Command Responsibility

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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). 30 CASE MATRIX NETWORK
3 INTRODUCTION TO COMMAND RESPONSIBILITY Publicists Summarising the requirements for criminal responsibility to arise from command responsibility before the ICTY and the ICTR, Martinez states: “[…] three elements are necessary to establish liability based on superior responsibility: (i) the existence of a de jure or de facto superior-subordinate relationship of effective control; (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; (iii) the superior failed to take the necessary steps to prevent or punish the offences. 53 ” 54 Nybondas specifies that: “[…] The elements may best be divided into objective and subjective elements, often referred to as actus reus and mens rea respectively. The objective elements of command responsibility can be found in subparagraphs (i) and (iii) of the definition, while the mens rea is the knowledge requirement of the superior, as laid down in subparagraph (ii).” 55 However, Meloni considers that: “[…] This tripartition of command responsibility [adopted by the ad hoc Tribunals] […] does not appear to be satisfactory: it leaves aside the first objective requirement, which is the ‘commission of a crime by the subordinates’ (the so-called ‘underlying offence’, or ‘principal crime’). Moreover, it lacks any effort at systematisation; in particular the mental element is listed as the second requirement to prove, before the actus reus, while it should follow it. Indeed, pursuant to the basic principles of criminal law the mens rea requirement only comes after the assessment of the existence of the objective element, namely, in the case at issue, not only the superior-subordinate relationship but also the conduct of the defendant (i.e., the failure to take the required measures in order to prevent or punish).” 56 In addition to the three elements, van Sliedregt notes: “[…] In Orić, the [ICTY] Trial Chamber added a fourth element; (iv) a subordinate 53 See e.g. ICTY, Kordic and Cerkez,AC, Appeal Judgement, Case No. IT-95-14/2-A, 17 December 2004, para. 839. 54 Jenny S. Martinez, “Understanding Mens Rea in Command Responsibility From Yamashita to Blaskic and Beyond”, in Journal of International Criminal Justice, 2007, vol. 5, no. 3, p. 642. 55 Maria L. Nybondas, Command Responsibility and Its Applicability to Civilian Superiors, T.M.C. Asser Press, 2010, p. 31. 56 Chantal Meloni, Command Responsibility in International Criminal Law, T.M.C. Asser, 2010, pp. 83-84. CMN ICJ Toolkits Project 31
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Command Responsibility

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