Command Responsibility

INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
crimes were about to be committed or had been committed by his subordinates;
and (4) the conduct of the accused by which he may be found to have failed to
take the necessary and reasonable measures to prevent the crimes or to punish
his subordinates thereafter […] these are material facts which must be pleaded
with a sufficient degree of specificity.” 50
In the Nyiramasuhuko et al. Judgement, the ICTR Trial Chamber also reiterated that:
“If the Prosecution intends to rely on the theory of superior responsibility to hold
an accused criminally responsible for a crime under Article 6 (3) of the Statute,
the Indictment should plead the following: (1) that the accused is the superior
of subordinates sufficiently identified, over whom he had effective control – in
the sense of a material ability to prevent or punish criminal conduct – and for
whose acts he is alleged to be responsible; (2) the criminal conduct of those
others for whom he is alleged to be responsible; (3) the conduct of the accused
by which he may be found to have known or had reason to know that the crimes
were about to be committed or had been committed by his subordinates; and (4)
the conduct of the accused by which he may be found to have failed to take the
necessary and reasonable measures to prevent such acts or to punish the persons
who committed them.” 51
Summarising the requirements needed for criminal responsibility under Art. 28(a) Rome
Statute, the ICC Pre-Trial Chamber in the Bemba Confirmation of Charges Decision held:
“[…] in order to prove criminal responsibility within the meaning of article 28(a)
of the Statute for any of the crimes set out in articles 6 to 8 of the Statute, the
following elements must be fulfilled:
(a) The suspect must be either a military commander or a person effectively
acting as such;
(b) The suspect must have effective command and control, or effective authority
and control over the forces (subordinates) who committed one or more of the
crimes set out in articles 6 to 8 of the Statute;
(c) The crimes committed by the forces (subordinates) resulted from the suspect’s
failure to exercise control properly over them;
(d) The suspect either knew or, owing to the circumstances at the time, should
have known that the forces (subordinates) were committing or about to
commit one or more of the crimes set out in article 6 to 8 of the Statute; and:
(e) The suspect 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.” 52
50 ICTR, Ndindiliyimana et al., TC II, Judgement, Case No. ICTR-00-56-T, 17 May 2011, para. 126. See also para. 1916.
51 ICTR, Nyiramasuhuko et al., TC II, Judgement, Case No. ICTR-98-42-T, 24 June 2011, para. 121. See also ICTR, Bizimungu et al., TC II, Judgement, Case
No. ICTR-99-50-T, 30 September 2011, para. 1872.
52 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 407 (footnote omitted).
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