Command Responsibility

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INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY the superior on notice of crimes committed or about to be committed. The superior may not be held liable for failing to acquire such information in the first place. However, it suffices for the superior to be in possession of sufficient information, even general in nature, written or oral, of the likelihood of illegal acts by subordinates. The superior need only have notice of a risk that crimes might be carried out and there is no requirement that this be a strong risk or a substantial likelihood. It is clear from the case law referred to above that negligence is insufficient to attribute imputed knowledge, and that a superior cannot be held liable for having failed in his duty to obtain information in the first place. What is required is the superior’s awareness of information which should have prompted him or her to acquire furtherknowledge. Responsibility pursuant to Article 6(3) of the Statute will attach when the superior remains wilfully blind to the information that is available to him.” 492 In the Bemba Confirmation of Charges Decision, however, the ICC Pre-Trial Chamber held that: “The ‘should have known standard requires the superior to ‘ha[ve] merely been negligent in failing to acquire knowledge’ of his subordinates’ illegal conduct. [..] [I]t is the Chamber’s view that the ‘should have known’ standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime. The drafting history of this provision reveals that it was the intent of the drafters to take a more stringent approach towards commanders and military-like commanders compared to other superiors that fall within the parameters of article 28(b) of the Statute. This is justified by the nature and type of responsibility assigned to this category of superiors.” 493 The Pre-Trial Chamber also found that: “[T]he ‘had reason to know’ criterion embodied in the statutes of the ICTR, ICTY and SCSL sets a different standard to the ‘should have known’ standard under article 28 (a) of the Statute. However, despite such a difference, which the Chamber does not deem necessary to address in the present decision, the criteria or indicia developed by the ad hoc tribunals to meet the standard of ‘had reason to know’ may also be useful when applying the ‘should have known’ requirement. [..] [T]he suspect may be considered to have known, if inter alia, and depending on the circumstances of each case: (i) he had general information to put him on notice of crimes committed by subordinates or of the possibility of occurrence of the unlawful acts; and (ii) such available information was sufficient to justify further inquiry or investigation. The Chamber also believes that failure to punish past crimes committed by the same group of subordinates may be an indication of future risk.” 494 In the Brđanin case, the Trial Chamber held that: 492 SCSL, Taylor, TC II, Judgement, Case No. SCSL-O3-01-T, 18 May 2012, paras. 498-499. 493 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, paras. 432-433. 494 Ibid., para. 434 (footnotes omitted). 130 CASE MATRIX NETWORK
9 MENS REA “It is therefore necessary to distinguish between the mens rea required for the crimes perpetrated by the subordinates and that required for the superior. [...] If the elements dictated by Article 7(3) are fulfilled, there is no reason why superiors should not be convicted pursuant to Article 7(3) for genocide; genocide is, after all, the crime with which the superiors associated themselves with, through the deliberate failure to carry out their duty to exercise control.” 495 Publicists According to Martinez, by the end of the post-World War II trials: “[…] a consensus had emerged that liability could be imposed for a leader’s failure to act in the context of actual knowledge of crimes by subordinates; the finding of actual knowledge could be based on either express evidence of knowledge, or inferential proof of knowledge based on the widespread nature of the offences.” 496 Ambos notes that two mens rea standards were maintained: “[…] the tribunal in the High Command case clearly rejected Yamashita, applying instead a standard of positive knowledge, while the Tribunal in the Hostage case opted for a should-have-known standard based on the concrete information received by the superior.” 497 Martinez also points out to two mens rea standards: “[…] Significantly, almost all of the [post-World War II trials] also suggested that, even in the absence of proof of actual knowledge, a culpable failure to obtain information about the conduct of subordinates might suffice. The scope of the latter category was still unclear, as to the scope of the duty to obtain information about subordinates, as to what level of awareness of risk was required to trigger the duty of investigation, and as to the attitude that must accompany a culpable failure to inquire. Some decisions had suggested ‘negligence or supineness’ might be enough while others had required a ‘wanton, immoral disregard’, and still others suggested that ‘constructive’ knowledge would be imputed to the commander where crimes were extremely widespread regardless of whether he had actual knowledge.” 498 With respect to a presumption of knowledge due to a commander’s position, Nybondas comments: “[…] if there is no direct evidence of the knowledge, it may not be presumed 495 ICTY, Brdanin, TC II, Judgement, Case No. IT-99-36-T, 1 September 2004, para. 720. 496 Jenny S. Martinez, “Understanding Mens Rea in Command Responsibility From Yamashita to Blaskic and Beyond”, in Journal of International Criminal Justice, 2007, 5, no. 3, p. 652. 497 Kai Ambos, “Superior Responsibility”, in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, p. 830 (footnote omitted). 498 Martinez, 2007, p. 652-653 (footnotes omitted), supra note 496. 499 ICTY, Aleksovski, TC, Judgement, Case No. IT-95-14/1-T, 25 June 1999 para. 80. CMN ICJ Toolkits Project 131
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Command Responsibility

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