CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Arts. 25 and 28 Modes of liability » Superior responsibility » M.7. The perpetrator either knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes.

Element:

M.7. The perpetrator either knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes.

M.7.1. The perpetrator knew that the subordinates were committing or about to commit the crimes. OR;

A. General evidentiary comment

This standard of knowledge is arguably the same as the standard of knowledge for military commanders or persons effectively acting as military commanders. Accordingly, ICTY and ICTR jurisprudence on both commander and superior responsibility is indicated below.

M.7.1.1. Evidence that the superior actually knew about such crimes.

M.P.35. Evidence that the superior knew about the crimes.

A. Legal source/authority and evidence :

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, paras. 1260-1265:

"1260. The Trial Chamber found that Ntahobali had actual knowledge that his subordinates had committed or were about to commit crimes, which it inferred from his presence at the Hotel Ihuliro roadblock when Ruvurajabo was being killed and from his orders to Interahamwe at the prefectoral office.²⁸⁷⁵

2875. Trial Judgement, paras. 5848, 5885. See also ibid., para. 5884.

1261. Ntahobali submits that the Trial Chamber erred in finding that he received sufficient notice of his knowledge of the crimes of his alleged subordinates at the Hotel Ihuliro roadblock and the prefectoral office.²⁸⁷⁶ He further contends that the Trial Chamber erred in failing to address whether he had the requisite knowledge with respect to the events at the EER.²⁸⁷⁷ He argues that paragraph 6.55 of the Indictment failed to set forth the criminal conduct by which he knew or had reason to know that the crimes were about to be committed.²⁸⁷⁸

2876. Ntahobali Notice of Appeal, paras. 103, 136; Ntahobali Appeal Brief, paras. 308, 316.

2877. Ntahobali Notice of Appeal, para. 121; Ntahobali Appeal Brief, para. 269.

2878. Ntahobali Appeal Brief, para. 269.

1262. In relation to the crimes committed at the prefectoral office, the Prosecution responds that Ntahobali’s orders to commit rapes coupled with Witness TA’s Summary put Ntahobali on notice of his knowledge that these rapes were occurring.²⁸⁷⁹ It also contends that Ntahobali was charged with ordering massacres and thus was put on notice of his conduct as regards his knowledge of the crimes.²⁸⁸⁰

2879. Prosecution Response Brief, para. 839.

2880. Prosecution Response Brief, para. 841.

1263. Recalling that in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole,²⁸⁸¹ the Appeals Chamber notes that, in paragraph 6.55 of the Indictment – upon which the Trial Chamber specifically relied when making findings on Ntahobali’s superior responsibility under the relevant counts ²⁸⁸² – the Prosecution explicitly alleged that massacres of the civilian population were being committed with Ntahobali’s knowledge.²⁸⁸³ In paragraph 6.56 of the Indictment, the Prosecution further alleged that Ntahobali knew of and consented to the crimes perpetrated by his subordinates. The Appeals Chamber further notes that paragraphs 6.27 and 6.30 of the Indictment refer to the role and frequent participation of Interahamwe or militiamen in abductions and killings, in the presence of Ntahobali, at the Hotel Ihuliro roadblock and the prefectoral office.²⁸⁸⁴ These paragraphs were specifically relied upon in support of Ntahobali’s superior responsibility under the relevant counts.²⁸⁸⁵ In addition, the Appeals Chamber recalls that, while it found that paragraph 6.30 of the Indictment failed to plead Ntahobali’s presence at the EER with Interahamwe and that the Trial Chamber erred in not conducting the required analysis, the defects were cured.²⁸⁸⁶

2881. See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 370; Ntabakuze Appeal Judgement, para. 65; Gacumbitsi Appeal Judgement, para. 123.

2882. See Trial Judgement, paras. 5617, 5878.

2883. At the appeals hearing, Ntahobali pointed out that paragraph 6.55 of the Nyiramasuhuko and Ntahobali Indictment was no longer relied upon in support of Count 7 in the operative indictment, which, according to him, indicated that the Prosecution had no longer the intention to charge him with superior responsibility in relation to rape. See AT. 15 April 2015 p. 33. Reading the Nyiramasuhuko and Ntahobali Indictment as a whole and considering that paragraph 6.55 was relied upon in support of all other relevant counts and that Count 7 was expressly pursued pursuant to Article 6(3) of the Statute, the Appeals Chamber is not convinced by Ntahobali’s argument. See Nyiramasuhuko and Ntahobali Indictment, pp. 38-45.

2884. The Appeals Chamber finds no merit in Ntahobali’s oral argument that paragraph 6.56 of the Nyiramasuhuko and Ntahobali Indictment “had nothing to do with superior responsibility” because it is “a conspiracy-related paragraph”. See AT. 15 April 2015 p. 33.

2885. See Nyiramasuhuko and Ntahobali Indictment, pp. 39-45.

2886 .See supra, Section V.B.6(b).

1264. The Appeals Chamber further recalls that it held that Ntahobali received sufficient notice that he ordered Interahamwe to kill Ruvurajabo at the Hotel Ihuliro roadblock and abductions, killings, and rapes at the prefectoral office, and that he aided and abetted Interahamwe to commit killings at the EER. The Appeals Chamber considers that, as found by the Trial Chamber, this conduct implied his knowledge of the crimes perpetrated by his subordinates.

1265. The Appeals Chamber considers that, taken together, these paragraphs and the subsequent information provided to Ntahobali clearly pleaded that Ntahobali knew or had reason to know that his subordinates were about to and had committed the crimes alleged in the Indictment as well as the conduct by which he was found to have known of his subordinates’ criminal conduct. Accordingly, the Appeals Chamber dismisses Ntahobali’s arguments concerning the pleading of his knowledge of his subordinates’ criminal conduct."

The Prosecutor v. Edouard Karemera and Mathieu Ngirumpatse, Case No. ICTR-98-44, Judgement (TC), 2 February 2012, para. 1558-59:

1558. The Chamber is satisfied that, despite his absence from Rwanda during part of the genocide, Ngirumpatse had actual knowledge that his subordinates were about to commit crimes or had in fact committed them. As discussed in the factual findings, the massacres and attacks committed by the Kigali and Gisenyi Interahamwe, among others, were so widespread and public that it would have been impossible for the Accused to be unaware of them.

1559. Specifically, the Chamber has found that Ngirumpatse was aware that widespread killings had commenced on 8 April 1994 in Kigali, as evidenced by his instructions to the Interahamwe Provisional National Committee on 10 April 1994 to tour the roadblocks where killings were occurring (see IV.1.4). Ngirumpatse stated himself that by 9 April 1994, he and his consorts had "obtained a lot of information" regarding the killings in Rwanda. He asserted that the Interim Government and its associates exchanged information, which they had obtained from the army and gendarmerie, during its first cabinet meeting on 9 April 1994. According to Ngirumpatse, "everyone was made aware of the scope of the killings that were being perpetrated, killings which had started on the 7th during the day...[f]rom the 9th we had a great deal of information.

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, paras. 5806-5808:

"5806. Further, the Chamber recalls Witness D-2-YYYY testified that Kanyabashi chaired a police meeting at the commune office on the very morning of the attack, at 8.30 a.m. where the bourgmestre raised the issue of the killing of Tutsis and in turn the policemen reported what they had seen in relation to the killing of Tutsis, for example, the death of one Karanganwa at Mukura bridge on 21 April 1994. Moreover, during the course of 22 April 1994, both Witness D-2-YYYY and Witness D-2-5-I were at the commune office and testified they could hear gunshots from Kabakobwa.Considering the testimony of Witnesses D-2-5-I, and D-2-YYYY that Kanyabashi left the commune office around 4.30 or 5.00 p.m. that day and the proximity between the commune office and Kabakobwa Hill,the Chamber concludes Kanyabashi was present at the commune office and should similarly have been able to hear the gunshots. The Chamber also recalls Witness D-2-14-D’s description of the attack as "remarkable" and testimony that his conseiller de secteur and Kanyabashi would have heard of it, considering Kabakobwa was within Ngoma commune and under Kanyabashi’s jurisdiction.

5807. Lastly, the Chamber recalls Defence Witness D-2-YYYY’s evidence that in April 1994, there were approximately 25 to 30 Ngoma commune police officers. Given the relatively small number of policemen in Ngoma commune, Kanyabashi’s control over the policemen, and the fact that he remained in regular contact with these policemen by regular meetings, several of whom were stationed at his house on the weekend of the Kabakobwa attacks, the Chamber does not accept that Kanyabashi had no knowledge of the participation of any of the Ngoma commune police in such a systematic, large-scale attack. To this end, the Chamber also recalls that Witness D-2-14-W testified about a meeting at Huye Stadium around 25 or 26 April 1994, where Kanyabashi publicly condemned killings that had occurred in Kabakobwa, Butare town, Buye, the Matyazo school centre, and the dispensary and said that the perpetrators of those killings had to be punished.

5808. Considering the circumstances in which the Kabakobwa attack took place, the Chamber is satisfied that Kanyabashi knew or had reason to know about the attack and the participation of his subordinates therein. Even accepting that one Semwiza was arrested in the days after the Kabakobwa attack for his role in the attacks, the Chamber considers that the totality of the evidence establishes beyond a reasonable doubt that Kanyabashi took no steps to prevent the attack or to punish any Ngoma commune policeman for participating in the attack at Kabakobwa on 22 April 1994."

Prosecutor v. Sefer Halilovic, Case No, ICTY-IT-01-48-T, Judgement (TC), 16 November 2005, para. 66:

"66. A superior’s actual knowledge that his subordinates were committing or were about to commit a crime cannot be presumed, but may be established through circumstantial evidence.¹⁵³ Factors which may be considered in this respect include the number, type and scope of illegal acts committed by the subordinates as alleged in the indictment, the time during which the illegal acts occurred, the number and types of troops and logistics involved, the geographical location, whether the occurrence of the acts is widespread, the tactical tempo of operations, the modus operandi of similar illegal acts, the officers and staff involved, and the location of the commander at the time.¹⁵⁴ In relation to geographical and temporal circumstances, the more physically distant the superior was from the scene of the crimes, the more evidence which may be necessary to prove that he had actual knowledge of them. On the other hand, if the crimes were committed next to the superior’s duty station

this may be an important indicium that the superior had knowledge of the crimes, and even more so if the crimes were repeatedly committed.¹⁵⁵ Additionally, the fact that a military commander "will most probably" be part of an organised structure with reporting and monitoring systems has been found to facilitate proof of actual knowledge.¹⁵⁶"

153 Čelebići Trial Judgement, para. 386.

154 Čelebići Trial Judgement, para. 386, citing United Nations Commission of Experts Report, para. 58. See also

Kordi} and Čerkez Trial Judgement, para. 427 and Bla{ki} Trial Judgement, para. 307.

155 Aleksovski Trial Judgement, para. 80.

156 Prosecutor v. Mladen Naletili} (a.k.a. "Tuta"), Vinko Martinovi} (a.k.a. "[tela"), Case No. IT-98-34-T, Trial

Judgement, 31 Mar ’03 ("Naletilić Trial Judgement"), para. 73. See also Kordi} and Čerkez Trial Judgement,

para. 428.

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 527:

"527. […] Because of those rumours, Henry Bolton of the OSCE visited the village on 14 August. On the same day, however, Ljube Boškoski spoke with OSCE Ambassador Carlo Ungaro because of his concern related to the OSCE’s reaction to the rumours that circulated. These rumours apparently continued to gather force to such an extent that on 23 August 2001, Peter Bouckaert of HRW went to the village to investigate. His report which came to the attention of Ljube Boškoski, as well as newspaper articles reflecting his report, clearly identified allegations of murder, police brutality and destruction of property.[…]

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

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

(iv) the Appellant ordered any mistreatment of detainees to cease on several occasions ;^{( 1278 )} […]

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

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

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

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

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

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

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

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

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

818 - RJ (T 3860-3864).

819 - RJ (T 3860-3866).

820 - RJ (T 3865-3866).

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

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

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

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

221 - Witness McLeod, FPT p. 104."

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

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

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

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

"823. See T. 4355-T. 4356.

824. See T. 5457.

825. See T. 7028.

826. See T. 4161."

M.P.36. Evidence that the superior knew the perpetrators.

A. Legal source/authority and evidence :

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

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

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

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

[…]

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

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

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

M.P.37. Evidence that the superior knew about the victims.

A. Legal source/authority and evidence:

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

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

M.7.1.2. Evidence that the superior must have known about such crimes.

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

Prosecutor v. Ndahimana, Case No. ICTR-01-68-T, Judgement (TC), 31 December 2011, paras. 751-755:

"751. The Appeals Chamber in Čelebići held that even general information in the possession of the commander which would put him on notice of possible unlawful acts by his subordinates is sufficient to incur criminal liability. The Majority has found it to be reasonably possibly true that the accused was away from Nyange parish as early as 5 or 6 a.m. on 15 April 1994. Therefore, the Majority concludes that the Prosecution has failed to prove beyond reasonable doubt that Ndahimana had reason to know that crimes were about to be committed.

752. The Majority has also considered evidence that a second meeting occurred after the attacks of 15 April 1994, but recalls that none of the witnesses heard the content of that meeting (Chapter III, Section 5.3.7.2). Additionally, with regard to the purpose of the meeting, the Majority does not consider that the planning of the next day’s killings is the only reasonable conclusion that can be drawn from the evidence (Chapter III, Section 5.3.7.2).

753. The Majority recalls that the phrase "had reason to know" has been interpreted as "had information enabling him to conclude" by the Appeals Chamber in the Čelebići case. To establish whether the accused "had information enabling him to conclude," the Majority has considered various pieces of circumstantial evidence. In particular, Ndahimana came back to Nyange parish—to the exact same place where the killings occurred—only a few hours after the attack of 15 April 1994 had ceased. Several witnesses testified that some Interahamwe spent the night at the parish in order to prevent the Tutsis who had locked themselves into Nyange church from escaping. The presence of assailants at the parish must have been noticeable enough to draw the attention of anyone coming there. In addition, and most importantly, the Majority notes that numerous refugees had been killed, an attempt to burn the church had been conducted, and a bulldozer remained at the parish after it had been used to bury corpses. The situation at the parish must have been so chaotic that any person coming there would have known that a large scale attack had occurred that day. In addition, while the evidence is unclear regarding the purpose of the meeting, Witnesses CBK and CDJ corroborate each other on the fact that Ndahimana met with Seromba and Kanyarukiga.1406 Both Kanyarukiga and Seromba were present at the church and involved—in different ways—in the attack that occurred on 15 April 1994.

754. The Majority has also assessed the evidence in relation to the events of 16 April 1994. It notes that both Defence and Prosecution witnesses reported the presence of the policeman Niyitegeka not only on 15 April 1994, but also on 16 April 1994, when Ndahimana was present. Witness CBY reported seeing policemen, together with Ndahimana, sharing drinks after the destruction of Nyange church. This evidence gives further support to the Majority’s finding that Ndahimana had reason to know that the communal policemen committed crimes on 15 April 1994. He went to the parish soon after the killings on the evening of 15 April 1994 and met with Seromba and Kanyarukiga, and was present on 16 April 1994, when he again met with Seromba and Kanyarukiga, as well as with policemen, including Niyitegeka, who was identified as being one of the attackers on 15 April 1994.

755. Given these circumstances, while the Majority is not persuaded that Ndahimana actually knew that the communal policemen were implicated in these events, it finds that Ndahimana had reason to know. In reaching these findings, and considering the relatively small number of policemen in Kivumu commune, the Majority does not accept the submission that the accused had no reason to know of the participation of any of of the participation of any of the Kivumu communal policemen in the attack on Nyange church that occurred on 15 April 1994.

M.P.38. Evidence that the superior knew about related crimes.

A. Legal source/authority and evidence:

Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, para. 65-73 :

"65. Turning to Ndahimana’s challenges to the merits of the Trial Chamber’s conclusion on his mens rea, the Appeals Chamber notes that the Trial Chamber reached its finding on the basis of circumstantial evidence, including evidence that Ndahimana arrived at the crime scene in the evening of 15 April 1994, witnessed the chaotic situation there, held meetings with influential figures of Kivumu involved in the attacks both on that day and the next day, and shared drinks with, inter alios, policemen following the demolition of Nyange Church.¹⁶⁵ The Appeals Chamber recalls that, where a finding of guilt is based on an inference drawn from circumstantial evidence, it must be the only reasonable conclusion that could be drawn from the evidence.¹⁶⁶

165. Trial Judgement, paras. 752-755, and evidence cited therein.

166. See, e.g., Mugenzi and Mugiraneza Appeal Judgement, para. 136; Renzaho Appeal Judgement, para. 318; Ntagerura et al. Appeal Judgement, para. 306.

66. Ndahimana does not dispute that he went to Nyange Parish after the attack ended on 15 April 1994, even if only for approximately 30 minutes.¹⁶⁷ Nor does he argue that the Trial Chamber erred in finding that he would have known that a large-scale attack had occurred that day given the chaotic situation that reigned at the parish after the attack.

167. See Trial Judgement, para. 563.

67. Ndahimana challenges the Trial Chamber’s finding that he met with Seromba and Kanyarukiga on the evening of 15 April 1994 on the ground that Witnesses CBK and CDJ – on whose testimonies the Trial Chamber premised its finding – could not corroborate each other since they themselves required corroboration.¹⁶⁸ The Appeals Chamber reiterates that Ndahimana’s general claim in this regard has no merit.¹⁶⁹ Moreover, Ndahimana fails to appreciate that Witness CDJ’s testimony about the 15 April evening meeting was found credible without the need for corroboration.¹⁷⁰ The Appeals Chamber thus finds that Ndahimana does not demonstrate any error in the Trial Chamber’s reliance on the testimonies of Witnesses CBK and CDJ that Ndahimana met with Seromba and Kanyarukiga in the evening of 15 April 1994.

168. See Ndahimana Appeal Brief, para. 51. See also ibid., paras. 119-121.

169. See supra, para. 45.

170. See Trial Judgement, paras. 469, 470.

68. Ndahimana correctly submits that there is no evidence as to what was discussed at that meeting or whether, during the meeting, Ndahimana received any information about the involvement of communal policemen in the 15 April attack.¹⁷¹ Ndahimana also points out that he did not meet with any policemen in the evening of 15 April 1994.¹⁷² On this latter issue, Ndahimana’s argument is contradicted by the testimony of Defence Witness ND11 that, on the night of 15 April 1994, Ndahimana ordered a policeman to escort Witness ND11 to safety.¹⁷³ In any event, the Appeals Chamber considers that it was reasonable for the Trial Chamber to rely on the fact that Ndahimana met soon after the 15 April attack with two influential figures of Kivumu involved in the attack as relevant circumstantial evidence of Ndahimana’s knowledge of the communal policemen’s participation in the attack.

171. Ndahimana Appeal Brief, paras. 119-121; Ndahimana Reply Brief, para. 60; AT. 6 May 2013 p. 14.

172. See supra, fn. 153.

173. Witness ND 11, T. 18 January 2011 pp. 35, 37, 38, relied upon by the Trial Chamber in Trial Judgement, para. 747.

69. With respect to Ndahimana’s challenges to the Trial Chamber’s findings on his presence at Nyange Church on 16 April 1994, the Appeals Chamber refers to a separate section of this Judgement below, where it affirms the Trial Chamber’s rejection of Ndahimana’s alibi for 16 April 1994 and the findings that Ndahimana attended the meeting held at the presbytery on the morning of 16 April 1994 and was present during the destruction of Nyange Church.¹⁷⁴ The Appeals Chamber further notes that Ndahimana does not challenge the Trial Chamber’s finding that, although their role in the attack remains unclear, communal policemen, including Niyitegeka, were present during the 16 April attack on Nyange Church.¹⁷⁵

174. See infra, Section V.A.2, paras. 139, 140.

175. See Trial Judgement, paras. 686, 687, 689, 759. The Appeals Chamber observes that, although Ndahimana’s challenges against the Trial Chamber’s finding on mens rea lack clarity at times, Ndahimana, in essence, merely alleges that the Trial Chamber erred in finding that Niyitegeka and policemen shared drinks with Ndahimana after the attack. See Ndahimana Appeal Brief, paras. 52-54. See also Ndahimana Response Brief, paras. 83-93; Ndahimana Reply Brief, para. 64.

70. Regarding Ndahimana’s role in the events of 16 April 1994, the Trial Chamber also concluded that after the demolition of Nyange Church, Ndahimana shared drinks with Kanyarukiga, Seromba, and “possibly other persons” in the vicinity of the church.¹⁷⁶ Ndahimana’s principal challenge is that this finding was unsupported by the evidence, because it was based upon the testimonies of Prosecution witnesses who were found to be unreliable and in need of corroboration.¹⁷⁷

176. Trial Judgement, para. 695. See also ibid., paras. 694, 754, 757.

177. See Ndahimana Appeal Brief, paras. 52-54, 70-72. See also Ndahimana Reply Brief, para. 64.

71. The Trial Chamber’s findings on the drink-sharing incident were based on the testimonies of Prosecution Witnesses CBY, CDJ, and CBK.¹⁷⁸ In an earlier part of the Trial Judgement, the Trial Chamber had found that the testimonies of these witnesses on this incident could be relied upon only where corroborated.¹⁷⁹ As stated above, the Appeals Chamber considers that this determination did not bar the Trial Chamber from considering these testimonies to be sufficiently corroborative of one another as to those facts on which all of these witnesses concurred.¹⁸⁰ Accordingly, the AppealsChamber finds no error in the Trial Chamber’s cumulative reliance on Witnesses CBY, CDJ, and CBK to establish that Ndahimana shared drinks with Seromba and Kanyarukiga in the evening of 16 April 1994.

178. See Trial Judgement, paras. 690-693.

179. Trial Judgement, paras. 639, 646, 647. See also ibid., para. 658.

180. See supra, para. 45.

72. The Appeals Chamber observes that the Trial Chamber did not make a conclusive finding in the “Factual Findings” section of the Trial Judgement as to whether communal policemen were among the people who shared drinks with Ndahimana on the evening of 16 April 1994.¹⁸¹ However, when making its legal findings on Ndahimana’s responsibility, the Trial Chamber expressly referred to the testimony of Witness CBY as establishing the presence of policemen during the drink-sharing incident, and unambiguously relied on the presence of policemen as circumstantial evidence of Ndahimana’s knowledge of the participation of policemen in the 15 April attack.¹⁸² The Trial Chamber did not expressly explain how Witness CBY’s testimony – which it found could be relied upon only where corroborated – was corroborated on the issue of the policemen’s presence in the drink-sharing incident when relying on his evidence.¹⁸³ Ndahimana is nonetheless incorrect in his assertion that Witness CBY’s testimony was not corroborated on this point;¹⁸⁴ as indicated by the Trial Chamber, Witness CBK testified that he also saw Brigadier Mbakilirehe sharing drinks with Ndahimana.¹⁸⁵ Contrary to Ndahimana’s submission,¹⁸⁶ these aspects of Witnesses CBK’s and CBY’s evidence were not rejected by the Trial Chamber,¹⁸⁷ which was only “reluctant to rely on the witnesses’ interpretation of the event” as to the reasons for the drink-sharing.¹⁸⁸ While the Trial Chamber’s finding as to the presence of policemen in the drink-sharing incident with Ndahimana after the attack on 16 April 1994 lacks clarity,¹⁸⁹ the Appeals Chamber finds no error in this regard.

181. See Trial Judgement, paras. 694 (“the Majority observes that the evidence does not clearly and precisely show where the authorities shared the drinks or with whom, although it is established that Kanyarukiga and Seromba were present, along with Ndahimana”), 695 (“Ultimately, the Majority finds proven beyond reasonable doubt that the accused shared drinks with Kanyarukiga, Seromba and possibly other persons after the killings on 16 April 1994.”) (emphasis added).

182. Trial Judgement, para. 754.

183. Trial Judgement, paras. 639, 754.

184. See Ndahimana Appeal Brief, para. 54.

185. Trial Judgement, para. 691; Witness CBK, T. 3 November 2010 p. 20.

186. See Ndahimana Appeal Brief, para. 54.

187. Trial Judgement, paras. 690-695.

188. Trial Judgement, para. 695 (emphasis added).

189. In addition to the absence of a clear finding that policemen were present during the drink-sharing incident, the Appeals Chamber notes that in another part of its Legal Findings section, the Trial Chamber erroneously mentions Witness CBY’s testimony as “the only evidence tending to show that the policemen were present after the attack on 16 April 1994”. See Trial Judgement, para. 757.

73. The Appeals Chamber considers that the absence of any evidence as to what was discussed at the meetings on 15 or 16 April 1994 does not undermine the Trial Chamber’s conclusion that Ndahimana “had reason to know” of the crimes committed by his subordinates.¹⁹⁰The Appeals Chamber finds that it was reasonable for the Trial Chamber to conclude that the only reasonable inference to be drawn from the record was that, having (i) visited the crime scene after the attackand met with Seromba and Kanyarukiga on the evening of 15 April 1994 and on 16 April 1994, (ii) attended the meeting on 16 April 1994 where the destruction of Nyange Church was decided, as well as having been present later that day during the destruction of the church, and (iii) shared drinks alongside communal policemen after the attack, Ndahimana would have been put on notice of the communal policemen’s participation in the 15 April attack on Nyange Church.

190. Trial Judgement, para. 755 (emphasis omitted)."

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

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

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

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

M.P.39. Evidence that the superior knew the victims.

A. Legal source/authority and evidence:

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

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

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

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

M.P.40. Evidence of the superior was informed about crime scenes.

A. Legal source/authority and evidence:

Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, para.73:

"73. The Appeals Chamber considers that the absence of any evidence as to what was discussed at the meetings on 15 or 16 April 1994 does not undermine the Trial Chamber’s conclusion that Ndahimana "had reason to know" of the crimes committed by his subordinates.190 The Appeals Chamber finds that it was reasonable for the Trial Chamber to conclude that the only reasonable inference to be drawn from the record was that, having (i) visited the crime scene after the attack and met with Seromba and Kanyarukiga on the evening of 15 April 1994 and on 16 April 1994, (ii) attended the meeting on 16 April 1994 where the destruction of Nyange Church was decided, as well as having been present later that day during the destruction of the church, and (iii) shared drinks alongside communal policemen after the attack, Ndahimana would have been put on notice of the communal policemen’s participation in the 15 April attack on Nyange Church"

190 Trial Judgement, para. 755 (emphasis omitted).

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

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

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

865. Predrag Radic, T. 22271.

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

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

M.P.41. Evidence that the superior took remedial action.

A. Legal source/authority and evidence:

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 527:

"527. […]The Chamber accepts that because of these, Ljube Boškoski acted on the same day, 13 August 2001, to establish a commission to enquire into the events of 12 August in Ljuboten.[…]"

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

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

"1290 - Appellant’s Brief, p. 114.

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

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

M.P.42. Evidence of the crimes being widely known.

A. Legal source/authority and evidence:

Prosecutor v. Ljube Boškoski et. al., Case No. IT-04-82-T, Judgement (TC), 10 July 2008, para. 527:

"527. The evidence does indicate, however, that media and diplomatic figures quickly heard different accounts of the day’s events, and by the next day, rumours were circulating in media and other circles that there had been clashes with citizens, shelling by the police and a number of persons killed. The Chamber is entirely satisfied that these very grave allegations quickly came to the attention of Ljube Boškoski. […]".

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

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

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

"(b) Actual or constructive knowledge

[…]

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

(v) the practice was widely known to and reported by inter alia the ICRC,^{( 1279 )} the ECMM,^{( 1280 )} and UNPROFOR^{( 1281 )} representatives; and

(vi) other HVO personnel present in the area at the time testified that the detention of Muslims, and the use of detainees to dig trenches, was plainly evident.^{( 1282 )}

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

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

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

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

1281 - Ex. P677 and P714.

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

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

M.P.43. Evidence relating to the number of the crimes.

A. Legal source/authority and evidence:

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

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

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

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

38 Trial Judgement, para. 975.

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

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

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

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

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

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

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

(a) The number of illegal acts;

[…]

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

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

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

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

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

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

M.P.44. Evidence relating to the nature of the crimes.

A. Legal source/authority and evidence:

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

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

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

38 Trial Judgement, para. 975.

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

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

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

[…]

(b) The type of illegal acts;

[…]

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

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

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

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

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

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

M.P.45. Evidence relating to the scope of the crimes.

A. Legal source/authority and evidence:

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

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

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

38 Trial Judgement, para. 975.

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

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

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

[…]

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

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

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

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

M.P.46. Evidence relating to the frequency of the crimes.

A. Legal source/authority and evidence:

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

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

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

38 Trial Judgement, para. 975.

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

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

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

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

Prosecutor v. Zejnil Delalić et al., Case No IT-96-21-T, Judgement (TC), 16 November 1998, paras. 386, 770:

[…]

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

[…]

(i) The tactical tempo of operations;

[…]

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

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

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

M.P.47. Evidence relating to the widespread occurrence of the crimes.

A. Legal source/authority and evidence:

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

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

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

38 Trial Judgement, para. 975.

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

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

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

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

Prosecutor v. Zejnil Delalić et al., Case No IT-96-21-T, Judgement (TC), 16 November 1998, para. 386:

[…]

(g) The geographical location of the acts;

(h) The widespread occurrence of the acts;

[…]

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

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

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

M.P.48. Evidence relating to the number and type of subordinates involved in the crimes.

A. Legal source/authority and evidence:

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

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

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

38 Trial Judgement, para. 975.

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

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

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

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

Prosecutor v. Zejnil Delalić et al., Case No IT-96-21-T, Judgement (TC), 16 November 1998, para. 386:

[…]

(e) The number and type of troops involved;

(f) The logistics involved, if any;

[…]

(k) The officers and staff involved;

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

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

M.P.49. Evidence relating to the location of the superior at the time.

A. Legal source/authority and evidence:

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

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

"1000 Aleksovski Trial Judgement, para. 80."

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

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

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

38 Trial Judgement, para. 975.

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

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

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

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

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

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

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

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

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

Prosecutor v. Zejnil Delalić et al., Case No IT-96-21-T, Judgement (TC), 16 November 1998, para. 386:

[…]

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

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

M.P.49.1. Evidence of the superior touring front lines

A. Legal source/authority and evidence:

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

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

[…]

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

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

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

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

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

[…]

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

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

[…]

[B. Evidentiary comment:]

M.P.49.2. Evidence of the superior’s proximity to detention centres.

A. Legal source/authority and evidence:

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

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

[…]"

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

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

[B. Evidentiary comment:]

M.P.49.3. Evidence of the superior visiting detention centres.

A. Legal source/authority and evidence:

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

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

[…]

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

[B. Evidentiary comment:]

M.P.49.4. Evidence of the superior working at detention centres.

A. Legal source/authority and evidence:

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

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

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

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

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

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

"218 Witness Jerkovic, FPT p. 2131."

[B. Evidentiary comment:]

M.P.50. Not sufficient: evidence of the superior position of the superior.

A. Legal source/authority and evidence:

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

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

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

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

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

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

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

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

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

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

"539 - Aleksovski Judgement, para. 80."

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

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

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

M.7.2. The perpetrator consciously disregarded information which clearly indicated that the subordinates were committing or about to commit the crimes.

A. General evidentiary comment:

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

M.7.2.1. Evidence that the superior was put on notice of the risk of such crimes.

M.P.51. Evidence that the superior was put on notice about related crimes.

A. Legal source/authority and evidence:

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

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

"231 - Ibid., para. 313."

M.P.51.1. Evidence of information about ill-treatment in a detention centre.

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

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

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

[B. Evidentiary comment:]

M.P.52. Evidence that the superior was put on notice about alarming and/or suspicious conditions of his or her subordinates.

M.P.52.1. Evidence of information about the inadequate level of training and instruction of the subordinates.

A. Legal source/authority and evidence:

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

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

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

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

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

[B. Evidentiary comment:]

M.P.52.2. Evidence of information about the violent or unstable character of the subordinates.

A. Legal source/authority and evidence:

Prosecutor v. Sefer Halilovic, Case No, ICTY-IT-01-48-T, Judgement (TC), 16 November 2005, para. 68:

"Thus a commander’s knowledge of, for example, the criminal reputation of his subordinates may be sufficient to meet the mens rea standard required by Article 7(3) of the Statute if it amounted to information which would put him on notice of the "present and real risk" of offences within the jurisdiction of the Tribunal."

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

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

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

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

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

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

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

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

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

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

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

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

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

[B. Evidentiary comment:]

M.P.52.3. Evidence of information about substance abuse by the subordinates.

A. Legal source/authority and evidence:

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

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

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

[B. Evidentiary comment:]

M.P.53. Evidence that the superior was put on notice about alarming and/or suspicious circumstances.

M.P.53.1. Evidence of information about the tactical situation.

A. Legal source/authority and evidence:

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

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

[B. Evidentiary comment:]

M.P.53.2. Evidence of information about suspicious deaths.

A. Legal source/authority and evidence:

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

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

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

[B. Evidentiary comment:]

M.P.53.3. Evidence of information about disappearances.

A. Legal source/authority and evidence:

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

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

[B. Evidentiary comment:]

M.P.53.4. Evidence of blood stains and/or bullet holes.

A. Legal source/authority and evidence:

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

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

[B. Evidentiary comment:]

M.P.53.5. Evidence of information about work being completed in spite of insufficient labour.

A. Legal source/authority and evidence:

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

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

[…]

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

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

[…]

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

[B. Evidentiary comment:]

M.P.53.6. Evidence of communication of a protest by an external actor.

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

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

"1206. See supra, para 160. […]

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

[B. Evidentiary comment:]

M.7.2.2. Evidence that the superior had the means to obtain relevant information of such crimes.

A. Legal source/authority and evidence:

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

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

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

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

"343 - Trial Judgement, para 393."

M.7.2.3. Evidence that the superior failed to obtain relevant information of such crimes.

A. Legal source/authority and evidence:

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

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

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