there had been some shelling of Dubrovnik, this was in support of the attack on Srdj and was apparently targeted at active Croatian military positions. The extent of the shelling and the damage it caused, especially to the Old Town, were significantly downplayed.1261"
"1259. Minister Rudolf, T 5612, Exhibit P61, tab 33; Per Hvalkof, T 2204, Exhibit P61, tab 35.
1260. Admiral Jokic testified that he asked for written reports from the Battalion Commander, the Chief of Staff Warship -Captain Zec, Lieutenant-Colonel Kovacevic and Captain Kozaric,T 4094-4095. Lieutenant -Colonel Jovanovic was also asked to submit a written report to the command of the 9 VPS at around 1400 hours on 6 December, T 8087-8088; Exhibit D108. Captain Nesic testified that on 7 December 1991 officers from the command of the 9 VPS visited the soldiers of the 3/472 mtbr and spoke to them, T 8187. See also Exhibit D112. Lieutenant Lemal also testified that on 6 December officers of the 9 VPS visited his unit to discuss what had happened during that day and the moral of the troops, T 7420-7422.
1261. See supra, para 174."
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 492:
492. […] The report submitted on that date was, even in the view of the accused, "not complete" 1065. The report concluded in fact that the attack had been initiated by Muslim forces whose artillery shots were alleged to have been the cause of most of the material damage suffered by these villages. The report also indicated the presence of "men in black" whose military affiliation was not specified and who were deemed to be responsible for the pillage and the murders. According to the report, this was the action of Muslim forces who had thus sought to draw the international community’s attention to the suffering of the Muslim population and consequently get an international force into the region. According to the report, there had been sixty or so victims of the fighting in Ahmici, which figure is much below the finding of the ECMM on 15 May 1993 1066. It was only on 17 August that the accused asked the SIS to carry out a second investigation and to finish it by 30 September at the latest 1067. The accused however testified that that report had never been communicated to him, Anto Sliskovic having informed him on 30 September that the results of the investigation, including the names of the guilty parties, had been transmitted to the SIS in Mostar and that the affair was no longer any of his concern 1068."
"1065 - D608 and D342. See also PT p. 22536.
1066 - That report found that there had been at least 103 victims.
1067 - Witness Blaškic, PT pp. 18401-18405 and 18695-18705; D342 and D343; witness Marin PT pp. 13368-13369
1068 - Witness Blaškic, PT p. 18807."
[B. Evidentiary comment:]
M.P.34. Evidence of the superior’s failure to report the crimes.
A. Legal source/authority and evidence:
Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, paras. 763-767:
"763. Turning to the duty to punish, the Majority is of the view that the duty to punish is a separate form of liability from the duty to prevent. As held by the Appeals Chamber in Blaškić:
"The failure to punish and the failure to prevent involve different crimes committed at different times: the failure to punish concerns past crimes while the failure to prevent concern future crimes of subordinates."1416
764. When asked about measures taken regarding the prevailing situation in Kivumu commune between April and July 1994, Witness Kayishema testified that he "think[s] he [Ndahimana] even wrote reports on the security situation prevailing in his commune."1417 However, no evidence of these reports was adduced at trial. The Majority recalls its findings that on 16 April 1994, Ndahimana was present during the attacks. The Majority has serious doubts that Ndahimana would have reported the killings of 15 April 1994, given that, as the Majority has noted elsewhere, he was present at Nyange parish on 16 April 1994. Furthermore, the Majority notes that Kayishema’s testimony regarding the reports is uncorroborated and vague.
765. In any event, the Majority recalls the Appeals Chamber’s finding that under the legal standard of superior responsibility, a report to the appropriate authorities may be sufficient to discharge the obligation to punish offending subordinates, but whether it is indeed sufficient depends on the circumstances of the case.1418 Necessary and reasonable measures are those that can be taken within the competence of a commander, as evidenced by the degree of effective control he wielded over his subordinates.1419
766. The Majority recalls that the bourgmestre could use substantial penalties to regulate the conduct of communal policemen (Chapter IV, Section 3.5.1.1). The accused’s authority to impose penalties for indiscipline, while not a sufficient indicator of command responsibility in and of itself, is nevertheless a necessary element.
767. In conclusion, the Majority finds that the Prosecution has not established beyond reasonable doubt that Ndahimana had the material ability to prevent crimes committed by communal police at Nyange church. Indeed, there is no direct evidence that any instructions concerning security measures were in fact implemented and resulted in criminal conduct. However, the Majority finds that the accused did have the material ability to punish those crimes through disciplinary measures such as demotion. In light of these circumstances, the Majority finds that Ndahimana is responsible pursuant to Article 6 (3) of the Statute in relation to the crimes committed by the policemen on 15 April 1994 at Nyange church."
1416 Blaškić (AC) Judgement, para. 83.
1417 T. 18 April 2011 p. 41.
1418 Boškovski (AC) Judgement, para. 234.
1419 Blaškić (AC) Judgement, para. 83.
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 318:
"318. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: […]
(v) He failed to report their abuses to a higher authority."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 117:
"117. Despite the authority he had, the accused took no measures to prevent the crimes committed. Nor did the accused use everything in his power to attempt to punish the guards responsible for them. None of the reports transmitted to the military police commander or to the president of the Travnik military tribunal226 dealt with the assaults committed by guards or HVO soldiers within Kaonik prison. The secretary specified before the Trial Chamber that she had never drawn up a report exposing any crimes by guards.227 Further, the president of the military tribunal said that the detention unit and the military tribunal could have contacted at any time by telephone or fax or by using military equipment, even when communications were cut off at the time of the events in January 1993.228 This means that the accused was always able to take measures against guards guilty of crimes."
"226 Exhibit D-25 is relative to a report by the accused concerning the unauthorised entry of a member of the military police into the compound complex; Exhibit D-22 is relative to a report notifying the Travnik military tribunal that two detainees had been killed outside of the prison.
227 Witness Vujica, FPT p. 2364.
228 Witness Percinli}, FPT p. 2005."
