COMPENDIUM

1. THE PROSECUTOR VS. JEAN PAUL AKAYESU – 3, 2 SEPTEMBER

1998, ICTR

The Accused, Jean-Paul Akayesu, was the mayor of Taba, Rwanda. On 2 September 1998,
Trial Chamber I of the Tribunal found him guilty of nine out of fifteen Counts charging him
with genocide, crimes against humanity and violations of the Geneva Conventions in the first
ever trial before the Tribunal. As bourgmestre (mayor), Jean Paul AKAYESU was
responsible for maintaining law and public order in his commune. At least 2000 Tutsis were
killed in Taba between April 7 and the end of June, 1994, while he was still in power. The
killings in Taba were openly committed and so widespread that, as bourgmestre, Jean Paul
AKAYESU must have known about them. Although he had the authority and responsibility
to do so, Jean Paul AKAYESU never attempted to prevent the killing of Tutsis in the
commune in any way or called for assistance from regional or national authorities to quell the
violence. On 2 September 1998, Jean Paul Akayesu was sentenced to life imprisonment for
each of the nine counts, the sentences to run concurrently.

“The Chamber notes that customary international law requires that the attack be either of a
widespread or systematic nature and need not be both. "Widespread", as an element of
crimes against humanity, was defined in the Akayesu Judgement, as massive, frequent, large
scale action, carried out collectively with considerable seriousness and directed against a
multiplicity of victims, whilst "systematic" was defined as thoroughly organised action,
following a regular pattern on the basis of a common policy and involving substantial public
or private resources.”

“ordering the commission of one of the crimes referred to in Articles 2 to 4 of the Statute, a
person also incurs individual criminal responsibility. Ordering implies a superior subordinate
relationship between the person giving the order and the one executing it. In other words, the
person in a position of authority uses it to convince another to commit an offence.”

SENTENCED TO LIFE IMPRISONMENT

 2. PROSECUTOR VS KUNARAC, KOVIC AND VUKOVIC -3, 22
FEBRUARY 2001, ICTY

Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković were brought before the ICTY for
their roles in the commission of crimes against the Bosnian Muslim civilians between April
1992 and February 1993. During this time, an armed conflict existed between the Bosnian
Serbs and the Bosnian Muslims, and the Bosnian Serb Army and paramilitary groups
detained Bosnian Muslim women and subjected them to repeated rapes, torture and other
mistreatments. Trial Chamber II found that the acts of the Bosnian Serbs amounted to war
crimes and crimes against humanity. It found the three accused responsible for these crimes.

Dragoljub Kunarac was found guilty of crimes against humanity (torture, rape, enslavement),
and war crimes (torture and rape) and, subsequently, sentenced to 28 years of imprisonment.

Radomir Kovač was also found guilty of the war crimes of rape and outrages upon personal
dignity, as well as the crimes against humanity of enslavement and rape. He was sentenced to
20 years of imprisonment.

Zoran Vuković was found guilty of torture and rape as both war crimes and crimes against
humanity. Trial Chamber II sentenced him to 12 years of imprisonment.

This case gave the definition of population and explained the concept of, “The civilian
population as such, as well as individual civilians, shall not be made the object of attack.”

“As was correctly stated by the Trial Chamber, the use of the word “population” does not
mean that the entire population of the geographical entity in which the attack is taking place
must have been subjected to that attack.”

3. PROSECUTOR VS. RADISLAV KRSTIC – 3, 2 AUGUST 2001, ICTY

it was alleged that Krstic played a leading role in an operation code-named “Krivaja 95”
which involved an attack on the Srebrenica enclave. Part of this operation was the shelling of
Srebrenica, which was calculated to terrify the Bosnian Muslim population and to drive them
to Potočari where there was a UN presence, and where a total lack of food, shelter and
necessary services would increase their fear and panic and ultimately their willingness to
leave the territory. The Trial Chamber concluded beyond reasonable doubt that Krstic
participated in a joint criminal enterprise to kill the Bosnian Muslim military-aged men from
Srebrenica from the evening of 13 July onward. According to the Trial Chamber, Krstic may
not have devised the killing plan, or participated in the initial decision to escalate the
objective of the criminal enterprise from forcible transfer to destruction of Srebrenica’s
Bosnian Muslim military-aged male community. However, the Chamber found that, from the
moment he learned of the widespread and systematic killings and became clearly involved in
their perpetration, Krstid shared the genocidal intent to kill the men. The Chamber further
found Radislav Krstid guilty as a member of a joint criminal enterprise (JCE).
Radislav Krstic, on the basis of individual criminal responsibility (Article 7(1) of the Statute
of the Tribunal), was found guilty of:
Aiding and abetting genocide
 Aiding and abetting murder (violations of the laws or customs of war)
 Extermination, persecution (crimes against humanity)
 Murder (violations of the laws or customs of war)
 SENTENCE: 35 YEARS’ IMPRISONMENT
“Ordering” entails a person in a position of authority using that position to convince another
to commit an offence;”
“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.”
“According to the case law, the following three conditions must be met before a person can
be held responsible for the acts of another person under Article 7(3) of the Statute:
- The existence of a superior-subordinate relationship;
- The superior knew or had reason to know that the criminal act was about to be or had been
committed; and
- The superior failed to take the necessary and reasonable measures to prevent the criminal
act or punish the perpetrator thereof.”
“However, the Trial Chamber adheres to the belief that where a commander participates in
the commission of a crime through his subordinates, by “planning”, “instigating” or
“ordering” the commission of the crime, any responsibility under Article 7(3) is subsumed
under Article 7(1).”
 4. PROSECUTOR VS. STANISLAV GALIC – 5, 30TH NOVEMBER 2006
Galić conducted a campaign of sniping and shelling attacks on the city of Sarajevo
and did so with the primary aim of spreading terror among the city's civilian
population. These attacks, which took place on an almost daily basis, over many
months, resulted in the killing of hundreds of men and women of all ages, including
children, and the wounding of thousands, with the intent of terrorising the population
of the city.
Galić was charged on the basis of his individual criminal responsibility (Article 7(1)
of the Statute of the Tribunal) and his superior criminal responsibility (Article 7(3))
with: • Murder, inhumane acts other than murder (crimes against humanity, Article 5).
• Unlawfully inflicting terror upon civilians, attacks on civilians (violations of the
laws and customs of war, Article 3).

“that a positive action “which clearly indicates the participation in the unlawful action” is
required for responsibility under Article 7(1) of the Statute. He also challenges the holding of
the Trial Chamber that “a superior may be found responsible under Article 7(1) [of the
Statute] where the superior’s conduct had a positive effect in bringing about the commission
of crimes by his or her subordinates, provided the mens rea requirements for Article 7(1)
responsibility are met”.

“The Appeals Chamber recalls that the actus reus of ordering has been defined as a person in
a position of authority instructing another person to commit an offence; a formal superior
subordinate relationship between the accused and the actual physical perpetrator not being
required. The Appeals Chamber finds that the very notion of “instructing” requires a positive
action by the person in a position of authority. The failure to act of a person in a position of
authority, who is in a superiorsubordinate relationship with the physical perpetrator, may give
rise to another mode of responsibility under Article 7(1) of the Statute or superior
responsibility under Article 7(3) of the Statute.”
SENTENCED TO LIFE IMPRISONMENT
 5. PROSECUTOR V TIHOMIR BLASKIC -5, 29 JULY 2004
Held the rank of Colonel in the Croatian Defence Council (HVO) and became
commander of the HVO in the Central Bosnian Operative Zone on 27 June 1992.
From January 1993 to April 1993, together with members of the HVO, Blaškić
planned, instigated, ordered or otherwise aided and abetted in the planning,
preparation or execution of the use of Bosnian Muslim civilians as human shields in
order to prevent the Bosnian Army from firing on HVO positions or to force Bosnian
Muslim combatants to surrender. He exposed Bosnian Muslims detained in HVO
detention facilities, to beatings, to physical and psychological abuse. He had the
knowledge of the circumstances and conditions under which the Muslims were
detained in, he failed to punish those subordinates of his who were responsible, and
over whom he could exercise effective control. Furthermore, he failed to report the
infractions of which he was aware to the competent authorities.
The indictment charged Blaškić on the basis of both individual responsibility (Article
7(1) of the Statute of the Tribunal) and superior responsibility (Article 7(3) of the
Statute of the Tribunal) with: Wilful killing; wilfully causing great suffering or
serious injury to body or health; extensive destruction
 of property; inhuman treatment; taking civilians as hostages (grave breaches of the
1949 Geneva conventions, Article 2) Devastation not justified by military necessity;
unlawful attack on civilians; unlawful attack on civilian
 objects; murder; violence to life and person; plunder of public or private property;
destruction or wilful damage to institutions dedicated to religion or education; cruel
treatment; taking of hostages (violations of the laws or customs of war, Article 3)
Persecutions on political, racial or religious grounds; murder; inhumane acts (crimes
against humanity, Article 5)

“The Prosecution agrees that responsibility under Article 7(1) and Article 7(3) of the Statute
must in principle be distinguished, but submits that this difference should not be overstated. It
claims that both forms of responsibility are “a means of evaluating the linkage of an accused
to a particular crime base” and the chosen theory of liability essentially plays its role at the
sentencing stage. It further asserts that both modes may be charged concurrently and
convictions could, conceivably, be entered under both modes in relation to the same
conduct.”
“at the time of the facts, the accused held a command position which made him responsible
for the acts of his subordinates,as well as the “command position is more of an aggravating
circumstance than direct participation.”
SENTENCE: 12 YEARS

6. PROSECUTOR V. DELALIC – 5, 9 OCTOBER 2001, ICTY

Mucić participated in the maintenance of inhumane conditions for Bosnian Serb detainees at
the Čelebići prison camp and was responsible, as commander of the camp, for creating the
atmosphere of terror that prevailed, whereby detainees lived in a constant state of anguish and
fear of being subjected to physical abuse. Under his command, eight detainees died as a result
of beatings by guards; a detainee was shot while attempting to escape from a beating; the
beating of another detainee was conducted with rifle butts and other wooden and metal
objects and continued for a period of several hours; despite being already seriously injured
when he arrived at the camp, another detainee was subjected to further beatings during his
detention, resulting in his subsequent death.
“The Prosecution accordingly concludes that in order to incur criminal responsibility for
unlawful killing, 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”.334 It is submitted that for
criminal liability to attach, the accused’s act(s) of participation need not have been committed
in the same place or at the same time as the acts that caused the victim’s death, nor that he be
present when those same acts are perpetrated. 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.”
“More specifically, the Trial Chamber accepts as a correct statement of the law the
determination that aiding and abetting includes all acts of assistance that lend encouragement
or support to the perpetration of an offence and which are accompanied by the requisite mens
rea.”
“Thus, a superior may be held criminally responsible not only for ordering, instigating or
planning criminal acts carried out by his subordinates, but also for failing to take measures to
prevent or repress the unlawful conduct of his subordinates.”
7. THE PROSECUTOR VS. JEAN – PIERRE BEMBA GOMBO
Jean-Pierre Bemba Gombo, a Congolese citizen, was the MLC President and the
Commander-in-Chief of the Armée de Libération du Congo ("ALC"), the
organization's figurehead, and source of its funding, goals, and aims. The conflict in
the Central African Republic from on or about 26 October 2002 to 15 March 2003
was an armed conflict between the Central African governmental authorities,
supported by other forces, including the MLC, on the one hand, and the organized
armed group of General Bozizé's rebels. The MLC soldiers directed a widespread
attack against the civilian population in the Central African Republic throughout the
period of the charges. MLC soldiers committed many acts of pillaging, rape, and
murder against civilians, over a large geographical area. Jean-Pierre Bemba Gombo
was a person effectively acting as a military commander (Article 28(a) of the ICC
Rome Statute), who knew that the MLC forces under his effective authority and
control were committing or about to commit the crimes charged. Additionally, he
failed to take all necessary and reasonable measures to prevent or repress the
commission of crimes by his subordinates.
The Prosecutor undertook a detailed analysis of the information received from the
Government of the Central African Republic, and also requested and obtained
additional information from various sources. After reviewing the information
received, the Prosecutor found that the conditions required by the Rome Statute for
launching an investigation were satisfied.

“The “course of conduct” must be directed against “any civilian population”. The
term “civilian population” denotes a collective, as opposed to individual
“civilians”.341 Article 50 of Additional Protocol I provides a definition of a “civilian
population”, which the Chamber considers to be customary in nature and therefore
relevant to the consideration of crimes against humanity”

“An organization may be defined as “an organized body of people with a particular
purpose”.
“As such, the course of conduct must reflect a link to the State or organizational
policy, in order to exclude those acts which are perpetrated by isolated and
uncoordinated individuals acting randomly on their own.”
 “Knowledge” element “should not be interpreted as requiring proof that the
perpetrator had knowledge of all characteristics of the attack or the precise details of
the plan or policy of the State or organization”. Rather, what is required is that “The
perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack against a civilian population.” The Elements of
Crimes further state that “in the case of an emerging widespread or systematic attack
against a civilian population, the intent clause of the last element indicates that this
mental element is satisfied if the perpetrator intended to further such an attack.”
SENTENCE – 18 YEARS OF IMPRISONMENT

BURDEN OF PROOF BEYOND REASONABLE DOUBT

Under Article 66(1), the Accused shall be presumed innocent until proved guilty before
the Court in accordance with the applicable law. Pursuant to Article 66(2), the onus is on
the Prosecution to prove the guilt of the Accused.488 For a conviction, each element of
the particular offence charged must be established “beyond reasonable doubt”.

In this regard, the Appeals Chamber specified that this standard is to be applied not to
“each and every fact in the Trial Judgment” but “only to the facts constituting the
elements of the crime and mode of liability of the accused as charged”.

When a Chamber concludes that, based on the evidence, there is only one reasonable
conclusion to be drawn from particular facts, the conclusion is that they have been
established beyond reasonable doubt. The Appeals Chamber has elaborated upon this
standard:

The reasonable doubt standard in criminal law cannot consist in imaginary or frivolous
doubt based on empathy or prejudice. It must be based on logic and common sense, and
have a rational link to the evidence, lack of evidence or inconsistencies in the evidence.’

8. THE PROSECUTOR VS. AHMAD AL FAQI AL MAHDI, 3 – 7

october 2016

On 27 September 2016, Trial Chamber VIII found Mr Al Mahdi guilty, as a co-perpetrator, of

the war crime of intentionally directing attacks against historic monuments and buildings
dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali, in June
and July 2012.
Mr Al Mahdi has a thorough knowledge of the Koran and gave lectures as an expert on
religious matters.18 He joined the armed group known as Ansar Dine in April 2012.
Mr Al Mahdi was viewed as an expert on matters of religion, and was consulted in this
capacity, including by the Islamic tribunal. Mr Al Mahdi was very active in aspects of the
Ansar Dine and AQIM administration.
The mausoleums of saints and mosques of Timbuktu are an integral part of the religious life
of its inhabitants. Timbuktu’s mausoleums and mosques constitute a common heritage for the
community. These mausoleums are frequently visited by the residents – they are places of
prayer and, for some, places of pilgrimage.

“The Chamber considers that the element of ‘directing an attack’ encompasses any acts of
violence against protected objects and will not make a distinction as to whether it was carried
out in the conduct of hostilities or after the object had fallen under the control of an armed
group. The Statute makes no such distinction. This reflects the special status of religious,
cultural, historical and similar objects, and the Chamber should not change this status by
making distinctions not found in the language of the Statute. Indeed, international
humanitarian law protects cultural objects as such from crimes committed both in battle and
out of it.”

SENTENCE 9 YEARS
9. THE PROSECUTOR V. DUSKO TADIC 5, 26 JANUARY 2000

Wilful killing; torture or inhuman treatment; wilfully causing great suffering or serious injury
to body or health (grave breaches of the 1949 Geneva conventions). During the attack on
Kozarac and surrounding areas, Duško Tadić participated in the collection and forced transfer
of civilians to detention camps. As part of a group of Serbs, he beat and kicked one victim
until he was unconscious. He threatened one victim with a knife and then stabbed him.
Murder (crimes against humanity and violations of the laws or customs of war). Duško Tadić
killed two Muslim policemen in Kozarac on 26 May 1992. He participated in the killings of
five men in Jaskići, a village near Prijedor.

10.THE PROSECUTOR V. KUPRESKIC

Drago Josipović was actively involved in a military attack on civilians in the village of
Ahmići during which over 100 civilians were killed and 169 Muslim homes were destroyed. •
He participated in the murder of one man who was killed in front of his family. He was also
involved in expelling the family from the house and setting it on fire.

Persecutions on political, racial or religious grounds; murder; inhumane acts (crimes against
humanity) • Vladimir Šantić was actively involved in a military attack on civilians in the
village of Ahmići during which over 100 civilians were killed and 169 Muslim homes were
destroyed. His presence at the scene of the attack, as a local commander of the "Jokers" and
the military police, served as an encouragement for his subordinates to commit crimes.

Zoran Kupreškić, on the basis of individual criminal responsibility (Article 7(1) of the Statute
of the Tribunal) with:

• Persecutions on political, racial or religious grounds (crimes against humanity, Article 5).
Sentence: 10 years’ imprisonment. Mirjan Kupreškić, on the basis of individual criminal
responsibility with:

• Persecutions on political, racial or religious grounds (crimes against humanity, Article 5).
Sentence: eight years’ imprisonment. Vlatko Kupreškić, on the basis of individual criminal
responsibility with

: • Persecutions on political, racial or religious grounds (crimes against humanity, Article 5).
Sentence: six years’ imprisonment. Drago Josipović, on the basis of individual criminal
responsibility with:

• Persecutions on political, racial or religious grounds; murder; inhumane acts (crimes against
humanity, Article 5). Sentence: 15 years’ imprisonment.

11. THE PROSECUTOR VS. BOSKOSKI AND TARCULOVSKI

Murder, wanton destruction of cities, towns or villages and cruel treatment (violations of laws
or customs of war) Tarčulovski personally led a police attack on the village of Ljuboten;

 He ordered, planned and instigated the murders of Rami Jusufi, Sulejman Bajrami and
Muharem Ramadani;

He ordered, planned and instigated the wanton destruction of the houses or other property of
twelve ethnic Albanian residents;
He ordered, planned and instigated the cruel treatment at Adem Ametovski’s house of
thirteen ethnic Albanian residents and the cruel treatment at the ‘Braca house’ often ethnic
Albanian residents.

Boškoski was charged on the basis of superior criminal responsibility (Article 7(3) of the
Statute) with: Murder, wanton destruction of cities, towns or villages and cruel treatment
(violations of laws or customs of war, Article 3)

Tarčulovski was charged on the basis of individual criminal responsibility (Article 7(1) of
the Statute) with: Murder, wanton destruction of cities, towns or villages and cruel treatment
(violations of laws and customs of war, Article 3).

BOSKOSKI – NOT GUILTY; TARCULOVSKI – 12 years

12. THE PROSECUTOR VS. HALILOVIC 5, 16 October 2007

He was deputy commander of the Supreme Command Staff of the Army of Bosnia and
Herzegovina (ABiH) and chief of the Supreme Command Staff of the ABiH; head of an
inspection team to command and co-ordinate the “Neretva-93” operation.

“The principle of individual criminal responsibility of commanders for failure to prevent or to

punish crimes committed by their subordinates is an established principle of customary
international law.131 Article 7(3) of the Statute is applicable to all acts referred to in Articles
2 to 5 thereof and applies to both international and non-international armed conflicts.”

“there is no requirement that the superior-subordinate relationship be direct or immediate in

nature for a commander to be found liable for the acts of his subordinate. What is required is
the establishment of the superior’s effective control over the subordinate, whether that
subordinate is immediately answerable to that superior or more remotely under his
command.”

“Superior responsibility is not a form of strict liability.151 It must be proved either that (1)
the superior had actual knowledge that his subordinates were committing or about to commit
crimes within the jurisdiction of the Tribunal, or that (ii) he had in his possession information
which would at least put him on notice of the risk of such offences, such information alerting
him to the need for additional investigation to determine whether such crimes had been or
were about to be committed by his subordinates”
“A superior’s actual knowledge that his subordinates were committing or were about to
commit a crime cannot be presumed, but may be established through circumstantial
evidence”

“A commander will be considered to have “had reason to know” only if information was
available to him which would have put him on notice of offences committed by his
subordinates,157 or about to be committed.”

“A superior may be regarded as having “reason to know” if he is in possession of sufficient

information to be on notice of the likelihood of illegal acts by his subordinates, that is, if the
information available is sufficient to justify further inquiry”

SENTENCE – NOT GUILTY

13. THE PROSECUTOR VS PAVLE STRUGAR 5, 17 July 2008

Attacks on civilians; destruction or wilful damage done to institutions dedicated to religion,

charity and education, the arts and sciences, historic monuments and works of art and
science; devastation not justified by military necessity; unlawful attacks on civilian objects
(violation of the laws or customs of war) Strugar had both legal and effective control of the
JNA forces who conducted the military action on Dubrovnik, including the shelling of the
Old Town. In the course of that attack, civilians were killed and injured, and protected
buildings were damaged and destroyed. On 6 December 1991, Strugar had the legal authority
and ability to issue orders to all JNA forces involved in the attack on Srđ and the shelling of
Dubrovnik, including the Old Town, to ensure that the Old Town was not shelled and that an
existing attack ceased. He failed to act to stop the attack on 6 December 1991 when he could
and should have done so, and afterwards he failed to ensure the perpetrators were punished.

“In the Appeals Chamber’s view, this provision confers on the Tribunal jurisdiction over any
serious offence against international humanitarian law not covered by Articles 2, 4 or 5 of the
Statute, on the condition that the following requirements are fulfilled: (i) the violation must
constitute an infringement of a rule of international humanitarian law; (ii) the rule must be
customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii)
the violation must be serious, that is to say, it must constitute a breach of a rule protecting
important values, and the breach must involve grave consequences for the victim; and (iv) the
violation of the rule must entail, under customary or conventional law, the individual criminal
responsibility of the person breaching the rule.749 It is the view of the Chamber that these
conditions must be fulfilled whether the crime is expressly listed in Article 3 of the Statute or
not.”

“The superior-subordinate relationship lies in the very heart of the doctrine of a commander’s
liability for the crimes of his subordinates. It is the position of command over the perpetrator
which forms the legal basis for the superior’s duty to act, and for his corollary liability for a
failure to do so.”

Sentenced to 7.5 years of imprisonment.

THE PROSECUTOR vs. RAJIC

Rajić commanded an attack in October 1993 on the central Bosnian village of Stupni Do near
the town of Vareš, which resulted in the murder of at least 37 Bosnian Muslim men, women,
elderly and children (approximately six of whom were combatants), as well as the destruction
of the village. He commanded forces that attacked and looted Vareš, detaining about 250
Bosnian Muslim men, physically and mentally abusing their families and other inhabitants,
and sexually assaulting the women. He also ordered the detention of several local Bosnian
Croat officials who interfered with the round up and detention of Muslim men of military
age.

“The Prosecution submits that the crimes to which Ivica Rajic pleaded guilty are “among the
most horrific crimes that one human being can commit against another.”

“In determining the gravity of the crimes, the Trial Chamber shall consider the legal nature of
the offences committed, their scale and brutality, their impact upon the victims and their
families as well as the accused’s involvement in these acts.”