Erdemovic
subsequently pleaded guilty to murder as a war crime before a different
Trial Chamber. Its Judgment and Sentence (March 5, 1998) took into
account both the nature of the crime and the duress, and imposed a
sentence of five years' imprisonment. The majority of this Trial Chamber
held that crimes against humanity are inherently more serious than
war crimes. (This particular ruling, finding a hierarchy of crimes,
has been rejected by some Chambers of the Tribunals, and the
issue remains unsettled.)
Prosecutor
v. Delalic and Others ("Celebici")
This
was the first trial in the Tribunal that accused a defendant of command
responsibility. In this case, four Bosnian Muslims and Croats who
had held various positions of authority in Celebici prison camp, a
detention facility with a reputation for atrocities committed against
Bosnian Serbs detained therein, were charged with a variety of war
crimes. One was acquitted of all charges, and the other three were
convicted for either committing the crimes themselves, or for responsibility
as superiors for crimes committed by their subordinates.
The
Trial Chamber concluded that a superior, whether military or civilian,
may be held criminally liable for acts of subordinates on the basis
of a de facto or de jure position of authority. In reaching
its determination, the Trial Chamber Judgment (November 16, 1998)
stated that the superior must "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 offenses." The Trial Chamber found that
a superior may only incur criminal liability where an accused had
either actual knowledge that his subordinates were committing or about
to commit a crime (which could be established through direct or circumstantial
evidence), or "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".
The
Trial Chamber stressed that a superior cannot remain "wilfully
blind" to the acts of subordinates and cannot ignore information
that indicates his subordinates may be engaged in criminal activity.
The Trial Chamber concluded that a superior may be held criminally
responsible if "some specific information was in fact available"
which would put him or her on notice of offences committed by subordinates.
The information does not need to be conclusive; if the information
indicated additional information was necessary to ascertain whether
crimes had been or were about to be committed by subordinates, this
would be sufficient to require the superior to investigate.
The Appeals
Chamber Judgment (Feb. 20, 2001) agreed with the Trial Chamber’s
assessment of command responsibility. In addition, the Judgment considered
whether it was appropriate to convict three of the defendants under
multiple articles of the Statute for crimes committed against the
same people on the basis of the same acts (for example, for murder
as a crime against humanity (art 5(a)) and wilful killing as a grave
breach (art. 2(a)). The
Appeals Chamber held that "multiple criminal convictions entered
under different statutory provisions but based on the same conduct
are permissible only if each statutory provision involved has a materially
distinct element not contained in the other. An element is materially
distinct from another if it requires proof of a fact not required
by the other." As an example, torture can be both a crime against
humanity (part of widespread or systematic attack against any civilian
population), and a "grave breach" of the Geneva Conventions;
however, an individual convicted under both statutes will serve concurrent,
not consecutive, sentences. |
