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VI) COMMAND RESPONSIBILITY (Article 7(3))

a) Statute

ICTY Statute, Article 7(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.”

b) Elements

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 401: “[T]hree elements must be proved before a person may incur superior responsibility for the crimes committed by subordinates: (1) the existence of a relationship of superiority and subordination between the accused and the perpetrator of the underlying offence; (2) the mental element, or knowledge of the superior that his subordinate had committed or was about to commit the crime; (3) the failure of the superior to prevent the commission of the crime or to punish the perpetrators.”

Blaskic, (Trial Chamber), March 3, 2000, para. 294: “[F]or a conviction under Article 7(3) of the Statute in the present case, proof is required that: (1) there existed a superior-subordinate relationship between the commander (the accused) and the perpetrator of the crime; (2) the accused knew or had reason to know that the crime was about to be or had been committed; and (3) the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator thereof.” See also Mucic et al., (Trial Chamber), November 16, 1998, para. 346.

Aleksovski, (Appeals Chamber), March 24, 2000, para. 76: “Article 7(3) provides the legal criteria for command responsibility, thus giving the word ‘commander’ a juridical meaning, in that the provision becomes applicable only where a superior with the required mental element failed to exercise his powers to prevent subordinates from committing offences or to punish them afterwards. This necessarily implies that a superior must have such powers prior to his failure to exercise them. If the facts of a case meet the criteria for the authority of a superior as laid down in Article 7(3), the legal finding would be that an accused is a superior within the meaning of that provision.”

i) the existence of a superior-subordinate relationship (element 1)

(1) the superior-subordinate relationship

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 396: “A superior-subordinate relationship must exist for the recognition of [command responsibility].”

(a) relationship to subordinate may be direct or indirect, including command of informal structures

Mucic et al., (Appeals Chamber), February 20, 2001, para. 248-268: “[T]he superior-subordinate relationship is based on the notion of control within a hierarchy and that this control can be exercised in a direct or indirect manner, with the result that the superior-subordinate relationship itself may be both direct and indirect.” “The Appeals Chamber regards the Trial Chamber as having recognised the possibility of both indirect as well as direct relationships subordination and agrees that this may be the case, with the proviso that effective control must always be established.” “‘The requirement of the existence of a “superior-subordinate relationship” which, in the words of the Commentary to Additional Protocol I, should be seen “in terms of a hierarchy encompassing the concept of control,” is particularly problematic in situations such as that of the former Yugoslavia during the period relevant to the present case situations where previously existing formal structures have broken down and where, during an interim period, the new, possibly improvised, control and command structures may be ambiguous and ill-defined. It is the Trial Chamber’s conclusion . . . that persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so.’”

Mucic et al., (Appeals Chamber), February 20, 2001, para. 193: “Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment.”

Blaskic, (Trial Chamber), March 3, 2000, para. 301: “[A] commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates, insofar as he exercises effective control over them.”

For discussion of “effective control,” see Section (VI)(b)(i)(1)(e), ICTY Digest.

(b) relationship between commander and his subordinates need not be formalized

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 397: “The relationship between the commander and his subordinates need not have been formalized; a tacit or implicit understanding between them as to their positioning vis--vis one another is sufficient.”

(c) analyze reality of the authority/actual tasks performed

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 419-424: “A starting point will be the official position held by the accused. Actual authority however will not be determined by looking at formal positions only. Whether de jure or de facto, military or civilian, the existence of a position of authority will have to be based upon an assessment of the reality of the authority of the accused.” “A formal position of authority may be determined by reference to official appointment or formal grant of authority.” “The capacity to sign orders will be indicative of some authority. The authority to issue orders, however, may be assumed de facto.” “A superior status, when not clearly spelled out in an appointment order, may be deduced though an analysis of the actual tasks performed by the accused in question.”

(d) the giving of orders or exercise of powers generally attached to a military command are strong indications an individual is a commander, but are not the sole relevant factors

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 397: “The giving of orders or the exercise of powers generally attached to a military command are strong indications that an individual is indeed a commander. But these are not the sole relevant factors.”

(e) effective control required: the ability to prevent and punish the crimes

Mucic et al., (Appeals Chamber), February 20, 2001, para. 256: “The concept of effective control over a subordinate - in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised - is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute.”

Blaskic, (Trial Chamber), March 3, 2000, para. 335: A “superior” is “a person exercising ‘effective control’ over his subordinates.”

Blaskic, (Trial Chamber), March 3, 2000, para. 300-302: “‘[I]n order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences.’” “[A] commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates, insofar as he exercises effective control over them. Although . . . ‘actual ability’ of a commander is a relevant criterion, the commander need not have any legal authority to prevent or punish acts of his subordinates. What counts is his material ability, which instead of issuing orders or taking disciplinary action may entail, for instance, submitting reports to the competent authorities in order for proper measures to be taken.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 416: “[O]nly those superiors, either de jure or de facto, military or civilian, who are clearly part of a chain of command, either directly or indirectly, with the actual power to control or punish the acts of subordinates may incur criminal responsibility.”

(f) temporary nature of military unit or ad hoc command do not exclude relationship

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 399: “Both those permanently under an individual’s command and those who are so only temporarily or on an ad hoc basis can be regarded as being under the effective control of that particular individual. The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination between the members of a unit and its commander. To be held liable for the acts of men who operated under him on an ad hoc or temporary basis, it must be shown that, at the time when the acts charged in the Indictment were committed, these persons were under the effective control of that particular individual.”

(g) may be de jure or de facto power to control

Mucic et al., (Appeals Chamber), February 20, 2001, para. 192-194: “Under Article 7(3), a commander or superior is . . . the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.” “The power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment. In many contemporary conflicts, there may be only de facto, self-proclaimed governments and therefore de facto armies and paramilitary groups subordinate thereto. Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment.” “‘[W]hereas formal appointment is an important aspect of the exercise of command authority or superior authority, the actual exercise of authority in the absence of a formal appointment is sufficient for the purpose of incurring criminal responsibility. Accordingly, the factor critical to the exercise of command responsibility is the actual possession, or non-possession, of powers of control over the actions of the subordinates.’”

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 396: “[A] relationship cannot be determined by reference to formal status alone. Accordingly, formal designation as a commander is not necessary for establishing command responsibility, as such responsibility may be recognised by virtue of a person’s de facto, as well as de jure, position as a commander.”

Aleksovski, (Trial Chamber), June 25, 1999, para. 76: “Superior responsibility is thus not reserved for official authorities. Any person acting de facto as a superior may be held responsible under Article 7(3). The decisive criterion in determining who is a superior according to customary international law is not only the accused’s formal legal status but also his ability, as demonstrated by his duties and competence, to exercise control. ‘[T]he factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. [F]ormal designation as a commander should not be considered to be a necessary prerequisite for superior responsibility to attach, as such responsibility may be imposed by virtue of a person’s de facto, as well as de jure, position as a commander.’”

Blaskic, (Trial Chamber), March 3, 2000, para. 300: “[I]n order for Article 7(3) of the Statute to apply, the accused must be in a position of command. This principle is not limited to individuals formally designated commander but also encompasses both de facto and de jure command.”

(h) degree of de facto authority must be equivalent to de jure authority

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 416: “The Appeals Chamber [in Mucic et al.] found that the degree of de facto authority or powers of control required under the doctrine of superior responsibility is equivalent to that required based upon de jure authority: Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts.”

(2) two or more superiors may be held responsible

Krnojelac, (Trial Chamber), March 15, 2002, para. 93: “Two or more superiors may be held responsible for the same crime perpetrated by the same individual if it is established that the principal offender was under the command of both superiors at the relevant time.”

Blaskic, (Trial Chamber), March 3, 2000, para. 303: “[T]he test of effective control exercised by the commander implies that more than one person may be held responsible for the same crime committed by a subordinate.”

(3) application to civilian leaders: test of effective control

Mucic et al., (Trial Chamber), November 16, 1998, para. 377-378: “[I]t is . . . the Trial Chamber’s conclusion that a superior, whether military or civilian, may be held liable under the principle of superior responsibility on the basis of his de facto position of authority. . . .” “[I]n order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character . . . the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 415-416: “While civilians occupying positions of authority in relation to a portion of a territory may be held responsible under the principle of superior responsibility, they will incur criminal responsibility only if they are found to possess the necessary powers of control over the actual perpetrators.” “[A] government official will only be held liable under the doctrine of command responsibility if he was part of a superior-subordinate relationship, even if that relationship is an indirect one. Even though arguably effective control may be achieved through substantial influence, a demonstration of such powers of influence will not be sufficient in the absence of a showing that he had effective control over subordinates, in the sense of possessing the material ability to prevent subordinate offences or punish subordinate offenders after the commission of the crimes. A showing that the official merely was generally an influential person will not be sufficient.”

Compare Aleksovski, (Trial Chamber), June 25, 1999, para. 78: “[A] civilian must be characterised as a superior pursuant to Article 7(3) if he has the ability de jure or de facto to issue orders to prevent an offence and to sanction the perpetrators thereof.” “A civilian’s sanctioning power must however be interpreted broadly.” “It cannot be expected that a civilian authority will have disciplinary power over his subordinate equivalent to that of the military authorities in an analogous command position.” “[T]he superior’s ability de jure or de facto to impose sanctions is not essential. The possibility of transmitting reports to the appropriate authorities suffices once the civilian authority, through its position in the hierarchy, is expected to report whenever crimes are committed, and that, in the light of this position, the likelihood that those reports will trigger an investigation or initiate disciplinary or even criminal measures is extant.”

ii) mental state (mens rea) (element 2)

Blaskic, (Trial Chamber), March 3, 2000, para. 294: The second element is that “the accused knew or had reason to know that the crime was about to be or had been committed. . . .”

(1) actual knowledge

(a) knowledge may be proven through direct or circumstantial evidence

Blaskic, (Trial Chamber), March 3, 2000, para. 307: “Knowledge may not be presumed. However, ‘knowledge’ may be proved through either direct or circumstantial evidence.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 427: “Actual knowledge, which may be defined as the awareness that the relevant crimes were committed or were about to be committed, may be established through direct or circumstantial evidence. Circumstantial evidence will allow for an inference that the superior ‘must have known’ of subordinates’ criminal acts.”

(b) evidence required to demonstrate actual knowledge may differ based on position of authority

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 428: “Depending on the position of authority held by a superior, whether military or civilian, de jure or de facto, and his level of responsibility in the chain of command, the evidence required to demonstrate actual knowledge may be different. [T]he actual knowledge of a military commander may be easier to prove considering the fact that he will presumably be part of an organised structure with established reporting and monitoring systems. In the case of de facto commanders of more informal military structures, or of civilian leaders holding de facto positions of authority, the standard of proof will be higher.”

Blaskic, (Trial Chamber), March 3, 2000, para. 308: “[A]n individual’s command position per se is a significant indicium that he knew about the crimes committed by his subordinates.”

(c) the more physically distant the superior was from the commission of the crimes, the more additional indicia are necessary

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 72: “Considering geographical and temporal circumstances . . . the more physically distant the superior was from the commission of the crimes, the more additional indicia are necessary to prove that he knew of the crimes. On the other hand, if the crimes were committed next to the superior’s duty-station this suffices as an important indicium that the superior had knowledge of the crimes, even more if the crimes were repeatedly committed.”

(d) other indicia of knowledge

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 427: “[T]he indicia [for determining when circumstantial evidence will allow for an inference that the superior ‘must have known’ of the subordinates’ criminal acts] listed by the United Nations Commission of Experts may be used when making such a determination: the number, type, and scope of illegal acts; the time during which they occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; their widespread occurrence; the tactical tempo of operations; the modus operandi of similar illegal acts; the officers and staff involved and the location of the commander at that time.”

(2) reason to know

(a) analyze whether superior had information which would put him on notice

Mucic et al., (Appeals Chamber), February 20, 2001, para. 222-241: “A showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he ‘had reason to know.’ As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. Finally, the relevant information only needs to have been provided or available to the superior, or . . . ‘in the possession of.’ It is not required that he actually acquainted himself with the information. [A]n assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question.” “[A] superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates.”

(b) commander who exercises due diligence distinguished from situation where the absence of knowledge results from negligence

Blaskic, (Trial Chamber), March 3, 2000, para. 332: “[I]f a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties. . . .”

iii) the failure of the superior to take the necessary and reasonable measures to prevent or punish (element 3)

Blaskic, (Trial Chamber), March 3, 2000, para. 294: The third element is that “the accused failed to take the necessary and reasonable measures to prevent the crime or punish the perpetrator thereof.”

(1) measures required are limited to what is feasible, but commander must use every means in his power

Krnojelac, (Trial Chamber), March 15, 2002, para. 95: “The measures required of the superior are limited to those which are feasible in all the circumstances and are ‘within his power.’ A superior is not obliged to perform the impossible. However, the superior has a duty to exercise the powers he has within the confines of those limitations.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 441, 445: “Article 7(3) of the Statute establishes a duty to prevent a crime that a subordinate was about to commit or to punish such a crime after it is committed, by taking ‘necessary and reasonable measures.’” “[A] superior has discharged his duty to prevent or punish if he uses every means in his powers to do so. Such a determination will be based on the circumstances of each case.”

(2) degree of effective control will determine what is required

Blaskic, (Trial Chamber), March 3, 2000, para. 335: “[I]t is a commander’s degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator. [T]his implies that, under some circumstances, a commander may discharge his obligation to prevent or punish by reporting the matter to the competent authorities.”

(3) cannot make up for failure to prevent crime by punishing subordinates afterwards

Blaskic, (Trial Chamber), March 3, 2000, para. 336: “[T]he obligation to ‘prevent or punish’ does not provide the accused with two alternative and equally satisfying options. Obviously, where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards.”

(4) when duties arise

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 445-446: “The duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate crime if he acquires knowledge that such a crime is being prepared or planned, or when he has reasonable grounds to suspect subordinate crimes.” “The duty to punish naturally arises after a crime has been committed. Persons who assume command after the commission are under the same duty to punish.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 317: “Action is required on the part of the superior from the point at which he ‘knew or had reason to know’ of the crimes committed or about to be committed by subordinates.”

(5) what the duty to punish entails

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 446: “This duty includes at least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities, if the superior does not have the power to sanction himself.”

(6) superior need not be the person who dispenses punishment, but must take important step in disciplinary process

Kvocka et al., (Trial Chamber), November 2, 2001, para. 316: “The superior does not have to be the person who dispenses the punishment, but he must take an important step in the disciplinary process.”

(7) civilian superiors are under similar obligations

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 446: “Civilian superiors would be under similar obligations [as military superiors regarding the duty to prevent or punish], depending upon the effective powers exercised and whether they include an ability to require the competent authorities to take action.”

c) Superior responsibility is not a form of strict liability

Mucic et al., (Appeals Chamber), February 20, 2001, para. 197, 239: “The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates. A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates, and a failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine.” “[C]ommand responsibility is not a form of strict liability. A superior may only be held liable for the acts of his subordinates if it is shown that he ‘knew or had reason to know’ about them. The Appeals Chamber would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 369: “Liability under Article 7(3) is based on an omission as opposed to positive conduct. It should be emphasised that the doctrine of command responsibility does not hold a superior responsible merely because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he ‘knew or had reason to know’ of the offences and failed to act to prevent or punish their occurrence. Superior responsibility, which is a type of imputed responsibility, is therefore not a form of strict liability.”


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February 2004