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Volume 6, Spring 2006

Prosecutor v. Sefer Halilovic International Criminal Tribunal for the Former Yugoslavia; November 16, 2005

The prosecution alleged that Halilovic was aware of the criminal and uncontrollable behavior of the 9th and 10th brigades and that Halilovic ordered these brigades to Herzegovina. Prosecution indicated that Halilovic heard and was present when Vehbija Karic, a member of the inspection team, gave authority to the troops to throw the Bosnian Croat civilians in the Neretva River if they were uncooperative in providing housing for the brigades. As a result, thirty-three Bosnian-Croat civilians were killed.

Prosecution argued that Halilovic had the power and authority as the commander of the operation to exercise control over his units and therefore, had the duty to prevent Karic from carrying out such orders. The prosecution charged Halilovic for murder because he failed to fulfill his duty as a commander, he failed to prevent the killings, and he failed to administer an investigation on the killings.

Under Article 7(3) of the International Criminal Tribunal for the former Yugoslavia Statute (“ICTY Statute”), which is recognized by the Geneva Convention, the Tribunal has set forth three elements to hold a superior responsible for criminal responsibility.

1. the existence of a superior-subordinate relationship
2. the superior knew or had reason to know that the criminal act was about to be or had been committed, and
3. the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof

In regard to the first element, the concepts of command and subordinate were broadly defined. The officer in command does not necessarily indicate the presence of a superior-subordinate relationship, and therefore the commander can not be held liable for all the actions of his subordinate. Moreover, in order to determine a superior-subordinate relationship, the link must establish that the superior has a personal responsibility with the perpetrator’s actions.

In reference to the second element, there must be evidence that (i) the superior had the actual knowledge that his subordinate was committing or about to commit certain crimes, or (ii) that the superior had sufficient information to indicate a warning that such a risk was a potential outcome.

Lastly, the third element distinguishes two legal obligations which arise from the second element. If the superior has actual knowledge or a suspicion that the crime will be committed by his subordinate, the superior has the duty to prevent the crime. On the other hand, the superior has the duty to punish the subordinate officer if the crimes have already been committed.

The Trial Chamber stated that the prosecution failed to prove beyond a reasonable doubt that Halilovic was either the de jure or de facto commander of Operation Neretva. The Trial Chamber also concluded that the prosecution did not provide enough evidence to illustrate that Halilovic’s had effective control in his position as a commander. Therefore, the Trial Chamber held that the prosecution failed to prove that Halilovic was responsible under Article 7(3) for the alleged crimes.

Adalah et al v. GOC Central Command, IDF et al The Supreme Court of Israel; June 23, 2005

The Supreme Court of Israel ruled that the "early warning" procedure used by the Israeli military was contradictory to international law and was therefore illegal.

On August 18, 2002, the Supreme Court of Israel issued a temporary interlocutory injunction to prevent the military from using civilians as "hostages" or "human shields" in their operations. The military did not defend their right to these issues, but instead challenged their ability to use a procedure called "Early Warning."

On August 18, 2002, the Supreme Court of Israel issued a temporary interlocutory injunction to prevent the military from using civilians as "hostages" or "human shields" in their operations. The military did not defend their right to these issues, but instead challenged their ability to use a procedure called "Early Warning."

As described by the Israeli military, "'Early Warning' is an operational procedure, employed in operations to arrest wanted persons, allowing solicitation of a local Palestinian resident's assistance in order to minimize the danger of wounding innocent civilians and the wanted persons themselves . . . [it] is intended to grant an early warning to the residents of the house, in order to allow the innocent to leave the building and the wanted persons to turn themselves in, before it becomes necessary to use force, which is liable to endanger human life."

Generally, 'early warning' procedures are subject to military command approval. However, this process can be avoided in cases where activity is not pre-planned, and authorization can be given by field officers.

The "Early Warning" directive cannot be exercised over women, children, the elderly, or the disabled. The five emphases discussed by the military for securing Palestinian residents for "Early Warning" are: "(A) The civilian population has no obligation to assist the IDF [Israeli Defense Force] in warning civilians of attack, (B) Contact, and persuasion, shall be exclusively verbal, (C) It is strictly forbidden to use force or violence toward a local resident of others, in order to secure said assistance, (D) It is strictly forbidden to threaten a resident, or other people, that physical violence, arrest, or other means will be used against them, (E) It is strictly forbidden to hold people 'hostage' in order to secure the assistance of a local resident, and (F) If a local resident refuses - under no circumstances is provision of assistance to be forced" [emphasis in original].

The court resolved that the Israeli army's "Early Warning" procedure was contrary to international and Israeli law.

The court re-affirmed the illegality of hostage-taking and the use of human shields by the Israeli military, but considered distinguishing the "Early Warning" process from those banned activities. President Barak's opinion noted that all parties agree that the military is not permitted to solicit any Palestinian resident as an "Early Warning" assistant if such a role puts the resident in danger or is against his will. Instead, the dispute focused on whether a Palestinian resident should be legally capable of consenting to the "Early Warning" procedure.

President Barak attempted to resolve this conflict by imposing a balancing test. He compared the prevention of force that the "Early Warning" procedure is designed to offer bystanders and suspects against the personal safety of the Palestinian resident sent to "relay the warning."

Barak offered four principled reasons for his decision against the "Early Warning" procedure. First, as a general measure, an occupying army cannot use residents for the army's military needs. Second, innocent local residents must be shielded from the zone of hostilities. Third, the inequality between the "occupying force" and the "local resident" precludes any real consent by the resident in many cases, a point echoed by Justice Beinisch's concurring opinion. Lastly, "one cannot know in advance whether the relaying of a warning involves danger to the local resident who relays it." Barak concluded by asserting that the "Early Warning" process existed in "the relatively grey area . . . of the improper."

Vice President Cheshin's concurring opinion considered alternatives to the "Early Warning" procedure such as using a loudspeaker, or other types of amplification, to notify residents of pending military action. Cheshin argued that alternative methods should be used, but also that "Early Warning" procedures may yet be useful as a "last resort." Ultimately, Cheshin concurred with Barak that banning "Early Warning" was necessary, because of the "temptation" to deviate from procedure in field conditions and desensitizing nature of making such a procedure "routine."

Leyla Sahin v. Turkey European Court of Human Rights; November 10, 2005

The European Court of Human Rights ("ECHR") on November 10, 2005 decided that a school’s refusal to allow students to wear an Islamic headscarf did not violate the rights of students choosing to wear the traditional Islamic garb. Leyla Sahin was a student at the Cerrahpasa Faculty of Medicine at Istanbul University. The University created a regulation refusing to allow "students whose 'heads are covered' (who wear the Islamic headscarf)" to be admitted to lectures, courses or tutorials. Sahin was refused admission to classes, lectures and an exam over a four month period because she was wearing the banned headscarf.

Sahin claimed that the policy was a violation of her rights to freely practice religion and her rights to receive an education. She wore the headscarf as she considered it a duty to do so and as an extension of her Islamic identity.

The school and the Republic of Turkey maintained that the policy of the school was consistent with the principles of the republic, namely, that the state should be secular. In promoting secularism, the headscarf is viewed as a symbol not of religion, but of political Islam.

The Constitutional Court of Turkey stressed in a March 7, 1989 judgment that, while citizens had the freedom to dress how they please, dress imposed by religion is out of step with modern society. The state compromised the religious neutrality of their schools if they allowed students to wear the Islamic headscarf. The Court affirmed the decision April 9, 1991, saying that the wearing of the Islamic headscarf in institutions of higher education went against the principles enunciated in the Constitution.

The ECHR reasoned that the decisions of the Constitutional Court were “binding and accessible” and in line with the democratic ideals of the Constitution. The ECHR noted that the school was attempting to promote equality between men and women and that Turkey was striving to preserve the secular nature of institutions of higher learning. The steps taken here did not preclude students from performing their religious duties, nor did they violate students’ rights as the process was prescribed by statute and was subject to judicial review. The ECHR further noted that the school had taken care to balance the interests of all the students—trying to avoid turning away students who would wear the headscarf, while protecting the other students and the institution.

The ECHR ruled that no Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms had been violated.