Whether Delali} Exercised Superior Responsibility

242. The Prosecution’s second ground of appeal alleges an error of law in the Trial Chamber’s interpretation of the nature of the superior-subordinate relationship which must be established to prove liability under Article 7(3) of the Statute. The Prosecution contends that the Trial Chamber wrongly “held that the doctrine of superior responsibility requires the

341 _{Trial Judgement, para 383.} 342 _{Prosecution Brief, para 2.11.}

perpetrator to be part of a subordinate unit in a direct chain of command under the superior.” 344 This legal error, it is said, led to the erroneous finding that Delali} did not exercise superior responsibility over the ^elebi}i camp and thus was not responsible for the offences of the camp staff.345

243. The Prosecution argues that, contrary to the finding of the Trial Chamber, the doctrine of command responsibility does not require the existence of a direct chain of command under the superior, and that other forms of de jure and de facto control, including forms of influence, may suffice for ascribing liability under the doctrine.346 The criterion for superior responsibility is actual control, which entails the ability to prevent violations, rather than direct subordination.347 _{Delali} was in a special position in that the facts found by the Trial Chamber} established that he “act[ed] on behalf of the War Presidency, he act[ed] on behalf of the supreme command in Sarajevo, he act[ed] on behalf of the investigating commission with respect to prisoners, he issued orders with respect to the functioning of the ^elebi}i prison”.348 It concludes that, as the Trial Chamber found him to have knowledge of the ill-treatment in the camp,349 and yet failed to prevent or punish the violations,350 the Appeals Chamber may substitute verdicts of guilty on those counts under which command responsibility was charged.351

244. The Prosecution submits that, if the Appeals Chamber applies the correct test to all of the facts found by the Trial Chamber, the only conclusion it could reach is that Delalic was a superior and was guilty of the crimes charged, which would permit it to reverse the verdict of acquittal.352 _{If the Appeals Chamber finds that the facts found by the Trial Chamber do not} permit it to reach that conclusion, it should remit the case to a newly constituted Trial Chamber to determine the relevant counts.353

343 _{Trial Judgement, para 393.}

344 _{Prosecution Brief, para 3.6.} 345 _{Ibid, para 3.6.}

346 _{Ibid, paras 3.17, 3.22.} 347 _{Ibid, para 3.27.}

348 _{Appeal Transcript, p 163; Prosecution Brief, para 3.36.} 349 _{Prosecution Brief, para 3.60.}

350 _{Ibid, para 3.66.}

351 _{Counts 13, 14, 33-35, 38, 39, 44, 45, 46, 47 and 48. Ibid, para 3.79.}

352 _{Appeal Transcript, p 165; See also Appeal Transcript at pp 156-158, noting the decisions in the Tadic Appeal}

Judgement and Aleksovski Appeal Judgement dealing with the Appeals Chambers powers to intervene on factual matters.

245. In the alternative, the Prosecution requests leave to be granted to present additional evidence which had been “wrongly excluded by the Trial Chamber”, being evidence that it sought to call in rebuttal.354 The documentary evidence which had not been admitted was annexed to the Prosecution Brief. The submission in relation to admission of wrongfully excluded evidence as expressed in the Prosecution Brief initially suggested that this course was proposed as an alternative remedy which would fall for consideration only should the Appeals Chamber accept the argument that the Trial Chamber made an error of law in its statement of the nature of the superior-subordinate relationship.355 However, it was also stated that the Prosecution alleges that the Trial Chamber’s exclusion of the evidence constituted a distinct error of law, and in subsequent written and oral submissions it was made apparent that, although not expressed as a separate ground of appeal, the submissions as to erroneous exclusion of evidence constitute an independent basis for challenging the Trial Chamber’s finding that Delalic was not a superior.356 As Delalic in fact answered this Prosecution argument, no prejudice will result if the Appeals Chamber deals with this alternative submission as an independent allegation of error of law.

246. Delali} contends that in any event the evidence of the position of Delali} in relation to the ^elebi}i camp demonstrates that he had no superior authority there,357 and that the Prosecution’s theory of “influence responsibility” is not supported by customary law.358 He argues that a revision of the judgement by the Appeals Chamber can only concern errors of law, and that, where there is a mix of factual and legal errors, the appropriate remedy is that a new trial be ordered.359 Delali} submits that the Trial Chamber was correct in refusing the to allow the proposed Prosecution witnesses to testify as rebuttal witnesses and in rejecting the Prosecution motion to re-open the proceedings.360

354 _{Prosecution Brief, para 3.80.}

355 _{Ibid, para 3.80: “In the alternative, should the Appeals Chamber determine that the facts as found by the Trial}

Chamber are not of themselves sufficient to support a reversal of the acquittals of Delalic, the Prosecution submits that it should be granted leave by the Appeals Chamber to present additional evidence that was wrongly excluded by the Trial Chamber.” Cf para 3.84: “[…] the Prosecution now seeks an appellate remedy against these decisions of the Trial Chamber [not to admit the evidence]”.

356 _{Prosecution Reply, para 3.16; para 3.23; Appeal Transcript p 16: “The issue is an issue of error of law. The}

issue is whether or not the Trial Chamber applied the correct test for the admission of fresh or rebuttal evidence. If they applied the incorrect test and it’s an error of law, then the Trial Chamber erred” and at p 171, where the Prosecution agreed that their submission was “[…] that there was an error of law, the documents which are attached to the submissions will demonstrate that it was an error of law which caused harm to the Prosecution’s case, and therefore, you want a new trial.”

357 _{Appeal Transcript, pp 30-97.} 358 _{Delali} Response, pp 119, 122.} 359 _{Delali} Response, pp 9-10.} 360 _{Delali} Response, p 129.}

247. The Prosecution’s argument relating to the Trial Chamber’s findings as to the nature of the superior-subordinate relationship is considered first before turning to the second argument relating to the exclusion of evidence which was sought to be admitted as rebuttal or fresh evidence.

(i) The Superior-Subordinate Relationship in the Doctrine of Command Responsibility

248. The Prosecution interprets the Trial Chamber to have held that, in cases involving command or superior responsibility, the perpetrator must be “part of a subordinate unit in a direct chain of command under the superior” for the superior to be held responsible.361 The Prosecution submissions do not refer to any specific express statement of the Trial Chamber to this effect but appear to consider that this was the overall effect of the Trial Chamber’s findings. The Prosecution first refers to, and apparently accepts, the finding of the Trial Chamber that:

[…] in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences […] such authority can have a de facto or de jure character.362

249. The Prosecution then refers to certain subsequent conclusions of the Trial Chamber which it apparently regards as supporting its interpretation that the Trial Chamber held that the doctrine of superior responsibility requires the perpetrator to be part of a subordinate unit in a direct chain of command under the superior. First, the Prosecution refers to the Trial Chamber’s statement that, in the case of the exercise of de facto authority, it must be

[…] accompanied by the trappings of the exercise of de jure authority. By this, the Trial Chamber means that the perpetrator of the underlying offence must be the subordinate of the person of higher rank and under his direct or indirect control.363

The section of the judgement cited and relied upon in the Prosecution Brief, however, omits the italicised portion of the passage. This qualification expressly conveys the Trial Chamber’s view that the relationship of subordination required by the doctrine of command responsibility may be direct or indirect.

250. The Trial Chamber also referred to the ICRC Commentary (Additional Protocols), where it is stated that the superior-subordinate relationship should be seen “in terms of a

361 _{Prosecution Brief, para 3.6.}

362 _{Trial Judgement, para 378, cited in Prosecution Brief at para 3.2.} 363 _{Trial Judgement, para 646, cited in Prosecution Brief at para 3.3.}

hierarchy encompassing the concept of control”.364 Noting that Article 87 of Additional Protocol I establishes that the duty of a military commander to prevent violations of the Geneva Conventions extends not only to his subordinates but also to “other persons under his control”, the Trial Chamber stated that:

This type of superior-subordinate relationship is described in the Commentary to the Additional Protocols by reference to the concept of “indirect subordination”, in contrast to the link of “direct subordination” which is said to relate the tactical commander to his troops.365

251. Two points are clear from the Trial Chamber’s consideration of the issue. First, the Trial Chamber found that a de facto position of authority suffices for the purpose of ascribing command responsibility. Secondly, it found that the superior-subordinate relationship is based on the notion of control within a hierarchy and that this control can be exercised in a direct or indirect manner, with the result that the superior-subordinate relationship itself may be both direct and indirect. Neither these findings, nor anything else expressed within the Trial Judgement, demonstrates that the Trial Chamber considered that, for the necessary superior- subordinate relationship to exist, the perpetrator must be in a direct chain of command under the superior.

252. Examining the actual findings of the Trial Chamber on the issue, it is therefore far from apparent that it found that the doctrine of superior responsibility requires the perpetrator to be part of a subordinate unit in a direct chain of command under the superior; nor is such a result a necessary implication of its findings. This seems to have been implicitly recognised by the Prosecution in its oral submissions on this ground of appeal at the hearing.366 The Appeals Chamber regards the Trial Chamber as having recognised the possibility of both indirect as well as direct relationships subordination and agrees that this may be the case, with the proviso that effective control must always be established.

253. However, the argument of the Prosecution goes further than challenging the perceived requirement of direct subordination. The key focus of the Prosecution argument appears to be the Trial Chamber’s rejection of the Prosecution theory that persons who can exert “substantial influence” over a perpetrator who is not necessarily a subordinate may, by virtue of that influence, be held responsible under the principles of command responsibility.367 _The

364 _{Trial Judgement, para 354, quoting from the ICRC Commentary (Additional Protocols), para 3544.} 365 _{Trial Judgement, para 371.}

366 _{The Prosecution submitted that the Trial Chamber “appeared to focus on the necessity of a chain of command.}

It appeared to focus on the necessity of that there has to be a command structure…” and referred to “…the Trial Chamber’s reliance on the need for a chain of command, and specifically some – what appears to be some direct link or direct chain of command …”, Appeal Transcript, pp 152 and 153.

Prosecution does not argue that anyone of influence may be held responsible in the context of superior responsibility, but that a superior encompasses someone who “may exercise a substantial degree of influence over the perpetrator or over the entity to which the perpetrator belongs.” 368

254. The Trial Chamber understood the Prosecution at trial to be seeking “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”,369 which is essentially the approach taken by the Prosecution on appeal. The Trial Chamber also rejected the idea, which it apparently regarded as being implicit in the Prosecution view, that a superior- subordinate relationship could exist in the absence of a subordinate:

The view of the Prosecution that a person may, in the absence of a subordinate unit through which authority is exercised, incur responsibility for the exercise of a superior authority seems to the Trial Chamber a novel proposition clearly at variance with the principle of command responsibility. The law does not know of a universal superior without a corresponding subordinate. The doctrine of command responsibility is clearly articulated and anchored on the relationship between superior and subordinate, and the responsibility of the commander for actions of members of his troops. It is a species of vicarious responsibility through which military discipline is regulated and ensured. This is why a subordinate unit of the superior or commander is a sine qua non for superior responsibility.370

The Trial Chamber thus unambiguously required that the perpetrator be subordinated to the superior. While it referred to hierarchy and chain of command, it was clear that it took a wide view of these concepts:

The requirement of the existence of a “superior-subordinate relationship” which, in the words of the Commentary to Additional Protocol I, should be seen “in terms of a hierarchy encompassing the concept of control”, is particularly problematic in situations such as that of the former Yugoslavia during the period relevant to the present case – situations where previously existing formal structures have broken down and where, during an interim period, the new, possibly improvised, control and command structures may be ambiguous and ill- defined. It is the Trial Chamber’s conclusion … that persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so.371

The Trial Chamber’s references to concepts of subordination, hierarchy and chains of command must be read in this context, which makes it apparent that they need not be established in the sense of formal organisational structures so long as the fundamental requirement of an effective power to control the subordinate, in the sense of preventing or punishing criminal conduct, is satisfied.

368 _{Appeal Transcript, pp 116-118.} 369 _{Trial Judgement, para 648.}

370 _{Trial Judgement, para 647, cited in the Prosecution Brief at para 3.4.} 371 _{Trial Judgement, para 354.}

255. It is clear that the Trial Chamber drew a considerable measure of assistance from the ICRC Commentary (Additional Protocols) on Article 86 of Additional Protocol I (which refers to the circumstances in which a superior will be responsible for breaches of the Conventions or the Protocol committed by his subordinate) in finding that actual control of the subordinate is a necessary requirement of the superior-subordinate relationship.372 _{The Commentary on Article} 86 of Additional Protocol I states that:

[…] we are concerned only with the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter, being his subordinate, is under his control. The direct link which must exist between the superior and the subordinate clearly follows from the duty to act laid down in paragraph 1 [of Article 86]. Furthermore only that superior is normally in the position of having information enabling him to conclude in the circumstances at the time that the subordinate has committed or is going to commit a breach. However it should not be concluded from this that the provision only concerns the commander under whose direct orders the subordinate is placed. The concept of the superior is broader and should be seen in terms of a hierarchy encompassing the concept of control.373

The point which the commentary emphasises is the concept of control, which results in a relationship of superior and subordinate.

256. The Appeals Chamber agrees that this supports the Trial Chamber’s interpretation of the law on this point. The concept of effective control over a subordinate - in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised - is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute.374

257. In considering the Prosecution submissions relating to “substantial influence”, it can be noted that they are not easily reconcilable with other Prosecution submissions in relation to command responsibility. The Prosecution expressly endorses the requirement that the superior have effective control over the perpetrator,375 but then espouses, apparently as a matter of general application, a theory that in fact “substantial influence” alone may suffice, in that “where a person’s powers of influence amount to a sufficient degree of authority or control in the circumstances to put that person in a position to take preventative action, a failure to do so

372 _{Trial Judgement, paras 354, 371 and 647, referring to para 3544 of the ICRC Commentary (Additional}

Protocols). Article 86(2) provides: “The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

373 _{ICRC Commentary (Additional Protocols), para 3544.}

374 _{It has been elsewhere accepted in the jurisprudence of the Tribunal that, where there is no effective control, there}

is no superior responsibility: Aleksovski Trial Judgement, para 108 (HVO soldiers with arms forced their way into the prison without the guards being able to stop them) and para 111 (no finding was made on any existence of control by Aleksovski over the HVO soldiers).

may result in criminal liability.”376 This latter standard appears to envisage a lower threshold of control than an effective control threshold; indeed, it is unclear that in its natural sense the concept of “substantial influence” entails any necessary notion of control at all. Indeed, certain of the Prosecution submissions at the appeal hearing suggest that the substantial influence standard it proposes is not intended to pose any different standard than that of control in the sense of the ability to prevent or punish:

But we would submit that if there is the substantial influence, which we concede is something which has got to be determined essentially on a case-by-case basis, if this superior does have