[1] Prosecution Appeal Brief, paras 4.2-4.17. See also Halilović Respondent’s Brief, paras 286-294; Prosecution Reply Brief, paras 5.1-5.4; AT. 53-55.

[2] Prosecution Notice of Appeal, para. 7 (which concerns the Prosecution’s third ground of appeal). […].

[3] Article 86 of Additional Protocol I provides that superiors are responsible if, inter alia “[t]hey did not take all feasible measures within their power to prevent or repress the breach”; in this respect, the ICRC Commentary explains that, for a superior to be found responsible, it must be demonstrated that the superior “did not take the measures within his power to prevent it” and elaborates that these measures must be “‘feasible’ measures, since it is not always possible to prevent a breach or punish the perpetrators” (ICRC Commentary, paras 3543 and 3548, emphasis added); Article 87 adds the duty to “initiate such steps as are necessary to prevent such violations […] and, where appropriate, to initiate disciplinary or penal action against violators thereof.” See also the US Supreme Court’s holding in In re Yamashita, 327 US 1 (1945), at 16 (“such measures […] within his power and appropriate in the circumstances”) and US v. Karl Brandt et al., in TWC, Vol. II, p. 212 (“The law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command…”).

[4] Blaškić Appeal Judgement, para. 72.

[5] See Prosecution Appeal Brief, para. 4.9.