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Prosecutor v. Delalić

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman  and
Olivia Swaak-Goldman
Olivia Swaak-Goldman
Affiliation:
Iran-United States Claims Tribunal
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Extract

Prosecutor v. Delalic. No. IT-96-21-T.

International Criminal Tribunal for the former Yugoslavia, Nov. 16, 1998.

On November 16,1998, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued its judgment in the Čelebići case against four defendants. The chamber found the de facto commander of the Čelebići prison camp liable under the principle of command responsibility for various acts of torture and illtreatment at the camp. It also found two other accused guilty of grave breaches of the Geneva Conventions and violations of the laws or customs of war for their actions at the camp. A fourth accused, indicted only under the principle of command responsibility, was found not guilty on all counts owing to the lack of a superior-subordinate relationship. Those accused convicted of multiple offenses were ordered to serve their sentences concurrently.

Type
International Decisions
Information
American Journal of International Law , Volume 93 , Issue 2 , April 1999 , pp. 514 - 519
Copyright
Copyright © American Society of International Law 1999

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References

1 Prosecutor v. Delalić, Mucić, Delić & Landžo, Judgement, No. IT-96-21-T (Nov. 16, 1998) (Karibi-Whyte (presiding), Odio Benito &Jan, JJ.) [hereinafter Judgement].

2 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, Statute, UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993). The Statute was amended on May 13, 1998, by means of Security Council Resolution 1166 (1998).

3 The allegations of rape were charged as torture or, in the alternative, cruel treatment.

4 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72, paras. 81, 84 (Oct. 2, 1995). In dicta, the trial chamber noted the possibility, in support of Judge Abi-Saab’s separate opinion in the jurisdiction decision, that customary law has developed to the point where the grave breach provisions of the Geneva Conventions could be applied to internal armed conflicts. Judgement, para. 202.

5 Judgement, para. 214.

6 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 4 (June 27).

’judgement, para. 231.

8 Id., para. 232.

9 Id., para. 233 (quoting Prosecutor v. Tadić, Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, para. 7, No. IT-94-1-T (May 7, 1997)).

10 Id., para. 234.

11 Id., para. 271. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Convention IV].

12 Convention IV, supra note 11, Art. 4.

13 Judgement, para. 265.

14 Id., para. 262.

15 Regarding these subjects, the trial chamber referred to earlier Tribunal jurisprudence, namely the jurisdiction decision and the Opinion and Judgement in the Tadić case, note 34 infra, respectively.

16 According to the trial chamber, the other form of command responsibility (“direct” command responsibility), where the commander takes positive acts in furtherance of the violation, is subject to the general principles of accomplice liability under Article 7(1) of the ICTY Statute. See Judgement, para. 334.

17 Id., para. 346.

18 Id., para. 354.

19 Id., para. 378.

20 Id., para. 383; see also para. 393.

21 Id., para. 775.

22 Id., para. 721.

23 Id., para. 810.

24 Id., para. 422.

25 Id., para. 439.

26 Id., para. 442.

27 Id.

28 Id.

29 Judgement, para. 443.

30 Id., para. 477.

31 Id., para. 479.

32 Id., para. 495.

33 The only other trial completed before this judgment was of Duško Tadić, a Bosnian Serb. Dražen Erdemović, a Bosnian Croat who fought with the Bosnian Serb forces in Bosnia, pleaded guilty and thus was not brought to trial, although a sentencing judgment was rendered. See Olivia Swaak-Goldman, Case note, Prosecutor v. Erdemović, 92 AJIL 284 (1998).

34 Prosecutor v. Tadić, Opinion and Judgement, No. IT-94-1-T (May 7, 1997).

35 See supra note 9.

36 The issue was raised in the Akayesu judgment of the Rwanda Tribunal, at para. 691, but the trial chamber found that it could not consider it. Prosecutor v. Akayesu, Judgement, No. ICTR-96-4-T (Sept. 2, 1998).

37 As noted by one scholar, the definition of command responsibility contained in the ICTY’s Statute “casts the net very widely by imposing criminal liability for conduct directly attributable to serious negligence in the supervision of subordinates.” Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Laws of War, 86 Cal. L. Rev. 939,1040 (1998); see generally L. C. Green, Command Responsibility in International Humanitarian Law, 5 Transnat’l L. & Contemp. Probs. 319 (1995).

38 Prosecutor v. Akayesu, supra note 36, paras. 597–98.

59 The judgment in the Furundžija case, issued three weeks after the Čelebići judgment by a different trial chamber of the ICTY, did not simply adopt the definition used by the Akayesu and Čelebići trial chambers but, instead, examined national legislation to arrive at a general principle of law. Although more technical, the definition arrived at by the Furundžija trial chamber is not inconsistent with that used in the Čelebici and Akayesu judgments. See Prosecutor v. Furundžija, Judgement, No. IT-95-17/1-T, paras. 176–86 (Dec. 10, 1998).

40 The trial chamber in Akayesu stated that rape constitutes torture when certain conditions are met, but this was in dicta, as the chamber was considering rape as a crime against humanity under the ICTR’s Statute. Akayesu, supra note 36, paras. 597, 688. Additionally, both the Inter-American Commission on Human Rights and the European Court of Human Rights have confirmed that rape can constitute torture, but not within the context of the Geneva Conventions and the laws or customs of war. See Mejia v. Peru, No. 10.970,1996 Inter-Am. C.H.R., Ann. Rep.; Aydin v. Turkey, 25 Eur. Hum. Rts. Rep. 251 (1998) (Eur. Ct. H.R. 1997).

41 The chamber held that variations of rape include, inter alia, the use of bodily orifices not intrinsically sexual. It also considers sexual violence as any act of a sexual nature committed on a person under coercive circumstances. Id., paras. 596, 688.

42 Instead, forcing a father and son to commit fellatio on each other was charged as inhuman treatment under Article 2 of the ICTY’s Statute and cruel treatment under Article 3. Judgement, paras. 1060, 1066.

43 Furundžija, supra note 39, para. 183.