Prosecuting International Crimes in Africa - PULP - University of ...

The contribution of the International Criminal Tribunal for Rwanda 89
Effective control requires a demonstration that the accused (superior) had
the material ability to prevent or punish the subordinate’s crimes (and the
crimes for which the accused (superior) is alleged to be responsible); (b) the
accused (superior) must have possessed knowledge or must have had
reason to know that the subordinates were about to commit or had
committed the crimes; and (c) the accused (superior) must have failed to
take the necessary and reasonable measures to prevent or punish the
crimes. 106
Prior to the jurisprudence of the ICTR and the ICTY there was very
limited elaboration of the content of the above elements underpinning
superior responsibility. The ICTR’s contribution to the elucidation of the
law may be seen in the following: firstly, the ICTR has construed and
applied the concept of command or superior responsibility beyond military
circles to include civilian authorities or superiors. It has held that, given the
terms of its statute (its use of ‘superior’ as opposed to ‘commander’)
superior responsibility also covers non-military superiors. 107 The ICTR
has underscored a case-by-case approach, underlining the criteria for
determining superior-subordinate relationship as being one of effective
control, which also turns on one’s material ability to prevent or punish the
commission of crimes by subordinates. 108
Secondly, while command or superior responsibility arises from
‘omissions,’ (as opposed to ‘direct’ personal participation), the ICTR has
clarified the essence of such responsibility as not being equivalent to mere
criminal negligence. In the Bagilishema case, 109 the Appeals Chamber
emphasised that a construction and application of superior responsibility
must not be approached from the premises of criminal negligence.
According to the Chamber, as opposed to liability based on mere
negligence, a superior or commander is held criminally culpable in relation
to his subordinates’ crimes for deliberately failing to perform his duties as
a superior or commander, or for culpably or willfully disregarding them,
despite him or her having knowledge of the subordinates’ crimes. 110 In the
words of the Chamber: 111
References to ’negligence’ in the context of superior responsibility are likely to
lead to confusion of thought, as the Judgment of the Trial Chamber in the
present case illustrates. The law imposes upon a superior a duty to prevent
crimes which he knows or has reason to know had been committed, but
subordinates over whom he has effective control. A military commander, or a
civilian superior, may therefore be held responsible if he fails to discharge his
106 Nahimana et al v Prosecutor para 484; Prosecutor v Gacumbitsi (n 87 above) para 143.
107 Prosecutor v Musema; Prosecutor v Kajelijeli (Case ICTR-98-44A-T) Judgment and
sentence 1 December 2003 para 85.
108 Nahimana et al v Prosecutor paras 484 & 788; Prosecutor v Ntagerura et al (Case ICTR-99-
46-A) (AC) para 341.
109 Prosecutor v Bagilishema (Case ICTR-95-1A-A) Judgment 3 July 2002.
110 Prosecutor v Bagilishema para 35.
111 As above.