The Prosecutor v. Zejnil Delalic, Zdravko Mucic (a/k/a/ "Pavo"),Hazim Delic, Esad Landzo (a/k/a "Zenga") Case No. IT-96-21-T

"Judgement"

16 November 1998Trial Chamber (Judges Karibi-Whyte [Presiding], Odio Benito and Jan)

- Article 2 of the Statute: an international armed conflict existed in Bosnia and Herzegovina throughout the period of the Indictment and the victims were protected persons under Geneva Convention IV;- Article 3 of the Statute: both Article 3 common to the Geneva Conventions as well as the Hague Regulations are covered under Article 3;- Determination of the elements of the following offences: wilful killing and murder; torture, rape as torture; wilfully causing great suffering or serious injury to body or health; inhuman treatment; cruel treatment; inhumane conditions; unlawful confinement of civilians; and plunder;- Analysis of the requisite elements of superior criminal responsibility pursuant to Article 7(3) of the Statute.

Introduction

The Judgement of what has become known as the Celebici case, addresses many important legal issues, including some never addressed by the Tribunal or, indeed, by any international criminal court. This summary of course cannot address all these issues or be a substitute for the subtly formulated legal considerations and findings. The following merely highlights the most important legal aspects of the Judgement.

The findings and the sentences imposed are indicated first:

Zejnil Delalic was found not guilty of the 12 counts, including one alternative count, of grave breaches of the Geneva Conventions of 1949 (Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention III Relative to the Treatment of Prisoners of War (hereinafter "Geneva Convention III"); Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (hereinafter "Geneva Convention IV") (Article 2 of the Statute); and violations of the laws or customs of war (Article 3 of the Statute), for which he was charged because of his alleged command over the Celebici prison camp at the relevant time. He was also acquitted of the charge of direct participation in the unlawful confinement of civilians (a grave breach of the Geneva Conventions).

Zdravko Mucic was charged with 13 counts, including one alternative count, of grave breaches of the Geneva Conventions and violations of the laws or customs of war. Mr Mucic was found guilty on 11 counts and sentenced to seven years’ imprisonment. As a superior, he was held responsible for wilful killing (a grave breach of Geneva Convention IV), murder (a violation of the laws or customs of war), wilfully causing great suffering or serious injury to body or health (a grave breach of Geneva Convention IV), cruel treatment (a violation of the laws or customs of war), torture (a grave breach of Geneva Convention IV and a violation of the laws or customs of war) and inhuman treatment (a grave breach of Geneva

Convention IV). He was found to have participated directly in the wilful causing of great suffering or serious injury to body or health, cruel treatment and the unlawful confinement of civilians (a grave breach of Geneva Convention IV).

Hazim Delic was charged with 38 counts, including 6 alternative counts, of grave breaches of the Geneva Conventions and violations of the laws or customs of war. He was found guilty on 14 counts and sentenced to 20 years’ imprisonment for his direct participation in wilful killing, murder, the wilful causing of great suffering or serious injury to body or health, cruel treatment, torture and inhuman treatment. The Trial Chamber held that since it had not been proved beyond a reasonable doubt that Mr Delic had exercised superior authority, it acquitted him of the related charges.

As a direct participant in the offences, Esad Landzo was charged with 24 counts, including 4 alternative counts, of grave breaches of the Geneva Conventions and violations of the laws or customs of war. He was found guilty on 18 counts and sentenced to 15 years’ imprisonment for wilful killing, murder, the wilful causing of great suffering or serious injury to body or health, cruel treatment and torture.

1. Article 2 of the Statute 1

The parties apparently did not contend that the application of Article 2 (Grave breaches of the Geneva Conventions of 1949) requires (1) an international armed conflict and (2) that the victims be protected under any of the four Geneva Conventions of 1949. The Prosecution argued that both these requirements were met, but the Defence did not agree. Having already established the existence of an armed conflict and a nexus between the conflict and the alleged acts, in light of the general requirements for the application of Articles 2 and 3 of the Statute, the Trial Chamber first considered the nature of the armed conflict.

The nature of the armed conflict in Bosnia and Herzegovina2

As a preliminary point, the Trial Chamber recalled the Separate Opinion of Judge Abi-Saab on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, in the Tadic case (IT-94-1-AR72) and acknowledged the possibility that customary law has extended the application of the "grave breaches" system to internal armed conflicts. However, for the purposes of determining the case at issue, it found that an international armed conflict existed in Bosnia and Herzegovina during the relevant time period.

The Trial Chamber considered the Commentary to Geneva Convention IV (Jean Pictet (ed.), 1985/1994 reprint edition) according to which an international armed conflict exists when any difference arises between two States which leads to the intervention of members of the armed forces. It was held that, in such a case, the relevant norms of international humanitarian law apply throughout the territory of the States until the general cessation of hostilities unless the existence of a separate internal armed conflict in part of the larger territory which is unrelated to the international armed conflict has been proved.

The Trial Chamber determined that on 6 April 1992, the date Bosnia and Herzegovina was recognised as an independent State, an international armed conflict existed on its territory, including in Konjic municipality where the crimes were allegedly committed. Noting no general cessation of hostilities before November 1995, the Trial Chamber focused on the date of 19 May 1992, by which time the Yugoslav Peoples’ Army (JNA) had apparently withdrawn from Bosnia and Herzegovina. Following the Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute of 7 May 1997 in the Tadic case (IT-94-1-T), however, the Trial Chamber found that the replacement of the JNA by the Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska (hereinafter

"the VRS") "… constituted a deliberate attempt to mask the continued involvement of the FRY [Federal Republic of Yugoslavia (Serbia and Montenegro)] in the conflict while its Government remained in fact the controlling force behind the Bosnian Serbs." The Trial Chamber therefore concluded that the conflict which continued after 19 May 1992 until the end of that year should also be characterised as international.

The status of the victims as "protected persons"3

According to Article 4 of Geneva Convention IV, the applicable legal test in respect of civilian populations is whether the victims were in the hands of a party to the conflict or an occupying power of which they were not nationals. Finding that "in the hands of" should be explained as "under the control of", the Trial Chamber focused on the issue of nationality. The problem here was that both victims and alleged perpetrators were nationals of Bosnia and Herzegovina.

The Trial Chamber noted the Opinion and Judgement of 7 May 1997 in the Tadic case (IT-94-1-T) (hereinafter "the Tadic Judgement") in which Trial Chamber II found that all the individuals involved had the same nationality and, on the basis of the Nicaragua case (1986 ICJ Reports, 14) decided in the International Court of Justice (hereinafter "the ICJ"), considered whether an "agency relationship" had existed between Republica Srpska and the FRY. Having denied this relationship, the majority of the Trial Chamber ruled that the victims in the Tadic case were not "protected persons".

In the present case, the Trial Chamber reasoned differently when it addressed the issue of nationality. On the basis of expert witness evidence, it first concluded that, although perhaps emerging, the obligation for States to grant individuals the right to choose their own nationality is not yet a settled rule of customary international law. It added, however, that the doctrine of "effective link" between an individual and the State of his or her nationality, applied by the ICJ in the Nottebohm case (1955 ICJ Reports, 4), could provide more guidance.

The Trial Chamber found that, in the case in point, the granting of nationality had occurred within the context of the dissolution of a State during armed conflict and that the Bosnian Serbs had clearly expressed the wish not to be nationals of Bosnia and Herzegovina. The Trial Chamber reviewed the arguments of "effective link" and "agency" but, in fact, concluded that a much broader approach to the concept of "protection" under the Geneva Convention IV was required and that the concept of nationality and the requirements of domestic law could not be used to restrict the scope of application of that Convention in the context of the present case.

Having found that the victims were not prisoners of war and that the protection granted under Geneva Conventions III and IV is continuous, the Trial Chamber denied the application of the former and concluded instead that all the victims were "protected persons" under Geneva Convention IV.

2. Article 3 of the Statute 4

Bringing its charges under Article 3 of the Statute (Violations of the laws or customs of war), the Prosecution alleged violations of Article 3 common to the Geneva Conventions relating to internal armed conflict, as well as of the Regulations attached to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land (hereinafter "the Hague Regulations" and "Hague Convention IV" respectively) regarding the prohibition of plunder.

Contrary to Defence contentions, but taking the same approach as the Appeals Chamber in its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadic case (IT-94-1-AR72) (hereinafter "the Tadic Jurisdiction Decision"), the Trial Chamber first found that Article 3 of the Statute may be understood as including all violations of international humanitarian law, i.e. both "Geneva" and "Hague law", not covered elsewhere in the Statute. The Trial Chamber then ruled that Common Article 3 has acquired the status of customary international law. In this regard, it referred to the ICJ Nicaragua case, the Judgement in the Akayesu case (ICTR-96-4-T) of 2 September 1998 of Trial Chamber I of the International Criminal Tribunal for Rwanda (ICTR) (hereinafter "the Akayesu Judgement"), the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993 S/25704) (hereinafter "the Report of the Secretary-General"), and an uncontradicted statement in the Security Council by the United States further to the adoption of the Statute.

The Trial Chamber also found that violations of Common Article 3 attract individual criminal responsibility. In this regard, the Chamber noted the (non-mandatory) jurisdiction of national courts over violations of the Geneva Conventions other than the grave breaches. It also based its decision on the 1996 Draft Code of Crimes against the Peace and Security of Mankind (UN Doc. A/51/10) of the International Law Commission (hereinafter "the ILC Draft Code"), the Statute of the ICTR and the Statute of the International Criminal Court of 1998 (hereinafter "the ICC").

Furthermore, in response to the Defence’s concern vis a vis a violation of the principle of nullum crimem sine lege, the Trial Chamber noted that all crimes enshrined in Common Article 3 were criminalised in national legislation in force during the alleged perpetration. Moreover, the Trial Chamber took note of Article 15(2) of the International Covenant on Civil and Political Rights of 1966 (hereinafter "the ICCPR"), according to which, the principle of nullum crimem is without prejudice to the trial and punishment of acts, which at the time of their alleged commission were criminal under the general principles of law.

Violations of Common Article 3 of the Geneva Conventions thus fall under Article 3 of the Statute although the Trial Chamber did note that, should a more teleological approach to Article 2 be taken than thus far articulated by the Appeals Chamber, it might be more logical to include these offences under Article 2 of the Statute.

As regards the substantive norms enshrined in the Hague Regulations, the Trial Chamber found that these unquestionably form part of customary international law. The Regulations were thus found to fall under Article 3 of the Statute as also stated in the Report of the Secretary-General.

3. Elements of the offences 5

The Trial Chamber determined the elements of the alleged offences on the basis of customary international law as it stood during the time period to which the Indictment related.

Wilful killing and murder6

The Indictment categorised the killing of several detainees as both wilful killing, a grave breach (punishable under Article 2 of the Statute), and as murder, a violation of Article 3 common to the Geneva Conventions (punishable under Article 3 of the Statute). Despite the different terminology, the Trial Chamber found that, placed in the context of the Geneva Conventions, the contents of these offences are the same. In particular, the Trial Chamber

considered the primary purpose of Common Article 3, which was to extend the elementary protection of international humanitarian law to internal armed conflicts.

The Trial Chamber noted that the actus reus of these two identical crimes may be satisfied by both an act or an omission. Furthermore, the Chamber found that a substantial causal connection between the conduct of the accused and the death of the victim must exist.

The second aspect of criminal culpability is the mens rea, the mental element. In this regard, the definition of the "intent" required was contentious. The Defence, relying upon (English) common law had argued that intent does not include recklessness. The Trial Chamber, however, in agreement with the Prosecution, found guidance in the Commentary (Yves Sandoz et al. eds., 1987) to the 1977 Geneva Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of International Armed Conflicts (Protocol I) (hereinafter "Additional Protocol I"), which explicitly includes recklessness as an element of wilfulness (in "wilful killing"). Furthermore, the Trial Chamber considered the common law term "malice" and the civil law concept dolus (eventualis) in light of the mens rea requirements in common law (which generally includes recklessness and awareness of the likelihood or probability of death) and in civil law (where foreseeability and possibility of death are relevant). Finally, considering the crimes particularly in the context of the nature and purpose of the Geneva Conventions, the Trial Chamber found that the mens rea for wilful killing and murder is present "… where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life."

Offences of mistreatment7

Torture8

The crime of torture was charged as a grave breach and as a violation of Common Article 3. The Trial Chamber first found that torture is without question prohibited by both conventional and customary international law. Indeed, recalling a number of international and regional human rights instruments, in particular, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (hereinafter "the Torture Convention"), and the Declaration on the Protection from Torture of 1975 (hereinafter "the Torture Declaration"), adopted by consensus by the United Nations General Assembly, the Trial Chamber concluded that the prohibition of torture constitutes a norm of jus cogens as confirmed by the United Nations Special Rapporteur on Torture.

The definition of torture under international law, however, was somewhat less clearly articulated. Nonetheless, in view of the various definitions in the Torture Declaration, the Inter-American Convention to Prevent and Punish Torture of 1985, and the Torture Convention, the Trial Chamber held that the consensus reflected in the latter definition represents customary international law. Accordingly, torture means "… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

The Trial Chamber then discussed the requisite elements of torture in more detail. First, having reviewed the jurisprudence of the ICCPR Human Rights Committee, the European Court and the European Commission of Human Rights, the Trial Chamber found that no abstract threshold of pain or suffering can be determined. The Trial Chamber reasoned that

an attempt to categorise acts of torture precisely would be detrimental to the cause of its overall prohibition. However, it determined that both acts and omissions may constitute torture so long as the torturer demonstrates the required intent.

Furthermore, contrary to the Defence contention, the Trial Chamber ruled that the list of prohibited purposes in the customary law definition of torture is not exhaustive but merely representative. It also held that torture need not have been committed solely for a prohibited purpose, but that the purpose need only form part of the motivation. Finally, the Chamber distinguished between prohibited purposes and purely private purposes which would ordinarily be sanctioned under national law. However, it stressed that, in times of war, prohibited purposes often form an integral part of behaviour, which makes it possible to categorise the act as torture.

Finally, in order to render the prohibition of torture meaningful in the context of an internal armed conflict, the Trial Chamber noted that the involvement of a public official or other person acting in an official capacity includes officials of non-State parties to the conflict.

Rape as torture9

The Indictment alleged the commission of rape, categorised as torture, and punishable as a grave breach of the Geneva Conventions and as a violation of Common Article 3 of the Geneva Conventions. Reviewing various international instruments, including Geneva Convention IV, Additional Protocol I, and the 1977 Geneva Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of Non-International Armed Conflicts (Protocol II), Hague Convention IV, and also the definitions of crimes against humanity in the Nürnberg Charter and Article 5 of the Statute, the Trial Chamber first concluded that there is no doubt that rape and other forms of sexual assault are prohibited by international humanitarian law. For the definition of rape, the Trial Chamber followed the recent Akayesu Judgement. Accordingly, the Chamber considered "… rape to constitute a physical invasion of a sexual nature, committed on a person under circumstances that are coercive."

Rape constitutes torture if all the requisite elements of that crime are met. Reviewing, inter alia, the jurisprudence of the Inter-American Commission on Human Rights and the European Court of Human Rights, the Trial Chamber found that rape causes severe pain and suffering, both physical and psychological. Furthermore, according to the Trial Chamber, it is difficult to envisage circumstances during armed conflict in which no prohibited purpose underlies the rape.

Wilfully causing great suffering or serious injury to body or health10

The Trial Chamber defined this crime, a grave breach of the Geneva Conventions, on the basis of the Commentary to Geneva Convention IV. Accordingly, it was noted that while a prohibited purpose is required in the case of torture, this is not so in the present case. The Chamber further defined this offence as "… an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury."

Inhuman treatment11

The Trial Chamber first found that, given the widespread prohibition in international human rights instruments, inhuman treatment, a grave breach of the Geneva Conventions, is prohibited by both conventional and customary international law. A definition of inhuman

treatment, however, has been less clearly articulated. The Defence had submitted that, for this reason and except for the clearest cases, criminal prosecution for this offence would constitute a violation of the principle of nullum crimen.

Having established on the basis of its purely linguistic meaning that "inhumane" means "not humane", the Trial Chamber analysed the relevant provisions in the Geneva Conventions and the Commentaries, including, in particular, Common Article 3. Having also considered the categorisation of inhumane acts as crimes against humanity in Article 5 of the Statute, the Nürnberg Charter and the ILC Draft Code, the Chamber then considered the jurisprudence of the European Commission and the European Court of Human Rights, and the ICCPR Human Rights Committee.

In conclusion, the Chamber defined inhuman treatment as "… an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity." It thus follows that although acts of torture and the wilful causing of great suffering are all acts of inhumane treatment, not all acts in this category necessarily fall into either of the first two. The Trial Chamber concluded that inhuman treatment requires that a violation of the basic principle of humane treatment, particularly respect for human dignity, must have been committed. This, the Chamber concluded, is a question of fact which must be judged in the circumstances of the case.

Cruel treatment12

Despite its prohibition in international and regional human rights instruments, a definition of the offence of cruel treatment, charged as a violation of Common Article 3, could not be found. Nevertheless, reviewed in the context of the various prohibitive instruments, as well as the Tadic Judgement, the Trial Chamber determined that the meaning of this crime is equivalent to the offence of inhuman treatment.

Inhumane conditions13

The alleged inhumane conditions in the Celebici prison camp were charged as wilfully causing great suffering or serious injury to body or health and as cruel treatment. The Defence argued that, under the circumstances, the best possible conditions had been set up in the camp. However, the Trial Chamber held that the standards required are absolute and not relative. Reiterating the respective definitions already found, the Trial Chamber held that, while it is possible to categorise inhumane conditions as wilfully causing great suffering, they are more appropriately charged as inhuman treatment.

Unlawful confinement of civilians14

The Trial Chamber first noted that the Geneva Conventions do not grant an absolute right to freedom of movement. Further to a review of Articles 5 and 27, and specifically Articles 41, 42 and 43 of Geneva Convention IV, it concluded that when civilians are considered to pose a threat to its security, they may be interned. Having established that States have broad discretion in deciding whether civilians pose a threat to their security, the Trial Chamber considered that internment must be exceptional and may never be used collectively. Furthermore, an initially lawful internment becomes illegal when the basic procedural rights stated in Article 43 are not upheld.

Plunder15

In the Indictment, plunder was charged as a violation of Article 3 of the Statute. The Trial Chamber first found that the international law prohibition of and the individual criminal liability for the unjustified appropriation of enemy property not only embrace the organised seizure of property carried out within the framework of systematic exploitation of occupied territory, but also individual acts of looting for private gain.

The Defence submitted that the alleged instances of plunder were not serious enough to constitute serious violations of international humanitarian law as required by Article 1 of the Statute. In this regard, the Trial Chamber applied the Appeals Chamber’s finding in the Tadic Jurisdiction Decision which held that for a violation to be "serious" it must breach a rule protecting important values and have grave consequences for the victim. On a factual note, the Trial Chamber found that, given the limited monetary value of the appropriated items in the present case, consequences of such gravity had not occurred. Accordingly, the corresponding count in the Indictment was dismissed.

4. Superior criminal responsibility 16

The Trial Chamber needed to reach a decision on the criminal responsibility of three of the four accused who were charged on the basis of their alleged positions as superiors of the perpetrators of the crimes listed in the Indictments. Unlike the case of individual criminal responsibility pursuant to Article 7(1), where the approach chosen in the Tadic Judgement was adopted, for the first time since World War II the principle of command responsibility as enshrined in Article 7(3) of the Statute, needed to be formulated and applied by an international judicial body.

The Trial Chamber first distinguished between two forms of command or superior responsibility, the two terms being used interchangeably in the Judgement. There is the responsibility of a commander for acts of subordinates through a positive act, e.g. ordering, which is also referred to as direct command responsibility punishable under Article 7(1). There is also command responsibility for acts of subordinates through a culpable omission. This latter responsibility, also referred to both as indirect command responsibility and command responsibility strictu sensu, is at issue in the present case.

Despite limited international jurisprudence, the Trial Chamber still found that the principle of superior responsibility for failure to act forms part of customary international law. In this regard, the Trial Chamber referred to Articles 86 and 87 of Additional Protocol I and their travaux préparatoires which confer upon commanders the obligation to control, prevent or punish violations of the Geneva Conventions or the Protocol committed by their subordinates and render punishable a failure to act accordingly. Furthermore, the Trial Chamber noted that the doctrine has been incorporated into the (military) legal orders of the United States and the United Kingdom. This was also the case in the former Yugoslavia. It can also be found in the ILC Draft Code and in the ICC Statute.

From the text of Article 7(3) the Trial Chamber identified the following essential elements of command responsibility in respect of failure to act:

(i) the existence of a superior-subordinate relationship;(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.

The superior-subordinate relationship17

The Trial Chamber first found that not only military but also civilian superiors may be held responsible for failure to act. This finding is based upon the non-exclusive language of Article 7(3), an uncontradicted statement by the United States in the Security Council following the adoption of resolution 827 on the establishment of the Tribunal, and the Final Report of the United Nations Commission of Experts (S/1994/674). The Trial Chamber also considered the position adopted by ICTY Trial Chamber I in its review of the indictment against Milan Martic (IT-95-11-I, 8 March 1996) pursuant to Rule 61. Furthermore, it considered World War II related case-law, in particular, decisions of the International Military Tribunal for the Far East.

The Trial Chamber then considered the requisite character of the superior-subordinate relationship. The Defence submitted that the responsibility for failure to act extends only to individuals having the power to issue binding orders and to punish violators of such orders. In the military this would be only a commander. In its review of the relevant case-law, the Trial Chamber noted that the matter is not undisputed and agreed that the superior must be in a position of command.

However, the Trial Chamber also found that the position of command need not necessarily be de jure. The Chamber came to this conclusion by referring once again to Additional Protocol I, which extends military command responsibility not only to subordinates but also to other persons under the commander’s control. Analysis of a broad body of World War II related case-law led the Trial Chamber to its determination that the applicable test here is whether a superior has effective control over the perpetrators. In line with the ILC, however, the Chamber stressed that such control should resemble military command control.

The superior knew or had reason to know18

As to the requisite mens rea, the Trial Chamber first found that the superior’s knowledge that his subordinates were about to commit, or had committed the offences must be proved either by direct or indirect evidence. The Trial Chamber also found that proof of knowledge can be established with the guidance of a list of indicia established by the Commission of Experts. Therefore, knowledge can never be presumed, as the Prosecution had submitted in the case of matters of public notoriety.

Secondly, defining the appropriate test for "had reason to know", the Trial Chamber first turned to the judicial findings reached in the aftermath of World War II which affirmed the commander’s obligation to remain informed about the activities of his subordinates. However, in order to determine the state of customary law at the time of the alleged crimes, which is required by the principle of nullum crimem, the Trial Chamber also considered Additional Protocol I and its travaux préparatoires.

Having noted the explicit disapproval of the Protocol’s drafters of the language "should have known", and even "should reasonably have known", the Trial Chamber determined that the present case required the standard that the superior had to have possessed information which, at the very least, would point out the risk of the commission of offences by indicating the need for additional investigation. Referring to the ICC Statute, however, the Chamber emphasised that this finding is without prejudice to the current state of customary international law.

The superior failed to take the necessary and reasonable measures to prevent or punish19

Since an evaluation of whether the superior has met his responsibilities in this regard is inextricably linked with the facts of the case, the Trial Chamber did not formulate an

abstract definition. It did, however, note that the test should be to determine whether the superior took the measures that are within his material possibility. The Trial Chamber thus explicitly rejected the position of the ILC in its Draft Code, according to which a superior’s responsibility does not exceed his legal competence.

Finally, as opposed to the Defence contention, the Trial Chamber held that while a causal connection between the failure of the superior to prevent the commission of the subordinate’s crime and the commission of the crime is likely, causation is not a requisite element of superior responsibility. The Trial Chamber accepted the Prosecution’s submission and found that this requirement would be incompatible with the existence of the principle of superior responsibility for failure to punish.20

____________________________________________1 Paragraphs 199 to 277.2 Paragraphs 204 to 235.3 Paragraphs 236 to 277.4 Paragraphs 278 to 318.5 Paragraphs 419 to 592.6 Paragraphs 420 to 439.7 Paragraphs 440 to 558.8 Paragraphs 446 to 497.9 Paragraphs 475 to 497.10 Paragraphs 498 to 511.11 Paragraphs 512 to 544.12 Paragraphs 545 to 553.13 Paragraphs 554 to 558.14 Paragraphs 559 to 583.15 Paragraphs 584 to 592.16 Paragraphs 330 to 400.17 Paragraphs 348 to 378.18 Paragraphs 379 to 393.19 Paragraphs 394 to 395.20 On the issue of "causation", see paragraphs 396 to 400.