A Reverberation of the Scope and Onus of Crimes Committed by Subordinates of a Superior in the Wake of the Yugoslav Wars – Military Prosecutor V. Naser Orić

I. Admitted facts

This case emerges in the context of series of War Crimes during the course of the Yugoslav Wars between 1992 and 1995. In this light, it is pertinent to mention that due to the subsequent secession of constituent federal units of SFRY³, especially triggered by the passing of the referendum of breaking away in Bosnia and Herzegovina⁴, soon after Slovenia and Croatia, the FRY⁵ was formed. In response to such secession, the Serbian leadership⁶ sought to delineate boundaries of a new Serbian state inclusive of all ethnic Serbs from the seceding states, including Bosnia and Herzegovina. The project was devised to be realized by a campaign of ethnic cleansing that involved the genocide of the non-Serb population from the territories which were sought to be incorporated into the new Serbian state. In pursuit of this idea, the Republic of Bosnia and Herzegovina was invaded by FRY, and in retaliation to the same, the Republic of Croatia extended military support against the Serbian invasion. This led to the major battleground for the Yugoslav Wars to be the Republic of Bosnia and Herzegovina, wherein numerous war crimes were inflicted upon it.

The Accused here, namely, Naser Orić was conscripted into the Yugoslav's People's Army (JNA) in 1985, in a special unit for atomic and chemical defense. However, soon after attaining a Corporal rank, the Accused left the JNA.

Thereafter, the Accused was appointed as the Commander of Potočari T. O⁷ (established in mid-April 1992), subsequently, elevated to member status of the War Presidency in Srebrenica⁸ after its creation on 1 July⁹.

In early November 1992, the Accused was appointed as the Commander of the Joint Armed Forces of the Sub-Region Srebrenica¹⁰.

In 1992, the villages of Bosnia, demographically dominated by Bosnian Muslims, around Srebrenica were constantly attacked¹¹ by Serb forces, characterized by indiscriminate shelling, shooting, and destruction of homes. In retaliation, the Bosnian population began to organize local resistance groups.

As Orić was chief of the Potoćari police sub-station, he led a group¹² of Bosnian Muslim fighters¹³ which held the front line in resisting Serb attacks on Potoćari. The accused and his group of lightly armed fighters ambushed and killed a number of Serb paramilitaries. Their first attack was on May 6 on a village, Gniona, where Serb civilians were massacred. Subsequently, a leader of the Serb forces at Srebrenica, Goran Zekic, was killed in an ambush on May 8, 1992. Around the same time, the Serb forces retreated from Srebrenica. Thus, Orić and his team of Bosnian Muslim fighters, along with the civilians, reoccupied Srebrenica.

II. Legal issues¹⁴

• Whether conviction of the Chief of Police sub-station¹⁵ (under Articles 3 and 7(3) of the Statute of the ICTY), on account of acts of a subordinate, is valid?
• The correct approach to establish 'Knowledge or Reason to Know' is a subordinate's Criminal Conduct by a Chief in order for it to lead to a valid conviction.
• Also, the question of the extent of importance held by the establishment of the existence of a superior-subordinate relationship in the context of Article 7(3), Statute of the ICTY, was explored.

III. Contentions (trial chamber¹⁶, icty¹⁷)

A. It was alleged that the accused was individually responsible, pursuant to Article 7(1) of the Statute of the ICTY¹⁸, "for the crimes of wanton destruction of cities, towns or villages not justified by military necessity¹⁹" and "plunder of property²⁰" between 10 June 1992 and 20 March 1993, while a state of armed conflict existed on the territory of Bosnia and Herzegovina.

B. It was alleged that the accused failed to take adequate measures to resist "wanton destruction of cities, towns or villages" and to punish the perpetrators who committed such crimes. The Prosecution pointed out the involvement of the accused in the attacks, which resulted in such wanton destruction. Further, the Prosecution presented evidence that Orić instigated the commission of the aforementioned crimes as well as aided and abetted the perpetrators of these crimes during the stated time period.

C. It was contended that²¹ the members of the Military Police, by virtue of command and control of the Accused, detained several Serbians in the Srebrenica Police Station wherein the detainees were subjected to physical abuse, cruel treatment²² , and murders²³.

Regarding the crime of murder, the Prosecution was required to prove the following elements beyond a reasonable doubt:²⁴

• The person alleged to have been killed in the indictment is indeed dead;
• The death was caused by an act, or an omission notwithstanding an obligation to act, of the accused, or by a person for whose acts or omissions the accused bears criminal responsibility; and
• The act or omission was committed with intent to kill or inflict grievous bodily harm or serious injury, in the knowledge and with the acceptance that such act or omission was more likely than not to cause death. ²⁵

Regarding the crime of cruel treatment, the Prosecution was required to prove the following elements beyond a reasonable doubt

• An act, or omission notwithstanding an obligation to act, of the accused, or of a person for whose acts or omissions the accused bears criminal responsibility, causing severe mental or physical suffering, serious injury, or constituting a serious attack on human dignity; and
• The act or omission was committed with the intent to inflict serious mental or physical suffering or cause serious injury or a serious attack upon human dignity.²⁶

To serve this purpose, the Prosecution submitted in the light of evidence that, between 24 September and 16 October 1992, and again from 27 December 1992 to 20 March 1993, Serbs were captured by Bosnian Muslim fighters and kept as detainees, where they were subjected to appalling living conditions. Their condition was vehemently exacerbated by the maltreatment of the local population.

IV. Decision (trial chamber, icty²⁷)

The Trial Chamber ruled that offences of murder and cruel treatment were committed against detainees in Srebrenica by the Military Police, subordinated to Orić. Thus, the Accused was convicted under Articles 3 and 7(3) of the Statute²⁸ for crimes committed against Serb detainees.

However, he was acquitted of all other indictment charges and was sentenced for two years' imprisonment.

Thereafter, the Prosecution, as well as Orić (Convict), appealed against the aforementioned Trial Judgment.

V. Contentions (appeals chamber²⁹, icty)

A. The appeal by Orić consisted of thirteen grounds. The first ground of appeal being- whether the Trial Chamber failed to find necessary grounds to substantiate a conviction under Article 7(3) of the Statute³⁰. Orić's appeal submitted that according to Article 7(3), establishing his subordinate's criminal responsibility beyond a reasonable doubt is pivotal, albeit the following considerations are indispensable too, viz.-

i) the existence of a superior-subordinate relationship;

ii) that the superior knew or had reason to know that his subordinate was about to commit a crime or had done so; and

iii) that the superior failed to take the necessary and reasonable measures to prevent his subordinate's criminal conduct or punish his subordinate.

To refute this, the appeal of the prosecution contended that even if the existence of a superior-subordinate relationship had not been established, Orić should still be considered responsible for aiding and abetting crimes committed by other unidentified members of the Military Police.

B. Orić's appeal also challenged the opacity pertaining to the theory of criminal liability that the Trial Chamber applied to his alleged subordinates and that this lack of clarity amounts to an error of law. To concede this contention, the appeal of the Prosecution stated that Trial Chamber did not expressly ascribe a legal classification to the responsibility of the Military Police, rather, found that it aided and abetted the murders and cruel treatment committed by the principal perpetrators.

C. Naser Orić's appeal further contended the conviction on grounds of 'Knowledge or Reason to Know' his Subordinate's Criminal Conduct.

VI. Decision (appeals chamber, icty)

1) For the first contention, the Appeals Chamber remarked that the key perpetrators were not members of the Military Police, directly subordinated to Orić. Further, the Appeals Chamber went on to state that the degree of specificity with which the culpable subordinates must be identified is inevitably crucial. Hence, their existence must be established in any event.

2) For the later submission, the Appeals Chamber noted that the pedestal for the criminal responsibility of Orić's culpable subordinate from the Military Police, was indeed not specified. The Appeals Chamber, post considering the Trial Judgment wholly, discovered few general findings, nevertheless, without any relation to any form of criminal liability under the Tribunal's Statute.

3) The Appeals Chamber could not conclude Orić's guilt on the basis of meager scattered fragments. On perusal of these reasons, the Appeals Chamber held that the Trial Chamber erred in resolving the issue regarding the criminal responsibility of Orić's subordinate.

4) The Appeals Chamber considered that 'knowledge of the crimes and knowledge of a person's criminal conduct are, in law and in fact, distinct matters.' The Appeals Chamber admitted Trial Chamber's failure to rule fairly on Orić's 'Knowledge or Reason to Know' about his subordinate's intent to engage in criminal activity, labeling it as an error of law.

VII. Montage of the authors' views

The doctrine of command responsibility is the ICTY's landmark contribution to criminal law and international humanitarian law (IHL), providing a framework for adjudication of prosecution which relies on the doctrine. The most significant hallmark of this doctrine was encountered in the Prosecutor v Tadić case³¹, where it was carved out as an independent mode of liability under IHL. To recall, Article 75(3)(a) of the Geneva Convention IV³² outlined that: 'the fact that any person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under this Convention, provided a moral choice was, in fact, possible to him'. Hence, the ICRC Commentary expressly warned that Military commanders should take all necessary measures to ensure that persons subject to their authority and the members of militias subordinate to them were aware of the fact that they could not invoke obedience to superior orders as an excuse for acts defined by Article 4³³.

In Tadić case³⁴, the ICTY overturned this prior "illegal order" defence through its radical transformation of command responsibility into a mode of criminal liability. Through its application on several occasions, the ICRC Commentary³⁵ was radically altered in nature and had to be revised, which eventually led to Supplement V (2004), thus effectively nullifying the Tadić Trial Judgment in 2003. The doctrine is diametrically opposite from traditional modes of liability under international law; it differs from direct responsibility (i.e., direct participation) insofar as a culpable superior is not directly involved in the commission of the crime. This doctrine expands liability to a commanding officer who did not commit crimes himself, albeit failed to prevent or punish those under his command from committing crimes attributed to them by international law, i.e., crimes under international law of which he had or should have known.

Under IHL, "command responsibility" means that military commanders and other superiors are criminally liable for war crimes committed by their subordinates if they knew or had reason to know about such criminal behavior (i.e., through reports) and failed to take necessary measures within their power to prevent these acts or punish perpetrators thereof.

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War³⁶ also deals with superior responsibility and provides that any person who commits, aids, or abets in the commission of a grave breach is individually responsible. Article 2(3)³⁷ states: "The following acts are prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment, and torture; b) taking of hostages; c) outrages upon personal dignity, in particular, humiliating, and degrading treatment." Article 85 (b)³⁸ allows for criminal liability for "grave breaches" committed by individuals and Article 86³⁹ provides that anyone who as an individual commits a violation of the Conventions or their Protocols shall be liable to pay compensation instead of punishment.

As a general rule, military commanders are considered responsible under international law only if they knew or should have known about the commission of war crimes by members of their group. The fact that the commander did not commit these acts himself, or was even unaware of them at the time they were taking place does not relieve him of responsibility; what matters is his knowledge or reason to know about it. This concept forms part both of customary international law and codified in treaties such as Additional Protocol I to the Geneva Convention of 1949.

Firstly, the commander is expected to conduct an investigation into war crimes allegations; this obligation is derived from Article 86 of Protocol I (1977) Additional to the Geneva Conventions of 12 August 1949⁴⁰ for the Protection of War Victims. Secondly, international tribunals have determined that a state's superior officials may be held criminally responsible for failing to take necessary and reasonable measures when they had reason to know about acts amounting to a crime against humanity or war crime being committed by subordinates under their control. In these instances, superior knowledge concerning criminal activities does not require actual awareness of each individual offence; rather it relates to cumulative acts which collectively amount to a "widespread or systematic attack", provided that this attack took place over a period of time.

This doctrine can be traced back to the Nuremberg⁴¹ and Tokyo trials of 1945-1946,⁴² in which the doctrine of superior orders was applied. In these proceedings, it was stated that no person charged with a crime under international law may plead as a defense official instructions or orders received from superiors if obeying those orders would constitute a crime. Thus, a superior's order cannot relieve the subordinate from criminal responsibility for actions committed pursuant to such an order; he will not be able to invoke this as justification for his actions in court. However, this principle is subject to some important exceptions

Furthermore, Article 85 (b) of Protocol Additional I⁴³ to Geneva Conventions requires individual criminal responsibility for those involved in grave breaches of any protocol and Article 36 of the Statute of the International Criminal Tribunal for the former Yugoslavia (1993) stipulates, in accordance with Article 77 of Additional Protocol I⁴⁴ that "a military commander or person effectively acting as a military commander is responsible for violations... which he knew or had reason to know were about to be committed." It has therefore been argued that superior orders cannot excuse individuals from responsibility if they could have foreseen grave breaches and halted them by necessary and reasonable measures.

In 1993, during ethnic cleansing operations in Bosnia-Herzegovina, Colonel Radislav Krstić was found guilty of deportation and crimes against humanity not only during the commission of his crimes, but also when he failed to act after having been notified by subordinates about the ongoing illegal acts.

Even where the superior were unaware of an offence or its scale, this might still constitute a failure to take necessary and reasonable measures where they had reason to know that such an offence is being committed by their forces, either generally or in specific cases. However, the superior must have had "actual knowledge" of misconduct (as opposed to constructive knowledge) before he could be held responsible for failing to prevent it; merely knowing about enough facts from which a reasonable person would infer there are some war crimes being committed does not suffice.

VIII. Conclusion

The present case throws light to the extent of requirement of specificity for an Appeals Chamber to uphold factual findings of the Trial Chamber judgment. Further, a superior's liability for the failure to punish acts of subordinates committed before it was subjected to scrutiny, the answer to which is a landmark in the history of IHL. Hence, this case paved path to the discovery that command responsibility does not always include responsibility for acts of a subordinate carried out before him. Moreover, command responsibility requires the perpetrators of the crime to be identified and identical to the subordinates of the commander, to bring into effect a valid conviction.

*****

Footnotes

1. Author is a student at ICFAI University, Dehradun, India.

2. Author is a student at ICFAI University, Dehradun, India.

3. The Socialist Federal Republic of Yugoslavia, commonly referred Yugoslavia, was a country in southeast and Central Europe that existed from its foundation after World War II. ↩

4. March 3^rd, 1992 ↩

5. The Republics of Montenegro and Serbia, along with 2 autonomous territories formed a reduced federative state, namely Federal Republic of Yugoslavia ↩

6. Slobodan, Milošević; a Yugoslav and Serbian politician who served as the President of Serbia (originally the Socialist Republic of Serbia, a constituent republic within the SFRY) from 1989 to 1992 and within the Federal Republic of Yugoslavia from 1992 to 1997, and President of the Federal Republic of Yugoslavia from 1997 to 2000. ↩

7. The Presidency of Bosnia and Herzegovina, post its secession, recreated the existing Socialist Republic of Bosnia and Herzegovina TO (Teritorijalna Odbrana-Territorial Defence) and named it the TO of Bosnia and Herzegovina, on 8 April 1992. ↩

8. Srebrenica and the surrounding Central Podrinje region held immense strategic importance to both the Serbs and the Bosnians during the ensuing Bosnian war. Srebrenica was a focal point in the Serb strategy and was gradually isolated by the Serb forces in 1992. ↩

9. https://www.icty.org/x/cases/oric/ind/en/ori-ai030723e.pdf ↩

10. His command extended to the geographical regions of several municipalities: Srebrenica, Bratunac, Vlasenica and Zvornik in Eastern Bosnia ↩

11. Military assaults, including artillery attacks, sniper fire, as well as occasional bombing from aircraft ↩

12. April 1992 onwards ↩

13. The Srebrenica Armed Forces lacked the characteristics of a fully organized army. With few exceptions, they lacked weapons and uniforms, and fighters, for the most part, resided with their families or in makeshift accommodation. Communications both within Srebrenica and beyond were greatly impaired by the unavailability of adequate equipment, lack of electricity and the severing of phone lines. ↩

14. Prosecutor v. Naser Oric (Appeal Judgment), IT-03-68-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 3 July 2008 ↩

15. Potoćari police sub-station ↩

16. Case no IT-03-68-T, ICL 620 (ICTY 2006) ↩

17. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 or International Criminal Tribunal for the former Yugoslavia [hereinafter ICTY] ↩

18. the ICTY Statute is subject to UN Resolution 1966 (2010) that established the Mechanism for International Criminal Tribunals and decided that "the Statutes of the Mechanism and of the ICTY and ICTR shall be subject to the transitional arrangements set out in Annex 2 [of the Resolution]" ↩

19. punishable under Articles 3(b) and 7(3) of the Statute of the ICTY. ↩

20. punishable under Articles 3(e) and 7(3) of the Statute of the ICTY ↩

21. between 24 September 1992 and 20 March 1993 ↩

22. Punishable under Articles 3 and 7(3) of the Statute of the Tribunal and recognized by Article 3(1)(a) of the Geneva Conventions. ↩

23. Ibid ↩

24. PROSECUTOR V. NASER ORIĆ, JUDGEMENT SUMMARY TRIAL CHAMBER. http://haguejusticeportal.net/Docs/Court%20Documents/ICTY/Oric_Judgement_summary.pdf ↩

25. Judge Carmel Agius et al., UNITED NATIONS (2006). ↩

26. PROSECUTOR V. NASER ORIĆ, supra note 24. ↩

27. Case no IT-03-68-T, ICL 620 (ICTY 2006) ↩

28. The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 1991 ↩

29. Case No ICTY-03-68-A, ICL 621 (ICTY 2008) ↩

30. Article 7(3), International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 1991 ↩

31. App. Chamber, Int’l Crim. Trib. For former Yugoslavia, 1992 Case No. IT-94-1-AR72, 35 I.L.M. 32 (1996) ↩

32. Article 75(3)(a), Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287 ↩

33. Article 4, Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287 ↩

34. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Opinion and Judgment: The Prosecutor V. Duško Tadić A/k/a “DULE.” (1997). ↩

35. J M Henckaerts, L Doswald-Beck & International Committee of the Red Cross, Customary International Humanitarian Law (2004). ↩

36. Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287 ↩

37. Article 2(3), Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287 ↩

38. Article 85 (b), Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287 ↩

39. Article 86, Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287 ↩

40. Article 86, International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 ↩

41. M R Marrus, The Nuremberg War Crimes Trial of 1945-46: A Brief History with Documents (1997) ↩

42. D J Cohen & Y Totani, The Tokyo War Crimes Tribunal: Law, History, and Jurisprudence (2018) ↩

43. Article 85(b), International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 ↩

44. Article 77, International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. ↩