Use of force

Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA

228. The Appeals Chamber agrees with the Trial Chamber that the fact that a superior is compelled to use force to control some of his subordinates does not automatically lead to the conclusion that this superior does not exercise effective control over them.[1] The Appeals Chamber concurs with the Trial Chamber’s finding that this issue must be evaluated on a case-by-case basis.[2] Further, there might be situations in which a superior has to use force against subordinates acting in violation of international humanitarian law. A superior may have no other alternative but to use force to prevent or punish the commission of crimes by subordinates. This kind of use of force is legal under international humanitarian law insofar as it complies with the principles of proportionality and precaution and may even demonstrate that a superior has the material ability to prevent and punish the commission of crimes. The issue in the present case, however, is whether those modalities in which force should have been used, in the Trial Chamber’s view, to rescue the hostages, confirm the absence of Hadžihasanović’s effective control over the El Mujahedin detachment.

[1] Trial Judgement, para. 86.

[2] In the Appeals Chamber’s view, the fact that Vahid Karavelić, Commander of the 1st Corps from July 1993 to August 1995, had to attack some of his subordinates at the end of 1993 demonstrates that, in exceptional circumstances, a superior may have to use military assets against his subordinates. See Witness Karavelić, T. 17620-17621 and T. 17877-17885; Hadžihasanović Appeal Brief, para. 385; AT. 189 (“General Karavelić is the officer who defended Sarajevo against the worst possible blockage in years. […] [H]e had to attack […] subordinates who […] suddenly became out of control. […] He went to see the President of Bosnia and he said […] ‘I need to attack these people, but I’m not going to do it unless I get the proper authority’, and the President […] gave [him] the authority after doing the proper political analysis”). 

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