Table of Contents

CASE SUMMARY..............................................................2
PARTICIPATION IN THE STATUTE OF THE ICTY:...................4
PARTICIPATION IN THE ROME STATUTE OF THE ICC............4
INDIVIDUAL RESPONSIBILITY, UNDER ARTICLE 7 (1) AS
DISCUSSED IN THE CELEBIC CASE:...................................6
INDIVIDULA RESPONSIBILITY UNDER ARTICLE 7(3) AS
DISCUSSED IN CELEBIC CASE:..........................................7
ELEMENTS OF THE INDIVIDUAL REPONSIBILITY, UNDER ARTICLE 7 (3)........8
Superior-Subordinate Relationship...........................................8
Knew or had reason to know.................................................9
Necessary and reasonable measures.......................................9
SUPERIOR RESPONSIBILITY OF ZEJNIL DELALI...............10
SUPERIOR RESPONSIBILITY OF ZDRAVKO MUCI.............12
SUPERIOR RESPONSIBILITY OF HAZIM DELI..................13
HAZIM DELIC AND ESAD LANDZO DIRECT PARTICIPATION.14
APPEAL.........................................................................15
APPEAL AGAINST INDIVIDUAL RESPONSIBILITY OF DELALIC......................16
APPEAL AGAINST INDIVIDUAL RESPONSIBILITY OF DELIC..........................17
MUCICS APPEAL............................................................................17
SENTENCING.................................................................18
CONCLUSION.................................................................19

Case Summary
This case is the first to be brought before the International
Tribunal for the former Yugoslavia in which multiple accused have
been jointly charged and tried.
The present case concerns events within the Konjic municipality
(Bosnia and Herzegovina), where Serb prisoners were detained in
a prison-camp, named Celebic, during certain months of 1992.
The indictment charges the four accused with grave breaches of
the Geneva Convention of 1949 and the laws or customs of war,
which are also mentioned by the ICTY Statute.
During the entire relevant period, the accused Esad Landzo is
alleged to have worked as a guard at the Celebici prison-camp.
Hazim Delic and Zdravko Mucic are also alleged to have worked
within the prison-camp and to have acted in the capacity of
commanders, with Zdravko Mucic being commander, and Hazim
Delic being deputy commander from May to November 1992,
when he replaced Zdravko Mucic as commander. Zejnil Delalic is
alleged to have exercised authority over the Celebic prison-camp
in his role first as co-ordinator of the Bosnian Muslim and Bosnian
Croat forces in the area, and later as Commander of the First
Tactical Group of the Bosnian Army.
Esad Landzo and Hazim Delic were primarily charged with
individual criminal responsibility pursuant to Article 7(1) of the
Statute, as direct participants in certain crimes, including acts
of murder, torture and rape. Zdravko Mucic and Zejnil Delalic are
primarily charged with superior responsibility, under Article 7(3)
of the Statute, for crimes committed by their subordinates,
including those alleged to have been committed by Esad Landzo
and Hazim Delic.
Esad Landzo was accused, as a direct participant in wilful killing of
several detainees, using such cruel treatments as extensive
beatings, a badge nailed to the forehead, beating with a wooden
plank or a piece of cable, torture using objects, lit fuses and nails.
In some of the cases it is deemed that Esad Landzo acted in group
with other persons, including Hazim Delic. He also is accused of
torture and cruel treatment.
2

He was kicked to unconsciousness, had a cross burned on his

hand, was hit with shovels, was suffocated and had an unknown
corrosive powder applied to his body
The mistreatment included placing a mask over Mr. Miljevics
face so he could not breathe, placing a heated knife against parts
of his body, carving a Fleur de Lis on his palm, forcing him to eat
grass and subjecting him to severe beatings using fists, feet, a
metal chain and a wooden implement
He was also accused of contributing to an atmosphere of terror
created by the killing and abuse of other detainees and to
inhumane living conditions through deprivation of adequate food,
water, medical care as well as sleeping and toilet facilities, which
conditions caused the detainees to suffer severe psychological
and physical trauma.
Hazim Delic, was initially accused both as a direct participant and
as a superior. As a direct participant he is alleged to take part in
wilful killing and murder, Torture and Cruel Treatment (here being
included also cases of rapes), causing great suffering or serious
injury, also plunder of private property and unlawful confinement
of civilians. Delic was also charged as a superior, being deemed
to be liable under all the crimes that were commited during the
time he held a position of command.
It is alleged that Zejnil Delalic and Zdravko Mucic, along with
Hazim Delic, were responsible for the operation of the Celebic
prison-camp and were in positions of superior authority to all of
the guards at the camp and to those other persons who entered
the camp and mistreated the prisoners, but failed to take the
necessary and reasonable measures to prevent such acts or to
punish the perpetrators thereof. In their respective capacities as
superiors at the prison-camp, Zejnil Delalic and Zdravko Mucic,
along with Hazim Delic, were charged with the following crimes
under international humanitarian law: wilful killing and murder,
Torture and Cruel treatment, causing of great sufferings or serious
injury, inhuman treatment, unlawful confinement, plunder of
private property. As we see they are charged with all the crimes
that were considered to have been commited under their
command.
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Participation in the Statute of the ICTY

Article 7
Individual criminal responsibility
1. 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 5 of the present Statute, shall be individually responsible for
the crime.
3. 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.

Participation in the Rome Statute of the ICC

Article 25
Individual criminal responsibility
3. In accordance with this Statute, a person shall be criminally responsible
and liable for punishment for a crime within the jurisdiction of the Court if
that person:
(a)
Commits such a crime, whether as an individual, jointly with another or
through another person, regardless of whether that other person is criminally
responsible;
(b)
Orders, solicits or induces the commission of such a crime which in fact
occurs or is attempted;
(c)
For the purpose of facilitating the commission of such a crime, aids,
abets or otherwise assists in its commission or its attempted commission,
including providing the means for its commission;
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(d)
In any other way contributes to the commission or attempted
commission of such a crime by a group of persons acting with a common
purpose. Such contribution shall be intentional and shall either:
(i)
Be made with the aim of furthering the criminal activity or criminal
purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court; or
(ii)
Be made in the knowledge of the intention of the group to commit the
crime;
The concept of perpetration enshrined in Article 25(3)(a) distinguishes
between direct or immediate participation (as an individual), coperpetration (jointly with another person), and intermediary
perpetration (through another person).
Article 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this
Statute for crimes within the jurisdiction of the Court:
(a)
A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes within the jurisdiction
of the Court committed by forces under his or her effective command and
control, or effective authority and control as the case may be, as a result of
his or her failure to exercise control properly over such forces, where:
(i)
That 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; and
(ii)
That military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
(b)
With respect to superior and subordinate relationships not described
in paragraph (a), a superior shall be criminally responsible for crimes within
the jurisdiction of the Court committed by subordinates under his or her
effective authority and control, as a result of his or her failure to exercise
control properly over such subordinates, where:
(i)
The superior either knew, or consciously disregarded information which
clearly indicated, that the subordinates were committing or about to commit
such crimes;
(ii)
The crimes concerned activities that were within the effective
responsibility and control of the superior; and
5

(iii)
The superior failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation and prosecution.
Conclusion: From the articles listed above we see that participation is
approached differently in the 2 Statutes. We can notice that the concep has
developed. If in the Statute of the ICTY individual responsibility is described
less thoroughly, these subject in the Rome Statute is described more
detailed. Another distinction is the fact that in the 1993 Statute, Command
responsibility is analyzed as a form of Individual one, being stated in the
same article, while in The ICC Statute this subject is already dealt in a
distinct article. Moreover, if in the ICTY Statute there is not made such a
difference between military and other forms of command responsibility, in
the Statute from 1998, it is already addresed in 2 distinct paragraphs. There
is also added the concept of effective authority, which was not mentioned
before. The evolution of the concepts in these two International Treaties, has
also been caused and determined by the way the International Tribunal for
the Former Yugoslavia judged in the Celebic Case, which in particular dealt
with such concepts as individual and command responsibility, and tried to
figure out the notion, condition and aplicability. Thus, we can say, that the
evolution was done with the help of the jurisprudence.

Individual Responsibility, under Article 7 (1) as discussed

in the Celebic Case
The jurisdiction of the Tribunal is not limited to persons who directly commit
the crime .This recognition that individuals may be held criminally
responsible for their participation in the commission of offences in any of
several capacities is in clear conformity with general principles of criminal
law. It is the duty of the Trial Chamber to set out more specifically the degree
of participation.
Prosecution argued that in oreder to demonstrate the liability it is necessary
to establish 2 factors (Tadic Judgement):
1.
2.

Intent, conscious decision to participate

Participation, in the form of conduct

It laso relies on common purpose doctrine. 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. 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.
The Defence, similarly relying on the Tadic Judgment, adopts the view that,
for an accused to be criminally liable for the direct acts of another pursuant
to Article 7(1), four criteria must be met:
6

1.
have intended to participate in an act;
2.
n violation of international humanitarian law;
3.
knowing that the act was unlawful
4.
that this participation directly and substantially aided the
commission of the illegal act.
It is noted that a direct contribution to the commission of the offence does
not require the accuseds presence at the scene of the crime or his direct
physical assistance in its commission and, conversely, that physical presence
at the scene of the crime in itself is insufficient to prove that an accused is
an aider and abetter.
Trial Chamber states that Individual Criminal Reponsibility requieres both
mental and physical elements. Actus Reus meaning that the person in fact
contributes or has an effect on the commision of the crime.Aiding and
abetting meaning all acts of assistance that lend encouragement or support,
accompanied by necessary Mens Rea. Such assistance may not consist only
of material acts, but also in the form of psychological support expressed
through words or presence at the scene of perpetration. Mens Rea need not
be explicitly expressed, it may be inferred from relevant circumstances, it is
not mandatory to be a pre-existing plan. Depending upon the facts there
might incur responsibility either as a direct perpetrator or as an aider or
abetter.

Individula Responsibility under Article 7(3) as discussed in

Celebic Case
Delalic, Mucic, Delic are considered to be in alleged positions as superios to
the perpetrators, and are deemed to be held responsible according to
command responsibilitywhich is considereb by the Trial Chamber an already
well-established conventional and customary norm. It may arise out of
positive or from culpable omissions. Thus, one can be liable for ordering,
instigating,planning and also for failing to take measure to prevent or repress
unlawful conduct.
In the report of the Secretary General on the esbalishment of the
Internaional tribunal it is also noted that there will be imputed responsibility
if the superior knew, or had reason to know about the illegalities his
subordinates would commit or already had committed and yet failed to
prevent or repree the commission of such crimes.
It is consider that the roots of the mdoern coommand repsosibility doctrine
may be found in the Hague Conventions of 1907. It was not until the end of
the First World War, however, that the notion of individual criminal
responsibility for failure to take the necessary measures to prevent or to
repress breaches of the laws of armed conflict was given explicit expression
in an international context, and it was made a recommendation of creating a
7

special tribunal that would deal with such cases, howver this initiative was
not realized in practice.
Whilst not provided for in the Charters of the Nrnberg or Tokyo Tribunals, a
number of States enacted legislation recognising this principle. Thus, a
French Ordinance from 1944, or a Chinese Law name this type of
responsibility/ IT was invoked in the judgements of the Japanese General
Tamayuki Yamashita before the U.S. Military Commission in Manila, U.S.
Supreme Court considered that a person that controls the troops shall
prevent acts of violations of the law of war. Similarly, U.S. Militart Tribunal at
Nurnberg, in U.S vs Karl Brand and others recognized such a duty of a
military officer in a command position.
This Principles is also recognized by two higly influential domestic military
manuals: the United States Army Field Manual on the law of war, and the
British Manual of Military Law.
Such a provision existed in the regulations concerning the application of the
international law of war to the armed forces of the SFRY. It provides that:
A military commander is responsible as a participant or an instigator if, by
not taking measures against subordinates who violate the law of war, he
allows his subordinate units to continue to commit the acts
Trial Chmaber in its decision also invokes the ILCs 1966 Draft Code Against
the Peace and Security of Mankind, which contains a formulation of the
doctrine very similar to that found in Article 7(3), and the Rome Statute of
the International Criminal Court, cited above.

Elements of the Individual Reponsibility, under Article 7 (3)

Prosecution:
(1) The superior must exercise direct and/or indirect command or control
whether de jure and/or de facto, over the subordinates who commit serious
violations of international humanitarian law, and/or their superiors.
(2) The superior must know or have reason to know, which includes
ignorance resulting from the superiors failure to properly supervise his
subordinates, that these acts were about to be committed, or had been
committed, even before he assumed command and control.
(3) The superior must fail to take the reasonable and necessary measures,
that are within his power, or at his disposal in the circumstances, to prevent
or punish these subordinates for these offences.
Defence:

(1) The status of the accused as a commander or a civilian exercising the

equivalent of military command authority over a person who committed a
violation of the law of war.
(2) That a violation of the law of war actually occurred or was about to occur.
(3) That the commander had either actual knowledge of the commission of
the violation of the law of war or that the commander had knowledge
enabling him to conclude that the laws of war had been violated.
(4) That the commander failed to act reasonably in suppressing violations by
investigating allegations and punishing perpetrators or by taking action to
prevent future violations.
(5) And that the commanders failure to act was the cause of the war crime
which actually was committed.
Trial Chmber agreed with the Prosecutions position, with the 3 elements.
Further it analyzes each element.
Superior-Subordinate Relationship

As we have seen, the 2 parties have 2 different opinions upon the de jure/de
facto authority and also there are two different ponts of views regarding the
position of those who shall be held liable. Defence states that it must apply
only to those with authority to issue binding orders in their own name and
those who have the power to punish violations of those orders. While
Prosecutions position is that it can be applied to those wo control directly or
indirectly and can occupy a variety of positions and that this category of
person is not limited to formaly designated commanders.
Not only military, but also political authority must be considered, this
position was also adopted by Trial Chamber in Prosecutor v. Milan Martic, and
also by the Military Tribunal for the Far East. Also in the case of the United
States v. Friedrich Flick and other, 2 leading civilians industrialist were found
guilty based on application of the responsibility of the acrs of his inferiors.
Thus, it must be concluded that the applicability of the principle of superior
responsibility in Article 7(3) extends not only to military commanders but
also to individuals in non-military positions of superior authority.
Defence stated that staff officers, are not endowed with command authority.
The chief of staff is responsible only for his own acts, not on the basis of
command responsibility, he does not have command authority in the chain of
command. As a precedence Trial Chamber makes reference to the case of
Lieutenant Akina Muto. He had been a staff officer under General Iwane
Matsui at the time of the Rape of Nanking, and later served as Chief of
Staff to General Yamashita.ribunal held that in the first case he could not
take any steps to stop the atrocities, but in his position as a Chief of Staff of
General Yamashita, he was considered to be in a position to influence policy
and was found guilty. Finally, the Trial Chamber shares the view expressed
9

by the International Law Commission that the doctrine of superior

responsibility extends to civilian superiors only to the extent that they
exercise a degree of control over their subordinates which is similar to that of
military commanders.
Knew or had reason to know

Prosecution states that the commander should be held liable when there are
direct or circumstantial evidence that he knew the situation or he diregarded
or faled to obtain infromation. Whule, The Defence, alleges that using of the
knew or had reason to know, infringes the principle nullum crimen sine
lege, because it wasnt rewuiered by the law at the time of the crime
commission and that one needs to have just actual knowledge., However,
the Trial Chamber that a superior may possess the mens rea required to
incur criminal liability where: (1) he had actual knowledge, established
through direct or circumstantial evidence, (2) where he had in his
possession information of a nature, which at the least, would put him on
notice of the risk of such offences by indicating the need for additional
investigation in order to ascertain whether such crimes were committed or
were about to be committed by his subordinates.
Necessary and reasonable measures

Trial Chmaber concluded, that this issue should be examined in each

particular cases, a general rule being complicated to be settled, however it
must, however, be recognised that international law cannot oblige a superior
to perform the impossible. Hence, a superior may only be held criminally
responsible for failing to take such measures that are within his powers.

Superior Responsibility of Zejnil Delali

On the basis of his alleged position of superior authority over the Celebic
prison-camp, Zejnil Delalc is charged with responsibility as a superior for all
but one of the criminal acts alleged in the Indictment, and also as a direct
participant for the unlawful confinement of civilians
Prosecution
According to the Prosecution,. Delalic had direct control over and
responsibility for the Celebici prison-camp, from May 1992 till November
10

1992. Prosecution asserts he played a key role in the military affairs in the
area, with power and control and influence over Celebic, being immaterial if
his authority rised from an express delegation. In the beginning he was
authorised to negotiate and conclude contracts and agreements of great
importance, inckuding those related to arm supplies. On May 18 he was
appointed as co-ordinator of the Konjic Defence Force. Prosection states
that in this position he had both military and civilian functions, he possessed
authority to issue orders, also it is alleged that he had powers to determine
who would be detained in the prison-camp, because he had signed some of
the decrees of seting free. Also prosection deems that Mucic considered
Delalic being his superior. He made a number of visits to Celebic and was
treated as a person in authority. From July 11 he was conferred authority over
all troops in the area. Among the evidence relied on by the Prosecution in this
context is a document which is described as a report of the Military Investigative
Commission at the elebii prison-camp, describing maltreatment and physical
abuse of the detainees.

According to the Prosecution, the evidence establishes beyond reasonable

doubt that Zejnil Delali knew, or must have known, or had information from
which he could conclude, that crimes were about to, or had been, committed
in the elebii prison-camp by guards or those responsible for the
administration of the camp. Aslo it is mentioned that he had a wide range of
measures which he would have been in position to undertake to prevent or
punish the crimes committed.
Defence
Accordin to the Defence Delalic no time had command and control over
Ceebic. Prosecution must demonstrate the chain of command in the legal
organs and institutions from Konjic. Delalic was never a member of these
institutions. Before May 18 he cotnributed to the defence efforts in area of
logistics. The authorisation to rpocure equipment for the preparation of the
defence is not a reflection of influence or authority. As a co-ordinatior, his
function implied by definition, mediation and conciliation, not command
authority. Several Defence witnesses testified that Mr. Delali never worked
with the Military Investigative Commission and possessed no authority over
this body. In relation to the three release forms of detainees from the elebii
prison-camp, signed by Zejnil Delali in the latter part of July 1992, the
Defence submits that these documents all were issued by the Investigating
Body of the War Presidency. Thus, it notes that each form was signed by Mr.
Delali for the Head of the Investigating Body, and argues that it is clear
from this wording that he in signing the documents was acting not as the
person in authority, but on behalf of another person so authorised. It is
asserted that proof of mere presence does not establish that Mr. Delalic had
any contact with the prison-camp, nor that he had any information which
could lead to a showing of the requisite degree of knowledge pursuant to
Article 7(3).
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Trial Chamber
The Trial Chamber is unable to agree with the submission of the Prosecution
that a chain of command is not a necessary requirement in the exercise of
superior authority. The Prosecution appears to extend the concept of the
exercise of superior authority to persons over whom the accused can exert
substantial influence in a given situation, who are clearly not subordinates.
Before May, 18, 1992

The authorisation confers no status upon Mr. Delali, neither does it place
the recipient in any hierarchy of authority. Certainly it does not subordinate
any officials to the recipient. Accordingly, it does not constitute the creation
of a relationship of superior and subordinate. There is clearly no basis for
assuming that, in this transaction, he operated as a person of superior
authority.
18 May to 30 July 1992: Zejnil Delali and the Role of Co-ordinator
The meaning of the word co-ordination implies mediation and conciliation.
There is no doubt that Mr. Delali had no command authority or superior
responsibility conferred on him. Not being a member of the armed forces, he
could not have been in a position of superior authority to any of the armed
forces in relation to which he exercised the functions of mediation. The
signature of Zejnil Delali on orders, along with other signatures, has been
construed by the Prosecution as evidence of the exercise of command
authority or superior authority by Mr. Delali., as co-ordinator did not confer
validity on the order,which would have been valid without it, he signed it just
as a witness. Mr. Delali as co-ordinator could not sign, therefore, any
document as a person in authority, with a power to issue ordersThere is thus
no evidence that Zejnil Delali, as co-ordinator, had responsibility for the
operation of the elebii prison-camp with superior authority over the prisoncamp and its personnel, or that he was in a position of superior authority to
the guards and to those other persons who entered Celebic.
Zejnil Delali as Commander of Tactical Group
It was strictly a combat formation, and did not include non-combat
institutions, such as hospitals, prisons, military training institutions,
warehouses or technical workshops. The commander of a tactical group does
not command a geographic area, but rather specific units assigned to his
tactical group
General Conclusion:
The courts have not accepted the proposition that a commander be held
responsible for the war crimes of persons not under his command. The Trial
Chamber has found that the Prosecution has failed to prove that Mr. Delali
had command authority and, therefore, superior responsibility over elebii
12

prison-camp, its commander, deputy commander or guards. Mr. Delali

cannot, therefore, be held responsible for the crimes alleged to have been
committed in the elebii prison-camp by Zdravko Muci, Hazim Deli, Esad
Lando or other persons within the elebii prison-camp.

Superior Responsibility of Zdravko Muci

Prosecution
Mucic was a commander at Celebic from late may till late November 1992.
The fact confirmed by witnesses, including Esad Landzo. Mr. Muci in any
event had reason to know of these offences. In this respect, the Prosecution
relies, inter alia, on evidence from a number of former detainees, which it
asserts demonstrates not only how Mr. Muci took a leading role in abuse of
detainees, but also how conditions in the camp were such that Mr. Muci
should have known of the crimes being committed. it contends that the
evidence shows that, even if Mr. Muci did issue orders concerning the
treatment of prisoners, he failed to ensure that these orders were obeyed. It
asserts that, although Mr. Muci on occasion did intervene to help certain
detainees, there is no evidence to support the claim that Mr. Muci did
everything reasonably possible in this respect.
Defence
According to the Defence, the evidence offered by the Prosecution fails to
demonstrate that Zdravko Muci ever held the position of commander of the
elebii prison-camp. Specifically, the Defence asserts that it has not been
proven whether Mr. Muci was a military commander or a civilian warden or
administrator, nor what powers were given to him to investigate and punish
those who mistreated detainees. Defence further contends that there is
consistent evidence that Mr. Muci did what he could, within his limited
authority as a person who was present in the prison-camp at some juncture,
to prevent the commission of crimes, and that he gave orders that detainees
were not to be mistreated.
Trial Chamber
Zdravko Muci was the de facto commander of the elebii prison-camp
during the periods relevant to the Indictment. Mr. Muci was present at the
prison-camp during this period and operated effectively as the commander.
In his interview with the Prosecution, Mr. Muci admitted he had authority
over the camp, at least from 27 July 1992. This was supported by the
detainees themselves and journalists who visited the camp. There are
witnesses that testified the fact that Zdravko Mucic was the commander. He
was also presented to the journalists as the commander. There is evidence
before the Trial Chamber of the control by Zdravko Muci of the detainees
who would leave or be transferred from the elebii prison-camp to another
detention facility. Similarly, Zdravko Muci had authority over the guards.
13

This has been established throug the testimony of2 witnesses. Zdravko Muci
had all the powers of a commander to discipline camp guards and to take
every appropriate measure to ensure the maintenance of order. Mr. Muci
himself admits he had all such necessary disciplinary powers.
In its findings in the case against General Tomoyuki Yamashita, the United
States Military Commission in Manila, stated that when udner the authority of
a commander are committed crimes, he must be held liable for them. The
conduct of Zdravko Muci towards the guards renders him criminally liable
for their acts. Mr. Muci was the de facto commander of the elebii prisoncamp. He exercised de facto authority over the prison-camp, the deputy
commander and the guards. Mr. Muci is accordingly criminally responsible
for the acts of the personnel in the elebii prison-camp, on the basis of the
principle of superior responsibility.
Zdravko Mucic was also found guilty and a direct participant in the unlawful
confinement of civilians.

Superior Responsibility of Hazim Deli

Prosecution
Main question is whether Mr. Delic can be considered as a commander or
not. First, the Prosecution argues that the deputy commander is liable to the
extent of his or her authority, and that in some instances he may be liable as
a commander. It is alleged that the evidence shows that when Mr. Muci was
absent, Hazim Deli was in charge and exercised full authority, that is, he
was the acting commander in Mr. Mucis absence. Secondly, the Prosecution
contends that Mr. Deli held a superior position over the guards in the prisoncamp, which included the ability to give the guards orders. In particular, it is
asserted that Mr. Delis authority over the guards at the camp is
demonstrated by the frequency with which he gave orders to them to
mistreat the prisoners. Thirdly, it is alleged that the status of Mr. Deli as a
superior is demonstrated by his exercise of considerable authority over
various practical matters and events that took place in the elebii prisoncamp. He also did not take any measure to stop the illegalities in the camp.
Furthermore, he ordered some of the crimes to be committed. The
Prosecution submits that the concept of superior in Article 7(3) of the Statute
is clearly not limited to persons described as commanders. According to
the Prosecution, the evidence establishes that Mr. Deli was part of a chain
of command, situated below the camp commander and above the camp
guards.
Defence

14

Defence argues that the word superior can not be extended to noncommanders simply because they hold higher rank than that of the
perpetrators. Staff officers in comparison with commanders do not prescribe
policies and plans. He can not be held responsible as a commander. The
defence contends that the implication of Delics authority depends on the
authority of Mr. Mucic. Defence also states that, even if deputy commander
replaces the commander during his absence it must first be proved that Mr.
Mucic was absent when the crimes were committed.
Trial Chamber
In order for a person to be tried for command the detrmining factor is the
actual possession of the authority and control over the actions of the
subordinates.Mr. Delic stated that he had exactly the same attributions as
other guards did. Stil, numerous victims testified that from his actions they
deduced that he was the person ith authority in the Celebic prison-camp. But
this statements were made only based on his actions and the way other
guards treated him.IT was said that he gave orders to others, but they were
only orally. Some witnesses told that other guards were afraid of
Delic.However, not all this statements were considered by the court, those
made by Esad Landzo are considered to be unreliable.
the Trial Chamber finds that the Prosecution has failed to establish beyond
reasonable doubt, that Hazim Deli lay within the chain of command in the
elebii prison-camp, with the power to issue orders to subordinates or to
prevent or punish criminal acts of subordinates. Accordingly, he cannot be
found to have been a superior for the purposes of ascribing criminal
responsibility to him under Article 7(3) of the Statute

Hazim Delic and Esad Landzo Direct participation

Hazim Delic and Resad Landzo are alleged to have participated irectly at the
commision of a huge number of crimes. We will cite some examples, to
prove their direct participation.
Hazim Delic and Esad Landzo are alleged to kill Scepo Gotovac, Landzo
admitted he had participated in the beatings, ssaying he did this at the order
of Mucic and Delic. He nailed a metal badge to the forehead of the victim.
Both Delic and Ladnzo were found guilty of wilful killing and murder.
Zeliko Milosevic- Hazim Delic accused of killing, beating with a piece of
electrical cable, the victim was also partially submerged in a manhole full of
water for one night. Delic was found guilty.
Simo Jovanovic- Delic and Landzo, accused of killing by beating the victim.
Ladnzo was found guilty, while for the charge of Delic were not enough
evidences.
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Slavko Samoukovic- Esad Landzo alleged to have killed the victim. Was found
guilty.
Slavko Susic- With this crime were charged both Delic and Landzo, the
victimwas beated severely with a piece of cable. They were not found guilty
of killing but were convicted for causing great sufferings or serious injury.
Momir Kuljanin- was tortured and treated cruel, beaten almost daily, hitting
the victim with karate chops untill unconsciousness, forced to hold a heated
knife in his hands. Mr Landzo was found guilty, For Mr. Delic were not
sufficient evidences
Grozdana Cecez- Hazim Delic is accused of torture and Rape. Ms. Cecez was
raped in front of 2 other men by Mr. Delic, afterwards raped by other 4 men,
this cause her a state of fear, depression and suicidal tension. Delic was
found guilty.
Ms. Anitc- Delic is deemed to have tortured and raped Ms. Antic. He was
found guilty.
Spasaje Miljevic- Esad Landzo and Hazim Delic are accused of torture and
cruel treatment, they palced a mask on the victims head, thus, he was
suffocating, they put a heated knife against part of his body, forcing him to
eat grass. Mr. Landzo was found guilty, while for the conviction of Mr. Delic
were not enough evidences
Hazim Delic and Esad Landzo is also a direct participant in creation and
maintenance of an atmosphere of terror.

Appeal
The Prosecution contends that the Trial Chamber erred in law in the
principles it applied in considering when an accused can be held responsible
under Article 7 (1) for unlawful confinement of civilians. It consideres that
had the Chamber applied correctly this provision, the 2 defendants would be
found guilty for aiding and abetting in the commission of unlawful
confinement of civilians. Prosecution aleeged that Trial Chamber concluded
that Delalic and Delic knew that civilians were unlawfully confined in the
camp and consciously participated in their continued detention, and that this
is sufficient to found their personal liability for the offence.
Trial Chamber seemed to motivate their decision of not helding liable of the
persons under Article 7(1), because it was not proved that they had
command responsibility under Article 7 (3). Appeal Chamber concludes that
this statement is wrong, and these are 2 types of differents liabilities, as
mentioned in the Report of the Secretary General, which do not depend on
each other, thus demonstrating the lack of one of them does not exclude the
presence of the another.
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The Prosecution proposes that, in order to establish criminal responsibility for

committing the offence of unlawful confinement of civilians it is sufficient to
prove (i) that civilians were unlawfully confined, (ii) knowledge that the
civilians were being unlawfully confined and (iii) participation in the
confinement of those persons
The Appeals Chamber is of the view that to establish that an individual has
committee the offence of unlawful confinement, something more must be
proved than mere knowing participation in a general system or operation
pursuant to which civilians are confined. Such responsibility is more properly
to those who participated in a more direct and complete sense, for example
who actually place in the detention the civilians, or had power to release
them.
In the case of prison guards who are employed or conscripted to supervise
detainees, and have no role in the determination of who is detained or
released, the Prosecution submits that the presence alone of the camp
guards was the most immediate obstacle to each detainees liberty and
that the guards presence in the camp in that capacity alone would therefore
constitute commission by them of the crime of unlawful confinement. This,
however, poses the question of what such a guard is expected to do under
such circumstances. The implication from the Prosecution submissions is that
such a guard must release the prisoners. The Appeals Chamber, however,
does not accept that a guards omission to take unauthorised steps to
release prisoners will suffice to constitute the commission of the crime of
unlawful confinement. The Appeals Chamber also finds it difficult to accept
that such a guard must cease to supervise those detained in the camp to
avoid such liability, particularly in light of the fact that among the detainees
there may be persons who are lawfully confined because they genuinely do
pose a threat to the security of the State.
However, the Appeal Chamber states that a lesser degree of directness of
participation is still relevant for the liability as an accomplice or a participant
in a joint criminal enterprise.
The Prosecution asserts that this particular crime may be committed jointly,
if they have the necessary mens rea, because the guards and administrators,
acting jointly, and collectively ran the camp and kept the victims confined in
it.

Appeal against individual responsibility of Delalic

Prosecution asserts that the defendant is guilty for aiding and abetting at the
commission of the unlawful confinement of civilians.
In relation to use of the word participate to describe forms of responsibility,
the Appeals Chamber notes that the Report of the Secretary-General
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mentions the word participate in the context of individual criminal

responsibility:
The Secretary-General believes that all persons who participate in the
planning, preparation or execution of serious violations of international
humanitarian law in the former Yugoslavia contribute to the commission of
the violation and are, therefore, individually responsible.
Word participation encompasses according to the Appeal Chamber, all the
forms of responsibility that are mentioned by Article 7 91). Although a more
precise drafting of the indictment was desirable, failure to identify the exact
mode of participation, AS the Prosecution did, is not fatal to the indictment.
The Trial Chamber had earlier defined aiding and abetting as: all acts of
assistance that lend encouragement or support to the perpetration of an
offence and which are accompanied by the requisite mens rea. Subject to the
caveat that it be found to have contributed to, or have had an effect on, the
commission of the crime, the relevant act of assistance may be removed
both in time and place from the actual commission of the offence
The Prosecution, however, refers to two specific matters which it says
constituted aiding and abetting by Delalic: his role in publicly justifying and
defending the purpose and legality of the camp, and his participation in
the classification and releasing of prisoners
Conclusion of the Appeal Chamber was that Prosecution did not offer any
evidence that would support their statement under no reasonable doubt,
thus their appeal was dismissed in entirety, and the decision of the Trial
Chamber was mentained.

Appeal against individual responsibility of Delic

Prosecution alleges that Delic should be found guilty under Article 7 (1),
because of his participation in the unlawful confinement of the civilians,
however it does not state the exact form of participation. It also states that
Delic was aware of their confinement and participated in it. From their
submission seems that Prosecution finds the most appropriate form of
participation the one of joint criminal enterprise for Delics actions, however
there are no evidence to prove the elemnts of this form of participation.
Delic was aware that, in respect of at least some of the detainees, there
existed no reasonable grounds to believe that they constituted a security
risk, this is not the only matter which must be established in relation to an
allegation of participation in a common criminal design. The existence of a
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common concerted plan, design or purpose between the various participants

in the enterprise (including the accused) must also be proved. It is also
necessary to establish a specific mens rea, being a shared intent to further
the planned crime, an intent to further the common concerted system of illtreatment, or an intention to participate in and further the joint criminal
enterprise, depending on the circumstances of the case.The Prosecution has
not pointed to any evidence before the Trial Chamber which would have
made the conclusion that these elements had been proved beyond
reasonable doubt the only reasonable conclusion on the evidence.
Thus, the Appeal Chamber finds that the Prosecutions appeal was not well
argued, and not prove beyond reasonble doubt, the first decision of the
instace being mentained.

Mucics Appeal
The Trial Chamber found that Mucic, by virtue of his position of command,
was the individual with primary responsibility for, and had the ability to
affect, the continued detention of civilians in the camp.The Appeals Chamber
accepts that it is not open simply to conclude that, because of a position of
superior authority somewhere in relation to a prison camp, an accused is
also directly responsible under Article 7(1) for the offence of unlawful
confinement committed anywhere in that camp.
The Appeals Chamber considers that a person in the position of Mucic
commits the offence of unlawful confinement of civilians where he has the
authority to release civilian detainees and fails to exercise that power,
where:
1. he has no reasonable grounds to believe that the detainees do not
pose a real risk
to the security of the state
2. he knows that they have not been afforded the requisite procedural
guarantees
(or is reckless as to whether those guarantees have been afforded or
not)
Where a person who has authority to release detainees knows that persons
in continued detention have a right to review of their detention598 and that
they have not been afforded that right, he has a duty to release them, even
if he is not responsible himself for the failure to have their procedural rights
respected.
Relevant to Mucics knowledge of the unlawful nature of the confinement of
certain of the detainees is his knowledge of the work of the Military
Investigative Commission.

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In Conclusion, The Appeal Chamber dismissed the Prosecutions appeal, and

left the decision of the Trial Chamber that founded guilty, and individual
responsbile of Mucic for unlawful confinement of civilians.

Sentencing
Where criminal responsibility for an offence is alleged under one count
pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber
finds that both direct responsibility and responsibility as a superior are
proved, even though only one conviction is entered, the Trial Chamber must
take into account the fact that both types of responsibility were proved in its
consideration of sentence. This may most appropriately be considered in
terms of imposing punishment on the accused for two separate offences
encompassed in the one count. Alternatively, it may be considered in terms
of the direct participation aggravating the Article 7(3) responsibility (as
discussed above) or the accuseds seniority or position of authority
aggravating his direct responsibility under Article 7(1). The Aleksovski
Appeal Judgement has recognised both such matters as being factors which
should result in an increased or aggravated sentence. It proceeded to state:
The Appellant did more than merely tolerate the crimes as a commander;
with his direct participation he provided additional encouragement to his
subordinates to commit similar acts. The combination of these factors
should, therefore, have resulted in a longer sentence and should certainly
not have provided grounds for mitigation
Also in Aleksovki Appeal Judgement we find that there can occur liability
under both Articles 7(1) and 7(3) for a number of crimes of violence, for
aiding and abetting the creation of an atmosphere of psychological terror.

Conclusion

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Celebic Case had for sure a tremenduous impact on the future

development of the command responsibility doctrine. It
mentioned the elements for this type of liability to be applied and
extended it not only to militars bu to civilians too.
However, if to consider how participation was approached, I think
that other aspects of it were poorely analyzed by the Court, but as
we have seen, this being the fault of the Prosecution that didnt
rise in the indictment a particular for of participation. It tried to
mention the fact that Delic and Landzo with other guards acted
jointly, but didnt develop this hypothesis, which I think was
relevant to the case. In my opinion the Court should take into
consideration that a huge number o crimes described in the case
above, were committed both by Delic and Landzo as direct
participant, facts that should be well examined, but it didnt
discuss this particular subject.
In respect of each participant, I consider that the circumstances
of the crimes and their position was thoroughly evaluated. Delalic
was not found guilty, I found that his acquittal was totally well
founded, because there was a lack of evidence to show his
implication. Mucic was found guilty both as a direct participant in
unlawful confinement of civilians and as a commander which had
the possibility and the duty to stop the atrocities from the camp,
decision that I consider to be well base. Delics sentence I think
should include not only individual responsibility, but the command
one too, this subject was treated in detail by the Court, and in my
opinion Prosecution offered stronger arguments, that seemed to
be shared by the Trial Chamber too, but the final decision was
that he will noit be hel responsible as a commander. Esad Landzo
was found guilty in numerous cases a direct participant, this part
being quite clear, and didnt rise any problems for the Court, as
long as there were enough proofs, sometimes even his own
confession that he committed the crimes.
From the analysis of the case, we can conclude that the subject of
the participation is treated differently in our national legislation
and doctrine and in the international one, though they have some
similarities.

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