Command Responsibility

INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
Similarly, Cryer et al. point out that the ad hoc tribunals jurisprudential criteria developed
to find superior responsibility were made to encompass formal and informal chains of
command:
“Where there are the clear formal chains of command that characterize modern
well- disciplined armies, this criterion may appear simple to apply. However,
modern conflicts are not always fought on this basis and by such forces. 186
Therefore, and understandably, the Appeals Chamber in Čelebići based itself on
a test of ‘effective control’, defined as ‘a material ability to prevent or punish
criminal conduct’. 187 Substantial influence is not enough; 188 the ICC agrees with
this. 189 It is required that ‘the accused has to be, by virtue of his position, senior
in some sort of formal or informal hierarchy to the perpetrator’. 190 The de jure
position of the superior is not determinative of this, it is largely factual ability to
prevent and punish that counts. 191 ” 192
With regard to de jure powers Mettraux specifies:
“The forms and procedure by which appointment to a commanding position or
a de jure position of authority is made will vary a great deal between different
national armies and national civilian structures. 193 International law does not
provide for any condition of form or procedure in relation to this matter. In
particular, de jure powers could be granted in writing or orally. 194 In the context
of a criminal trial where the accused is being charged with failing in his duties
as commander, proof of de jure command does not require the prosecution
to produce the order by which the accused was appointed or elected to this
position. De jure command may indeed be established circumstantially. 195 But
an inference that the accused has been appointed to a particular function will not
be drawn lightly and the inability of prosecuting authorities to produce an order
of appointment might weigh heavily against a finding of de jure command. This
is particularly true in more formalized settings such as a military hierarchy.” 196
186 For an excellent discussion of aspects of command responsibility in such contexts, see Sandesh Sivakumaran, “Command Responsibility in Irregular
Groups”, in Journal of International Criminal Justice, 2012, vol. 10, para. 1129.
187 ICTY, Mucic et al. (“Celebici”), AC, Appeal Judgement, Case No. IT-96-21-A, 20 February 2001, para. 256 […].
188 Ibid., para. 266.
189 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, paras. 414-416.
190 ICTY, Halilovic, AC, Appeal Judgement, Case No. IT-01-48-A, 16 October 2007, para. 59. Otherwise, as the Chamber said, police officers could be
considered superiors to all in their jurisdiction owing to their ability to prevent and set punishment in motion; see also, para. 210. There may be an exception
for occupation commanders, who do not have to have this type of relationship […].
191 ICTY, Mucic et al. (“Celebici”), AC, Appeal Judgement, Case No. IT-96-21-A, 20 February 2001, paras. 186-198; ICTY, Halilovic, AC, Appeal Judgement,
Case No. IT-01-48-A, 16 October 2007, para. 59; ICTR, Kajelijeli, AC, Appeal Judgement, Case No. ICTR-98-44A-A, 23 May 2005, para. 85. See also e.g. U.S.A.
v. Wilhelm List et al. (the ‘Hostages case’), VIII LRTWC 89; Tokyo IMT, reprinted in Neil Bolster and Robert Cryer, Documents on the Tokyo International
Military Tribunal, Oxford University Press, 2008, pp. 48, 820.
192 Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Cambridge University Press, 2014, p. 386.
193 That determination may only be made pursuant to and in accordance with local domestic law. […] International law does not provide for procedure
or requirements as to the manner or procedure whereby an individual may be appointed to a de jure position of command. According to the ICTR Appeals
Chamber, the source or basis of an accused’s de jure authority could lay in the relevant domestic law or even in a contract (ICTR, Nahimana et al., AC, Appeal
Judgement, Case No. ICTR-99-52-A, 28 November 2007, para. 787).
194 Ibid., para. 787.
195 See, e.g., ICTY, Kordic and Cerkez, TC, Judgement, Case No. IT-95-14/2-T, 26 February 2001, para. 424; ICTY, Nikolic, TC, Review of Indictment
Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-94-2-R61, 20 October 1995, para. 24. The ad hoc Tribunals have held that such an
inference must be the only reasonable one to be drawn from the evidence […].
196 Guénaël Mettraux, The Law of Command Responsibility, Oxford University Press, 2009, p. 140.
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