## Facts

- In 1992, during the armed conflict in Bosnia and Herzegovina, detainees (predominantly Bosnian Serbs) were held at the Čelebići prison camp in the Konjic municipality.
- Detainees were subjected to killings, torture, sexual violence, cruel treatment, and other inhuman acts between approximately April and December 1992.
- Four accused were tried jointly: Zejnil Delalić, Zdravko Mucić, Hazim Delić, and Esad Landžo.
- The accused were charged under the ICTY Statute with grave breaches of the 1949 Geneva Conventions (Article 2) and violations of the laws or customs of war (Article 3), with modes of liability including superior responsibility (Article 7(3)) and direct perpetration.
- The Trial Chamber convicted Mucić, Delić, and Landžo on multiple counts, and acquitted Delalić on all counts.
- The accused appealed convictions and/or sentences; the Prosecutor appealed Delalić’s acquittal, certain findings favorable to Delić, and the sentence imposed on Mucić.

## Issues

1. Whether the relevant armed conflict was international in character and, if so, whether the detainees qualified as “protected persons” for purposes of grave breaches under Article 2.
2. Whether Common Article 3 of the Geneva Conventions is encompassed by Article 3 of the ICTY Statute and applies in international armed conflicts.
3. What standards govern superior (command) responsibility under Article 7(3), including whether de facto authority suffices and what mental element and duties are required.
4. When confinement of civilians becomes “unlawful” under Geneva Convention IV, including the role of Article 42 safeguards.
5. Whether cumulative convictions for the same conduct under multiple provisions are permissible, and under what test duplicative convictions must be set aside.
6. Whether alleged errors of fact required reversal or modification of particular convictions and related sentencing consequences.

## Decision

- The Appeals Chamber largely affirmed the Trial Chamber’s findings that the conflict was international in character and that detainees could be “protected persons” under Geneva Convention IV.
- The Appeals Chamber held that Common Article 3 is encompassed within Article 3 of the ICTY Statute and applies in both international and non-international armed conflicts.
- The Appeals Chamber affirmed that superior responsibility under Article 7(3) may rest on de facto authority where the superior has effective control (the material ability to prevent or punish).
- The Appeals Chamber confirmed Delalić’s acquittal, rejecting the Prosecutor’s challenge because he lacked sufficient effective control over the camp and guards for Article 7(3) liability.
- The Appeals Chamber affirmed most convictions of Mucić, Delić, and Landžo, while quashing certain convictions and modifying legal characterizations in part, including by setting aside impermissible cumulative convictions.
- The Appeals Chamber ordered reconsideration of sentences in light of the adjustments to convictions (with later proceedings addressing recalculated sentences).

## Legal Principles

- Classification of an armed conflict for ICTY jurisdictional purposes may turn on the extent of external state involvement and control over organized armed groups; the assessment is based on the totality of the evidence.
- “Protected person” status under Geneva Convention IV may be satisfied where an individual is in the hands of a party to the conflict of which the individual is not a national, even if the individual holds local nationality, depending on the conflict’s international character and the controlling party.
- Common Article 3 provides minimum humanitarian protections that fall within Article 3 of the ICTY Statute and apply as customary law in all armed conflicts, including international armed conflicts.
- Superior responsibility under Article 7(3) requires a superior–subordinate relationship grounded in effective control; de facto authority can suffice, and formal rank is not determinative.
- The mental element for Article 7(3) is satisfied where the superior knew or had reason to know of impending or completed crimes by subordinates and failed to take necessary and reasonable measures to prevent or punish.
- Confinement of civilians is lawful only under strict conditions; under Geneva Convention IV Article 42, confinement must be absolutely necessary for security and must comply with required safeguards, and confinement outside those limits can constitute unlawful confinement.
- Cumulative convictions for the same conduct are permissible only if each offense contains a materially distinct element not contained in the other; otherwise duplicative convictions must be vacated.

## Conclusion

The Appeals Chamber upheld the core trial outcomes while clarifying key doctrines in international humanitarian and criminal law: Common Article 3’s reach under Article 3, superior responsibility based on effective de facto control with a knowledge-or-reason-to-know standard, strict limits on lawful civilian confinement, and a distinct-elements test restricting cumulative convictions, while confirming Delalić’s acquittal and requiring sentencing reconsideration for modified convictions.


Prosecutor v. Delalić (Čelebići), Case No. IT-96-21-A (Int'l Crim. Trib. for the Former Yugoslavia Feb. 20, 2001)