Command Responsibility

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INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY Moreover, the Appeals Chamber in Nahimana et al. held that: “[I]t is not necessary for the Appellant’s subordinates to have killed Tutsi civilians: the only requirement is for the Appellant’s subordinates to have committed a criminal act provided for in the Statute, such as direct and public incitement to commit genocide.” 150 With regard to the general principle underlining the individual criminal responsibility of superiors, the ICTY Trial Chamber in Đorđević stated that the: “[p]rinciple of individual criminal responsibility of superiors for failure to prevent or to punish crimes commited by subordinates is an established principle of customary international law, applicable to both international and international armed conflicts. This basis of criminal responsibility is usually referred to as superior or command responsibility. This encompasses all forms of criminal conduct by subordinates, not only the “committing” of crimes in the restricted sense of the term, but also any other modes of participation in crimes envisaged under Article 7(1) of the Statute. A superior’s criminal liability for crimes or underlying offences committed by subordinates also includes their commission by omission.” 151 In Nyiramasuhuko et al., the ICTR Trial Chamber stated that: “Superior responsibility encompasses criminal conduct by subordinates under all modes of participation pursuant to Article 6 (1) of the Statute. As a result, a superior can be held criminally responsible for his or her subordinates’ planning, instigating, ordering, committing or otherwise aiding and abetting a crime. An accused, however, cannot be held responsible for a subordinate’s criminal conduct before he or she assumed command over this subordinate.” 152 In the Perišić Judgement, the ICTY Trial Chamber stated that: “Article 7(3) of the Statute is applicable to all acts referred to in Articles 2 and 5 of the Statute and applies to both international and non-international armed conflicts.” 153 In the Ntaganda Decision on the Confirmation of Charges, the ICC Pre-Trial Chamber considered that even the attempt by the subordinate to commit a crime is sufficient: “[t]he findings in relation to this mode of liability [Command Responsibility] also concern the attempted acts of murder […]. In addition, the Chamber finds that the instances of attempted murder resulted from the acts of Mr. Ntaganda’s subordinates and that the crime of murder did not occur because of circumstances independent of the perpetrators’ intentions, as stipulated in article 25(3)(f) of the Statute.” 154 150 Ibid., para. 865. 151 ICTY, Dordevic, TC II, Judgement, Case No. IT-05-87/1-T, 23 February 2011, para. 1878. 152 ICTR, Nyiramasuhuko et al., TC II, Judgement, Case No. ICTR-98-42-T, 24 June 2011, para. 5646. 153 ICTY, Perisic, TC I, Judgement, Case No. IT-04-81-T, 6 September 2011, para. 138 (footnote omitted). 154 ICC, Ntaganda, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/04-02/06, 9 June 2014, para. 175. 50 CASE MATRIX NETWORK
4 THE UNDERLYING OFFENCE OR PRINCIPAL CRIME Publicists On the need to prove that the subordinate committed an international crime, Meloni observes: “It was only recently that a Trial Chamber of the ICTY explicitly affirmed the necessity of proving the actual commission of the ‘principal crime’, namely that ‘an act or omission incurring criminal responsibility according to Articles 2 to 5 and 7(1) of the Statute has been committed by other(s) than the accused.’ 155 As the judges further observed, ‘until recently, both the requirement of a principal crime (committed by others than the accused) and its performance in any of the modes of liability provided for in Article 7(1) appeared so obvious as to hardly need to be explicitly stated.’ 156 ” 157 Van Sliedregt specifies that all modes of participation may constitute a crime: “[…] ‘Commission’ in Article 7(3) has been interpreted as encompassing all modes of participation listed in Article 7(1): planning, ordering, instigating, and aiding and abetting crimes. 158 The Appeals Chamber held that `[t]he meaning of “commit”, as used in article 7(3) of the Statute, necessarily tracks the term’s broader and more ordinary meaning, as employed in Protocol I’. 159 In Orić the appellate judges held that ‘a superior can be held criminally responsible for his subordinates’ planning, instigating, ordering, committing or otherwise aiding and abetting a crime’. 160 The position that superior responsibility covers all subordinates’ criminal conduct falling under Article 7(1) has also been adopted by the International Criminal Tribunal for Rwanda (ICTR). 161 ” 162 Arnold adds: “[…] There must be a “crime within the jurisdiction of the court committed by subordinates” which means at least an attempted crime, to base command responsibility upon. The responsibility then is according to article 28 “for crimes within the jurisdiction of the Court”. This means, the commander has to be sentenced for committing, for instance, a specific crime or for genocide “per command responsibility”. The commission of the crime by the subordinates, thus, has to be established beyond any doubt.” 163 155 ICTY, Oric, TC II, Judgement, Case No. IT-03-68-T, 30 June 2006, para. 294. 156 Ibid., para. 295. 157 Chantal Meloni, Command Responsibility in International Criminal Law. T.M.C. Asser, 2010, p. 85. 158 ICTY, Blagojevic and Jokic, AC, Appeal Judgement, Case No. IT-02-60-A, 9 May 2007, paras. 277-285; See ICTY, Oric, AC, Appeal Judgement, Case No. IT-03-68-A, 3 July 2008, para. 20; ICTY, Boskoski and Tarculovski, TC II, Judgement, Case No. IT-04-82-T, 10 July 2008, para. 404. 159 See Barrie Sander, “Unravelling the Confusion Concerning Successor Responsibility in the ICTY Jurisprudence”, Leiden Journal ofInternational Law, 2010, vol. 23, pp. 121-122. 160 ICTY, Oric, AC, Appeal Judgement, Case No. IT-03-68-A, 3 July 2008, para. 21. 161 ICTR, Nahimana et al., TC I, Judgement, Case No. ICTR-99-51-T, 3 December 2003, para. 485. 162 Elies van Sliedregt, “Command Responsibility at the ICTY-Three Generations of Case Law and Still Ambiguity”, in Bert Swart, Alexander Zahar, and Göran Sluiter (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia, Oxford University Press, 2011, p. 383. 163 Roberta Arnold, “Article 28: Responsibility of Commanders and Other Superiors”, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Hart, 2007, p. 823.. CMN ICJ Toolkits Project 51
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