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II. Command Responsibility and the Blaskic Case

Published online by Cambridge University Press:  17 January 2008

Malcolm D. Evans  and
Danesh Sarooshi
Malcolm D. Evans
Affiliation:
Senior Lecturer in Public International Law, University College London. The author worked previously with the Office of the Prosecutor, UN International Criminal Tribunal for the former Yugoslavia. However, the views expressed are personal and should not be taken to represent those of the Office of the Prosecutor or of the United Nations.
Danesh Sarooshi
Affiliation:
Senior Lecturer in Public International Law, University College London. The author worked previously with the Office of the Prosecutor, UN International Criminal Tribunal for the former Yugoslavia. However, the views expressed are personal and should not be taken to represent those of the Office of the Prosecutor or of the United Nations.
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Abstract

A disturbing feature of the conflict in the former Yugoslavia was the extent to which civilians were the target of military attacks by all three of the armed forces of the main ethnic communities. It was the military attacks by the armed forces of one of these ethnic communities—the Bosnian Croats (HZHB)—against Bosnian Muslim civilians and associated events in the Lasva Valley region of Central Bosnia from May 1992 to January 1994 that led to the indictment and eventual conviction of General Tihomir Blaskic.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 50 , Issue 2 , April 2001 , pp. 452 - 465
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. See e.g., among these earlier cases U.S.A. v. Von Leeb et al., 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, p.1; and U.S.A. v. Yamashita, Tomoyuki, United Nations War Crimes Commission, 4 Law Reports of Trials of War Criminals, (1945), p.1.Google Scholar

2. The HVO is the military arm of the “Croatian Community of Herceg-Bosna” (HZHB).

3. Prosecutor v. Tihomir Blaskic, Case No. IT-95–14-T, decision of 3 March 2000, para. 378.

4. Second Amended Indictment, 25 April 1997, para. 2.

5. Prosecutor v. Tihomir Blaskic, Decision on the Objection of the Republic of Croatia to the issuance of subpoena duces tecum, IT-95–14-PT, 18 July 1997; and in the Appeals Chamber, Prosecutor v. Tihomir Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 Oct. 1997, IT-95–14-AR108 bis. On these decisions, see Sarooshi, D., “The Powers of the United Nations International Criminal Tribunals”, Max Planck Yearbook of United Nations Law, 2 (1998), p.141Google Scholar at pp.149–154, 156–158.

6. As recognised by Article 5(h) of the ICTY Statute (persecution on political, racial, or religious grounds).

7. As recognised by Article 3 of the ICTY Statute and customary law, Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II (unlawful attack on civilians).

8. As recognised by Article 3 of the ICTY Statute and customary law and Article 52(1) of Protocol I (unlawful attack on civilian objects).

9. As recognised by Article 3(b) of the ICTY Statute (devastation not justified by military necessity).

10. Wilful killing as a grave breach as recognised by Article 2(a) of the ICTY Statute. Wilfully causing great suffering or serious injury to body or health as a grave breach as recognised by Article 2(c) of the ICTY Statute.

11. As recognised by Article 3 of the ICTY Statute and Article 3(1)(a) (murder) and Article 3(1)(a) (violence to life and person) of the Geneva Conventions.

12. Wilful killing as a crime against humanity as recognised by Article 5(a) (murder) of the ICTY Statute. Wilfully causing great suffering or serious injury as a crime against humanity as recognised by Article 5(i) of the ICTY Statute.

13. As recognised by Article 2(d) of the ICTY Statute (extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly).

14. As recognised by Articles 3(b) (devastation not justified by military necessity) and 3(e) (plunder of public or private property) of the ICTY Statute.

15. As recognised by Article 3(d) of the ICTY Statute (destruction or wilful damage to institutions dedicated to religion or education).

16. As recognised by Article 2(b) (inhuman treatment) and Article 2(h) (taking civilians as hostages) of the ICTY Statute. The count pertaining to the use of civilians as human shields was also based on Article 2(b) of the ICTY Statute.

17. As recognised by Article 3 of the ICTY Statute; and Article 3(1)(a) (cruel treatment) and Article 3 (taking of hostages) of the Geneva Conventions. The count pertaining to the use of human shields was also based on Article 3 of the ICTY Statute and Article 3(1)(a) of the Geneva Conventions.

18. For detailed consideration of these provisions, see infra Section D.

19. Blaskic case, supra n.3, para. 64.

20. On the relationship between the ICTY and existing international humanitarian law, see C., Greenwood, “The Development of International Humanitarian Law by the International Criminal Tribunal for the former Yugoslavia”, Max Planck Yearbook of United Nations Law, 2 (1998), p.97 at p.111.Google Scholar

21. The Trial Chamber applied the decision of the Tadic Appeal Judgment (Prosecutor v. Dusko Tadic, Case No. IT-94–1-A, 15 July 1999, para. 84) when it held that “[a]n armed conflict which erupts in the territory of a single State and which is thus at first sight internal may be deemed international where the troops of another State intervene in the conflict or even where some participants in the internal armed conflict act on behalf of this other State.” (Blaskic case, supra n.3, para. 75.)

22. The Trial Chamber relied on the testimony of a number of witnesses as well as UN reports and documents—including UN Security Council resolutions 752 and 787—which noted an HV presence in Bosnia and Central Bosnia. (Ibid, paras 88–90.)

23. Cf. the separate declaration of Judge Shahabuddeen, appended to the Judgment.

24. Tadic Appeal Judgment, supra n.21, paras 124–125.

25. Ibid, para. 137 (original emphasis).

26. Blaskic case, supra n.3, para. 112.

27. Ibid, para. 112.

28. Ibid, para. 115.

29. Ibid, para. 116.

30. Ibid, paras 118–119.

31. Ibid, para. 122.

32. Tadic Appeal Judgment, supra n.21, para. 140 as reproduced by the Trial Chamber in the Blaskic case, supra n.3, para. 121.

33. Blaskic case, supra n.3, paras 133, 146.

34. The Chamber found that the municipalities of Vitez, Busovaca, and Kiseljak could be characterised as occupied territories and as such the property of Bosnian Muslims in these areas received the protection of Article 53 of the Fourth Geneva Convention which prohibits the extensive destruction of property by an occupying power not justified by military necessity. (Ibid, para. 149.)

35. Article 2(a) of the Statute. The mens rea “exists once it has been demonstrated that the accused intended to cause death or serious bodily injury which, as it is reasonable to assume, he had to understand was likely to lead to death.” (Ibid, para. 153.)

36. Article 2(b) of the Statute. The Chamber affirmed the finding of the Celebici case concerning inhuman treatment which is “an intentional act or omission … which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity”. (Blaskic case, supra n.3, para. 154.) This category includes, e.g., acts such as torture.

37. Article 2(c) of the Statute. This offence is an intentional act or omission causing great suffering or serious injury to body or health, including mental health. (Ibid, para. 156.)

38. Article 2(d) of the Statute. The destruction of property to be characterised as an offence must be unjustified by military necessity and must be extensive, unlawful, and wanton. (Ibid, para. 157.)

39. Article 2(h) of the Statute. The unlawful act of taking civilians as hostages occurs when civilians are detained in order to obtain a concession or gain an advantage. (Ibid, para. 158.)

40. Blaskic case, supra n.3, para. 152.

41. Ibid, para. 161, and citations to earlier ICTY cases contained therein.

42. Ibid, para. 166.

43. Ibid, para. 170. The Trial Chamber, moreover, affirmed earlier ICTY case-law that customary international law imposes criminal responsibility on individuals for serious violations of Common Article 3. (Ibid, para. 176, and citations to earlier ICTY cases contained therein.)

44. The Trial Chamber requires that the attack must have caused deaths and/or serious injury within the civilian population or actual damage to civilian property. Civilians within the meaning of Article 3 of the ICTY Statute are persons who are not, or are no longer, members of the armed forces. Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity. (Ibid, para. 180.)

45. The content of this offence under Article 3 of the ICTY Statute is the same as for wilful killing. (Ibid, para. 181.)

46. This offence appears in Article 3(1)(a) common to the Geneva Conventions, but is to be linked to Article 2(a) (wilful killing), Article 2(b) (inhuman treatment), and Article 2(c) (causing serious injury to body) of the Statute. (Ibid, para. 182) The mens rea is that the accused intended to commit violence to the life or person of the victims deliberately or through recklessness. (Ibid.)

47. The devastation must be such that it was not justified by military necessity and it must have been perpetrated intentionally or have been the foreseeable consequence of the acts of the accused. (Ibid, para. 183.)

48. This prohibition extends both to isolated acts of plunder for private interest and to the organised seizure of property as part of a systematic exploitation of occupied territory. (Ibid, para. 184.)

49. The damage or destruction must have been intentionally committed to clearly identifiable religious or educational institutions that were not being used for military purposes at the time and were not in the immediate vicinity of military objectives. (Ibid, para. 185.)

50. The Trial Chamber held that treatment may be cruel regardless of the status of the persons concerned and, moreover, that cruel treatment may be defined as “an intentional act or omission ‘which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of Common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Convention.’” (Ibid, para. 186.)

51. This offence is prohibited by Article 3(b) common to the 1949 Geneva Conventions which is covered by Article 3 of the ICTY Statute. The definition of a hostage here is similar to that of civilians taken as hostages within the meaning of grave breaches under Article 2 of the Statute (see supra n.39.) Moreover, to be characterised as hostages the detainees must have been used to obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking. (Ibid, para. 187.)

52. The Chamber found that the crime of “persecution” encompasses not only bodily and mental harm and infringements upon individual freedom, but also acts which appear less serious—e.g. attacks against property—so long as the victimised persons were specially selected on grounds linked to their belonging to a particular community. (Ibid, para. 233.)

53. Ibid, paras 198, 201–202.

54. On the elements of the knowledge required, see Ibid, paras 245–259.

55. Ibid, para. 207.

56. Ibid, para. 206.

57. The plan does not need to have been expressly declared or even stated clearly and in precise terms. It may be surmised from, inter alia, the general historical circumstances and the overall political background against which the criminal acts are set; the establishment and implementation of autonomous political and military structures in an area; the general content of a political programme outlined in the writings and speeches of its authors; media propaganda; co-ordinated and repeated military offensives; alterations to the ethnic composition of populations; and the scale of the acts of violence perpetrated. (Ibid, para. 204.)

58. Ibid, para. 203.

59. Ibid, para. 214.

60. Ibid, para. 213.

61. Ibid, para. 278.

62. Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96–4-T, 2 Sept. 1998, para. 480, as cited in the Blaskic case, supra n.3, para. 279.

63. Blaskic case, supra n.3, para. 279.

64. Ibid, para. 280.

65. Ibid, para. 282.

66. Prosecutor v. Anto Furundzija, Case no. IT-95–17/1-T, 10 Dec. 1998; Prosecutor v. Tadic, Case No. IT-94–1-T, 7 May 1997; Akayesu case, supra n.62; and Prosecutor v. Zejnil Delalic et al, Case No. IT-96–21-T, 19 Nov. 1998 (hereafter “Celebici case”).

67. Blaskic case, supra n.3, para. 283. The actus reus may also be committed through an omission, provided the failure to act had a decisive effect on the perpetration of the crime and that it was of course coupled with the requisite mens rea. (Ibid, para. 284.)

68. Ibid, para. 286.

69. On the customary status of this principle, see Blaskic case, supra n.3, para. 290.

70. Celebici case, supra n.66. For discussion of these cases, see I., Bantekas, “The Contemporary Law of Superior Responsibility”, A.J.I.L., 93 (1999), p.573.Google Scholar

71. Prosecutor v. Zlatko Aleksovski, Case No. IT-95–14/1-T, 25 June 1999.

72. Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95–1-T, 21 May 1999.

73. Blaskic case, supra n.3, paras 300–301.

74. The actual knowledge element can be proved through either direct or circumstantial evidence. The latter including, inter alia, the following types of evidence: “the number, type and scope of the illegal acts, the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the speed of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time.” (Ibid, para. 307.)

75. The Celebici Trial Chamber stated: “a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates.” (Celebici case, supra n.66, para. 393.)

76. Blaskic case, supra n.3, para. 312.

77. Ibid, para. 329.

78. Ibid, para. 329 (footnote omitted).

79. Ibid, para. 331.

80. Ibid, para. 332.

81. Ibid, para. 335.

82. Ibid, para. 336.

83. There was also a previous HVO attack on 20 Jan. 1993: see, Ibid, paras 371–383.

84. Ibid, paras 677–678.

85. The crimes covered by counts 15–20 in the indictment concern crimes committed against Bosnian Muslim civilians or persons who were hors de combat while being detained by the HVO.

The Trial Chamber found that detainees were subjected to inhuman treatment (count 15) and cruel treatment (count 16), since they were used as human shields; forced to dig trenches often on the battle front-lines (during which several were killed or wounded); raped; beaten; and subjected to, inter alia, mental violence, threats, and deprivation of sufficient food and water during detention in the municipalities of Vitez (Ibid, 694–700), Kiseljak (Ibid, paras 690–693), and Busovaca (Ibid, paras 688–689). The Chamber found Blaskic criminally responsible for these crimes on the basis of Article 7(3) of the ICTY Statute, since the accused exercised effective control over the perpetrators of the crimes (Ibid, paras 722–725), and that since he had ordered the detention of the Muslim civilians he must have known of the acts of violence taking place and the conditions of detention (Ibid, para. 733). In any case Blaskic was criminally responsible since he did not take reasonable measures to punish the perpetrators of the crimes either by investigating the crimes, imposing disciplinary measures, or by sending a report on the perpetrators of these crimes to the competent authorities. (Ibid, para. 734.)

The Chamber found that protected persons were taken hostage by the HVO and used both in prisoner exchanges and in order to bring to a halt military operations by Bosnian Muslim armed forces (ABiH) against the HVO such that the offences in counts 17 and 18 of the indictment were constituted (Ibid, paras 705–708); and, moreover, that the accused was criminally responsible for this crime (Ibid, paras 739–741).

On the final two counts (19 and 20) concerning the finding by the Chamber of inhuman and cruel treatment of detainees by using them as human shields, see Ibid, paras 713–716; and for the individual criminal responsibility of Blaskic for these crimes, see Ibid, paras 742–743.

86. On the attacks by the HVO against Muslim civilians in the municipality of Busovaca in April 1993, the crimes committed in this area, and the individual criminal responsibility of General Blaskic, see Ibid, paras 563–592; and in the municipality of Kiseljak, see Ibid, paras 593–661.

87. Ibid, para. 385.

88. This finding was based on four factors. First, that the attacks were preceded by several political declarations by Bosnian Croat politicians announcing that a conflict between Croatian and Muslim forces was imminent. (Blaskic case, supra n.3, paras 387–388.) Second, that the Croatian inhabitants of the villages were warned of the attack and that Croatian women and children had in Ahmici been evacuated on 15 April and in other areas Bosnian Croat families had left several days before the attacks. (Ibid, para. 389.) Third, the method of attack displayed a high level of preparation. (Ibid, para. 390.) Members of the U.K. contingent of the UN peace-keeping force in the area (UNPROFOR), testified that the main roads were blocked by HVO troops, and, moreover, that the attack occurred from three sides and was designed to force the fleeing population towards elite marksmen with sophisticated weapons who shot those escaping. (Ibid, para. 390.) The Trial Chamber also noted that “[o]ther troops, organised in small groups of about five to ten soldiers, went from house to house setting fire and killing.” (Ibid, para. 390.) Fourth, that international observers, mostly military experts, who went to the site after the attack had all stated that such an operation could only be planned at a high level of the military hierarchy. (Ibid, para. 391.) This was accepted by General Blaskic who stated under cross-examination before the Trial Chamber that the attack was “an organised, systematic and planned crime.” (Ibid, para. 392.)

89. Blaskic case, supra n.3, para. 400.

90. Ibid, paras 402–410.

91. Ibid, paras 411–412.

92. Ibid, para. 413.

93. Ibid, para. 414.

94. Ibid, paras 416. The European Commission Monitoring Mission (ECMM) report on the attack on Ahmici states that at least 103 people were killed during the attack. (Ibid, para. 417.)

95. Ibid, para. 418.

96. Ibid, paras 419–423.

97. Ibid, para. 424.

98. Ibid, paras 435, 437.

99. Ibid, para. 435.

100. Ibid, para. 440.

101. Ibid, paras 442–466.

102. Ibid, paras 467–468.

103. Ibid, para. 472.

104. Ibid, para. 474.

105. Ibid, para. 474.

106. Ibid, para. 474.

107. Ibid, paras 477–485, 495.

108. Ibid, para. 495.

109. Ibid, para. 789.