Table of Contents

CASE SUMMARY.................................................................................................2

PARTICIPATION IN THE STATUTE OF THE ICTY:....................................................4

PARTICIPATION IN THE ROME STATUTE OF THE ICC............................................4

INDIVIDUAL RESPONSIBILITY, UNDER ARTICLE 7 (1) AS DISCUSSED IN THE CELEBIC CASE:.................................................................................................... 6

INDIVIDULA RESPONSIBILITY UNDER ARTICLE 7(3) AS DISCUSSED IN CELEBIC CASE:................................................................................................................. 7

ELEMENTS OF THE INDIVIDUAL REPONSIBILITY, UNDER ARTICLE 7 (3)..................................8Superior-Subordinate Relationship....................................................................8“Knew or had reason to know”..........................................................................9Necessary and reasonable measures.................................................................9

SUPERIOR RESPONSIBILITY OF ZEJNIL DELALIĆ..................................................10

SUPERIOR RESPONSIBILITY OF ZDRAVKO MUCIĆ..............................................12

SUPERIOR RESPONSIBILITY OF HAZIM DELIĆ.....................................................13

HAZIM DELIC AND ESAD LANDZO DIRECT PARTICIPATION................................14

APPEAL............................................................................................................ 15

APPEAL AGAINST INDIVIDUAL RESPONSIBILITY OF DELALIC................................................16APPEAL AGAINST INDIVIDUAL RESPONSIBILITY OF DELIC...................................................17MUCIC’S APPEAL.....................................................................................................17

SENTENCING.................................................................................................... 18

CONCLUSION....................................................................................................19

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Case SummaryThis case is the first to be brought before the International Tribunal for the former Yugoslavia in which multiple accused have been jointly charged and tried.

The present case concerns events within the Konjic municipality (Bosnia and Herzegovina), where Serb prisoners were detained in a prison-camp, named Celebic, during certain months of 1992. The indictment charges the four accused with grave breaches of the Geneva Convention of 1949 and the laws or customs of war, which are also mentioned by the ICTY Statute.

During the entire relevant period, the accused Esad Landzo is alleged to have worked as a guard at the Celebici prison-camp. Hazim Delic and Zdravko Mucic are also alleged to have worked within the prison-camp and to have acted in the capacity of commanders, with Zdravko Mucic being commander, and Hazim Delic being deputy commander from May to November 1992, when he replaced Zdravko Mucic as commander. Zejnil Delalic is alleged to have exercised authority over the Celebic prison-camp in his role first as co-ordinator of the Bosnian Muslim and Bosnian Croat forces in the area, and later as Commander of the First Tactical Group of the Bosnian Army.

Esad Landzo and Hazim Delic were primarily charged with individual criminal responsibility pursuant to Article 7(1) of the Statute, as direct participants in certain crimes, including acts of murder, torture and rape. Zdravko Mucic and Zejnil Delalic are primarily charged with superior responsibility, under Article 7(3) of the Statute, for crimes committed by their subordinates, including those alleged to have been committed by Esad Landzo and Hazim Delic.

Esad Landzo was accused, as a direct participant in wilful killing of several detainees, using such cruel treatments as extensive beatings, a badge nailed to the forehead, beating with a wooden plank or a piece of cable, torture using objects, lit fuses and nails. In some of the cases it is deemed that Esad Landzo acted in group with other persons, including Hazim Delic. He also is accused of torture and cruel treatment.

“He was kicked to unconsciousness, had a cross burned on his hand, was hit with shovels, was suffocated and had an unknown corrosive powder applied to his body“

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“The mistreatment included placing a mask over Mr. Miljevic’s face so he could not breathe, placing a heated knife against parts of his body, carving a Fleur de Lis on his palm, forcing him to eat grass and subjecting him to severe beatings using fists, feet, a metal chain and a wooden implement”

He was also accused of contributing to an atmosphere of terror created by the killing and abuse of other detainees and to inhumane living conditions through deprivation of adequate food, water, medical care as well as sleeping and toilet facilities, which conditions caused the detainees to suffer severe psychological and physical trauma.

Hazim Delic, was initially accused both as a direct participant and as a superior. As a direct participant he is alleged to take part in wilful killing and murder, Torture and Cruel Treatment (here being included also cases of rapes), causing great suffering or serious injury, also plunder of private property and unlawful confinement of civilians. Delic was also charged as a superior, being deemed to be liable under all the crimes that were commited during the time he held a position of command.

It is alleged that Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, were responsible for the operation of the Celebic prison-camp and were in positions of superior authority to all of the guards at the camp and to those other persons who entered the camp and mistreated the prisoners, but failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. In their respective capacities as superiors at the prison-camp, Zejnil Delalic and Zdravko Mucic, along with Hazim Delic, were charged with the following crimes under international humanitarian law: wilful killing and murder, Torture and Cruel treatment, causing of great sufferings or serious injury, inhuman treatment, unlawful confinement, plunder of private property. As we see they are charged with all the crimes that were considered to have been commited under their command.

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Participation in the Statute of the ICTYArticle 7

Individual criminal responsibility

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

Participation in the Rome Statute of the ICCArticle 25

Individual criminal responsibility

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

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The concept of perpetration enshrined in Article 25(3)(a) distinguishes between direct or immediate participation (“as an individual”), co-perpetration (“jointly with another person”), and intermediary perpetration (“through another person”).

Article 28

Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Conclusion: From the articles listed above we see that participation is approached differently in the 2 Statutes. We can notice that the concep has developed. If in the Statute of the ICTY individual responsibility is described less thoroughly, these subject in the Rome Statute is described more detailed. Another distinction is the fact that in the 1993 Statute, Command responsibility is analyzed as a form of Individual one, being stated in the same article, while in The ICC Statute this subject is already dealt in a distinct article. Moreover, if in the ICTY Statute there is not made such a difference between military and other forms of command responsibility, in the Statute from 1998, it is already addresed in 2 distinct paragraphs. There is also added the concept of effective authority, which was not mentioned before. The evolution of the concepts in these two International Treaties, has also been caused and determined by

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the way the International Tribunal for the Former Yugoslavia judged in the Celebic Case, which in particular dealt with such concepts as individual and command responsibility, and tried to figure out the notion, condition and aplicability. Thus, we can say, that the evolution was done with the help of the jurisprudence.

Individual Responsibility, under Article 7 (1) as discussed in the Celebic CaseThe jurisdiction of the Tribunal is not limited to persons who directly commit the crime .This recognition that individuals may be held criminally responsible for their participation in the commission of offences in any of several capacities is in clear conformity with general principles of criminal law. It is the duty of the Trial Chamber to set out more specifically the degree of participation.

Prosecution argued that in oreder to demonstrate the liability it is necessary to establish 2 factors (Tadic Judgement):

1. Intent, conscious decision to participate2. Participation, in the form of conduct

It laso relies on common purpose doctrine. It is not necessary for the accused to have physically caused the death of the victim, or, in other words, to have “delivered the fatal blow”. Instead, the Prosecution argues, it must be shown that the accused through his act(s) either aided and abetted in the commission of the unlawful act, or that he participated in a common enterprise or transaction which resulted in the death of the victim.

The Defence, similarly relying on the Tadic Judgment, adopts the view that, for an accused to be criminally liable for the direct acts of another pursuant to Article 7(1), four criteria must be met:

1. have intended to participate in an act; 2. n violation of international humanitarian law; 3. knowing that the act was unlawful4. that this participation directly and substantially aided the commission of the illegal act.

It is noted that a direct contribution to the commission of the offence does not require the accused’s presence at the scene of the crime or his direct physical assistance in its commission and, conversely, that physical presence at the scene of the crime in itself is insufficient to prove that an accused is an aider and abetter.

Trial Chamber states that Individual Criminal Reponsibility requieres both mental and physical elements. Actus Reus meaning that the person in fact contributes or has an effect on the commision of the crime.Aiding and abetting meaning all acts of assistance that lend encouragement or support, accompanied by necessary Mens Rea. Such assistance may not consist only of material acts, but also in the form of psychological support expressed through words or presence at the scene of perpetration. Mens Rea need not be explicitly expressed, it may be inferred from relevant circumstances, it is not mandatory to be a pre-existing plan.

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Depending upon the facts there might incur responsibility either as a direct perpetrator or as an aider or abetter.

Individula Responsibility under Article 7(3) as discussed in Celebic CaseDelalic, Mucic, Delic are considered to be in alleged positions as superios to the perpetrators, and are deemed to be held responsible according to command responsibilitywhich is considereb by the Trial Chamber an already well-established conventional and customary norm. It may arise out of positive or from culpable omissions. Thus, one can be liable for ordering, instigating,planning and also for failing to take measure to prevent or repress unlawful conduct.

In the report of the Secretary General on the esbalishment of the Internaional tribunal it is also noted that there will be imputed responsibility if the superior knew, or had reason to know about the illegalities his subordinates would commit or already had committed and yet failed to prevent or repree the commission of such crimes.

It is consider that the roots of the mdoern coommand repsosibility doctrine may be found in the Hague Conventions of 1907. It was not until the end of the First World War, however, that the notion of individual criminal responsibility for failure to take the necessary measures to prevent or to repress breaches of the laws of armed conflict was given explicit expression in an international context, and it was made a recommendation of creating a special tribunal that would deal with such cases, howver this initiative was not realized in practice.

Whilst not provided for in the Charters of the Nürnberg or Tokyo Tribunals, a number of States enacted legislation recognising this principle. Thus, a French Ordinance from 1944, or a Chinese Law name this type of responsibility/ IT was invoked in the judgements of the Japanese General Tamayuki Yamashita before the U.S. Military Commission in Manila, U.S. Supreme Court considered that a person that controls the troops shall prevent acts of violations of the law of war. Similarly, U.S. Militart Tribunal at Nurnberg, in U.S vs Karl Brand and others recognized such a duty of a military officer in a command position.

This Principles is also recognized by two higly influential domestic military manuals: the United States Army Field Manual on the law of war, and the British Manual of Military Law.

Such a provision existed in the regulations concerning the application of the international law of war to the armed forces of the SFRY. It provides that:

A military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units to continue to commit the acts

Trial Chmaber in its decision also invokes the ILC’s 1966 Draft Code Against the Peace and Security of Mankind, which contains a formulation of the doctrine very similar to that found in Article 7(3), and the Rome Statute of the International Criminal Court, cited above.

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Elements of the Individual Reponsibility, under Article 7 (3)Prosecution:

(1) The superior must exercise direct and/or indirect command or control whether de jure and/or de facto, over the subordinates who commit serious violations of international humanitarian law, and/or their superiors.

(2) The superior must know or have reason to know, which includes ignorance resulting from the superior’s failure to properly supervise his subordinates, that these acts were about to be committed, or had been committed, even before he assumed command and control.

(3) The superior must fail to take the reasonable and necessary measures, that are within his power, or at his disposal in the circumstances, to prevent or punish these subordinates for these offences.

Defence:

(1) The status of the accused as a commander or a civilian exercising the equivalent of military command authority over a person who committed a violation of the law of war.

(2) That a violation of the law of war actually occurred or was about to occur.

(3) That the commander had either actual knowledge of the commission of the violation of the law of war or that the commander had knowledge enabling him to conclude that the laws of war had been violated.

(4) That the commander failed to act reasonably in suppressing violations by investigating allegations and punishing perpetrators or by taking action to prevent future violations.

(5) And that the commander’s failure to act was the cause of the war crime which actually was committed.

Trial Chmber agreed with the Prosecution’s position, with the 3 elements. Further it analyzes each element.

Superior-Subordinate RelationshipAs we have seen, the 2 parties have 2 different opinions upon the de jure/de facto authority and also there are two different ponts of views regarding the position of those who shall be held liable. Defence states that it must apply only to those with authority to issue binding orders in their own name and those who have the power to punish violations of those orders. While Prosecution’s position is that it can be applied to those wo control directly or indirectly and can occupy a variety of positions and that this category of person is not limited to formaly designated “commanders”.

Not only military, but also political authority must be considered, this position was also adopted by Trial Chamber in Prosecutor v. Milan Martic, and also by the Military Tribunal for the Far East. Also in the case of the United States v. Friedrich Flick and other, 2 leading civilians industrialist were found guilty based on application of the responsibility of the acrs of his

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inferiors. Thus, it must be concluded that the applicability of the principle of superior responsibility in Article 7(3) extends not only to military commanders but also to individuals in non-military positions of superior authority.

Defence stated that staff officers, are not endowed with command authority. The chief of staff is responsible only for his own acts, not on the basis of command responsibility, he does not have command authority in the chain of command. As a precedence Trial Chamber makes reference to the case of Lieutenant Akina Muto. He had been a staff officer under General Iwane Matsui at the time of the “Rape of Nanking”, and later served as Chief of Staff to General Yamashita.ribunal held that in the first case he could not take any steps to stop the atrocities, but in his position as a Chief of Staff of General Yamashita, he was considered to be in a position to influence policy and was found guilty. Finally, the Trial Chamber shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.

“Knew or had reason to know”Prosecution states that the commander should be held liable when there are direct or circumstantial evidence that he knew the situation or he diregarded or faled to obtain infromation. Whule, The Defence, alleges that using of the “knew or had reason to know”, infringes the principle nullum crimen sine lege, because it wasn’t rewuiered by the law at the time of the crime commission and that one needs to have just actual knowledge., However, the Trial Chamber that a superior may possess the mens rea required to incur criminal liability where: (1) he had actual knowledge, established through direct or circumstantial evidence, (2) where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates.

Necessary and reasonable measuresTrial Chmaber concluded, that this issue should be examined in each particular cases, a general rule being complicated to be settled, however it must, however, be recognised that international law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers.

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Superior Responsibility of Zejnil Delalić

On the basis of his alleged position of superior authority over the Celebic prison-camp, Zejnil Delalc is charged with responsibility as a superior for all but one of the criminal acts alleged in the Indictment, and also as a direct participant for the unlawful confinement of civilians

Prosecution

According to the Prosecution,. Delalic had direct control over and responsibility for the Celebici prison-camp, from May 1992 till November 1992. Prosecution asserts he played a key role in the military affairs in the area, with power and control and influence over Celebic, being immaterial if his authority rised from an express delegation. In the beginning he was authorised to negotiate and conclude contracts and agreements of great importance, inckuding those related to arm supplies. On May 18 he was appointed as ‘co-ordinator” of the Konjic Defence Force. Prosection states that in this position he had both military and civilian functions, he possessed authority to issue orders, also it is alleged that he had powers to determine who would be detained in the prison-camp, because he had signed some of the decrees of seting free. Also prosection deems that Mucic considered Delalic being his superior. He made a number of visits to Celebic and was treated as a person in authority. From July 11 he was conferred authority over all troops in the area. Among the evidence relied on by the Prosecution in this context is a document which is described as a report of the Military Investigative Commission at the Čelebići prison-camp, describing maltreatment and physical abuse of the detainees.

According to the Prosecution, the evidence establishes beyond reasonable doubt that Zejnil Delalić knew, or must have known, or had information from which he could conclude, that crimes were about to, or had been, committed in the Čelebići prison-camp by guards or those responsible for the administration of the camp. Aslo it is mentioned that he had a wide range of measures which he would have been in position to undertake to prevent or punish the crimes committed.

Defence

Accordin to the Defence Delalic no time had command and control over Ceebic. Prosecution must demonstrate the chain of command in the legal organs and institutions from Konjic. Delalic was never a member of these institutions. Before May 18 he cotnributed to the defence efforts in area of logistics. The authorisation to rpocure equipment for the preparation of the defence is not a reflection of influence or authority. As a co-ordinatior, his function implied by definition, mediation and conciliation, not command authority. Several Defence witnesses testified that Mr. Delalić never worked with the Military Investigative Commission and possessed no authority over this body. In relation to the three release forms of detainees from the Čelebići prison-camp, signed by Zejnil Delalić in the latter part of July 1992, the Defence submits that these documents all were issued by the Investigating Body of the War Presidency. Thus, it notes that each form was signed by Mr. Delalić “for” the Head of the Investigating Body, and argues that it is clear from this wording that he in signing the documents was acting not as the person in authority, but on behalf of another person so authorised. It is asserted that proof

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of mere presence does not establish that Mr. Delalic had any contact with the prison-camp, nor that he had any information which could lead to a showing of the requisite degree of knowledge pursuant to Article 7(3).

Trial Chamber

The Trial Chamber is unable to agree with the submission of the Prosecution that a chain of command is not a necessary requirement in the exercise of superior authority. The Prosecution appears to extend the concept of the exercise of superior authority to persons over whom the accused can exert substantial influence in a given situation, who are clearly not subordinates.

Before May, 18, 1992

The authorisation confers no status upon Mr. Delalić, neither does it place the recipient in any hierarchy of authority. Certainly it does not subordinate any officials to the recipient. Accordingly, it does not constitute the creation of a relationship of superior and subordinate. There is clearly no basis for assuming that, in this transaction, he operated as a person of superior authority.

18 May to 30 July 1992: Zejnil Delalić and the Role of Co-ordinator

The meaning of the word “co-ordination” implies mediation and conciliation. There is no doubt that Mr. Delalić had no command authority or superior responsibility conferred on him. Not being a member of the armed forces, he could not have been in a position of superior authority to any of the armed forces in relation to which he exercised the functions of mediation. The signature of Zejnil Delalić on orders, along with other signatures, has been construed by the Prosecution as evidence of the exercise of command authority or superior authority by Mr. Delalić., as co-ordinator did not confer validity on the order,which would have been valid without it, he signed it just as a witness. Mr. Delalić as co-ordinator could not sign, therefore, any document as a person in authority, with a power to issue ordersThere is thus no evidence that Zejnil Delalić, as co-ordinator, had responsibility for the operation of the Čelebići prison-camp with superior authority over the prison-camp and its personnel, or that he was in a position of superior authority to the guards and to those other persons who entered Celebic.

Zejnil Delalić as Commander of Tactical Group

It was strictly a combat formation, and did not include non-combat institutions, such as hospitals, prisons, military training institutions, warehouses or technical workshops. The commander of a tactical group does not command a geographic area, but rather specific units assigned to his tactical group

General Conclusion:

The courts have not accepted the proposition that a commander be held responsible for the war crimes of persons not under his command. The Trial Chamber has found that the Prosecution has failed to prove that Mr. Delalić had command authority and, therefore, superior responsibility over Čelebići prison-camp, its commander, deputy commander or guards. Mr. Delalić cannot, therefore, be held responsible for the crimes alleged to have been

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committed in the Čelebići prison-camp by Zdravko Mucić, Hazim Delić, Esad Landžo or other persons within the Čelebići prison-camp.

Superior Responsibility of Zdravko MucićProsecution

Mucic was a commander at Celebic from late may till late November 1992. The fact confirmed by witnesses, including Esad Landzo. Mr. Mucić in any event had reason to know of these offences. In this respect, the Prosecution relies, inter alia, on evidence from a number of former detainees, which it asserts demonstrates not only how Mr. Mucić took a leading role in abuse of detainees, but also how conditions in the camp were such that Mr. Mucić should have known of the crimes being committed. it contends that the evidence shows that, even if Mr. Mucić did issue orders concerning the treatment of prisoners, he failed to ensure that these orders were obeyed. It asserts that, although Mr. Mucić on occasion did intervene to help certain detainees, there is no evidence to support the claim that Mr. Mucić did everything reasonably possible in this respect.

Defence

According to the Defence, the evidence offered by the Prosecution fails to demonstrate that Zdravko Mucić ever held the position of commander of the Čelebići prison-camp. Specifically, the Defence asserts that it has not been proven whether Mr. Mucić was a military commander or a civilian warden or administrator, nor what powers were given to him to investigate and punish those who mistreated detainees. Defence further contends that there is consistent evidence that Mr. Mucić did what he could, within his limited authority as a person who was present in the prison-camp at some juncture, to prevent the commission of crimes, and that he gave orders that detainees were not to be mistreated.

Trial Chamber

Zdravko Mucić was the de facto commander of the Čelebići prison-camp during the periods relevant to the Indictment. Mr. Mucić was present at the prison-camp during this period and operated effectively as the commander. In his interview with the Prosecution, Mr. Mucić admitted he had authority over the camp, at least from 27 July 1992. This was supported by the detainees themselves and journalists who visited the camp. There are witnesses that testified the fact that Zdravko Mucic was the commander. He was also presented to the journalists as the commander. There is evidence before the Trial Chamber of the control by Zdravko Muciæ of the detainees who would leave or be transferred from the Èelebiæi prison-camp to another detention facility. Similarly, Zdravko Mucić had authority over the guards. This has been established throug the testimony of2 witnesses. Zdravko Mucić had all the powers of a commander to discipline camp guards and to take every appropriate measure to ensure the maintenance of order. Mr. Mucić himself admits he had all such necessary disciplinary powers.

In its findings in the case against General Tomoyuki Yamashita, the United States Military Commission in Manila, stated that when udner the authority of a commander are committed

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crimes, he must be held liable for them. The conduct of Zdravko Mucić towards the guards renders him criminally liable for their acts. Mr. Mucić was the de facto commander of the Čelebići prison-camp. He exercised de facto authority over the prison-camp, the deputy commander and the guards. Mr. Mucić is accordingly criminally responsible for the acts of the personnel in the Čelebići prison-camp, on the basis of the principle of superior responsibility.

Zdravko Mucic was also found guilty and a direct participant in the unlawful confinement of civilians.

Superior Responsibility of Hazim Delić

Prosecution

Main question is whether Mr. Delic can be considered as a commander or not. First, the Prosecution argues that the deputy commander is liable to the extent of his or her authority, and that in some instances he may be liable as a commander. It is alleged that the evidence shows that when Mr. Mucić was absent, Hazim Delić was in charge and exercised full authority, that is, he was the acting commander in Mr. Mucić’s absence. Secondly, the Prosecution contends that Mr. Delić held a superior position over the guards in the prison-camp, which included the ability to give the guards orders. In particular, it is asserted that Mr. Delić’s authority over the guards at the camp is demonstrated by the frequency with which he gave orders to them to mistreat the prisoners. Thirdly, it is alleged that the status of Mr. Delić as a superior is demonstrated by his exercise of considerable authority over various practical matters and events that took place in the Čelebići prison-camp. He also did not take any measure to stop the illegalities in the camp. Furthermore, he ordered some of the crimes to be committed. The Prosecution submits that the concept of superior in Article 7(3) of the Statute is clearly not limited to persons described as “commanders”. According to the Prosecution, the evidence establishes that Mr. Delić was part of a chain of command, situated below the camp commander and above the camp guards.

Defence

Defence argues that the word superior can not be extended to non-commanders simply because they hold higher rank than that of the perpetrators. Staff officers in comparison with commanders do not prescribe policies and plans. He can not be held responsible as a commander. The defence contends that the implication of Delic’s authority depends on the authority of Mr. Mucic. Defence also states that, even if deputy commander replaces the commander during his absence it must first be proved that Mr. Mucic was absent when the crimes were committed.

Trial Chamber

In order for a person to be tried for command the detrmining factor is the actual possession of the authority and control over the actions of the subordinates.Mr. Delic stated that he had exactly the same attributions as other guards did. Stil, numerous victims testified that from his

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actions they deduced that he was the person ith authority in the Celebic prison-camp. But this statements were made only based on his actions and the way other guards treated him.IT was said that he gave orders to others, but they were only orally. Some witnesses told that other guards were afraid of Delic.However, not all this statements were considered by the court, those made by Esad Landzo are considered to be unreliable.

the Trial Chamber finds that the Prosecution has failed to establish beyond reasonable doubt, that Hazim Delić lay within the chain of command in the Čelebići prison-camp, with the power to issue orders to subordinates or to prevent or punish criminal acts of subordinates. Accordingly, he cannot be found to have been a “superior” for the purposes of ascribing criminal responsibility to him under Article 7(3) of the Statute

Hazim Delic and Esad Landzo Direct participation

Hazim Delic and Resad Landzo are alleged to have participated irectly at the commision of a huge number of crimes. We will cite some examples, to prove their direct participation.

Hazim Delic and Esad Landzo are alleged to kill Scepo Gotovac, Landzo admitted he had participated in the beatings, ssaying he did this at the order of Mucic and Delic. He nailed a metal badge to the forehead of the victim. Both Delic and Ladnzo were found guilty of wilful killing and murder.

Zeliko Milosevic- Hazim Delic accused of killing, beating with a piece of electrical cable, the victim was also partially submerged in a manhole full of water for one night. Delic was found guilty.

Simo Jovanovic- Delic and Landzo, accused of killing by beating the victim. Ladnzo was found guilty, while for the charge of Delic were not enough evidences.

Slavko Samoukovic- Esad Landzo alleged to have killed the victim. Was found guilty.

Slavko Susic- With this crime were charged both Delic and Landzo, the victimwas beated severely with a piece of cable. They were not found guilty of killing but were convicted for causing great sufferings or serious injury.

Momir Kuljanin- was tortured and treated cruel, beaten almost daily, hitting the victim with karate chops untill unconsciousness, forced to hold a heated knife in his hands. Mr Landzo was found guilty, For Mr. Delic were not sufficient evidences

Grozdana Cecez- Hazim Delic is accused of torture and Rape. Ms. Cecez was raped in front of 2 other men by Mr. Delic, afterwards raped by other 4 men, this cause her a state of fear, depression and suicidal tension. Delic was found guilty.

Ms. Anitc- Delic is deemed to have tortured and raped Ms. Antic. He was found guilty.

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Spasaje Miljevic- Esad Landzo and Hazim Delic are accused of torture and cruel treatment, they palced a mask on the victims head, thus, he was suffocating, they put a heated knife against part of his body, forcing him to eat grass. Mr. Landzo was found guilty, while for the conviction of Mr. Delic were not enough evidences

Hazim Delic and Esad Landzo is also a direct participant in creation and maintenance of an atmosphere of terror.

AppealThe Prosecution contends that the Trial Chamber erred in law in the principles it applied in considering when an accused can be held responsible under Article 7 (1) for unlawful confinement of civilians. It consideres that had the Chamber applied correctly this provision, the 2 defendants would be found guilty for aiding and abetting in the commission of unlawful confinement of civilians. Prosecution aleeged that Trial Chamber concluded that Delalic and Delic knew that civilians were unlawfully confined in the camp and consciously participated in their continued detention, and that this is sufficient to found their personal liability for the offence.

Trial Chamber seemed to motivate their decision of not helding liable of the persons under Article 7(1), because it was not proved that they had command responsibility under Article 7 (3). Appeal Chamber concludes that this statement is wrong, and these are 2 types of differents liabilities, as mentioned in the Report of the Secretary General, which do not depend on each other, thus demonstrating the lack of one of them does not exclude the presence of the another.

The Prosecution proposes that, in order to establish criminal responsibility for committing the offence of unlawful confinement of civilians it is sufficient to prove (i) that civilians were unlawfully confined, (ii) knowledge that the civilians were being unlawfully confined and (iii) participation in the confinement of those persons

The Appeals Chamber is of the view that to establish that an individual has committee the offence of unlawful confinement, something more must be proved than mere knowing “participation” in a general system or operation pursuant to which civilians are confined. Such responsibility is more properly to those who participated in a more direct and complete sense, for example who actually place in the detention the civilians, or had power to release them.

In the case of prison guards who are employed or conscripted to supervise detainees, and have no role in the determination of who is detained or released, the Prosecution submits that the presence alone of the camp guards was the “most immediate obstacle to each detainee’s liberty” and that the guard’s presence in the camp in that capacity alone would therefore constitute commission by them of the crime of unlawful confinement. This, however, poses the question of what such a guard is expected to do under such circumstances. The implication from the Prosecution submissions is that such a guard must release the prisoners. The Appeals Chamber, however, does not accept that a guard’s omission to take unauthorised steps to release prisoners will suffice to constitute the commission of the crime of unlawful confinement. The Appeals Chamber also finds it difficult to accept that such a guard must cease

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to supervise those detained in the camp to avoid such liability, particularly in light of the fact that among the detainees there may be persons who are lawfully confined because they genuinely do pose a threat to the security of the State.

However, the Appeal Chamber states that a lesser degree of directness of participation is still relevant for the liability as an accomplice or a participant in a joint criminal enterprise.

The Prosecution asserts that this particular crime may be committed jointly, if they have the necessary mens rea, because the guards and administrators, acting jointly, and collectively ran the camp and kept the victims confined in it.

Appeal against individual responsibility of Delalic

Prosecution asserts that the defendant is guilty for aiding and abetting at the commission of the unlawful confinement of civilians.

In relation to use of the word “participate” to describe forms of responsibility, the Appeals Chamber notes that the Report of the Secretary-General mentions the word “participate” in the context of individual criminal responsibility:

The Secretary-General believes that all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible.

Word “participation” encompasses according to the Appeal Chamber, all the forms of responsibility that are mentioned by Article 7 91). Although a more precise drafting of the indictment was desirable, failure to identify the exact mode of participation, AS the Prosecution did, is not fatal to the indictment.

The Trial Chamber had earlier defined aiding and abetting as: all acts of assistance that lend encouragement or support to the perpetration of an offence and which are accompanied by the requisite mens rea. Subject to the caveat that it be found to have contributed to, or have had an effect on, the commission of the crime, the relevant act of assistance may be removed both in time and place from the actual commission of the offence

The Prosecution, however, refers to two specific matters which it says constituted aiding and abetting by Delalic: his role in “publicly justifying and defending the purpose and legality of the camp”, and his “participation in the classification and releasing of prisoners”

Conclusion of the Appeal Chamber was that Prosecution did not offer any evidence that would support their statement under no reasonable doubt, thus their appeal was dismissed in entirety, and the decision of the Trial Chamber was mentained.

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Appeal against individual responsibility of Delic

Prosecution alleges that Delic should be found guilty under Article 7 (1), because of his participation in the unlawful confinement of the civilians, however it does not state the exact form of participation. It also states that Delic was aware of their confinement and participated in it. From their submission seems that Prosecution finds the most appropriate form of participation the one of joint criminal enterprise for Delic’s actions, however there are no evidence to prove the elemnts of this form of participation.

Delic was aware that, in respect of at least some of the detainees, there existed no reasonable grounds to believe that they constituted a security risk, this is not the only matter which must be established in relation to an allegation of participation in a common criminal design. The existence of a common concerted plan, design or purpose between the various participants in the enterprise (including the accused) must also be proved. It is also necessary to establish a specific mens rea, being a shared intent to further the planned crime, an intent to further the common concerted system of ill-treatment, or an intention to participate in and further the joint criminal enterprise, depending on the circumstances of the case.The Prosecution has not pointed to any evidence before the Trial Chamber which would have made the conclusion that these elements had been proved beyond reasonable doubt the only reasonable conclusion on the evidence.

Thus, the Appeal Chamber finds that the Prosecution’s appeal was not well argued, and not prove beyond reasonble doubt, the first decision of the instace being mentained.

Mucic’s Appeal

The Trial Chamber found that Mucic, by virtue of his position of command, was the individual with primary responsibility for, and had the ability to affect, the continued detention of civilians in the camp.The Appeals Chamber accepts that it is not open simply to conclude that, because of a position of superior authority somewhere in relation to a prison camp, an accused is also directly responsible under Article 7(1) for the offence of unlawful confinement committed anywhere in that camp.

The Appeals Chamber considers that a person in the position of Mucic commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where:

1. he has no reasonable grounds to believe that the detainees do not pose a real riskto the security of the state

2. he knows that they have not been afforded the requisite procedural guarantees(or is reckless as to whether those guarantees have been afforded or not)

Where a person who has authority to release detainees knows that persons in continued detention have a right to review of their detention598 and that they have not been afforded

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that right, he has a duty to release them, even if he is not responsible himself for the failure to have their procedural rights respected.

Relevant to Mucic’s knowledge of the unlawful nature of the confinement of certain of the detainees is his knowledge of the work of the Military Investigative Commission.

In Conclusion, The Appeal Chamber dismissed the Prosecution’s appeal, and left the decision of the Trial Chamber that founded guilty, and individual responsbile of Mucic for unlawful confinement of civilians.

Sentencing

Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count. Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1). The Aleksovski Appeal Judgement has recognised both such matters as being factors which should result in an increased or aggravated sentence. It proceeded to state:

The Appellant did more than merely tolerate the crimes as a commander; with his direct participation he provided additional encouragement to his subordinates to commit similar acts. The combination of these factors should, therefore, have resulted in a longer sentence and should certainly not have provided grounds for mitigation

Also in Aleksovki Appeal Judgement we find that there can occur liability under both Articles 7(1) and 7(3) for a number of crimes of violence, for aiding and abetting the creation of an atmosphere of psychological terror.

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Conclusion

Celebic Case had for sure a tremenduous impact on the future development of the command responsibility doctrine. It mentioned the elements for this type of liability to be applied and extended it not only to militars bu to civilians too.

However, if to consider how participation was approached, I think that other aspects of it were poorely analyzed by the Court, but as we have seen, this being the fault of the Prosecution that didn’t rise in the indictment a particular for of participation. It tried to mention the fact that Delic and Landzo with other guards acted jointly, but didn’t develop this hypothesis, which I think was relevant to the case. In my opinion the Court should take into consideration that a huge number o crimes described in the case above, were committed both by Delic and Landzo as direct participant, facts that should be well examined, but it didn’t discuss this particular subject.

In respect of each participant, I consider that the circumstances of the crimes and their position was thoroughly evaluated. Delalic was not found guilty, I found that his acquittal was totally well founded, because there was a lack of evidence to show his implication. Mucic was found guilty both as a direct participant in unlawful confinement of civilians and as a commander which had the possibility and the duty to stop the atrocities from the camp, decision that I consider to be well base. Delic’s sentence I think should include not only individual responsibility, but the command one too, this subject was treated in detail by the Court, and in my opinion Prosecution offered stronger arguments, that seemed to be shared by the Trial Chamber too, but the final decision was that he will noit be hel responsible as a commander. Esad Landzo was found guilty in numerous cases a direct participant, this part being quite clear, and didn’t rise any problems for the Court, as long as there were enough proofs, sometimes even his own confession that he committed the crimes.

From the analysis of the case, we can conclude that the subject of the participation is treated differently in our national legislation and doctrine and in the international one, though they have some similarities.

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