Command Responsibility

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INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY for carrying out this task. In this respect, commanders have a duty to disseminate those rules and to include the study thereof in their programmes of military instruction. Legal advisers must be available to advise military commanders on the instruction to be given to the armed forces on the subject of the application of the Conventions and Additional Protocol I. The purpose of such instruction is to ensure that the members of the armed forces under their command are aware of their obligations under the Conventions and Additional Protocol I.” 381 For the specific obligation to prevent crimes, the Trial Chamber in Halilović stated that: “[…] the duty to prevent entails in a particular case will depend on the superior’s material ability to intervene in a specific situation.” 382 Moreover, the Trial Chamber found that: “[…] the preventative element of the duty to prevent attaches where the subordinate ‘was about to commit such acts’, but before the actual offence has been committed.” 383 In Strugar, the Trial Chamber held: “[…] an accused cannot avoid the intended reach of the provision by doing nothing, on the basis that what he knows does not make it entirely certain that his forces were actually about to commit offences, when the information he possesses gives rise to a clear prospect that his forces were about to commit an offence. In such circumstances the accused must at least investigate, i.e. take steps inter alia to determine whether in truth offences are about to be committed, or indeed by that stage have been committed or are being committed.” 384 With respect to factors relevant to assess required measures to meet the duty to prevent, the ICC Pre-Trial Chamber in the Bemba Confirmation of Charges Decision found: “Article 28 of the Statute does not define the specific measures required by the duty to prevent crimes. In this context, the Chamber considers it appropriate to be guided by relevant factors such as measures: (i) to ensure that superior’s forces are adequately trained in international humanitarian law; (ii) to secure reports that military actions were carried out in accordance with international law; (iii) to issue orders aiming at bringing the relevant practices into accord with the rules of war; (iv) to take disciplinary measures to prevent the commission of atrocities by the troops under the superior’s command.” 385 On the other hand, in Karemera et al. the ICTR Trial Chamber found that one of the accused, Ngirumpatse, failed to prevent the crimes because he did not take the right actions to prevent the crimes from being committed: 381 Ibid., para. 145 (footnotes omitted), referring to ICRC Commentary on Additional Protocol I, Art. 87, paras. 3550 and 3557. 382 ICTY, Halilovic, TC I, Judgement, Case No. IT-01-48-T, 16 November 2005, para. 89. 383 Ibid, para. 90; confirmed by ICTY, Oric, TC II, Judgement, Case No. IT-03-68-T, 30 June 2006, paras. 330-331. 384 ICTY, Strugar, TC II, Judgement, Case No. IT-01-42-T, 31 January 2005, para. 415; confirmed by ICTY, Halilovic, TC I, Judgement, Case No. IT-01-48-T, 16 November 2005, para. 90. 385 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 438; citing, a.o., ICTY, Strugar, TC II, Judgement, Case No. IT-01-42-T, 31 January 2005, para. 374; and ICTY, Hadzihasanovic and Kubura, TC, Judgement, Case No. IT-01-47-T, 15 March 2006, para. 153. 106 CASE MATRIX NETWORK
8 ACTS OF OMISSION “In light of these circumstances, the Chamber considers that the necessary and only reasonable measure for preventing mass killings by the Kigali Interahamwe would have been to take any step that delivered the unequivocal message that the Interahamwe should stop massacring innocent Tutsi civilians immediately. Instead, Ngirumpatse chose to either use unreasonably vague language that completely ignored the unfolding genocide being perpetrated by his subordinates, or make unreasonably abstract requests that killings be stopped. Instead of ordering the Kigali Interhamwe to immediately stop massacring innocent Tutsi civilians, Ngirumpatse, the individual with ultimate authority over this group, squandered his first opportunity to prevent the killings by deliberately restricting his address to comments like: ‘opt for the path of security;’ ‘see to other people’s security;’ ‘leave the roads;’ ‘thieves should stop stealing;’ ‘instead of doing evil… provide security for others, especially the weak ones;’ ‘we have dispatched people…to free the roads so that they could provide security for others instead of robbing and attacking them;’ ‘we should fight those who attack us…not those who are not armed;’ and ‘members must know that those…attacking them are the Inkotanyi…not the ordinary citizen.’” 386 According to the ICTR Appeals Chamber in Bagosora and Nsengiyumva, “However, the paragraphs relied upon by the Trial Chamber as a basis for Nsengiyumva’s convictions charged pursuant to Article 6(3) of the Statute either allege that the crimes were committed on Nsengiyumva’s orders, 387 or with his authorisation. 388 This, in the Appeals Chamber’s opinion, gave sufficient notice to Nsengiyumva of the conduct by which he was alleged to have failed to take the necessary measures to prevent or punish the crimes.” 389 8.2. The perpetrator failed to take the necessary and reasonable measures within his or her power to repress the commission of such crime; OR Keywords/Summary Separate Form of Liability – Duty to Repress vs Duty to Punish – Temporal Framework – Temporal Trigger Point – Minimum Standard – Referring the Matter to the Competent Authorities – Disciplinary Measures - Obligation to Investigate International Case Law According to the ICTR Trial Chamber in Bagilishema, the failure to punish may spring from a failure to create or sustain an environment of discipline and respect for the law: 386 ICTR, Karemera and Ngirumpatse, TC III, Judgement, Case No. ICTR-98-44-T, 2 February 2012, paras. 1564-1565. 387 See ICTR, Nsengiyumva, Indictment, Case No. IT-01-69-I, 10 August 2001, paras. 6.16, 6.20, 6.22, and 6.36. 388 See Particulars, para. 6.20. 389 ICTR, Bagosora and Nsengiyumva, Appeal Judgement, 14 December 2011, para. 207. CMN ICJ Toolkits Project 107
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Command Responsibility

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