Command Responsibility

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ACTS OF OMISSION
If an accused reported crimes to appropriate authorities, but these authorities did not
handle the case(s) properly, the ICTY Trial Chamber in Popović et al. held:
“Even if, in fact, the investigation undertaken was not satisfactory, if the failure
of the investigating authorities was not attributable to the superior, and he or she
did not know of their failure, or could not anticipate it at the time, the superior
cannot be held responsible under Article 7(3). No further reporting or action is
required in such a case.” 411
Similarly, the Trial Chamber held that a superior was not being required to report crimes,
“[…] when the most which could be done by a superior would be to report the
illegal conduct of subordinates to the very persons who had ordered it.” 412
Publicists
Schabas describes how to identify necessary and reasonable measures as follows:
“The identification of what constitutes necessary and reasonable measures is to
be made in light of what is within the ‘material possibility’ of the commander, 413
bearing in mind ‘the superior’s degree of effective control over his forces at
the time his duty arises. This suggests that what constitutes a reasonable and
necessary measure will be assessed on the basis of the commander’s de jure
power as well as his de facto ability to take such measures.’ 414 ” 415
Nybondas summarises the ICTY case law on necessary and reasonable measures as
follows:
“[…] The Čelebići Trial Chamber pointed out that a failure on the part of the
superior cannot amount to strict liability, liability in all cases regardless of
whether the superior in fact had a possibility to prevent or punish the crimes. 416
The definition recognises that a superior can be expected to take the necessary
and reasonable measures to prevent or punish crimes by his subordinates.
Accordingly, in the opinion of the Blaškić Trial Chamber, ‘it is a commander’s
degree of effective control, his material ability, which will guide the Trial Chamber
in determining whether he reasonably took the measures required either to
prevent the crime or to punish the perpetrator.’ 417 It has also been recognised
that a determination in abstracto of the meaning of the terms ‘necessary’ and
‘reasonable’ is not desirable and should be done separately for each case. 418 ” 419
410 ICTY, Boskoski and Tarculovski, AC, Appeal Judgement, Case No. IT-04-82-A, 19 May 2010, para. 234.
411 ICTY, Popovic et al., TC II, Judgement, Case No. IT-05-88-T, 10 June 2010, para. 1046; with reference to ICTY, Boskoski and Tarculovski, TC II,
Judgement, Case No. IT-04-82-T, 10 July 2008, para. 536.
412 Ibid., para. 1046; with reference to the ICTY, Krnojelac, TC II, Judgement, Case No. IT-97-25-T, 15 March 2002, para. 127, which has not been challenged
on appeal.
413 ICTY, Blaskic, AC, Appeal Judgement, Case No. IT-95-14-A, 29 July 2004, para. 395.
414 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 443.
415 William Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010, p. 464.
416 ICTY, Mucic et al. (“Celebici”), TC, Judgement, Case No. IT-96-21-T, 16 November 1998, para. 383.
417 ICTY, Blaskic, TC, Judgement, Case No. IT-95-14-T, 3 March 2000, para. 335.
CMN ICJ Toolkits Project
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