Command Responsibility

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INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY The distinction between the two duties was affirmed by the ICTY Trial Chamber in Hadžihasanović and Kubura: “Tribunal case law has clearly established that Article 7(3) of the Statute distinguishes between two different duties of a superior. The Trial Chamber in Strugar recently reaffirmed this distinction unambiguously by holding that Article 7(3) does not provide a superior with two alternative options but contains two distinct legal obligations: (1) to prevent the commission of the crime and (2) to punish the perpetrators. The duty to prevent arises for a superior from the moment he acquires knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed, while the duty to punish arises after the commission of the crime.” 355 The relationship between the duty to prevent and the duty to punish has been described as ‘consecutive’, ‘distinct’ and ‘related’ by the Trial Chamber in Orić: “The superior’s obligations are instead consecutive: it is his primary duty to intervene as soon as he becomes aware of crimes about to be committed, while taking measures to punish may only suffice, as substitute, if the superior became aware of these crimes only after their commission. Consequently, a superior’s failure to prevent the commission of the crime by a subordinate, where he had the ability to do so, cannot simply be remedied by subsequently punishing the subordinate for the crime. Therefore, the failure to prevent or to punish constitutes two distinct, but related, aspects of superior responsibility, which correlate to the timing of a subordinate’s commission of a crime. Hence, the duty to prevent concerns future crimes whereas the duty to punish concerns past crimes of subordinates.” 356 Similarly, in Đorđević, the Trial Chamber underlined the fact that the duty to prevent and the duty to punish are not “alternative obligations.” 357 At the SCSL, the Trial Chamber in Sesay et al. held on the relationship between the duties to prevent and to punish: “Under Article 6(3), the superior has a duty both to prevent the commission of the offence and to punish the perpetrators. These are not alternative obligations – they involve different crimes committed at different times: ‘the failure to punish concerns past crimes committed by subordinates, whereas the failure to prevent concerns future crimes of subordinates.’ The duty to prevent arises from the time a superior acquires knowledge, or has reason to know that a crime is being or is about to be committed, while the duty to punish arises after the superior acquires knowledge of the commission of the crime. ‘A superior must act from the moment that he acquires such knowledge. His obligations to prevent will not 355 ICTY, Hadzihasanovic and Kubura, TC, Judgement, Case No. IT-01-47-T, 15 March 2006, para. 125, referring to ICTY, Strugar, TC II, Judgement, Case No. IT-01-42-T, 31 January 2005, para. 373. 356 ICTY, Oric, TC II, Judgement, Case No. IT-03-68-T, 30 June 2006, para. 326. 357 ICTY, Dordevic, TC II, Judgement, Case No. IT-05-87/1-T, 23 February 2011, para. 1888. 100 CASE MATRIX NETWORK
8 ACTS OF OMISSION be met by simply waiting and punishing afterwards.’” 358 However, the ICC Pre-Trial Chamber in the Bemba Confirmation of Charges Decision distinguished between three duties, which a suspect might have failed to meet: to prevent, to repress and/or to punish: “In order to find the suspect responsible under command responsibility, once the mental element is satisfied, it is necessary to prove that he or she failed at least to fulfill one of the three duties listed under article 28(a)(ii) of the Statute: the duty to prevent crimes, the duty to repress crimes or the duty to submit the matter to the competent authorities for investigation and prosecution.” 359 On the relationship between these duties, the ICC Pre-Trial Chamber held: “The Chamber first wishes to underline that the three duties under article 28(a) (ii) of the Statute arise at three different stages in the commission of crimes: before, during and after. Thus, a failure to fulfil one of these duties is itself a separate crime under article 28(a) of the Statute. A military commander or a military-like commander can therefore be held criminally responsible for one or more breaches of duty under article 28(a) of the Statute in relation to the same underlying crimes. Consequently, a failure to prevent crimes which the commander knew or should have known about cannot be cured by fulfilling the duty to repress or submit the matter to the competent authorities. 360 8.1. The perpetrator failed to take the necessary and reasonable measures within his or her power the prevent the commission of such crime; OR Keywords/Summary Any Stage before the Commission of a Crime – Limited Time to Perform it – Planning and Preparation – Arise when the <strong>Command</strong>er Knew or should have Known – Temporal Framework – Duty to Suppress – Foreseeable Reoccurrence of Crimes – General Obligation to Prevent – Specific Obligation to Prevent – Relevant Factors International Case Law With repect to the point in time at which the duty to prevent arises, the ICTY Trial Chamber in Kordić and Čerkez held: “The duty to prevent should be understood as resting on a superior at any stage 358 SCSL, Sesay et al., TC I, Judgement, Case No. SCSL-04-15-T, 2 March 2009, para. 314 (footnotes omitted), with references to ICTY-jurisdiction: ICTY, Blaskic, AC, Appeal Judgement, Case No. IT-95-14-A, 29 July 2004, para. 83; ICTY, Limaj et al., TC II, Judgement, Case No. IT-03-66-T, 30 November 2005, para. 527; ICTY, Kordic and Cerkez, TC, Judgement, Case No. IT-95-14/2-T, 26 February 2001, paras. 445-446; ICTY, Strugar, TC II, Judgement, Case No. IT-01-42-T, 31 January 2005, para. 373. 359 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 435. 360 Ibid., para. 436, citing ICTY, Delic, TC I, Judgement, Case No. IT-04-83-T, 15 September 2008, para. 69, and with further references. CMN ICJ Toolkits Project 101
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