Command Responsibility

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INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY The perpetrator had effective command and control: OR The perpetrator had effective authority and control 1.3.1.3. Causation and Acts of Omission The next cluster of legal requirements can be defined as the key material elements that describe the criminal conduct of the accused. In the case of command responsibility it is an omission. ICC Art.28(a) describes the first act of omission as a “failure to exercise control properly over the forces”, which has resulted in forces committing crimes within the jurisdiction of the Court. The crimes committed by the forces resulted from the perpetrator’s failure to exercise control properly over forces. Secondly, Art.28(a) requires one of three specific acts of omission to: (a) “prevent” (b) “repress” or (c) initiate “investigation and prosecution”: The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution. The perpetrator failed to take the necessary and reasonable measures within his or her power the prevent the commission of such crime; OR The perpetrator failed to take the necessary and reasonable measures within his or her power to repress the commission of such crime; OR The perpetrator failed to take the necessary and reasonable measures within his or her power to submit the matter to the competent authorities for investigation and prosecution 10 CASE MATRIX NETWORK
1 INTRODUCTION 1.3.1.4. Mens Rea As a general rule, ICC Art.30 shall be applicable to establish the mens rea, unless otherwise provided in the Rome Statute and/or the Elements of Crimes. The material elements of ICC Art.28(a) on command responsibility, however, clearly defines that the failure of the commander to exercise his powers properly shall lead to criminal liability. Accordingly, ICC Art.28(a) provides an exemption from the mens rea requirements of Art.30, which requires both intent and knowledge. The key mens rea requirement for command responsibility is that accused “knew” or “should have known” about the criminal acts. This specific mental element refers to both the commander’s “failure to exercise control properly over the forces” (causation) and the acts of omission (acts of omission) specifically to (a) “prevent” (b) “repress” or (c) initiate “investigation and prosecution”: The perpetrator either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit one or more of the crimes The perpetrator knew that the forces were committing or about to commit one or more of the crimes; OR The perpetrator should have known that the forces were committing or about to commit one or more of the crimes It remains unclear whether the knowledge component of ICC Art.30 will be applicable to the first three material elements of command responsibility. These could, for example, add an additional mental requirement that the accused “knew” or “should have known” that she/ he had effective authority and control over the force that committed the crime. This can be particularly relevant for an accused that had no formal military rank but who was effectively acting as a military commander. 1.3.2. International Legal Instruments (section 2) <strong>Command</strong> responsibility is codified in at least thirteen international legal instruments, including the Statutes of the ad hoc Tribunals and the ICC. This section uses the six legal requirements of command responsibility as codified under ICC Art.28(a) as a comparative framework in order to identify the shifts in the definition of command responsibility in international legal instruments. This serves as a primer to sections 6 to 13, where quotations from international case law and publicists are organised according to the distinct legal requirements of ICC Art.28(a). 1.3.3. International Jurisprudence and Publicists (Sections 3 – 9) Sections 4 to 9 are divided according to the six legal requirements (and alternative components) to be proven in order for command responsibility to arise under ICC Art.28(a). Section 3 follows the same methodology but is introductory in nature. Although the elements CMN ICJ Toolkits Project 11
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Command Responsibility

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