Command Responsibility

INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
into the allegations at the time, as he had previously done during the first week
of the 2002-2003 intervention in the CAR (although the measure was not
proportionate). Yet, he failed to do so since the beginning of November 2002
throughout the remaining period of intervention. Thus, sending a letter to the
United Nations to request an international investigation, let alone two months
after the beginning of the intervention, is in the Chamber’s opinion neither a
necessary nor a reasonable a measure.” 349
To affirm a failure to take measures, all possible necessary and reasonable measures and
all measures taken are to be ascertained. In Nahimana et al., where the accused did not
take any measures at all, the ICTR Appeals Chamber held:
“Having found that Appellant [Nahimana] had the power to prevent or punish
the broadcasting of criminal discourse by RTLM [Radio Télévision Libre des
Mille Collines], the Trial Chamber did not need to specify the necessary and
reasonable measures that he could have taken. It needed only to find that the
Appellant had taken none.” 350
In Bagosora et al., the ICTR Trial Chamber found that the accused:
“[…] failed in his duty to prevent the crimes because he in fact participated
in them. There is absolutely no evidence that the perpetrators were punished
afterwards.” 351
As highlighted by the ICTR Trial Chamber in the Ntagerura et al. Judgement, the burden
of proving the accused’s failure lies with the Prosecution:
“The Chamber finds that the Prosecutor did not prove beyond a reasonable
doubt that Bagambiki failed to take necessary and reasonable measures to
punish Kamana for his role in the massacre. The Chamber notes that Bagambiki
suspended Kamana, which was the extent of the disciplinary measures available
to a prefect under the law on the organisation of the commune. A bourgmestre’s
suspension involves a disciplinary proceeding allowing the bourgmestre to
explain his actions and appeal to higher authorities. As such, a suspension is one
component of a larger process involving authorities in addition to and beyond
the prefect. The Chamber has no evidence about what followed the suspension
or if Bagambiki took other actions as well. The Prosecutor submitted no evidence
indicating what other possible forms of punishment were available to Bagambiki,
as prefect, and indicating that Bagambiki failed to take these measures.” 352
349 Ibid., para. 498.
350 ICTR, Nahimana et al., AC, Appeal Judgement, Case No. ICTR-99-52-A, 28 November 2007, para. 792.
351 ICTR, Bagosora et al., TC I, Trial Judgement, Case No. ICTR-98-41-T, 18 December 2008, para. 2040 (Bagosora), para. 2067 (Ntabakuze), and para.
2083 (Nsengiyumva).
352 ICTR, Ntagerura et al., TC III, Judgement, Case No. ICTR-99-46-T, 25 February 2004, para. 650 (footnotes omitted).
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