Liability under Articles 7(1) and 7(3)

Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)

338. [The Trial Chamber’s findings could be interpreted as suggesting that the] Trial Chamber believed that, as a legal matter, there could be no liability for unlawful confinement under Article 7(1) without superior responsibility under Article 7(3) being established. Such a legal interpretation is clearly incorrect, as it entwines two types of liability, liability under Article 7(1) and liability under Article 7(3). As emphasised by the Secretary-General’s Report,[1] the two liabilities are different in nature. Liability under Article 7(1) applies to direct perpetrators of crimes and to accomplices. Article 7(3) applies to persons exercising command or superior responsibility. As has already been acknowledged by the Appeals Chamber in another context, these principles are quite separate and neither is dependent in law upon the other. In the Aleksovski Appeal Judgement, the Appeals Chamber rejected a Trial Chamber statement, made in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields, that the accused “cannot be held responsible under Article 7(1) in circumstances where he does not have direct authority over the main perpetrators of the crimes”.[2] There is no reason to believe that, in the context of the offence of unlawful confinement, there would be any special requirement that a position of superior authority be proved before liability under Article  7(1) could be recognised.

[1]    Secretary-General’s Report, paras 56-58.

[2]    Aleksovski Appeal Judgement, para 170.

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ICTR Statute Article 6(1);
Article 6(3)
ICTY Statute Article 7(1);
Article 7(3)