Identification of subordinates

Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser

35. The Appeals Chamber considers that, notwithstanding the degree of specificity with which the culpable subordinates must be identified, in any event, their existence as such must be established. If not, individual criminal liability under Article 7(3) of the Statute cannot arise. In the present case, the Trial Chamber established the existence of the “Military Police” as an entity and repeatedly referred to its responsibility and duties.[1] However, when discussing the conduct of the actual members of the Military Police with respect to detention matters, it only identified its successive Commanders, Mirzet Halilović and Atif Krd‘ić.[2] Nowhere in the Trial Judgement did the Trial Chamber mention other potentially culpable members of the Military Police, nor did it suggest that unidentified military policemen were implicated in the crimes at issue. Because the Trial Chamber did not identify any member of the Military Police other than Atif Krd‘ić who would have taken part in the commission of the crimes for which Orić was found responsible, not even by mere reference to their membership in the Military Police, the Prosecution’s argument fails.

[1] See e.g. Trial Judgement, paras. 483-491, 531, 532.

[2] Trial Judgement, paras 182, 492-496. 

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE

370.   […] Under certain circumstances, referring to an alleged subordinate by category can constitute sufficient notice of his or her identity.[1] However, where the Prosecution has specific information in its possession pertaining to the material facts of its case, it should expressly provide these facts in the indictment.[2]

[1] Hategekimana Appeal Judgement, para. 166 (considering that “a soldier from the Ngoma Military Camp” provided a reasonable identification of the alleged subordinate); Ntabakuze Appeal Judgement, para. 127 (upholding a finding that there was sufficient notice for crimes allegedly committed by “members of the Para-Commando Battalion” at specific locations); Muvunyi I Appeal Judgement, para. 55 (finding sufficient notice that alleged superior responsibility extended to the criminal acts of “ESO Camp soldiers” at a specific location); Ntagerura et al. Appeal Judgement, paras. 140, 141, 153 (establishing that sufficient notice was provided when the alleged subordinates were identified as soldiers from the camp under the accused’s control). See also Simba Appeal Judgement, paras. 71, 72 (confirming the Trial Chamber’s statement, in relation to notice of members of an alleged joint criminal enterprise, that it was sufficient to identify the general perpetrators “by broad category, such as Interahamwe or gendarmes” along with other geographic and temporal details). Notably, in the Simba case on which the Prosecution relies, the Trial Chamber also stated that it was “not satisfied that the Prosecution could have provided more specific identification”. Simba Trial Judgement, para. 393, quoted in Simba Appeal Judgement, para. 71, cited by Prosecution Response Brief (Ngirumpatse), para. 351.

[2] Bagosora and Nsengiyumva Appeal Judgement, paras. 131, 132; Muvunyi I Appeal Judgement, para. 94; Muhimana Appeal Judgement, para. 197. See also Renzaho Appeal Judgement, para. 128. 

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