B. The Prosecution appeals
2. Article 7(1) Liability
335. The 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.531 The Prosecution argues that, had the Trial Chamber applied the correct legal principles in regard to Article 7(1) to the facts it had found, Delali} and Deli} would have been liable under Article 7(1) for aiding and abetting in the commission of the unlawful confinement of civilians. It is submitted that the Trial Chamber’s findings demonstrate that Delali} and Deli} 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.532
336. As discussed above, the Trial Chamber found that civilians are unlawfully confined where they are detained in contravention of Articles 42 and 43 of Geneva Convention IV. In relation to the nature of the individual participation in the unlawful confinement which will render an individual personally liable for the offence of unlawful confinement of civilians under Article 2(g) of the Statute, the Trial Chamber, having found that Delali} and Deli} did not exercise superior responsibility over the camp, held:
Furthermore, on the basis of these findings, the Trial Chamber must conclude that the Prosecution has failed to demonstrate that Zejnil Delalic and Hazim Delic were in a position to affect the continued detention of civilians in the Celebici prison-camp. In these circumstances, Zejnil Delalic and Hazim Delic cannot be deemed to have participated in this offence. Accordingly, the Trial Chamber finds that Zejnil Delalic and Hazim Delic are not guilty of the unlawful confinement of civilians, as charged in count 48 of the Indictment.533
337. On the basis of the italicised portion of the above passage, the Prosecution interprets the Trial Chamber as having applied a test which requires proof of the exercise of superior authority under Article 7(3) of the Statute before an individual could be held responsible under Article 7(1) of the Statute for the offence of unlawful confinement.534 More generally, the Prosecution submits that the Trial Chamber erred in finding that, as a matter of law, an accused cannot be criminally liable under Article 7(1) for the unlawful confinement of civilians unless that person was “in a position to affect the continued detention of civilians”.535 The Prosecution observes
531 Prosecution Brief, para 7.7.
532 Prosecution Brief, paras 7.13 and 7.16. 533 Trial Judgement, para 1144, (emphasis added). 534 Prosecution Brief, para 4.10.
that individual criminal liability extends to any person who committed an offence in the terms of Article 7(1).536
338. In relation to the contention that the Trial Chamber found that an accused can be liable under Article 7(1) for the offence of unlawful confinement only if it is proved that he exercises superior authority under Article 7(3), there is some question as to whether the Trial Chamber in fact made such a legal finding. The Trial Chamber’s statement that, “on the basis of” its findings that Delalic and Delic could not be held criminally liable under Article 7(3) of the Statute, it “must conclude” that there had been a failure to prove that they had been in a position to affect the continued detention of the civilians in the camp could be interpreted as suggesting that the Trial Chamber believed that, as a legal matter, there could be no liability for unlawful confinement under Article 7(1) without superior responsibility under Article 7(3) being established. Such a legal interpretation is clearly incorrect, as it entwines two types of liability, liability under Article 7(1) and liability under Article 7(3). As emphasised by the Secretary- General’s Report,537 the two liabilities are different in nature. Liability under Article 7(1) applies to direct perpetrators of crimes and to accomplices. Article 7(3) applies to persons exercising command or superior responsibility. As has already been acknowledged by the Appeals Chamber in another context, these principles are quite separate and neither is dependent in law upon the other. In the Aleksovski Appeal Judgement, the Appeals Chamber rejected a Trial Chamber statement, made in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields, that the accused “cannot be held responsible under Article 7(1) in circumstances where he does not have direct authority over the main perpetrators of the crimes”.538 There is no reason to believe that, in the context of the offence of unlawful confinement, there would be any special requirement that a position of superior authority be proved before liability under Article 7(1) could be recognised.
339. However, the Appeals Chamber is not satisfied that this is what the Trial Chamber in fact held. The reference to its findings on the issue of superior authority when concluding that, “[i]n these circumstances, Zejnil Delalic and Hazim Delic cannot be deemed to have participated in this offence” suggests that the Trial Chamber was referring not to its legal conclusion that the two accused were not superiors for the purposes of Article 7(3), but to the previous factual findings that it had made in that context, which were also relevant to the issue
536 Prosecution Brief, paras 7.8-7.9. 537 Secretary-General’s Report, paras 56-58. 538 Aleksovski Appeal Judgement, para 170.
of their individual responsibility for the offence of unlawful confinement. Whether the Trial Chamber was unreasonable in relying on those findings to conclude that Delalic and Delic should be acquitted of the offence under Article 7(1) is a separate issue which is discussed below.
340. The Prosecution also challenges the Trial Chamber’s apparent conclusion that, to be responsible for this offence under Article 7(1), the perpetrator must be “in a position to affect the continued detention” of the relevant civilians. Responsibility may be attributed if the accused falls within the terms of Article 7(1) of the Statute, which provides that:
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.
341. It is submitted that an accused can be liable under Article 7(1) for committing the crime of unlawful confinement of civilians even if the accused was not the person who could determine which victim would be detained, and whether particular victims would be released.539 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.540 The Prosecution submits that, in relation to guards in a prison, the third matter “will be satisfied by showing that the duties of the guard were in themselves in execution or administration of the illegal system.”541
342. The Appeals Chamber is of the view that to establish that an individual has committed 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. In the Appeals Chamber’s view, the fact alone of a role in some capacity, however junior, in maintaining a prison in which civilians are unlawfully detained is an inadequate basis on which to find primary criminal responsibility of the nature which is denoted by a finding that someone has committed a crime. Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release
539 Prosecution Brief, para 7.9. 540 Prosecution Brief, para 7.13. 541 Prosecution Brief, para 7.13
detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist. 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”542 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 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.
343. It is not necessary for present purposes for the Appeals Chamber to attempt an exhaustive definition of the circumstances which will establish that the offence is committed, but it suffices to observe that such liability is reserved for persons responsible in a more direct or complete sense for the civilian’s unlawful detention. Lesser degrees of directness of participation obviously remain relevant to liability as an accomplice or a participant in a joint criminal enterprise, which concepts are best understood by reference first to what will establish primary liability for an offence.
344. In relation to accomplice liability, the Prosecution contends that, “[i]n the case of the crime of unlawful confinement of civilians under Article 2(g) of the Statute, a person who, for instance, instigates or aids and abets may not ever be in a position to affect the continued detention of the civilians concerned.”543 The Prosecution also observes that many of the crimes within the Tribunal’s jurisdiction may in practice be committed jointly by a number of persons if they have the requisite mens rea and that the crime of unlawful confinement is a clear example of this as “it was the various camp guards and administrators, acting jointly, who collectively ran the camp and kept the victims confined within it.”544
542 Prosecution Brief, para 7.12.
543 Prosecution Brief, para 7.8, (emphasis in the original). 544 Prosecution Brief, para 7.11.
345. Although it did not explicitly discuss as a discrete legal matter the exact principles by which individuals will be held individually criminally responsible for the unlawful confinement of civilians, the Trial Chamber did, earlier in its Judgement, discuss the general principles relating to criminal responsibility under Article 7(1) of the Statute. It cited the following statement from the Trial Chamber in the Tadi} Judgement which the Celebici Trial Chamber considered to state accurately “the scope of individual criminal responsibility under Article 7(1)”:545
[…] the accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question.
This statement, from its context in the Tadic Trial Judgement, although broadly expressed, appears to have been intended to refer to liability for aiding and abetting or all forms of accomplice liability rather than all forms of individual criminal responsibility under Article 7(1) including primary or direct responsibility.546 In the case of primary or direct responsibility, where the accused himself commits the relevant act or omission, the qualification that his participation must “directly and substantially affect the commission of the offence” is an unnecessary one. The Trial Chamber, in referring to the ability to “affect the continued detention” of the civilians, appears to have been providing a criterion to enable the identification of the person who could have a “direct and substantial effect” on the commission of unlawful confinement of civilians in the sense of the Tadic statement.
346. It may have been clearer had the Trial Chamber set out expressly its understanding of the relevant principles in relation to the establishment of primary or direct responsibility for the offence of unlawful confinement of civilians, in relation to which the general principles of accomplice liability set out earlier in its Judgement would also be applied. However, the Appeals Chamber does not consider that these submissions establish that the Trial Chamber erred in stating that an accused must be in a position to affect the continued detention of the civilians if this is understood, as the Appeals Chamber does, to mean that they must have participated in some significant way in the continued detention of the civilians, whether to a
545 Trial Judgement para 329, citing Tadi} Trial Judgement, para 692.
546 See Tadic Trial Judgement, at e.g., para 688, where the opposition is drawn between culpability where the
accused “intentionally commits” a crime or where he “knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime”. (The underlining is in the original). The reference to “directly and substantially” is made only in relation to the latter category. See also the following paras 689-691 which appear to be concerned with aiding and abetting only.
degree which would establish primary responsibility, or to a degree necessary to establish liability as an accomplice or pursuant to a common plan. The particular submissions the Prosecution makes in support of its contention that Delalic and Delic should have been convicted under Article 7(1) for the offence are now considered.
(a) Delali}
347. The Prosecution alleges that Delalic should have been found guilty for aiding and abetting the offence of unlawful confinement. Delali} argues that the Indictment did not charge him with aiding and abetting in Count 48 and that, even if it were to be accepted that he was so charged, the evidence did not show beyond a reasonable doubt that he was guilty as an aider and abettor.547
348. The Prosecution responds that Delali} was charged with aiding and abetting in Count 48 of the Indictment by the use of the word “participation”.548 Delali} contends however that “when the Prosecutor intends to charge aiding and abetting it is done so specifically”,549 and he advances some examples of other indictments before the Tribunal that charge aiding and abetting for the offence of unlawful confinement.550 Delali} refers to Articles 18(4) and 21(4)(a) of the Statute which require that the indictment contain “a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute” and that an accused must be informed of the nature and cause of the charge against him.551
349. The Appeals Chamber notes that the alleged offence of unlawful confinement is charged in count 48 of the Indictment552 as follows:
Between May and October 1992, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC participated in the unlawful confinement of numerous civilians at Celebici camp. Zejnil DELALIC, Zrdavko MUCIC, and Hazim DELIC also knew or had reason to know that persons in positions of subordinate authority to them were about to commit those acts resulting in the unlawful confinement of civilians, or had already committed those acts, and failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrators after the acts had been committed. By their acts and omissions, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC are responsible for:
Count 48. A Grave Breach punishable under Article 2(g) (unlawful confinement of civilians) of the Statute of the Tribunal.
547 Delalic Response, p 149.
548 Prosecution Reply paras 4.17-4.19. 549 Delalic Response, p 148.
550 See Counts 3 and 4 and paragraph 35 of the indictment filed against Radovan Karadzi} and Ratko Mladi} in July
1995 and see Count 22 and paragraph 44 of the amended indictment filed against Dario Kordi} in Sept 1998. Delali} Response, p 148.
551 Delali} Response, pp 147-149. 552 Indictment, para 36, (emphasis added).
Article 7 (1) does not contain the wording used in the Indictment of “participating”, but the Prosecution contends that it is evident that a person can participate in a crime through any of the types of conduct referred to in that provision.
350. The Appeals Chamber notes that the language used in Count 48 could (and should) have been expressed with greater precision. Although the accused are clearly charged under both Article 7(1) and Article 7(3) of the Statute, no particular head of Article 7(1) is indicated. The Appeals Chamber has already referred to the difficulties which arise from the failure of the Prosecution to identify exactly the type of responsibility alleged against an accused, and has recommended that the Prosecution “indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged”.553 However, it was also accepted in that case that the general reference to the terms of Article 7(1) was, in that context, an adequate basis on which to find that the accused had been charged with aiding and abetting.
351. 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.554
It is clear that Article 7 (1) of the Statute encompasses various modes of participation, some more direct than other. The word “participation” here is a broad enough term to encompass all forms of responsibility which are included within Article 7(1) of the Statute. Although greater specificity in drafting indictments is desirable, failure to identify expressly the exact mode of participation is not necessarily fatal to an indictment if it nevertheless makes clear to the accused the “nature and cause of the charge against him”.555 There has been no suggestion that a complaint was made prior to the trial that Delalic did not know the case that he had to meet. It is too late to make the complaint now on appeal that the Indictment was inadequate to advise the accused that all such forms of responsibility were alleged. The use of the word “participate” is poor drafting, but it should have been understood here as including all forms of participation referred to in Article 7(1) given that superior responsibility was expressed to be an additional