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

90 Chapter 3
duties as a superior either by deliberately failing to perform them or by
culpably or willfully disregarding them.
In discouraging reference to ‘negligence’ 112 when dealing with command
or superior responsibility, the Appeals Chamber also pointed to the fact
that before an accused is convicted under superior or command
responsibility, it must be established that he knew or had reason to know
that his subordinates were about to commit or had committed the crimes,
and took no action. According to the Chamber, ‘the test for criminal
negligence (…) cannot be the same as the ‘had reason to know’ test in
terms of Article 6(3) of the Statute’. 113
It follows from the above that a superior’s failing to discharge his
obligations is a very serious failing that must attract serious penal
consequences. In subsequent ICTR and ICTY cases, the Tribunals stressed
that the fact that an accused is convicted for crimes pursuant to superior
responsibility does not mean that he must get a light sentence. An ICTY
judgment expressed this strongly ‘[i]t would constitute a travesty of justice
and an abuse of the concept of command authority to allow the calculated
dereliction of duty to operate as a factor in mitigation of criminal
responsibility’. 114
The jurisprudence has also accentuated that while an accused may not
be convicted under both articles 6(1) and 6(3) for ‘superior responsibility,’
and that conviction may only be entered under article 6(1), the accused’s
article 6(3) responsibility is to be taken into account as an aggravating
factor in sentencing. 115
9 Other issues
In addition to the issues discussed thus far, the Tribunal has addressed
several other issues related to the substantive, procedural and evidentiary
aspects of international criminal law. However, only a brief commentary
is possible. Firstly, the ICTR has dealt with immunity attaching to state
officials. The ICTR was the first international criminal tribunal to
prosecute and convict a former state official, Jean Kambanda, for genocide
and other violations of international humanitarian law. The judgment sent
a clear message that immunities, such as those enjoyed state officials,
cannot be invoked as defences to international crimes, or as barring
international criminal tribunals from exercising jurisdiction over state
112 The Appeals Chamber did not detail the distinction between ‘negligence’ and acting
‘deliberately’, but see Prosecutor v Strugar (Case IT-01-42-A) Judgment 17 July 2008 fn
670.
113 Prosecutor v Bagilishema para 37.
114 Prosecutor v Celebici (Case IT-96-21) Judgment 16 November 1998 para 125.
115 Prosecutor v Kajelijeli (Case ICTR-98-44A-A) 23 May 2005 para 317. For the ICTY, see
Prosecutor v Celebici (Case IT-96-21-A) 20 February 2001 para 745.