ICTY Appeals Chamber Delivers Two Major Judgments: Blaski and Krsti

Mark A. Drumbl
August 18, 2004
On July 29, 2004, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [1] overturned 16 of the 19 convictions previously entered by an ICTY Trial Chamber against Bosnian Croat military officer Tihomir Blaski?. [2] This judgment follows the April 19, 2004, Appeals Chamber decision in the matter of Radislav Krsti?, a General-Major in the Bosnian Serb Army (VRS).  The Appeals Chamber reversed Krsti?'s 2001 conviction as a direct perpetrator of genocide in a joint criminal enterprise and substituted a conviction for aiding and abetting genocide. [3]    The Appeals Chamber reduced Blaski?'s sentence from 45 to 9 years (and then, in a separate application, granted him early release). It reduced Krsti?'s sentence from 46 to 35 years.
These two judgments bear upon the substantive development of international criminal law, the pending work of the ICTY, justice for victims, and politics in the present states of the former Yugoslavia. This Insight briefly summarizes both judgments. Given that these are extremely complex cases, this summary necessarily will be cursory.  This Insight then briefly surveys the broader implications of both judgments.
I.            Prosecutor v. Blaski?
This case emerged from conflict between the Croatian Defense Council (HVO) and the Bosnian Muslim Army in the Lasva Valley region of central Bosnia from May 1992 to January 1994.  Blaski? was the Commander of the HVO armed forces in Central Bosnia when atrocities were committed in the region (in particular in the village of Ahmi?i) by various military and paramilitary brigades. An ICTY Trial Chamber had convicted Blaski? for ordering certain crimes against humanity and war crimes against Muslim civilians under ICTY Statute art. 7(1). He also was convicted for his failure as a commander to prevent the commission of these crimes or otherwise punish the perpetrators under ICTY Statute art. 7(3).
Following the Trial Chamber conviction, Blaski? filed 8,000 pages of additional evidence, some of which was admitted by the Appeals Chamber (¶¶ 4, 5). This evidence largely became available after the death in late 1999 of former Croatian President Franjo Tudjman, who did not cooperate with the ICTY.  Blaski? also called a number of new witnesses.
Blaski? requested that the Appeals Chamber review the legal standards deployed by the Trial Chamber, the Trial Chamber's review of the evidence before it, and also the new evidence unavailable to the Trial Chamber. In this sense, Blaski? involved an unusual situation: namely, where considerable evidence becomes available after a Trial Chamber has convicted, but the Appeals Chamber decides that a re-trial is not warranted.  The scope of appellate review in this situation was a question of first impression. The Appeals Chamber held that where it is "seized of the task of evaluating trial evidence and additional evidence together [.] it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused" (¶23; see also ¶ 24).
Regarding art. 7(1), the Appeals Chamber held that "a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order [] has the requisite mens rea for establishing liability [.]" (¶¶ 42, 166). The Appeals Chamber eschewed the negligence standard that, according to the Appellant, had been promulgated by the Trial Chamber. For the Appeals Chamber, "[t]he knowledge of any kind of risk [that violations would occur], however low, does not suffice for the imposition of criminal responsibility [.] [U]nder the Trial Chamber's standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur" (¶ 41).
Regarding art. 7(3), the Appeals Chamber criticized the understanding of command responsibility adopted by the Trial Chamber. It instead affirmed a different understanding, according to which "a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offenses committed by subordinates" (¶ 62). This suggests a tilt toward subjective knowledge as a basis for command responsibility for the acts of subordinates, instead of an objective standard.  This would be a somewhat narrow reading of art. 7(3), which provides that a superior is not relieved of criminal responsibility if inter alia "he knew or had reason to know that the subordinate was about to commit [criminal] acts or had done so [.]." That said, the Appeals Chamber did say that "responsibility can be imposed for deliberately refraining from finding out [information]" (¶ 406). Recklessness or willful blindness therefore may suffice.
The Appeals Chamber also clarified the law regarding the mens rea requirements for crimes against humanity, the particularity required of the Prosecution in its indictments, and Prosecutorial obligations to disclose exculpatory material.
After reviewing the totality of the evidence, the Appeals Chamber acquitted Blaski? on a number of charges.  Acquittals were entered because Blaski? was found not to have been aware of the substantial likelihood that execution of his orders would lead to the commission of crimes (¶¶ 347, 444, 481). Much of the new evidence was taken to indicate that Blaski? did not have effective control over the brigades committing crimes and did not have information (or reason to have information) which put him on notice that his subordinates had committed crimes (¶¶ 407-408, 421, 511). This is not the first time the Appeals Chamber has acquitted based on its interpretation of command responsibility. [4]  
The Appeals Chamber found Blaski? guilty on three counts (ordering crimes in detention facilities, the use of protected persons for the construction of military installations, and the use of detainees as human shields). It sentenced him to nine years (subject to the over eight years he had already spent in detention) and, in a separate application, granted him early release. Blaski? returned to Croatia on August 2, 2004.
II.            Prosecutor v. Krsti?
This case involves the massacre by VRS soldiers of 7,000 to 8,000 Bosnian Muslim men and boys (largely, but not exclusively, of military age) in the U.N. safe-haven of Srebrenica in July 1995. Krsti? was responsible for the Drina Corps, a subunit of the VRS in Srebrenica, and also was connected to the VRS Main Staff. 
The Appeals Chamber unanimously upheld the Trial Chamber's finding that the Bosnian Muslims of Srebrenica were targeted for genocide. ICTY Statute art. 4(2) defines genocide as certain acts [5] committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. [6]   In Srebrenica, the killings involved one demographic segment (i.e. males) of a part of the overall protected Bosnian Muslim group (i.e. those group members living in Srebrenica). The Appeals Chamber held that in cases where a genocide conviction "relies on the intent to destroy a protected group 'in part,' the part must be a substantial part of that group" (¶ 8).  The Appeals Chamber set out some indicators to determine whether a part is substantial: the numeric size of the targeted part, prominence of the targeted part within the overall group, and the area of the perpetrators' activity and control (¶¶ 12-13).
The Appeals Chamber found intent on the part of the Main Staff to destroy a substantial part of the Srebrenica Bosnian Muslim group.  The Appeals Chamber was motivated by the fact that the killings, although focused on men of military status, were somewhat indiscriminate and included disabled men, boys, and elderly men (¶¶ 26, 27). Killing the men had a long-term impact on the survival of the community (in terms of procreative ability) (¶ 28). Furthermore, the Appeals Chamber placed the massacres in the context of the forcible transfer from Srebrenica of women, children, and the elderly (¶ 31).
The VRS Main Staff may have had genocidal intent, but the Appeals Chamber overturned the Trial Chamber's finding that Krsti? possessed the specific intent required to be convicted as a direct perpetrator of genocide based on joint criminal enterprise. A joint criminal enterprise is an understanding or arrangement amounting to an agreement between two or more persons that they will commit a crime. [7] Joint criminal enterprise constitutes an extended form of individual criminal responsibility that covers "actions perpetrated by a collectivity of persons in furtherance of a common criminal design." [8] Proof of a joint criminal enterprise can be established circumstantially. However, there remains an obligation "unequivocally" to establish the specific intent of genocide (¶ 134).  Krsti?'s knowledge of the Srebrenica executions and of the use of personnel and resources under his command to assist therein alone would not support the additional inference of genocidal intent (¶ 129).  Proof of the special intent of genocide is particularly demanding and differs from the mens rea required for crimes against humanity, described in the Blaski? judgment as including "knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof" (¶ 126).
That said, the Appeals Chamber found Krsti? guilty of aiding and abetting genocide.  The threshold for establishing the intent requirement for aiding and abetting is more modest. Proof that an individual assists the commission of a crime with knowledge of the intent behind the crime satisfies this requirement (¶¶ 140-141). Nor is it necessary for principal perpetrators to have been tried or even identified in order for an individual to be convicted for aiding and abetting a specific intent crime (¶ 143).  The Appeals Chamber then reduced Krsti?'s sentence since an aider and abettor generally deserves a lower sentence than a principal perpetrator or co-perpetrator. To compare: Blaski? was not convicted of aiding and abetting war crimes or crimes against humanity. The Appeals Chamber did not consider the issue because the claim was insufficiently litigated on appeal and not fairly encompassed in the indictment (¶ 52).
III.            Broader Implications
Collective liability theories - principal perpetrators.  The ICTY and International Criminal Tribunal for Rwanda (ICTR) investigate mass crimes. Difficulties inhere in establishing one individual's responsibility for crimes committed by many, especially given the vicissitudes of forensic evidence, the complexity of testimony, and the anonymity of mass graves. In response, the ICTY and ICTR have utilized collective liability theories to establish an individual's criminal responsibility. These liability theories include joint criminal enterprise, conspiracy, [9] complicity, [10] incitement, [11] and command responsibility. [12] Application of these theories may be controversial insofar as they can incorporate a level of vicariousness that obscures the actual degree of the defendant's personal culpability. This means that convictions based on these theories at times may be difficult to square with the premise that the criminal liability of principal perpetrators is to be individualized and clearly established.  The Blaski? judgment may signal some sensitivity to these concerns. By suggesting the need for subjective knowledge as a basis for command responsibility for the acts of subordinates, the Appeals Chamber may have advanced a more stringent approach than that contemplated for military commanders by the International Criminal Court. [13] The judgment in Krsti? also suggests some concern with vicarious criminal liability within the context of genocidal joint criminal enterprise. The Appeals Chamber recognized that genocidal intent could be established circumstantially, but was adamant about the Prosecutor's need to demonstrate an individual's specific genocidal intent, not just knowledge of the genocidal intent of other individuals. 
Collective liability theories - secondary perpetrators.  Liability based on aiding and abetting also can serve to individualize guilt in the context of organic crime. This was the basis of Krsti?'s conviction. [14] However, there also are important parameters to aiding and abetting.  For example, in Blaski? the Appeals Chamber emphasized that one of the requirements for guilt is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime. This, however, does not require proof of a "cause-effect relationship between the conduct of the aider and abettor and the commission of the crime," nor proof that the impugned conduct "served as a condition precedent to the commission of the crime" (¶ 48). In fact, an omission could suffice (¶ 47). 
Other indictees, defendants, and litigation. The Blaski? judgment may touch upon the proceedings against Dario Kordi? and Mario ?erkez, with whom Blaski? initially had been charged in 1995, and who are currently appealing their own convictions. Krsti? and Blaski? both may bear upon the prosecution of Slobodan Milosevi?. By definitively holding that genocide occurred in Srebrenica and that the Main Staff had genocidal intent, Krsti? may facilitate the Prosecutor's genocide charge against Milosevi?. [15] On the other hand, Blaski? may problematize this prosecution, insofar as it now seems more onerous for the Prosecutor to establish Milosevi?'s command responsibility over VRS forces in Srebrenica.
Furthermore, the ICTY's determination that the Srebrenica Bosnian Muslims were targeted for genocide, and that Bosnian Muslims generally are a protected group, may implicate proceedings currently pending at the International Court of Justice (ICJ). Will the ICJ be influenced by the ICTY's finding when it eventually adjudicates claims of state responsibility brought by Bosnia and Herzegovina against the Federal Republic of Yugoslavia (now renamed Serbia and Montenegro) for alleged breaches of the Genocide Convention? [16] This, in turn, invokes broader concerns regarding the interplay among international courts and whether this interplay gives rise to an international judicial system. It also brings to the foreground the extent to which judgments of the ad hoc tribunals operate as subsidiary sources of international law.
Definition of genocide.  The Krsti? judgment advances a dynamic construction of genocidal intent.  The Appeals Chamber found that the murder of 7,000 to 8,000 men was undertaken with the intent to destroy the Srebrenica Bosnian Muslims. It then found a further causal connection between the intended destruction of the Srebrenica Bosnian Muslims as a target group and the intended destruction of the protected national group, namely Bosnian Muslims.  
Standards of appellate review and admissibility of new evidence.  The Blaski? decision, although sparing the Appeals Chamber from presiding over a trial de novo, suggests an interventionist approach to reviewing the work of the Trial Chamber.   Judge Weinberg de Roca dissented on this point, holding that the "correct standard of review, even in cases involving additional evidence, is whether a reasonable tribunal of fact could have reached the Trial Chamber's factual conclusion" (¶ 47 dissent).
Multiple charges and cumulative convictions. The Prosecutor charged Blaski? with ordering crimes and also with command responsibility for those crimes. The Appeals Chamber opined that, in a situation where both of these bases of responsibility were alleged for the same count, a conviction should be entered on the basis of ordering only, and the accused's superior position should be taken as an aggravating factor in sentencing (¶ 91). [17] It therefore quashed the Trial Chamber's concurrent conviction.  But this does not mean that multiple convictions are barred. In fact, multiple convictions (in Krsti?'s case for aiding and abetting) "entered under different statutory provisions, but based on the same conduct, are permissible [.] if each statutory provision has a materially distinct element not contained within the other" (¶ 218). The Appeals Chamber overturned the Trial Chamber's finding that Krsti?'s convictions for extermination as a crime against humanity and genocide were impermissibly cumulative (¶ 227).
About the Author:  
Mark A. Drumbl is Associate Professor and Ethan Allen Faculty Fellow, School of Law, Washington & Lee University.  
[1]                 The UN Security Council established the ICTY in 1993 as an ad hoc institution to investigate and prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.  Statute of the ICTY, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 29 (1993). 
[2]                 Prosecutor v. Tihomir Blaski?, Case No. IT-95-14-A (ICTY Appeals Chamber, July 29, 2004). Judges Pocar (presiding), Mumba, and Güney constituted the majority. Judge Schomburg agreed in full with the majority, but wrote a separate sentencing opinion in which he found the sentence imposed by the Appeals Chamber to be too long. Judge Weinberg de Roca partially dissented regarding the standard of appellate and evidentiary review delineated by the majority and would have affirmed the convictions for crimes committed in the Ahmi?i area.
[3]                 Prosecutor v. Radislav Krsti?, Case No. IT-98-33-A (ICTY Appeals Chamber, April 19, 2004). Judges Meron (presiding), Pocar, Güney and Schomburg constituted the majority.  Judge Shahabuddeen dissented in part. He held that the Trial Chamber was correct to convict Krsti? as a principal perpetrator based on joint criminal enterprise, but agreed with the majority's sentence and its finding that genocide had been committed in Srebrenica in 1995.
[4]                   See e.g,. Prosecutor v. Delali? et al., Case No. IT-96-21-A (ICTY Appeals Chamber, Feb. 20, 2001), ¶¶ 268, 293, 313-314, 1047 (affirming acquittals of Zejnil Delali? and Hazim Deli?, but also confirming conviction of Zdravko Muci?, of sexual assaults through a command responsibility theory).
[5]                 Acts are: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.
[6]                 ICTY Statute art. 4(3) provides that the following shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.
[7]                 Prosecutor v. Krnojelac, IT-97-25 (ICTY Trial Chamber, March 15, 2002), ¶ 80 (definition left undisturbed on appeal).
[8]                 Prosecutor v. Tadi?, Case No. IT-94-1 (ICTY Appeals Chamber, July 15, 1999), ¶ 193.
[9]                 Prosecutor v. Niyitegeka, Case No. ICTR-96-14-I (ICTR Trial Chamber, May 15, 2003; affirmed ICTR Appeals Chamber, July 9, 2004).
[10]                 Prosecutor v. Semanza, Case No. ICTR-97-20-T (ICTR Trial Chamber, May 15, 2003).
[11]                 Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Case No. ICTR-99-52-T (ICTR Trial Chamber, Dec. 3, 2003).
[12]                 Prosecutor v. Musema, Case No. ICTR-96-13-T (ICTR Appeals Chamber, Nov. 16, 2001); Prosecutor v. Delali? et al., supra note 4. 
[13]                   Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9* (July 17, 1998), art. 28(a)(i) (basing command responsibility on inter alia a finding that the "military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes").  A higher threshold is envisioned for superior-subordinate relationships outside of the military context. See id. art. 28(b)(i) ("[t]he superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes").
[14]                 The ICTR also has convicted for genocide based on secondary involvement as an aider and abettor. Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I (ICTR Trial Chamber, July 15, 2004).
[15]                 This charge involves atrocities against the Bosnian Muslim population.  
[16]                 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), 1993 I.C.J. 3 (Order granting provisional measures).
[17]              An offender's command responsibility may not serve as an aggravating factor in sentencing if it constituted a basis for liability.  Prosecutor v. Obrenovi?, Case No. IT-02-60/2-S (ICTY Trial Chamber, Dec. 10, 2003) ¶ 99. The extent to which an offender was subject to another's authority can serve as a mitigating factor in sentencing.