Necessary and reasonable measures

Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

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]

[1] Blaškić Appeal Judgement, para. 72. See also Halilović Appeal Judgement, paras 63-64.

[2] Blaškić Appeal Judgement, para. 417.

[3] Article 86 of Additional Protocol I states that superiors are responsible if, inter alia, they did not take “all feasible measures within their power to prevent or repress the breach”. Article 87 of Additional Protocol I states that superiors have a duty to “initiate such steps as are necessary to prevent such violations […] and, where appropriate, to initiate disciplinary or penal action against violators thereof” (emphasis added).

[4] Blaškić Appeal Judgement, para. 417. See also supra para. 33.

[5] See Blaskić Trial Judgement, para. 335, cited with approval by the Blaskić Appeal Judgement, para. 72.

[6] The district military courts, including the Travnik District Military Court, operated independently of the ABiH and were established primarily to try criminal offences committed by military personnel (Trial Judgement, paras 907-938) while the civilian court system, including the office of the municipal public prosecutor, had jurisdiction to try criminal offences committed by civilians and, in some limited cases, members of the military (Trial Judgement, paras 953-957).

[7] See Čelebići Trial Judgement, para. 395 (stating that a superior may only be held criminally responsible for failing to take such measures that are within his powers). See also Blaškić Appeal Judgement, para. 417.

[8] Witness Sead Zerić, T. 5594.

Download full document
ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1928. With regard to what constitutes reasonable measures, the Appeals Chamber agrees that the obligation to take measures is restricted to those that are feasible, so that no responsibility attaches to a superior for whom the fulfilment of the duty to punish was not possible in the prevailing circumstances.[1] It is well-established in the case law of the Tribunal that the determination of what is materially possible in terms of fulfilling the duty to punish is primarily linked to the question of a superior’s effective control.[2] […]

1929. […] While the Appeals Chamber agrees that feasibility relates to what is realistic and practical in the circumstances,[3] it considers that when used in the context of command responsibility, the assessment must remain anchored in the material powers of the superior. […] The Appeals Chamber recalls its finding in the Hadžihasanović and Kubura case that a superior’s responsibility should not turn on the competent authority’s possible failure to initiate criminal proceedings.[4] If 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, this entails that such a report would not be sufficient to fulfil the obligation to punish offending subordinates.[5] It does not mean that the action of reporting becomes impossible in the circumstances.

1931. The Appeals Chamber is mindful of the complex situation facing commanders during armed conflict when their subordinates have committed crimes upon the orders of the top echelons of the military and political structures. However, international law requires commanders to take some action to punish their subordinates for committing crimes, even in these circumstances.[6] […]

[1]           Čelebići Trial Judgement, para. 395. See Article 86(2) of Additional Protocol I, referring to the responsibility of a superior for failing to “take all feasible measures within their power to prevent or repress the breach”; Commentary on Additional Protocols, para. 3548 (“[Article 86] reasonably restricts the obligation upon superiors to ‘feasible’ measures, since it is not always possible to […] punish the perpetrators.”).

[2]           Blaškić Appeal Judgement, para. 72; Čelebići Appeal Judgement, para. 198. See Bagosora and Nsengiyumva Appeal Judgement, para. 672.

[3]           A number of States (e.g. Canada, Germany, Ireland, Italy, Netherlands, and Spain) included the definition of “feasible” in Article 86 of Additional Protocol I as meaning that which is “practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations” in statements that accompanied their instruments of ratification to Additional Protocol I. Canada, Reservations made at the time of ratification of the 1977 Additional Protocol I, 20 November 1990, § 5; Germany, Declarations at the time of ratification of the 1977 Additional Protocol I, 14 February 1991, § 2; Ireland, Declarations and Reservations made in relation to 1977 Additional Protocol I, 19 May 1999, § 6; Italy, Declarations made at the time of ratification of the 1977 Additional Protocol I, 27 February 1986, § 2; Netherlands, Declarations made at the time of ratification of the 1977 Additional Protocol I, 26 June 1987, §2; Spain, Interpretative declarations made at the time of ratification of the 1977 Additional Protocol I, 21 April 1989, § 3. Although used in a different context (in relation to “feasible precautions”), this definition of “feasible” is codified in Article 3(10) of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), adopted at Geneva, 10 October 1980, as amended on 3 May 1996.

[4]           Hadžihasanović and Kubura Appeal Judgement, para. 154.

[5]           Boškoski and Tarčulovski Appeal Judgement, para. 234.

[6]           See Article 87(3) of Additional Protocol I requires “any commander”, who is aware of his subordinates committing crimes, “to initiate disciplinary or penal action against violators”. The commentary to this provision notes that “[t]he object of these texts is to ensure that military commanders at every level exercise the power vested in them, both with regard to the provisions of the Conventions and the Protocol, and with regard to other rules of the army to which they belong”. Commentary on Additional Protocols, para. 3562. As stated by the United States Military Tribunal in the Von Leeb case, “[u]nder basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal violates a moral obligation under International Law. By doing nothing he cannot wash his hands of international responsibility”. Trial of Wilhelm von Leeb et al., Judgement of 28 October 1948, United States Military Tribunal, Nuremberg, Law Reports of Trials of War Criminals, Vol. XII, pp. 75, 106.

Download full document
Notion(s) Filing Case
Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

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.

[1] Trial Judgement, paras 536 and 606.

[2] Trial Judgement, para. 418 (citing Aleksovski Trial Judgement, para. 78; Brđanin Trial Judgement, para. 281).

[3] Blaškić Appeal Judgement, para. 72.

[4] See also Blaškić Appeal Judgement, para. 72.

[5] Trial Judgement, para. 536.

[6] Prosecution Appeal Brief, para. 15.

[7] Cf. Blaškić Appeal Judgement, para. 72.

Download full document
ICTR Statute Article 6(3) ICTY Statute Article 7(3)