Command Responsibility

4. The Underlying Offence
or Principal Crime
A crime within the jurisdiction of the Court was committed or was about to be
committed by the forces
Keywords/Summary
Subordinate Liability of Aiding and Abetting – Omission – General Principle of
Individual Criminal Responsibility
International Case Law
On subordinates who aided and abetted others to commit crimes, the ICTY Trial Chamber
in Orić held that:
“[…] decisive weight must be given to the purpose of superior criminal
responsibility: it aims at obliging commanders to ensure that subordinates do
not violate international humanitarian law, either by harmful acts or by omitting
a protective duty. This enforcement of international humanitarian law would be
impaired to an inconceivable degree if a superior had to prevent subordinates
only from killing or maltreating in person, while he could look the other way if
he observed that subordinates ‘merely’ aided and abetted others in procuring the
same evil.” 147
On omission, the Trial Chamber held further:
“[…] a superior’s criminal responsibility for crimes of subordinates is not limited
to the subordinates’ active perpetration or participation, but also comprises their
committing by omission.” 148
In Nahimana et al., the ICTR Appeals Chamber held that:
“[…] an accused may be held responsible as a superior under Article 6(3) of
the Statute where a subordinate ‘planned, instigated, ordered, committed or
otherwise aided and abetted in the planning, preparation or execution of a crime
referred to in Articles 2 to 4 of the present Statute,’ provided, of course, that all
the other elements of such responsibility have been established.” 149
147 ICTY, Oric, TC II, Judgement, Case No. IT-03-68-T, 30 June 2006, para. 300.
148 Ibid., para. 302.
149 ICTR, Nahimana et al., Appeal Judgement, 28 November 2007, para. 486, referring to ICTY, Blagojevic and Jokic, AC, Appeal Judgement, Case No.
IT-02-60-A, 9 May 2007, paras. 280-282.
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