33. As the Appeals Chamber previously held, “what constitutes [necessary and reasonable] measures is not a matter of substantive law but of evidence”;[1] the assessment of whether a superior fulfilled his duty to prevent or punish under Article 7(3) of the Statute has to be made on a case-by-case basis, so as to take into account the “circumstances surrounding each particular situation”.[2] Under Article 86 of Additional Protocol I, for example, superiors have a duty to take “all feasible measures within their power” to prevent or punish a breach of the laws of war and, under Article 87 of Additional Protocol I, such “feasible measures” may take the form of both “disciplinary or penal” measures.[3] It cannot be excluded that, in the circumstances of a case, the use of disciplinary measures will be sufficient to discharge a superior of his duty to punish crimes under Article 7(3) of the Statute. In other words, whether the measures taken were solely of a disciplinary nature, criminal, or a combination of both, cannot in itself be determinative of whether a superior discharged his duty to prevent or punish under Article 7(3) of the Statute. The Prosecution’s argument is dismissed.

142. As a preliminary matter, the Appeals Chamber notes that the Trial Judgment and the Parties’ arguments on appeal place undue emphasis on the nature of the measures taken. The Appeals Chamber recalls that the relevant inquiry is whether a reasonable trier of fact could conclude that Hadžihasanović took measures to punish the perpetrators which were “necessary and reasonable” in the circumstances of the case,[4] not whether those measures were of a disciplinary or criminal nature.

154. The Appeals Chamber recalls that a superior need not dispense punishment personally and may discharge his duty to punish by reporting the matter to the competent authorities.[5] Here, the Appeals Chamber finds that the reporting of the 5 August 1993 Slavonija Furniture Salon crimes to the Bugojno municipal public prosecutor, in conjunction with the disciplinary sanctions imposed by the military disciplinary organ in Bugojno, constituted necessary and reasonable measures to punish the perpetrators. The Appeals Chamber recognises that the District Military Prosecutor’s Office, rather than that of the municipal public prosecutor, would have likely been a more appropriate forum for the filing of a criminal report,[6] but finds that Hadžihasanović’s responsibility should not turn on the Bugojno municipal public prosecutor’s possible failure to initiate criminal proceedings or to refer the matter to the District Military Prosecutor.[7] The Appeals Chamber notes that Witness Sead Zerić, the former Travnik District Military Prosecutor, testified that municipal public prosecutors had an obligation to pass on criminal reports they received regarding army personnel to the military prosecutor’s office when these dealt with crimes outside their jurisdiction.[8]

The Trial Chamber acquitted Boškoski of superior responsibility for the counts charged against him, finding that it was not shown that he had failed to take the necessary and reasonable measures to punish his subordinates for crimes committed in Ljuboten on 12 August 2001.[1] With respect to the alleged error of law, the Appeals Chamber held:

230. […]. The Appeals Chamber is satisfied that the […] findings [in paras 406, 415 and 417 of the Trial Judgement] correctly articulate the legal standard for failure to punish responsibility under Article 7(3) of the Statute. The Trial Chamber correctly held that the relevant question for liability for failure to punish is whether the superior took the necessary and reasonable measures to punish under the circumstances and that the duty to punish may be discharged, under some circumstances, by filing a report to the competent authorities.

231.  With respect to these legal findings, the Prosecution submits that the Trial Chamber erred in relying on the Aleksovski and Brđanin Trial Judgements in finding that:

civilian superiors, who may lack the disciplinary or sanctioning powers of military commanders, may discharge their obligation to punish by reporting to the competent authorities whenever a crime has been committed if these reports are likely to trigger an investigation or initiate disciplinary or criminal proceedings.[2]

The Prosecution argues that in this passage the Trial Chamber erroneously overlooked that the relevant findings in the Aleksovski and Brđanin Trial Judgements were made in the context of determining the requirement of effective control, and not in relation to the element of necessary and reasonable measures. The Appeals Chamber recalls, however, that these two elements are interrelated, as the degree of effective control over subordinates can be evidence for the necessary and reasonable measures within the competence of a superior.[3] Consequently, the Trial Chamber was correct in finding that a civilian superior may, under some circumstances, discharge his obligation to punish an offending subordinate by reporting to the competent authorities when a crime has been committed, provided that this report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.[4]

232. After having articulated the correct legal standard for responsibility for failure to punish under Article 7(3) of the Statute, the Trial Chamber found that Boškoski did not incur criminal liability for the crimes that occurred.[5] The Appeals Chamber is satisfied that the relevant findings show that the Trial Chamber applied the correct legal standard in this respect. In particular, the Trial Chamber did not, as alleged by the Prosecution, interpret the requirement of necessary and reasonable measures to punish the criminal acts of subordinates, as meaning that the superior need only provide a report to the competent authorities that is likely to trigger an investigation into the alleged criminal conduct.[6] Instead, the Trial Chamber held that the reports by the MoI to the competent authorities constituted a type of measure that satisfied the legal standard which was correctly identified as the “necessary and reasonable measures”.

234. The Appeals Chamber recalls that under the correct legal standard, a report to the appropriate authorities may be sufficient to discharge the obligation to punish offending subordinates: whether it is indeed sufficient depends on the circumstances of each case.[7] If, for instance, the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, such a report would not be sufficient to fulfil the obligation to punish offending subordinates.

For the Appeal Chamber’s assessment of the Trial Chamber’s factual findings in this regard, see paragraphs 229-236, 237-241, 259-272.