Command Responsibility

3. Introduction
to Command Responsibility
3.1. ICC Art 28(a): Elements of command responsibility
according to the ad hoc tribunals and the ICC
Keywords/Summary
Elements of Command Responsibility – Material Facts
International Case Law
Following an in-depth assessment of the recognition of superior responsibility in
international law, 47 the ICTY Trial Chamber in Mucić et al. (“Čelebići”) concluded that:
“[…] the principle of individual criminal responsibility of superiors for failure to
prevent or repress the crimes committed by subordinates forms part of customary
international law.” 48
On the elements of command responsibility under the ICTY Statute, the Trial Chamber in
Čelebići also held that:
“From the text of Article 7(3) it is thus possible to identify the essential elements
of command responsibility for failure to act as follows:
(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to
be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent
the criminal act or punish the perpetrator thereof.” 49
With regard to the material facts that the Prosecution must plead to establish superior
responsibility under Article 6(3) of the ICTR Statute, the Trial Chamber in Ndindiliyimana
et al. reiterated that:
“[w]here superior responsibility is alleged, the Prosecution should plead the
following material facts: (1) the relationship of the accused to his subordinates;
(2) the acts and crimes of his alleged subordinates; (3) the criminal conduct of the
accused by which he may be found to have known or had reason to know that the
47 ICTY, Mucic et al. (“Celebici”), TC, Judgement, Case No. IT-96-21-T, 16 November 1998, paras. 333- 343.
48 Ibid., para. 343, Blaskic, TC, Judgement, Case No. IT-95-14-T, 3 March 2000, para. 290.
49 Ibid., para. 346.
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