Command Responsibility

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INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY bring the perpetrators to justice. 429 In all cases when superior responsibility charges are brought, measures relevant to assessing the criminal responsibility of the accused are limited to those which are ‘feasible in all the circumstances and are “within his power”’. 430 ” 431 Meloni recapitulates the ICC’s understanding of the duty to repress as follows: “The Pre-Trial Chamber [in Bemba] acknowledged that the duty to repress is a twofold concept, in the sense that it encompasses two different duties arising at two different stages of the commission of the crimes. 432 ‘First, the duty to repress includes a duty to stop ongoing crimes from continuing to be committed.’ 433 Here the duty in question would be equivalent to the duty ‘to suppress’ crimes, which was used in Article 87(1) Add. Prot. Ito the Geneva Conventions.’ 434 In other words it would be the superior’s duty to ‘interrupt a possible chain effect, which may lead to other similar events’. 435 In this first meaning the duty to repress can thus be substantially likened to the duty to prevent. Second, in the view of the judges, ‘the duty to repress encompasses an obligation to punish forces after the commission of crimes.’ 436 Instead, the duty to submit the matter to the competent authorities comes into play only in those cases in which the superior did not possess other powers of intervention, and in particular the power to punish, typical of the military sphere.’ 437 The provision of the latter duty by Article 28 ICC Statute is an innovation compared to the previous norms on command responsibility […].” 438 Regarding disciplinary sanctions, Cryer et al. consider that: “[…] There are certain circumstances in which the possibility that the duty to punish may be fulfilled by the use of disciplinary sanctions rather than criminal prosecutions ‘cannot be excluded’, 439 but, for international crimes, these will be rare: 440 What can be expected of irregular groups in regard to punishment is a further complicating factor, although not an insuperable one. 441 ” 442 Regarding the duty to submit to the competent authorities, Ambos notes: 429 ICTY, Strugar, TC II, Judgement, Case No. IT-01-42-T, 31 January 2005, para. 378. 430 ICTY, Krnojelac, TC II, Judgement, Case No. IT-97-25-T, 15 March 2002, para. 95 […]; ICTY, Mucic et al. (“Celebici”), AC, Appeal Judgement, Case No. IT-96-21-A, 20 February 2001, para. 226. 431 Mettraux, 2009, p. 235, supra note 421. 432 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 439 […]. 433 Ibid. 434 Ibid.. 435 Ibid., […]. 436 Ibid. 437 Reference is made to all those superiors who do not possess the disciplinary powers necessary for taking a decision directly in order to punish the culprits of the breaches. The superior can thus only submit the matter to the competent authorities for action to be taken. 438 Meloni, 2010, p. 169, supra note 424. 439 ICTY, Hadzihasanovic and Kubura, AC, Appeal Judgement, Case No. IT-01-47-A, 22 April 2008, para. 33. 440 Ibid., paras. 149-55. As this case notes though, if matters are referred on, it will not always be determinative that those authorities do not take sufficient action. 441 See Sivakumaran, 2012, pp. 1144-1150 […], supra note 420. 442 Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Cambridge University Press, 2014, p. 392. 116 CASE MATRIX NETWORK
8 ACTS OF OMISSION “[…] the formulation ‘submit to the competent authorities’ is new; however, it corresponds in substance to the earlier ‘report’ requirement. It fills a gap in that it formulates a specific duty for those superiors who have themselves no disciplinary powers to ‘repress’ a crime.” 443 Finally, with respect to the contemporaneity between the effective control and the failure to fulfill his/her duties, Schabas recaps the ad hoc tribunals’ case law as follows: “[…] Two views have emerged with respect to the requirement that the control be exercised at the time of the offence, with the majority view requiring effective control at the time of commission of the crime, 444 with a minority of judges at the International Criminal Tribunal for the former Yugoslavia as well as a Trial Chamber of the Special Court for Sierra Leone taking the view that the ‘superior must have had effective control over the perpetrator at the time at which the superior is said to have failed to exercise his powers to prevent or to punish.’ 445 Trial Chamber II considered that the suspect must have had effective control ‘at least when the crimes were about to be committed’. 446 It said the phrase ‘as a result of his or her failure to exercise control properly over such forces ...in article 28(1), suggests that the superior was already in control before the crimes were committed.” 447 443 Ambos, 2002, p. 862, supra note 422. 444 ICTY, Halilovic, AC, Appeal Judgement, Case No. IT-01-48-A, 16 October 2007, para. 59; ICTR, Bagosora et al., TC I, Judgement, Case No. ICTR-98- 41-T, 18 December 2008, para. 2012. 445 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 418, citing ICTY, Oric, AC, Appeal Judgement, Case No. IT-03-68-A, 3 July 2008, Declaration of Judge Shahabuddeen; Partially Dissenting Opinion and Declaration of Judge Liu, 3 July 2008; SCSL, Sesay et al., TC I, Judgement, Case No. SCSL-04-15-T, 2 March 2009, para. 299. 446 Ibid., para. 419. 447 Schabas, 2010, p. 461, supra note 415. CMN ICJ Toolkits Project 117
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