Acts of subordinates that do not amount to committing

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

485. The Appeals Chamber adds that, for the purposes of Article 6(3) of the Statute, the “commission” of a crime by a subordinate must be understood in a broad sense. In the Blagojević and Jokić Appeal Judgement, the ICTY Appeals Chamber confirmed that an accused may be held responsible as a superior not only where a subordinate committed a crime referred to in the Statute of ICTY, but also where a subordinate planned, instigated or otherwise aided and abetted in the planning, preparation or execution of such a crime: […][1]

486. The Appeals Chamber endorses this reasoning and holds that an accused may be held responsible as a superior under Article 6(3) of the Statute where a subordinate “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute”,[2] provided, of course, that all the other elements of such responsibility have been established.

[1] Blagojević and Jokić Appeal Judgement, paras. 280-282 (footnotes omitted).

[2] Article 6(1) of the Statute.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

280. As a threshold matter, the Appeals Chamber confirms that superior responsibility under Article 7(3) of the Statute encompasses all forms of criminal conduct by subordinates, not only the “committing” of crimes in the restricted sense of the term, but all other modes of participation under Article 7(1). The Appeals Chamber notes that the term “commit” is used throughout the Statute in a broad sense, encompassing all modes of responsibility covered by Article 7(1)[1] and that such a construction is clearly manifest in Article 29 (co-operation and judicial assistance) of the Statute, referring to States’ obligation to co-operate with the International Tribunal “in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”

281. The Appeals Chamber has previously determined that criminal responsibility under Article 7(3) is based primarily on Article 86(2) of Protocol I.[2] Accordingly, the meaning of “commit”, as used in Article 7(3) of the Statute, necessarily tracks the term’s broader and more ordinary meaning, as employed in Protocol I.[3] The object and purpose of Protocol I, as reflected in its preamble, is to “reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application”. The preamble of Protocol I adds further that “the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments.” The purpose of superior responsibility, as evidenced in Articles 86(1) and 87 of Protocol I, is to ensure compliance with international humanitarian law. Furthermore, one of the purposes of establishing the International Tribunal, as reflected in Security Council Resolution 808, is to “put an end to [widespread violations of international humanitarian law] and to take effective measures to bring to justice the persons who are responsible for them”. And, more particularly, the purpose of superior responsibility in Article 7(3) is to hold superiors “responsible for failure to prevent a crime or to deter the unlawful behaviour of [their] subordinates.”

282. In this context, the Appeals Chamber cannot accept that the drafters of Protocol I and the Statute intended to limit a superior’s obligation to prevent or punish violations of international humanitarian law to only those individuals physically committing the material elements of a crime and to somehow exclude subordinates who as accomplices substantially contributed to the completion of the crime. Accordingly, “commit” as used in Article 7(3) of the Statute must be understood as it is in Protocol I, in its ordinary and broad sense.

[1] See, e.g., Statute, Articles 1, 2, 4, 5, 9, 16, 29.

[2] Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility,.[Prosecutor v. Enver Had‘ihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003] para. 48 See also Čelebići Appeal Judgement, para. 237. Article 86(2) of Protocol I [Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts , 8 June 1977] provides: “The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

[3] Article 31(1) of the Vienna Convention on the Law of Treaties provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

[4] Protocol I, [Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts , 8 June 1977] Article 86(1) states: “The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.” Article 87(1) states: “The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.”

[5] S/RES/808 (1993), p. 2.

[6] Report of the Secretary-General,[Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704] para. 56.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

21. Second, Orić argues that superior responsibility under Article 7(3) of the Statute does not encompass criminal conduct by subordinates in the form of aiding and abetting crimes.[1] This is incorrect. The Appeals Chamber has held that superior responsibility encompasses criminal conduct by subordinates under all modes of participation under Article 7(1) of the Statute.[2] It follows that a superior can be held criminally responsible for his subordinates’ planning, instigating, ordering, committing or otherwise aiding and abetting a crime.

[1] Orić Appeal Brief, paras. 317, 340-374. See also ibid., paras. 106 and 109. See also AT. 1 April 2008, pp. 131-132.

[2] Nahimana et al. Appeal Judgement, paras. 485-486; Blagojević and Jokić Appeal Judgement, paras. 280, 282. 

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)