Introduction to CQRS (Command Query Responsibility Segregation)
The Essence of command Responsibility · COMMAND RESPONSIBILITY LANGUAGE A RTICLE 7 OF THE ICTY S...
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1 The Essence of command Responsibility Peter Van Hagenback – beheaded 1474
Transcript of The Essence of command Responsibility · COMMAND RESPONSIBILITY LANGUAGE A RTICLE 7 OF THE ICTY S...
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The Essence of command Responsibility
Peter Van Hagenback –
beheaded 1474
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The International Criminal Tribunal for the former
Yugoslavia (ICTY)
Est. 1993 -- The Hague, The Netherlands
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The International Criminal Tribunal for
Rwanda (ICTR)
Est. 1994 -- Arusha, United Republic of Tanzania
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ICTY/ICTR STATUTES COMMAND RESPONSIBILITY
LANGUAGE
ARTICLE 7 OF THE ICTY STATUTE/ARTICLE 6 OF THE ICTR STATUTE:
The fact that any of the acts referred to in [earlier articles] of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she 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.
Commission of the crime(s) by a subordinate is NOT a defense
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{ICTY STATUTE} 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. {Rome Statute Article 25 inclusive}
2. 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. {Rome Statute Art. 27}
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. {Rome Statute Art. 28}
4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires. {Rome Statute Art. 33}
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Dusko Tadic
Former SDS leader in Kozarac
Former member of the paramilitary forces supporting the attack on the district of Prijedor, Bosnia.
Tadic participated in attacks on and the seizure, murder and maltreatment of Bosnian Muslims and Croats in the Prijedor municipality, both within and outside the the Omarska, Trnopolje and Keratermdetention camps.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) indictment charged Tadic on the basis of individual criminal responsibility (Article 7)with:
– Crimes against humanity (Article 5 of the Statute - persecution on political, racial and/or religious grounds; murder; inhumane acts),
– Grave breaches of the 1949 Geneva Conventions (Article 2 - willful killing; torture or inhuman treatment; willfully causing great suffering or serious injury to body or health) and
– Violations of the laws or customs of war (Article 3 - cruel treatment; murder).
Tadic was convicted on the above charges.
In 2000, the Appeals Chamber reduced the final sentence to a maximum of 20 years’ imprisonment.
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Crimes convicted of (examples):
Wilful killing; torture or inhuman treatment; wilfully causing great suffering or serious injury to body or health (grave breaches of the 1949 Geneva conventions) • During the attack on Kozarac and surrounding areas, Duško Tadi• participated in the collection and forced transfer of civilians to detention camps. • As part of a group of Serbs, he beat and kicked one victim until he was unconscious. • He threatened one victim with a knife and then stabbed him.
Murder (crimes against humanity and violations of the laws or customs of war)
• Duško Tadi• killed two Muslim policemen in Kozarac on 26 May 1992. • He participated in the killings of five men in Jaski•i, a village near Prijedor.
Source: http://www.icty.org/x/cases/tadic/cis/en/cis_tadic_en.pdf
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Prosecutions of high ranking officials who failed to meet the requirements of responsibility under the theory of command responsibility posed the most difficulties because the accused often left no paper trails or evidence of direct involvement in the commission of the offense Prosecutor v. Tadic, IT-94-1-A, Appeals Chamber Judgment, 15 July 1999, at para. 192.
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The International Criminal Court
Established by the Rome Statute in
1998
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Rome Statute Chapeau
Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in article 30 applies.
Existence of intent and knowledge can be inferred from relevant facts and circumstances.
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Command Responsibility under
the Rome Statute
Article 28 of the Rome Statute: (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.
Omarska concentration camp in Bosnia
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Command Responsibility for
Civilians Article 28 of the Rome Statute: (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
(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. Grégoire Ndahimana—Former mayor of
Kivumu, Rwanda, indicted for war crimes under a theory of command responsibility. Trial commenced on Sept. 6, 2010 in the ICTR.
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What is Command Responsibility?
A theory of liability under which crimes can be tried
Elements 1. Superior/subordinate relationship (effective
control)
2. Knowledge or reasonable foreseeability that crimes would be committed
3. Failure to take all necessary and reasonable steps to prevent the commission of the crime(s)
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1. Superior-subordinate relationship
A military hierarchy is not required – the ICTY, the ICTR, and the Special Court have all held that the
doctrine of command responsibility applies not only to military commanders, but also to political leaders and other civilian superiors in possession of authority.
No formal, de jure subordination need exist. – A superior position for purposes of command responsibility can be
based on de facto powers of control. The perpetrator does not need to be directly subordinated to the
superior – They can be several steps down the chain of command.
In the military context, command responsibility applies to every commander at every level of command, – Command responsibility applies even if the troops were only
temporarily commanded by the superior. What matters is whether the superior has actual powers to control
the actions of his or her subordinates. – To determine this, all three tribunals apply the “effective control”
test.
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1. Superior-subordinate relationship cont.
The Effective Control Test
Aims to determine whether the superior has “the material ability to prevent and punish criminal conduct.”
If a superior has this ability, then there is a legal basis for command responsibility.
Lesser degrees of control, however, for example “substantial influence,” do not incur command responsibility.
In determining whether the “effective control” test has been satisfied, a tribunal must consider the evidence of each particular case.
Factors that may be generally indicative of an accused’s position of authority: – The accused’s official position, – His or her capacity to issue orders, – The procedure for appointment, – The accused’s position in the military or political structure, and – The actual tasks that he or she performed.
In cases of irregular armed groups with less formal structures, it becomes more important to focus on the superior’s de facto authority.
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2. Mental element: “Knew or had reason to
know” Command responsibility is not a form of strict liability.
In order to incur liability the superior must have had actual knowledge or a
reason to know that his or her subordinates were committing or about to commit crimes.
A superior’s actual knowledge cannot be presumed, but it may be established through circumstantial evidence.
Factors which may be considered: – The number, type, and scope of illegal acts committed by the subordinates; – The time during which they occurred; – The number and type of troops involved; – The geographical location; – Whether the acts were wide- spread; – The tactical tempo of operations; – The modus operandi of similar illegal acts; – The officers and staff involved; and – The location of the accused at the time of the crimes.
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2. Mental element: “Knew or had reason to know”
cont. The more physically distant the superior was from the scene of the crime, the more evidence necessary to prove
knowledge.
The evidence required may vary depending upon the superior’s position in the level of command, and upon what reporting and monitoring mechanisms were in place.
Tribunals have interpreted broadly the legal standard of “had reason to know”.
The central question: Whether information was available to the superior that would have put him on notice of crimes. – This information does not need to provide specific facts about the unlawful acts committed or about to be committed. If
a military commander, for example, has received information that some of the soldiers under his command have a violent or unstable character, have a criminal reputation, or have been drinking prior to being sent on a mission, he may be found to have the requisite knowledge.
The Tribunal will also consider further reports addressed to the superior, the tactical situation, the level of training and instruction of subordinates, as well as their character traits.
– The information itself need not compel the conclusion that the subordinates committed crimes or were about to do so. Rather, a superior may be regarded as having “reason to know” if the information justifies further inquiry; that is, if it puts him or her on notice of a “present and real risk” of criminal activity among his or her subordinates.
Knowledge cannot be presumed if the superior fails in his duty to obtain information about a crime. But where the superior had the means to obtain such information and deliberately refrained from doing so, then knowledge can be presumed.
The assessment of a superior’s actual or imputed knowledge is a question of fact to be determined on a case-by-case basis.
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2. Mental element: “Knew or had reason to know”
cont. The mental element of command responsibility under the ICC
Statute differs from the other international criminal tribunals.
Article 28 of the ICC Statute distinguishes between military commanders and other superiors.
With respect to military commanders, the normal “knew or should have known” standard applies.
Other superiors, however, may only incur command responsibility if they knew “or consciously disregarded information which clearly indicated” that the subordinates were committing or about to commit crimes.
Under the ICC Statute, the concept of command responsibility is thus less stringent for superiors who are not military commanders.
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3. Failure to prevent or punish
Two distinct legal duties for superiors:
– To prevent future crimes and – To punish perpetrators of past crimes.
Both compel subordinates’ compliance with the law by forcing their superior to take
action.
The duty to prevent arises as soon as the commander acquires actual knowledge or has reason to know that a crime is being or is about to be committed
The duty to punish arises once the crime has been committed.
If a superior fails to fulfill his or her duty to prevent, this failure cannot be cured simply by punishing the subordinates afterwards.
The statutes of all international criminal tribunals stipulate that the superior must take the “necessary and reasonable measures” to fulfill these two duties.
What constitutes such measures cannot be determined in the abstract, but is a question of evidence.
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3. Failure to prevent or punish cont.
Some general guidelines can be gleaned from the jurisprudence:
Most importantly, the circumstances may be such that it is irrelevant whether the superior had the explicit legal capacity to take the required measures. Instead, what matters is whether he or she had the “material ability to act.”
– In other words, the question is whether the superior took such necessary and reasonable measures as could be taken given the superior’s degree of effective control over his or her subordinates.
– The kind and extent of these measures depend upon the degree of effective control exercised by the superior at the relevant time, and on the severity and imminence of the crimes that are about to be committed.
Relevant factors to consider may include: – Whether specific orders prohibiting or stopping the criminal activities were issued; – What measures to secure the implementation of these orders were taken; – What other measures were taken to ensure that the unlawful acts were interrupted and whether these measures were
reasonably sufficient in the specific circumstances; and, after the commission of the crime, – What steps were taken to secure an adequate investigation and to bring the perpetrators to justice.
As to the duty to prevent, a superior must prevent not only the execution and completion of a
subordinate’s crimes, but also crimes that “are about to be” committed. – The superior must intervene as soon as he becomes aware of his subordinates’ plans or preparations to commit crimes
as long as he has the effective ability to prevent them from starting or continuing.
With regard to the duty to punish, it includes at least an obligation to investigate possible crimes, to establish the facts, and, if the superior lacks the power to sanction, to report them to the competent authorities.
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3. Failure to prevent or punish cont.
Nexus of causation between the superior’s failure to prevent crimes and the commission of those crimes required?
The ICTY has held that such causality is not generally required. This conclusion is buttressed by the fact that none of the ICTY, ICTR, or Special Court Statutes includes any causality requirement in the provisions on command responsibility.
Article 28 of the ICC Statute, however, does require that the subordinates’ crimes occur “as a result of” the superior’s failure to exercise control properly.
Perhaps in the future we will have the opportunity to see how the ICC applies this added element of causation.
Source: Command Responsibility in International Criminal Tribunals By: Judge Bakone Justice Moloto
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Former commander of the Kosovo Liberation Army
Charged as a member of a joint criminal enterprise with six counts of violating the law of war. Alleged to be the de jure commander of the Dukagjin area from March 1998 to mid-June 1998, and de facto commander beginning in June 1998
TRIAL JUDGMENT (2008):
– Prosecution alleged: The objective of this alleged joint criminal enterprise was to consolidate total KLA control over the Dukagjin area by the unlawful removal and mistreatment of Serb civilians, and by the mistreatment of Kosovar Albanian and Kosovar Roma civilians, and other civilians, who were, or were perceived to have been, collaborators with the Serbian forces or otherwise not supporting the KLA.
– Holding: Acquitted of all charges
Ramush Haradinaj
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The Prosecution appealed the trial judgement, alleging, inter alia, that the Trial Chamber breached its right to a fair trial by not allowing it additional time to secure the evidence of two critical witnesses, and asked for a retrial.
RETRIAL JUDGMENT (2012): – The present Indictment alleges that at the material time Ramush Haradinaj was a commander of the
KLA Dukagjin Operational Zone in western Kosovo and that as such he had overall command of the KLA forces in this area.
– The Prosecution presented no direct evidence to prove that the established crimes were committed as part of a JCE in which the three Accused participated. The Chamber considered circumstantial evidence tendered by the Prosecution to prove this allegation. This evidence includes communiqués of the KLA General Staff published in the media, which contain information about attacks or “measures” undertaken by the KLA against collaborators with the Serbian authorities. The Chamber finds that the information contained in the communiqués may have been exaggerated or altered for propaganda purposes; this information was often vague and lacked details as to the time and place of the incident, the identity of the perpetrator, the identity of the victims or their civilian or military status.
– Considering the specific circumstances in each of these incidents, and in particular, events preceding and following the mistreatment and the release of the victims shortly thereafter, the Chamber finds that none of these incidents is indicative of a pattern or a plan involving the mistreatment of civilians as alleged in the Indictment.
– OUTCOME: Not guilty on all counts of the indictment.
Ramush Haradinaj
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Ante Gotovina
Former Croatian lieutenant general who served in the Croatian War for Independence.
In 2001, the International Criminal Tribunal for the former Yugoslavia (ICTY) indicted him on a number of war crimes and crimes against humanity charges for crimes committed in 1995 during and in the aftermath of Operation Storm.
After spending four years in hiding, he was captured in the Canary Islands in December 2005.
In April 2011, Gotovina was found guilty on eight of the nine counts of the indictment and sentenced to 24 years of imprisonment.
In November 2012, he was found not guilty on all charges by the appeals panel at the ICTY, and immediately set free.
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Ante Gotovina Appeal
November 16, 2012 1. Unlawful Artillery Attacks and Existence of a Joint Criminal Enterprise:
The Appeals Chamber held that the Trial Chamber erred in deriving the 200 Meter Standard for determining the legality of an artillery attack. Having reversed the Trial Chamber’s finding that artillery attacks on the Four Towns were unlawful, the Appeals Chamber considers that no reasonable trial chamber could conclude that the only reasonable interpretation of the circumstantial evidence on the record was the existence of a Joint Criminal Enterprise (JCE) with the common purpose of permanently removing the Serb population from the Krajina by force or threat of force.
2. Convictions Under Alternate Modes of Liability: The Trial Chamber found: that Mr. Gotovina was aware of crimes allegedly being committed in the Four Towns before and after the artillery attacks; that these crimes required investigation; and that Mr. Gotovina failed to follow up on the crimes. The Trial Chamber noted “additional measures” that Mr. Gotovina could have taken and concluded that Mr. Gotovina failed to make a serious effort to investigate the crimes and to prevent future crimes.
The Appeals Chamber observes that the Trial Chamber relied on its finding of the unlawfulness of artillery attacks in assessing Mr. Gotovina’s responsibility for additional conduct and failure to act. The Appeals Chamber recalls that the Trial Chamber explicitly considered evidence that Mr. Gotovina adopted numerous measures to prevent and minimize crimes and general disorder among the HV troops under his control, expert testimony at trial indicated that Mr. Gotovina took all necessary and reasonable measures to maintain order among his subordinates. In this context, the Appeals Chamber considers that the evidence on the record does not prove beyond reasonable doubt that any failure to act on Mr. Gotovina’s part was so extensive as to give rise to criminal liability pursuant to aiding and abetting or superior responsibility.
In this context, the Appeals Chamber can identify no remaining Trial Chamber findings that would constitute the actus reus supporting a conviction pursuant to an alternate mode of liability.
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Colonel in the HVO (Croatian Defense Council) during the period referred to in the indictment
CHARGES: having committed, ordered, planned or otherwise aided and abetted in between 1 May 1992 and 31 January 1994: a crime against humanity, persecution; crimes against humanity, wilful killing and causing serious injury; grave breaches of the Geneva Conventions; and violations of the laws or customs of war for killing, serious bodily harm, destruction and plunder of property, destruction of institutions dedicated to education or religion, inhuman or cruel treatment of detainees, including the taking of hostages for use as human shields. Also charged with not having taken reasonable measures to prevent crimes or to punish the perpetrators thereof although knowing or having reasons to know that the crimes were about to be committed or had been committed
TRIAL JUDGMENT (2000): Guilty of all charges except for the bombing of Zenica
Tihomir Blaskic
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Crimes convicted of (examples):
Inhumane treatment (grave breach of the Geneva convention)
Cruel treatment (violations of the laws or customs of war)
From January 1993 to April 1993, together with members of the HVO, Blaaki• planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the use of Bosnian Muslim civilians as human shields in order to prevent the Bosnian Army from firing on HVO positions or to force Bosnian Muslim combatants to surrender.
He exposed Bosnian Muslims detained in HVO detention facilities, to beatings, to physical and psychological abuse, intimidation, inhumane treatment, including being confined in cramped or overcrowded facilities and not being provided with adequate food and water. Detainees were also made to dig trenches in the municipalities of Kiseljak, Vitez, and Busova•a, during which a number of Bosnian Muslims were killed, injured or wounded.
Notwithstanding his knowledge that detention-related crimes had been committed in the Vitez Cultural Centre and the Vitez veterinary hospital, and the knowledge of the circumstances and conditions under which the Muslims were detained in, he failed to punish those subordinates of his who were responsible, and over whom he could exercise effective control. Furthermore, he failed to report the infractions of which he was aware to the competent authorities.
Source: http://www.icty.org/x/cases/blaskic/cis/en/cis_blaskic.pdf
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The provisions of Article 7(1) and Article 7(3) of the Statute connote distinct categories of criminal responsibility. It is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute in relation to a particular count. Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing.
The Appeals Chamber therefore considers that the concurrent conviction pursuant to Article 7(1) and Article 7(3) of the Statute in relation to the same counts based on the same facts, as reflected in the Disposition of the Trial Judgement, constitutes a legal error invalidating the Trial Judgement in this regard.
OUTCOME: Sentence reduced to 9 years.
Tihomir Blaskic
APPEALS JUDGMENT (2004):
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Momcilo Perisic
Momcilo Perisic
was the Chief of the General Staff of the Yugoslav Army, or “VJ”, a position that made him the VJ’s most senior officer.
During this period, the VJ facilitated the provision of military and logistical aid to the Army of Republika Srpska, or “VRS”, in Bosnia and Herzegovina, and to the Army of the Serbian Krajina, or “SVK”, in Croatia.
The ICTY Trial Chamber, found Perisic
guilty as an aider and abettor of the following crimes committed by the VRS in the Bosnian towns of Sarajevo and Srebrenica:
– Murder,
– Inhumane acts, and
– Persecutions as crimes against humanity; and
– Murder and attacks on civilians as violations of the laws or customs of war.
The Trial Chamber, also found Mr. Perisic
guilty as a superior for failing to punish the following crimes related to SVK shelling of Zagreb on 2 and 3 May 1995:
– Murder and inhumane acts as crimes against humanity; and
– Murder and attacks on civilians as violations of the laws or customs of war.
Perisic
was sentenced to 27 years of imprisonment.
In February 2013, he was found not guilty on all charges by the appeals panel at the ICTY, and immediately set free.
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Momcilo Perisic Appeal
February 28, 2013 1. Aiding and Abetting
– The Appeals Chamber concludes that it has not been established beyond reasonable doubt that Mr. Perišic
carried out “acts specifically directed to assist, encourage or lend moral support to the perpetration of [the] certain specific crime[s]” committed by the VRS. Accordingly, Mr. Perišic
’s convictions for aiding and abetting must be reversed
on the ground that not all the elements of aiding and abetting liability have been proved beyond reasonable doubt.
2. Superior Responsibility – Absent a finding of effective control over subordinates, superior responsibility cannot be established. Thus, the
Appeals Chamber reverses the Trial Chamber’s finding that Mr. Perišic
was liable for failing to punish relevant VJ soldiers serving in the SVK for their actions during the shelling of Zagreb.
– Examples: – The Appeals Chamber considered evidence regarding Periai••s ability to issue binding command orders to VJ
personnel seconded through a unit of the VJ named the “40th PC”. Having carefullyconsidered relevant circumstantial evidence, the Appeals Chamber was not convinced that the only reasonable conclusion was that Periai• could issue command orders to seconded VJ soldiers at the time of the shelling of Zagreb.
– Furthermore, the Appeals Chamber noted evidence that SVK forces came under direct VJ control after the fall of the Republic of Serbian Krajina. In these circumstances, a reasonable interpretation of this evidence was that Periai• only acquired disciplinary powers over VJ members seconded to the SVK after the shelling of Zagreb.
– The Appeals Chamber concluded that, while some evidence on the record was consistent with Periai• possessing effective control over soldiers seconded through the 40th PC, other evidence on the record suggested that during the shelling of Zagreb, Periai• did not possess effective control over members of the perpetrators of charged crimes in Zagreb.
Momcilo Perišic
was released.
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She was not involved in politics until she joined the Serbian
Democratic Party in July 1990.
However, she very soon rose to become a prominent member of the party and she was elected as a Serbian Representative to the Presidency of the Socialist Republic of Bosnia and Herzegovina on 11 November 1990 until December 1992.
The accused was also active in the Presidency of the Serbian Republic of Bosnia and Herzegovina, and then became a member of the collective and expanded Presidencies of Republika Srpska.
Biljana Plavsic
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Biljana Plavsic
For her part, Mrs. Plavsic embraced and supported the objective and contributed to achieving it, but she did not participate in its conception and planning and had a lesser role in its execution than others.
The accused supported the objective in various different ways, by: – Serving as co-President, thereby supporting and maintaining the government and military at local and national levels through
which the objective was implemented;
– encouraging participation by making public pronouncements that force was justified because certain territories within Bosnia and Herzegovina were Serbian by right and Serbs should fear genocide being committed against them by Bosnian Muslims and Bosnian Croats; and
– inviting and encouraging paramilitaries from Serbia to assist Bosnian Serb forces in effecting ethnic separation by force.
The Bosnian Serb forces… committed the persecutions in a campaign that included: killings during attacks on towns and villages; cruel and inhumane treatment during and after the attacks; forced transfer and deportation; unlawful detention and killing, forced labour and use of human shields; cruel and inhumane treatment and inhumane conditions in detention facilities; destruction of cultural and sacred objects; and plunder and wanton destruction.
Mrs. Plavsic disregarded reports of widespread ethnic cleansing and publicly rationalised and justified it. She was aware that the key leaders of the Serbian Republic of Bosnia and Herzegovina ignored these crimes despite the power to prevent and punish them.
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Crimes convicted of (examples):
Persecutions on political, racial and religious grounds (crimes against humanity)
• In her role as co-President of the Serb leadership, acting individually and in concert
with others in a joint criminal enterprise, Biljana Plavai• participated, planned, instigated, devised and executed the persecutions of Bosnian Muslim, Bosnian Croat and other non-Serb populations in 37 municipalities in Bosnia and Herzegovina.
• She embraced and supported a campaign of ethnic separation which resulted in the death of thousands and the expulsion of thousands more in circumstances of great brutality.
• Plavai• contributed to the campaign of ethnic separation in various different ways, by
inviting paramilitaries from Serbia to assist Bosnian Serb forces in effecting ethnic separation by force, and by encouraging participation through public pronouncements justifying the use of force against non-Serbs in the territory.
Source:http://www.icty.org/x/cases/plavsic/cis/en/cis_plavsic_en.pdf
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Pled guilty acting individually and in concert with others in a joint criminal enterprise, planned, instigated, ordered and aided and abetted persecutions of the Bosnian Muslim, Bosnian Croat and other non-Serb populations of 37 municipalities in Bosnia and Herzegovina.
Aggravating sentencing factors – (i) the leadership position of the accused;
– (ii) the vulnerability of the victims; and
– (iii) the depravity of the crimes to which the victims were subjected.
The accused was not in the very first rank of the leadership: others occupied that position. She did not conceive the plan which led to this crime and had a lesser role in its execution than others. Nonetheless, she was in the Presidency, the highest civilian body, during the campaign and encouraged and supported it by her participation in the Presidency and her pronouncements.
Mitigating sentencing factors – Guilty plea (together with remorse and reconciliation);
– Voluntary surrender;
– Post-conflict conduct;
– and Age
To each of these circumstances the Trial Chamber attaches weight. In particular, the Trial Chamber attaches great weight to Mrs. Plavai••s guilty plea and post-conflict conduct. Together, these circumstances make a formidable body of mitigation.
Biljana Plavsic
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Jean-Pierre Bemba
Jean-Pierre Bemba Gombo is a former Vice President of the Democratic Republic of Congo (DRC). He is the leader of the Movement for the Liberation of Congo (MLC), a Congolese political party that emerged from a militia group of the same name.
Shortly after Laurent Kabila displaced Mobutu as the country’s president in 1997, Rwanda and Uganda sought his overthrow. In 1998, Uganda supported Mr. Bemba in founding the MLC, one of several rebel groups launched against Kabila from eastern DRC. The MLC quickly proved successful in establishing control over much of northern DRC.
In 2002, President Ange-Félix Patassé of the neighboring Central African Republic invited the MLC into his country to help put down a coup attempt.
Back in the DRC, Laurent Kabila was assassinated in 2001 and his son Joseph Kabila became President. Under a 2003 peace arrangement, Mr. Bemba took office as one of four Vice Presidents of the country. From July 2003 until December 2006, he was Vice President in charge of finance.
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Jean-Pierre Bemba
During the confirmation of charges hearing (January 2009), the Prosecutor presented his evidence for the case against Jean-Pierre Bemba. The Prosecutor submitted that Jean-Pierre Bemba was personally responsible as co-perpetrator, together with former CAR President, Ange-Felix Patassé.
However, the Pre-Trial Chamber requested the Prosecutor to amend the charges, since it considered that the evidence submitted appeared to correspond to a different mode of liability, namely criminal responsibility as a military commander or superior. The Prosecutor then amended his document containing the charges.
Subsequently, the Pre-Trial Chamber decided that there were substantial grounds to believe that JeanPierre Bemba was criminally responsible in his capacity as military commander for three counts of war crimes (murder, rape and pillage) and two counts of crimes against humanity (murder and rape).
Source: http://www.fidh.org/IMG//pdf/FIDH_Q_A_BEMBA_FINAL_EN.pdf
