Kv. Elías Davíðsson, einn af kærendum.
4.7.2006

War Crimes and Individual Responsibility
The Balkan Institute
http://www.nesl.edu/center/balkan2.htm#top

(…)
B. Defining individual responsibility for the commission of war crimes

A person may be held individually responsible for grave breaches of the Geneva Conventions, violations of the laws or customs of war, crimes of genocide, and crimes against humanity on the basis of direct responsibility, command responsibility, and complicity-based responsibility.

A person is individually responsible for the commission of a war crime if he commits, plans, instigates, orders, or otherwise aids and abets in the planning, preparation or execution of any of the acts listed in section A.(31) This form of individual responsibility is usually referred to as direct responsibility. The Tribunal (ICTY) has indicted concentration camp guards and commanders, local political and military leaders, paramilitary leaders, and national political and military leaders (Radovan Karadzic and Ratko Mladic) for war crimes on the basis of direct responsibility.(32)

A person is individually responsible for the commission of a war crime if he knew or had reason to know that his subordinates or agents were about to commit one of the acts listed in section A or had done so, and if he failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators of those acts.(33) This form of individual responsibility is usually referred to as command responsibility. The Tribunal has indicted concentration camp commanders, local political and military leaders, and national political and military leaders (Radovan Karadzic and Ratko Mladic) for war crimes on the basis of command responsibility.(34)

(…)
The Tribunal has also indicted Radovan Karadzic and Ratko Mladic as individually responsible for the commission of war crimes on the basis that they or their subordinates permitted others to commit the war crime — a grave breach of the Geneva Conventions — of extensively, wantonly, and unlawfully destroying Bosnian Muslim and Bosnian Croat property.(37) Although not specifically provided for in the statute of the Tribunal, this indictment serves as a precedent for extending complicity-based responsibility beyond the crime of genocide to include other war crimes.

C. Establishing individual responsibility for the commission of war crimes

The Tribunal may indict an individual on the basis of direct responsibility, command responsibility, or complicity-based responsibility for the commission of a war crime upon the presentation of a prima facie case by the Prosecutor.(38) According to the rules of procedure and evidence of the Tribunal, a prima facie case may be established where "there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal."(39)

Evidence that may be presented to establish a prima facie case includes "any relevant evidence which [the Court] deems to have probative value" and that is not excludable by the Court on the basis that "its probative value is substantially outweighed by the need to ensure a fair trial."(40) The Tribunal is not bound by national rules of evidence,(41)and, accordingly, there is no automatic rule against the admission of hearsay or circumstantial evidence.

To present a prima facie case that a person is individually responsible for the commission of a war crime on the basis that he committed, planned, instigated, ordered, or otherwise aided and abetted in the planning, preparation, or execution of a war crime, it must be established that a criminal act has been committed and that the accused person either committed or affirmatively assisted in the commission of that act, or alternatively that forces under the effective control of the accused either committed or affirmatively assisted in the commission of that act.(42)

To present a prima facie case that a person is individually responsible for war crimes by virtue of his command responsibility, it must be established that a criminal act has been committed, the accused was in a position of superior authority to those who committed the war crime, the accused knew or had reason to know that persons subject to his superior authority were about to commit the war crime, and the accused failed to prevent or punish the perpetration of the crime. To establish that the accused was in a position of superior authority, it must be demonstrated that the persons committing the offense were under the command or control of the accused,(43)such that the accused had the ability to prevent them from committing illegal acts and to see that the offenders were punished. To establish that the accused knew or should have known of the commission of the war crime, it must be demonstrated that the accused had either actual,(44)constructive,(45)or imputed(46)notice of the crime. To establish the act of omission, it must be demonstrated that the accused failed to take such appropriate measures as were within his power to prevent and punish the commission of the war crime.