Table of contents:
Element:
P.14. Evidence inferred from an utterance, a document, or a deed.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 41-42, 643-646:
"41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chambers above articulations [including Blaskic Trial Judgement, para 741] of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent, is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chambers standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.
42. The Appeals Chamber therefore holds 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 under Article 7(1) pursuant to ordering."
"643. The Appellant contests this finding [of the Trial Chamber in para 741] both because it is based on the testimony of a single witness, and because the Trial Chamber was wrong to infer from the alleged order to defend Vitez that the Appellant in turn ordered another individual to make this threat.1343 In addition, the Appellant submits that there is no evidence that the Appellant knew, or had any reason to know, of the threat issued by that other individual.1344 As a result of his ignorance of the threat, the Appellant submits that he was not in a position to punish that individual for what is manifestly unlawful conduct on his part, and so cannot be held accountable.1345
644. The Trial Chamber itself found that the Appellant did not order that hostages be used to repel the attack on Vitez,1346 only that he ordered the defence of Vitez.1347 However, the Trial Chambers further finding that the Appellant can accordingly be held accountable for the crime of hostage-taking is problematic for two reasons. First, the Appeals Chamber disagrees that the Appellants order to defend Vitez necessarily resulted in his subordinates illegal threat.1348 It does not follow, by virtue of his legitimate order to defend an installation of military value, that the Appellant incurred criminal responsibility for his subordinates unlawful choice of how to execute the order. There is no necessary causal nexus between an order to defend a position and the taking of hostages.
645. Second, the Trial Chamber based its conclusion that the Appellant was responsible for the hostage-taking on its finding that he "deliberately ran the risk that many detainees might be taken hostage for this purpose."1349 As stated above, the Appeals Chamber has articulated the mens rea applicable to ordering a crime under Article 7(1) of the Statute. Ordering with such awareness has to be regarded as accepting that crime. The Trial Chamber did not apply this standard in relation to its findings concerning the taking of hostages.
646. The Appeals Chamber finds that there was insufficient evidence for the Trial Chamber to conclude that the Appellant ordered the defence of Vitez with the awareness of the substantial likelihood that hostages would be taken. The Trial Chambers finding that the Appellant was on notice that HVO troops were likely to take hostages in order to defend Vitez, or that the Appellant was aware of the threats made by others in that regard, is not supported by the trial evidence. The Appeals Chamber finds that this evidence does not prove beyond reasonably doubt that he was aware of a substantial likelihood that crimes would be committed in the execution of his orders."
"1343. Brief in Reply, para. 87; Appellants Brief, p. 113.
1344. Appellants Brief, p. 113.
1345. Appellants Brief, p. 113.
1346. Trial Judgement, para. 741.
1347. No evidence was cited in support of this finding; it was merely reasoned at para. 741 of the Trial Judgement that "it is inconceivable that as commander he did not order the defence of the town where his headquarters were located."
1348. Regarding the Appellant ordering the defence of Vitez, see D267 (a preparatory combat command dated 15 April 1993) and D269 (a combat command dated 16 April 1993). See also Ex. 14, Second Rule 115 Motion, p. 71. The Appellant does not dispute that he ordered the defence of Vitez, Appellants Brief, p. 113.
1349. In particular, civilians detained during and after the HVO attack on the village of Gacice were detained in front of the hotel for about three hours before being returned to Gacice; Trial judgement, paras. 549 and 714. See also Ex. D331, an Operations Report of 20 April 1993 (at 1800 hours) detailing that 47 men from Gacice were taken prisoner, but that the "women and children were sent home." Trial Judgement, para. 741."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 739-741:
"739. Blaskic admitted knowing that civilian detainees were at various locations in Vitez around 17 April 1993 but denied having ordered their detention18. He then contradicted himself by stating that he had ordered that the detainees be treated humanely and he also stated that he had had the power to release them19.
740. The Trial Chamber notes that Mario Cerkez (commander of the Viteska Brigade and a direct subordinate of Blaskic)20, other HVO military representatives and Ivan Santic and Pero Skopljak (local HVO civilian officials) were all directly involved in the taking of hostages on 19 and 20 April 1993. In addition, they clearly referred to the threat posed by the ABiHs military advance towards the town of Vitez.21
741. The Trial Chamber concludes that although General Blaskic did not order that hostages be taken, it is inconceivable that as commander he did not order the defence of the town where his headquarters were located. In doing so, Blaskic deliberately ran the risk that many detainees might be taken hostage for this purpose."
"18. Witness Blaskic, PT pp. 22469-22470, pp. 22475-22476
19. Witness Blaskic, PT pp. 22475-22477.
20. D242.
21. The Trial Chamber notes that on 19 and 20 April 1993, the ABiH was successfully attacking the HVO which was in a difficult military situation; P242; witness Walters, PT p. 3406."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, paras. 41-42, 643-646:
"41. Having examined the approaches of national systems as well as International Tribunal precedents, the Appeals Chamber considers that none of the Trial Chambers above articulations [including Blaskic Trial Judgement, para 741] of the mens rea for ordering under Article 7(1) of the Statute, in relation to a culpable mental state that is lower than direct intent, is correct. The knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law. The Trial Chamber does not specify what degree of risk must be proven. Indeed, it appears that under the Trial Chambers standard, any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur. The Appeals Chamber considers that an awareness of a higher likelihood of risk and a volitional element must be incorporated in the legal standard.
42. The Appeals Chamber therefore holds 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 under Article 7(1) pursuant to ordering."
"643. The Appellant contests this finding [of the Trial Chamber in para 741] both because it is based on the testimony of a single witness, and because the Trial Chamber was wrong to infer from the alleged order to defend Vitez that the Appellant in turn ordered another individual to make this threat.1343 In addition, the Appellant submits that there is no evidence that the Appellant knew, or had any reason to know, of the threat issued by that other individual.1344 As a result of his ignorance of the threat, the Appellant submits that he was not in a position to punish that individual for what is manifestly unlawful conduct on his part, and so cannot be held accountable.1345
644. The Trial Chamber itself found that the Appellant did not order that hostages be used to repel the attack on Vitez,1346 only that he ordered the defence of Vitez.1347 However, the Trial Chambers further finding that the Appellant can accordingly be held accountable for the crime of hostage-taking is problematic for two reasons. First, the Appeals Chamber disagrees that the Appellants order to defend Vitez necessarily resulted in his subordinates illegal threat.1348 It does not follow, by virtue of his legitimate order to defend an installation of military value, that the Appellant incurred criminal responsibility for his subordinates unlawful choice of how to execute the order. There is no necessary causal nexus between an order to defend a position and the taking of hostages.
645. Second, the Trial Chamber based its conclusion that the Appellant was responsible for the hostage-taking on its finding that he "deliberately ran the risk that many detainees might be taken hostage for this purpose."1349 As stated above, the Appeals Chamber has articulated the mens rea applicable to ordering a crime under Article 7(1) of the Statute. Ordering with such awareness has to be regarded as accepting that crime. The Trial Chamber did not apply this standard in relation to its findings concerning the taking of hostages.
646. The Appeals Chamber finds that there was insufficient evidence for the Trial Chamber to conclude that the Appellant ordered the defence of Vitez with the awareness of the substantial likelihood that hostages would be taken. The Trial Chambers finding that the Appellant was on notice that HVO troops were likely to take hostages in order to defend Vitez, or that the Appellant was aware of the threats made by others in that regard, is not supported by the trial evidence. The Appeals Chamber finds that this evidence does not prove beyond reasonably doubt that he was aware of a substantial likelihood that crimes would be committed in the execution of his orders."
"1343. Brief in Reply, para. 87; Appellants Brief, p. 113.
1344. Appellants Brief, p. 113.
1345. Appellants Brief, p. 113.
1346. Trial Judgement, para. 741.
1347. No evidence was cited in support of this finding; it was merely reasoned at para. 741 of the Trial Judgement that "it is inconceivable that as commander he did not order the defence of the town where his headquarters were located."
1348. Regarding the Appellant ordering the defence of Vitez, see D267 (a preparatory combat command dated 15 April 1993) and D269 (a combat command dated 16 April 1993). See also Ex. 14, Second Rule 115 Motion, p. 71. The Appellant does not dispute that he ordered the defence of Vitez, Appellants Brief, p. 113.
1349. In particular, civilians detained during and after the HVO attack on the village of Gacice were detained in front of the hotel for about three hours before being returned to Gacice; Trial judgement, paras. 549 and 714. See also Ex. D331, an Operations Report of 20 April 1993 (at 1800 hours) detailing that 47 men from Gacice were taken prisoner, but that the "women and children were sent home." Trial Judgement, para. 741."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 739-741:
"739. Blaskic admitted knowing that civilian detainees were at various locations in Vitez around 17 April 1993 but denied having ordered their detention18. He then contradicted himself by stating that he had ordered that the detainees be treated humanely and he also stated that he had had the power to release them19.
740. The Trial Chamber notes that Mario Cerkez (commander of the Viteska Brigade and a direct subordinate of Blaskic)20, other HVO military representatives and Ivan Santic and Pero Skopljak (local HVO civilian officials) were all directly involved in the taking of hostages on 19 and 20 April 1993. In addition, they clearly referred to the threat posed by the ABiHs military advance towards the town of Vitez.21
741. The Trial Chamber concludes that although General Blaskic did not order that hostages be taken, it is inconceivable that as commander he did not order the defence of the town where his headquarters were located. In doing so, Blaskic deliberately ran the risk that many detainees might be taken hostage for this purpose."
"18. Witness Blaskic, PT pp. 22469-22470, pp. 22475-22476
19. Witness Blaskic, PT pp. 22475-22477.
20. D242.
21. The Trial Chamber notes that on 19 and 20 April 1993, the ABiH was successfully attacking the HVO which was in a difficult military situation; P242; witness Walters, PT p. 3406."
[B. Evidentiary comment:]
