## Facts

- In 1992, during the armed conflict in Bosnia and Herzegovina, Bosnian Muslim and Bosnian Croat forces took control of areas around Konjic and detained Bosnian Serb civilians and some combatants.
- Detainees were transported to a former Yugoslav People’s Army facility in Čelebići that operated as a prison camp (including a hangar, tunnel, and administrative building), with most detentions occurring from roughly May to October 1992.
- The prosecution alleged that detainees were subjected to killings, torture, beatings, sexual assaults, cruel and inhuman treatment, unlawful confinement, and plunder.
- The accused were: Zejnil Delalić (alleged external commander/coordinator), Zdravko Mucić (camp commander), Hazim Delić (deputy commander/commander), and Esad Landžo (camp guard).
- Charges were brought as grave breaches of the Geneva Conventions (ICTY Statute art. 2) and violations of the laws or customs of war (ICTY Statute art. 3), with individual liability (art. 7(1)) alleged mainly for Delić and Landžo and superior responsibility (art. 7(3)) alleged mainly for Mucić and Delalić (and in part for Delić).

## Issues

1. Whether the conflict during the relevant period was international in character so as to permit prosecution of grave breaches under Article 2.
2. Whether the Serb detainees qualified as “protected persons” under Geneva Convention IV (or as prisoners of war) for purposes of Article 2 offenses.
3. What requirements govern Article 3 offenses, including the need for an armed-conflict nexus and the scope of Article 3 as a residual war-crimes provision.
4. What elements define superior (command) responsibility under Article 7(3), including “effective control,” the “knew or had reason to know” standard, and the duty to prevent or punish.
5. Whether rape and sexual violence can constitute torture as grave breaches and as violations of the laws or customs of war.
6. When confinement of civilians is unlawful under Geneva Convention IV, including the limits in Article 42.

## Decision

- The Trial Chamber held that an armed conflict existed and that it was international in character during the relevant period, permitting application of Article 2 (grave breaches).
- The Chamber found the detainees were protected persons under Geneva Convention IV (or prisoners of war) given the conflict’s international character and their relationship to the detaining power.
- Delalić was acquitted on all counts because the prosecution failed to prove a superior–subordinate relationship establishing sufficient command and control over the camp and its guards.
- Mucić was convicted under Article 7(3) for murders, torture, and cruel or inhuman treatment committed at the camp due to his failure to prevent or punish subordinates.
- Delić was convicted under Article 7(1) for direct participation in killings, torture, cruel treatment, and other abuse, including sexual violence, and also convicted under Article 7(3) for certain crimes committed by subordinates.
- Landžo was convicted under Article 7(1) for direct participation in killings, torture, and cruel treatment of detainees.
- The Chamber recognized that certain acts of rape and sexual violence committed in the camp constituted torture and could be prosecuted as grave breaches and as violations of the laws or customs of war.
- The Chamber found that many civilian detentions were not justified by security necessity under Geneva Convention IV Article 42, supporting findings of unlawful confinement.

## Legal Principles

- Grave breaches jurisdiction under ICTY Statute Article 2 requires an international armed conflict and victims who qualify as protected persons (or prisoners of war) under the Geneva Conventions.
- Article 3 functions as a residual category for serious violations of customary international humanitarian law not covered by Article 2, requiring an armed conflict and a nexus between the accused’s acts and that conflict.
- Superior responsibility under Article 7(3) requires: (1) a superior–subordinate relationship with effective control (material ability to prevent or punish), (2) knowledge or reason to know of impending or completed crimes, and (3) failure to take necessary and reasonable measures to prevent or punish.
- Effective control is a factual inquiry; absence of proof that an accused could issue binding orders or discipline perpetrators defeats Article 7(3) liability.
- Rape and sexual violence may constitute torture when intentionally inflicted to achieve purposes such as punishment, intimidation, coercion, discrimination, or information-gathering, and when severe physical or mental suffering is caused in an official or quasi-official context.
- Confinement of civilians during armed conflict is permitted only in limited circumstances; internment is unlawful where the detaining power cannot show the strict security necessity required by Geneva Convention IV Article 42.

## Conclusion

The Trial Chamber applied grave breaches and war-crimes provisions to abuses at the Čelebići camp, acquitting an alleged superior for failure to prove effective control while convicting the camp commander under command responsibility and convicting the deputy commander and a guard for direct participation (and, in part, superior responsibility), and it clarified that rape can constitute torture and that civilian internment is unlawful absent strict security necessity.


Prosecutor v. Delalić (Čelebići), Case No. IT-96-21-T (Int’l Crim. Trib. for the Former Yugoslavia Trial Chamber Nov. 16, 1998)