Command Responsibility

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INTRODUCTION TO COMMAND RESPONSIBILITY
as an aggravating factor in sentencing.” 83
However, this was successfully challenged before the Appeal Chamber in Brima et al.:
“[N]o identifiable legal principle should prevent compound convictions for
multiple instances of the same offence charged in a single Count, when multiple
convictions would be allowed if multiple instances of the same offence at issue
were charged in separate Counts.” 84
Furthermore the SCSL Appeal Chamber found that:
“[…] when the accused is charged for multiple instances of an offence under a
single Count pursuant to both Articles 6(1) and 6(3), and one or more is proved
beyond a reasonable doubt for each mode of responsibility, then a compound
conviction should be entered against the accused, and the Trial Chamber must
take into account all of the convictions and the fact that both types of responsibility
were proved in its consideration of sentence.” 85
Conversely, in Đorđević, the ICTY Trial Chamber followed the view against concurrent
conviction adopted by the ICTY Appeals Chamber in Blaškić and Kordić and Čerkez:
“Where both Article 7(1) and Article 7(3) responsibility are alleged under the
same count, and where the legal requirements pertaining to both of these heads of
responsibility are met, a Trial Chamber should enter a conviction on the basis of
Article 7(1) only, and consider the accused’s superior position as an aggravating
factor in sentencing.” 86
In Gatete, the ICTR Trial Chamber stated that even though a person was not charged as a
superior under Article 6 (3) of the ICTR Statute, his superior position or influence may be
considered as an aggravating factor:
“The Appeal Chamber has held that an accused’s abuse of his superior position
or influence may be considered as an aggravating factor. While Gatete is not
charged as a superior under Article 6 (3) of the Statute, his position of authority
may be a sentencing consideration.” 87
In Nyiramasuhuko et al., the ICTR Trial Chamber adopted this application, stating that:
“It is not appropriate to convict an accused on a particular count for the same
conduct under both Article 6(1) and Article 6(3). Where the conduct of an accused
constitutes a violation of both Article 6(1) and Article 6(3), the Chamber will enter
83 SCSL, Brima et al., TC II, Judgement, Case No. SCSL-04-16-T, 20 June 2007, para. 800.
84 SCSL, Brima et al., AC, Appeal Judgement, Case No. SCSL-2004-16-A, 22 February 2008, para. 214.
85 Ibid., para. 215. Text footnote: “This is the practice when, for example, an accused is convicted for personally committing some instances of a crime and
aiding and abetting other instances of the same substantive crime charged within a single Count. See [ICTY, Limaj et al., TC II, Judgement, Case No. IT-03-
66-T, 30 November 2005, para. 741] (finding the Accused Haradin Bala guilty, inter alia, of “Count 6: Cruel treatment, a violation of the laws or customs of
war, under Article 3 of the Statute, for having personally mistreated detainees L04, L10 and L12, and aided another episode of mistreatment of L04, and for
his personal role in the maintenance and enforcement of inhumane conditions of detention in the Llapushnik/Lapusnik prison camp.”)”.
86 ICTY, Dordevic, TC II, Judgement, Case No. IT-05-87/1-T, 23 February 2011, para. 1891.
87 ICTR, Gatete, TC III, Judgement, Case No. ICTR-2000-61-T, 31 March 2011, para. 678.
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