2. Prosecutor v. Tihomir Blaŝkić, Judgment, Case No. IT-95–14-T, 3 March 2000 (hereinafter: the ‘Blaŝkić Judgment’).

3. Blaŝkić, Second Amended Indictment, IT-95–14, 16 March 1999, p. 2.

4. ibid. At the time of the commission of the crimes Blaŝkić held the rank of Colonel.

5. See Blaŝkić Judgment, pp. 4–6. According to the Trial Chamber ‘[t]he Croatian forces, both the HVO and independent units, plundered and burned to the ground the houses and stables, killed the civilian regardless of age or gender, slaughtered the livestock and destroyed or damaged the mosques. Furthermore, they arrested some civilians and transferred them to detention centres where the living conditions were appalling and forced them to dig trenches, sometimes also using them as hostages or human shields. The accused himself stated that twenty or so villages were attacked according to a pattern which never changed. The village was firstly “sealed off”. Artillery fire opened the attack and assault and search forces organised into groups of five to ten soldiers then “cleansed” the village. The same scenario was repeated in the municipality of Kiseljak several days later. The Croatian forces acted in perfect co-ordination. The scale and uniformity of the crimes committed against the Muslim population over such a short period of time has enabled the conclusion that the operation was, beyond all reasonable doubt, planned and that its objective was to make the Muslim population take flight.' Ibid., pp. 245–246, para. 750.

6. Summary of the Prosecutor's Final Trial Brief, 29 July 1999, p. 22, para. 5.4.

7. Blaŝkić Judgment, p. 6, para. 18.

8. It was argued that he had been on several occasions cut off certain key areas, and unable to control a generalised violence during a particularly critical period. It was also argued that the HVO was essentially a collection of poorly-trained village militia with little discipline, who often would disregard his orders. In addition, it was maintained that in cases such as Ahmici, the crimes committed were for the most part the work of units not falling under his chain of command.

9. Defence's Final Trial Brief, 22 July 1999, p. 25.

10. Blaŝkić Judgment, p. 7, para. 19.

11. Blaŝkić Judgment, p. 255, para. 778.

12. For example, in comparing Blaŝkić's dominant personality with General Kordić's, a British military officer described Blaŝkić as a ‘straightforward military man with a strong character’ for whom he had ‘considerable respect for as a professional soldier’. Author's notes from hearing of 4 August 1999 in the trial against General Kordić.

13. Blaŝkić Judgment, p. 255, para. 780.

14. In that sense the Blaŝkić Trial Chamber noted that ‘several witnesses attested to the professionalism of the accused and his organisational skills. He is a man of duty. He is also a man of authority who barely tolerated non-compliance with his orders’. ibid.

15. Blaŝkić Judgment, p. 260, para. 791.

16. Blaŝkić Judgment, p. 259, fn. 1716, quoting the Eichmann case, 29 May 1962, 36ILR (1968) p. 237.

17. ibid., para. 789.

18. ibid.

19. Prosecutors v. Delalić et al., Judgment, Case No. IT-96–21–T, 16 November 1998, para. 319 (hereinafter: the ‘Čelebići Judgment’). Art. 7(1) of the ICTY Statute reads: ‘A person who planned, instigated, ordered, committed or otherwise aided and betted in the planning, preparation or execution of a crimes referred to in articles 2 to 5 of the present statute, shall be individually criminally responsible for the crime.' Statute of the International Tribunal for the former Yugoslavia, adopted 25 May 1993, amended 13 May 1998, Basic Documents of the 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 (United Nations 1998) p. 9 (hereinafter: ‘Basic Documents’).

20. ibid. para. 321, Blaskic Judgment, para. 264.

21. See Prosecutor v. Duŝko Tadić, Judgment, Case No. IT–94–1–T, 7 May 1997, para. 669 (hereinafter; the ‘Tadić Judgment’), Čelebići Judgment, para. 321, Blaŝkić Judgment, para. 264.

22. In this respect note also that Art. 7(2) of the ICTY Statute states: ‘The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment’, Basic Documents, p. 9.

23. Art. 7(3) of the ICTY Statute reads: ‘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.’ ibid.

24. Despite the commendable efforts of the Čelebići Trial Chamber in stating the law concerning the doctrine of command responsibility, it also made such a wrong assumption. See Čelebići Judgment, paras. 333 and 334. The same assumption is made by Bantekas, when referring to command responsibility stricto sensu: ‘This liability should be differentiated from liability that accrues from positive and direct participation in the crime, e.g. through ordering or inciting others, as in the case with ICTY Statute Article 7(1)’ (emphasis added). I. Bantekas, ‘Contemporary Law of Superior Responsibility’, 93 AJIL (1999) p. 577.

25. Blaŝkić Judgment, para. 280.

26. ibid. para. 284. Supporting its view with Tadić Judgment, para. 686; Čelebići Judgment, para. 842; Prosecutor v. Jean Paul Akayesu, Judgment, Case No. ICTR-94–4-T, 2 September 1998, para. 705 (hereinafter: ‘Akayesu Judgment’).

27. ibid. para. 337.

28. See, for example, ‘Crimes of Omission -Omissive Offences and Penal Responsibility because of Omission’, 52 Revue Internationale de Droit Pénal (1981) pp. 589–592.

29. 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (hereinafter: ‘Additional Protocol I’)

Art. 86 Failure to Act reads:

‘1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under the duty to do so.

2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.’

30. Sandoz, Y., et al. , eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Dordrecht, Martinus Nijhoff 1987) p. 1007, para. 3527 (hereinafter: ‘Commentary to the Additional Protocols’).Google Scholar

31. ibid. para. 3529.

32. Emphasis added. 1949 Geneva Convention III Relative to the Treatment of Prisoners of War (hereinafter: the ‘Third Geneva Convention’).

33. Art. 130 Third Geneva Convention and Art. 147 of the 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (hereinafter: the ‘Fourth Geneva Convention’).

34. Commentary to the Additional Protocols, para. 3524. With respect to this expansion of criminal liability, in commentating the ICRC original proposal for Art. 86 of the Additional Protocol I, the Austrian delegate stated that ‘the question was whether a failure to act could or could not be treated as equivalent to a positive action and whether the penal responsibility of its author could be involved in certain circumstances. Penal sanctions were inevitable to ensure the implementation of Protocol I in cases of grave breaches, and in order to be effective, the system of sanctions should be as comprehensive as possible; hence it should include failure to act, which could be as harmful as the commission of a breach’, in Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol. IX (Bern, Swiss Federal Political Department 1978) p. 115 (CDDH/I/SR.50) (hereinafter: ‘Official Records’).

35. For a list of provisions from Additional Protocol I where the adoption of particular positive conducts is required see Commentary to the Additional Protocols, p. 1009, para. 3536.

36. Čelebići Judgment, para. 424 (emphasis added).

37. ibid. para. 494 (emphasis added).

38. Prosecutor v. Anto Furundžija, Case No. IT–95–17/1–T, 10 December 1998, para. 162 (hereinafter: the ‘Furundžija Judgment’) (emphasis added).

39. Čelebići Judgment, para. 543 (emphasis added).

40. Prosecutor v. Duŝko Tadić, Appeals Chamber Judgment, Case No. IT–94–1–A, 15 July 1999, para. 188 (hereinafter: the ‘Tadić Apellate Judgment’).

41. A typical example of this is murder or manslaughter. See Smith, J. and Hogan, B., Criminal Law, 8th edn. (London, Butterworths 1996) p. 48, for an example in common law criminal doctrine: ‘The courts have long accepted without debate that murder and manslaughter are capable of commission by omission.’ This would go as far as accepting that courts have often held offences to be capable of being committed by omission although the enactment did not expressly provide for it. For an example in civil law criminal doctrine see S. Glaser, ‘Culpabilité en droit international pénal’. 99 Recueil des Cours (1960–1) pp. 529–531 distinguishing délits d'omission proprement dits from délits de commission par omission: ‘Délits de commission par omission est défini lá où [I‘inactivité] équivaut à I'activité selon la volonté de la hi. En d'autres termes celui qui se comporte passivement, doit étre consideré au sens de la loi, “parallement” avec celui qui accomplit une action … Enfin, on admet également que presque toutes les infractions peuvent …tre en principe commises aussi par omission. L'exception à cette ràgie ne se rapporte qu'aux cas où la construction mémedes “etats de fait” d'infraction n'admet pas une omission, c'est-à-dire rend impossible leur ràealisation par I‘inaction.’Google ScholarPubMed

42. See A. Laingui's comments with respect to ‘les modalités de I‘acte coupable’, in ‘Les adages du droit pénal’, Revue de science criminelle et de droit pénal comparé (1986) p. 41 and A. Laingui, ‘La théorie de la complicité dans l'ancien droit pénal', 45 Tijdschrift voor Rechtsgeschiedenis (1977) p. 27 as referred to in ibid., at fn. 72.délits d'omission proprement dits from délits de commission par omission: ‘Délits de commission par omission est défini lá où [I‘inactivité] équivaut à I'activité selon la volonté de la hi. En d'autres termes celui qui se comporte passivement, doit étre consideré au sens de la loi, “parallement” avec celui qui accomplit une action … Enfin, on admet également que presque toutes les infractions peuvent …tre en principe commises aussi par omission. L'exception à cette ràgie ne se rapporte qu'aux cas où la construction mémedes “etats de fait” d'infraction n'admet pas une omission, c'est-à-dire rend impossible leur ràealisation par I‘inaction.’

43. It should be noted that accomplice liability arises from a participation which directly and substantially contributes to the commission of an offense coupled with the necessary mens rea (indirect or direct intent) and should not be confused with imputed liability.

44. Akayesu Judgment, para. 705.

45. Art. 6(1) of the ICTR Statute reads: ‘A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.’

46. Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR–95–1–T, 21 May 1999 para. 202 (hereinafter: ‘Kayishema and Ruzindana Judgment’).

47. Tadić Judgment, para. 686; referring to Case No. 12–489, United States v. Kurt Goebell et al., Report, Survey of the Trials of War Crimes held at Dachau, Germany, 2–3 (15 September 1984).

48. ibid.

49. Prosecution v. Zlatko Aleksovski, Judgment, Case No. IT-95–14/1-T, 25 June 1999, para. 129 (hereinafter: the ‘Aleksovski Judgment’) (emphasis added).

50. Blaŝkić Judgment, para. 338.

51. ibid.

52. Blaŝkić Judgment, para. 337.

53. Čelebići Judgment, para. 326.

54. Blaŝkić Judgment, para. 284.

55. ibid. para. 284 based on Aleksovski Judgment, para. 65, Akayesu Judgment, para. 693.

56. Blaŝkić Judgment, para 339.

57. ibid.

58. ibid. para. 286. Thereby rejecting the Furundžija holding that the mens rea standard applicable to the aider and abettor is the ‘knowledge’ that his acts assist the commission of the offence.

59. ibid. para. 286. Thereby rejecting the Furundžija holding that the mens rea standard applicable to the aider and abettor is the ‘knowledge’ that his acts assist the commission of the offence. In fact, Blaŝkić 's own defence corresponds with this view when it accepted that an omission could be the basis for holding a commander accountable under Art. 7(1). Defence counsel argued in that regard that '[t]he mens rea element and act element under ICTY Article 7(1) are distinguishable from the mens rea element and act element under ICTY Article 7(3). Evidence that Blaŝkić may have known of a subordinate's acts does not demonstrate that Blaŝkić specifically intended to plan, order or facilitate his subordinates’ violative acts. The mens rea satisfying ICTY Article 7(1), as opposed to ICTY Article 7(3), requires a higher degree of culpability and focuses on a different substantive issue (i.e., intent to commit an act facilitating violative acts, rather than the mere knowledge of the violative acts)'. Defence Final Brief, p. 38.

60. Čelebići Judgment, para. 326 relying on Tadić Judgment, para. 689.

61. Blaŝkić Judgment, para. 286.

62. Dolus can be defined as ‘la connaissance effective et la volonté de la réalisation de I'acte en chacun de ses éléments constitutifs', Hennau, C., et al. , Droit pénal général (Bruxelles, Bruylant 1995) p. 299.Google Scholar

63. Dolus eventualis is a form of indirect intent where the agent ‘n'a pas eu pour but de commettre ce crime; mais sachant que, selon toute probabilité, son action causerait un mal grave, …il a éventuellement voulu ce mal, il a préféré de subir cette conséquence de son fait, plutôt que de renoncer à son projet qu'il voulait exécuter, méme au risque du résultat prévu. ibid. p. 298.

64. Smith, and Hogan, , op. cit. 41, at p. 59.Google Scholar

65. Bantekas' conclusion that the mens rea required under Art. 7(3) of the ICTY requires 'direct intention, indirect intention (otherwise known as oblique intention or dolus eventualis) or gross negligence' is legally incorrect and confuses the mental element required under Art. 7(3) from the one required under Art. 7(1), loc. cit. n. 24, at p. 590.

66. Blaŝkić Judgment, para. 281 referring to Akayesu Judgment, para. 483.

67. Trial of SS Brigadeführer Kurt Meyer, Canadian Military Court, Aurich, Germany, 10–28 December 1945 (hereinafter: the ‘Abbaye Ardenne Case'), Law Reports of Trials of War Criminals, Vol. IV (selected and prepared by the United Nations War Crimes Commission, H.M. Stationary Office, London, 1947–1949, hereinafter: ‘Law Reports TWC’).

68. The Abbaye Ardenne case, summing up of the Judge Advocate, Law Reports TWC, Vol. IV, p. 108. However, in assessing circumstantial evidence, it should be noted that the Judge Advocate additionally raised that ‘… before the Court finds an accused person guilty on circumstantial evidence, it must be satisfied not only that the circumstances are consistent with the accused having committed the act’ ‘[in orther words to give the order] but that they are inconsistent with any other rational conclusion that the accused was the guilty person’.

69. Blaŝkić Judgment, para. 282. Note that the French version states: ‘En conséquence, il importe peu que I'ordre donné revéte ou non un caractére manifestemenl illégal. ‘The Trial Chamber cited in that respect US v. Wilhelm von Leeb et al. (hereinafter: the ‘High Command case’), in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council No. 10 (Washington, US Government Printing Office 1950), Vol. XI, p. 511, ‘to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon his face, or one which he is shown to have known was criminal’ (emphasis added).

70. Blaŝkić Judgment, para. 751.

71. ibid., paras. 449–466.

72. ibid., para. 467.

73. ibid., para. 472.

74. ibid., para. 471. The Trial Chamber equally noted that it was ‘hard to imagine how the systematic use of petrol as a combat weapon could have been possible in that period of fuel shortage without the approval of the military and/or civilian authorities’. ibid., para. 470.

75. ibid., para. 753.

76. The English version translated the original French ‘le dol éventuel’ into ‘recklessness’. For the reasons noted above and considering that the French version is the authoritative text He ‘le éventuel’ has been translated here into the Latin phrase ‘dolus eventualis’.

77. ibid., para. 474.

78. ibid., para. 738.

79. ibid., para. 741.

80. Hereinafter referred to as ‘command responsibility’.

81. Čelebići Judgment, para. 334, referring to the ILC Report 1996, p. 36, and the Commentary to the Additional protocols, para. 3537.

82. Čelebići Judgment, paras. 338–343; Kayishema and Ruzindana Judgment, para. 209.

83. See, e.g., Arts. 1 and 43 of the annex to the Hague Convention No. IV on the Laws and Customs of War on Land, Art. 5 of the Hague Convention No. IX on Bombardment by Naval Forces in Time of War, Art. 19 of Hague Convention No. X for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, Art. 26 of the Geneva Red Cross Convention of 1929 for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. See also Supreme Court of the United States, In re Yamashita, 327 US 1, pp. 16–17.

84. Trial of General Tomoyuki Yamashita, Law Reports TWC, Vol. IV, p. 22 (hereinafter: the ‘Yamashita case’); here, a military commission pronounced upon the accused's responsibility; and before the United States, In re Yamashita, 327 US 1, pp. 16–17; United States v. Soemu Toyoda (hereinafter: the ‘Toyoda case’), Official Transcript, p. 5006; United States v. Oscar Pohl and others (hereinafter: the ‘Pohl Trial’), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council No. 10, supra n. 69, Vol. V, p. 1011.

85. Tokyo Trial, International Military Tribunal for the Far East, 29 April 1946–12 November 1948, Official Transcripts, pp. 48,442–48,444.

86. Hostage case, Law Reports TWC, Vol. VIII, p. 71; Tokyo Trial, Official Transcripts, pp. 48,444–48,445. The ILC reaffirmed the existence of such a duty in its Report, ILC Report 1996, pp. 37–38.

87. Hostage case, pp. 69 and 71; see also High Command case, Law Reports TWC, Vol. XII, pp. 73–74, 77–79, 81–82.

88. The elements required under Art. 7(3) are three:(1)the individual committing the crime were the subordinates of the accused (the superior); (2) the accused knew or had reason to know that the crime was about to be or had been committed; (3) the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrators. See Blaŝkić Judgment, para. 294; Čelebići Judgment, para. 346; Aleksovski Judgment, para. 69.

89. Blaŝkić Judgment, paras. 331–332.

90. Law Reports TWC, Vol. IV, p. 33.

91. ibid., p.3. The President of the Commission, when delivering their findings on 17 September 1945 noted that ‘with respect to civilian internees and prisoners of war, the proof offered by the Commission alleged criminal neglect, especially with respect to food and medical supplies, as well as complete failure to detect and prevent cruel and inhuman treatment accorded by local commanders and guards’. ibid., p.33 (emphasis added).

92. ibid., p. 84.

93. ibid., p. 32 (emphasis added).

94. ibid.

95. High Command case, Law Reports TWC, Vol. XII, p. 76.

96. Tokyo Trial, supra n. 85.

97. Law Reports TWC, Vol. IV, p. 86 (emphasis added).

98. ibid., p. 87.

99. Official Records, supra n. 34, Vol. IX, p. 115 (CCDH/I/SR 50).

100. Commentary to the Additional Protocols, para. 3541.

101. Report of the Secretary-General pursuant to para. 5 of SC Res. 955 (1994), 13 February 1995, UN Doc. S/1995/134, para. 56 (emphasis added).

102. Blaškić Judgment, para. 304.

103. Defence Final Brief, p. 41.

104. Final report of the Commission of Experts, para. 58; Čelebići Judgment, para. 386.

105. Blaškić Judgment, para. 307.

106. Law Reports TWC, Vol. IV, p. 94.Google Scholar

107. ibid.

108. Tokyo Trial, Official Transcripts, p. 48,445.

109. Toyoda case, Judgment, p. 5005–5006.

110. Trial of Josef Kramer and 44 Others, British Military Court, Luneburg, 17 September-17 November 1945, Law Reports TWC, Vol. II (hereinafter: the ‘Belsen case’).Google Scholar

111. This means that the accused needs only to come forward with some evidence to rebut such inference. See Andrews, J.A. and Hirst, M., Criminal Evidence, 2nd edn. (London, Sweet and Maxwell 1992) p. 107, paras. 4.14 and 4.15.Google Scholar

112. Defence Final Brief, pp. 39–42.

113. Čelebići Judgment, para. 388 (footnote omitted).

114. Blaškić Judgment, para. 322 quoting Parks, W.H., ‘Command Responsibility for War Crimes’, 62 Mil. L Rev. (1973) p. 90.Google Scholar

115. Čelebići Judgment, para 388 referring to Tokyo Trial, Official Transcript, p. 48,445.

116. Blaškić Judgment, para. 315.

117. Tokyo Judgment, Vol. 200, Official Transcript, p. 48,442.

118. ibid., p. 48,445.

119. Toyoda case, Official Transcript, p. 5011 (emphasis added).

120. Pohl Trial, Law Reports TWC, Vol. XIV, Appendix B, p. 1006.Google Scholar

121. General Tribunal of the Military Government of the French Zone of Occupation in Germany, Judgment rendered on 30 June 1948 in the Case versus Hermann Roechling and Others, Charged with Crimes Against Peace, War Crimes and Crimes Against Humanity (hereinafter: the ‘Roechling case’), Law Reports TWC, Vol. XIV, Appendix, p. 1088.Google Scholar

122. ibid.

123. Superior Military Government Court of the French Occupation Zone in Germany, Judgment of 25 January 1949 in the Case versus Hermann Roechling and Others, Decision on Writ of Appeal Against Judgment of 30 June 1948, Law Reports TWC, Vol. XIV, Appendix B, p. 1106.Google Scholar

124. Blaškić Judgment, para. 319, quoting the Hostage case, Law Reports TWC, Vol. IX, p. 1271 (Trial Chamber emphasis).Google Scholar

125. ibid., para. 323 referring to US Department of Army Field Manual 27–10, Law and Land Warfare. It also noticed that the British Manual of Military Law adopted the ‘should have known’ standard.

126. Blaškić Judgment, para. 324.

127. Čelebići Judgment, para. 393.

128. Čelebići Judgment, quoting Draft Additional Protocols to the Geneva Conventions of 12 August 1949–ICRC, in Official Records, Vol. I, Part Three, p. 25. The Čelebići Trial Chamber interpreted this as a ‘rejection’ of the should have known standard.Google Scholar

129. ibid., citing CDDH/1/306, in Official Records, Vol. III, p. 328.Google Scholar

130. A similar problem of treaty interpretation arose in Kingdom of Belgium and Others v. Federal Republic of Germany (the Young Loan case), around the English term ‘depreciation’ and the German word Abwertung whose literal translation into English is ‘devaluation’. Decision of the Arbitral Tribunal for the Agreement on German External Debts, 59 ILR (1980) p. 529.Google Scholar

131. Čelebići Judgment, para. 392.

132. See Art. 102 of Additional Protocol I.

133. As pointed by the Canadian Delegation. See CCDH/I/SR.61, in Official Records, Vol. IX, p. 278, para. 57. Cited in Čelebići Judgment, p. 146, fn. 423.Google Scholar

134. Čelebići Judgment, p. 393. The prosecution in the Blaškić case rightly inferred from this holding that if the Čelebići interpretation were correct, ‘a superior who completely fails to discharge his or her duty to supervise subordinates properly could never be liable for crimes committed by those subordinates, provided that the superior had no information suggesting that such crimes were being committed’, Prosecution Final Brief, 22 July 1999, Book Seven, Individual Criminal Responsibility of the Accused, p. 133, para. 2.10.

135. ibid.

136. Čelebići Judgment, para. 393 referring to the Rome Statute of the International Criminal Court, Art. 28(1)(a).

137. Blaškić Judgment, para. 324.

138. See Christopher Greenwood's remarks in ‘Customary Law Status of the 1977 Geneva Protocols’, in Delissen, A.J.M. and Tanja, G.J., eds., Humanitarian Law of Armed Conflict Challenges Ahead: Essays in Honour of Frits Kalshoven (Dordrecht, Martinus Nijhoff 1991) p. 97: ‘.… the codification of a hitherto unwritten rule will almost invariably affect the content of that rule. In selecting words to codify a customary principle, those responsible for the draft are generally forced to try resolve the ambiguities about the scope and content of that rule and their choices may have the effect of creating new ambiguities. Attention in the future will focus upon the text so that the scope of the customary rule will tend to become a matter of textual interpretation.’Google Scholar

139. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, Merits, ICJ Rep. (1986) p. 14, para. 95.

140. ibid., para. 177.

141. ibid., para. 179.

142. Blaškić Judgment, para. 326.

143. This is supported by the reasoning applied in the Young Loan case, para. 39. Art. 33(1) of the Vienna Convention lies the rule that in respect to multilingual treaties, where there is more than one authentic text, each of them has equal force. As noted in the Young Loan case, interpretation of such texts requires that the words be construed ‘in their context’ (Art. 31(1)) and the ‘object and purpose’ must be taken into account in interpreting unclear treaty provisions. In addition, according to Art. 32 of the Vienna Convention ‘recourse may be had to supplementary means of interpretation, which include the circumstances of a treaty conclusion and the travaux préparatoires, in two cases either in order to confirm the interpretation arrived at with the aid of the rules of Article 31 of the VCT, or in order to obtain further clarification if the result of the attempt at interpretation under Article 31 leads to an ambiguous, obscure or manifestly absurd result’ (Young Loan case, para. 32). Only if these methods of interpretation fail any discrepancy ‘should ultimately be settled by attaching that meaning to the provision in question “which best reconciles the texts, having regard to the object and purpose of the treaty’” (Young Loan case, para. 39).

144. The Trial Chamber application of Art. 31 from para. 327 onwards nevertheless lead the Chamber to a correct conclusion.

145. Čelebići Judgment, para. 340.

146. For a detailed account of the procedures during the preparatory work and a similar conclusion suggesting that the ‘should have known’ standard is reflected in Art. 86(2) see Bing Bing Jia, ‘The Doctrine of Command Responsibility in International Law With Emphasis on Liability for Failure t o Punish’, 45 NILR (1998) pp. 325–347.CrossRefGoogle Scholar

147. See, for example, the intervention of the Delegation of the Netherlands, Official Records, Vol. IX, p. 114 (CDDH/ISR.50).Google Scholar

148. See, for example, the intervention of the Delegation of Argentina fearing an interpretation that would reverse the burden of the proof and violate the principle of the presumption of innocence, ibid., p. 118.

149. From its drafting Art. 87 (originally Art. 76 bis) was closely linked to Art. 86 (originally Art. 76).

150. In respect to this point the Delegation of the United States made the following statement: ‘This provision has been added to stress the commander's responsibility to take affirmative action in the supervision and control of members of the armed forces under his command or other persons who are under his control … It is designed to provide a duty of commanders to intervene when they are aware of a breach or a planned breach. This provision requires the commander to take reasonable measures in the supervision and control of his personnel so that if breaches are being permitted, he will become aware of them.’ H. Hansell, ‘Memorandum to the Secretary (Defense); Subject: Circular 175, request for Authorization to Sign Two Protocols to the Geneva Conventions of 1949 for the Protection of Victims of War’, cited in Eckhard, W.G., ‘Command Responsibility’, 97 Military Law Review (1982) p. 17.Google Scholar

151. Blaškić Judgment, para. 327.

152. ibid., para. 329.

153. Blaškić Judgment, para. 332.

154. One of the grounds of the appeal is precisely the Čelebići Trial Chamber's interpretation of the scope of Art. 86(2) of Additional Protocol I in connection to the knowledge required for a superior to be held responsible for the crimes of his subordinates. See Prosecution's Appeal Brief filed 2 July 1999 in Case No. IT-96-21-A, Prosecutor v. Delalić et al., paras. 2.1 to 2.25.