INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY command and control, or a combination of both” [§ 129]. This led the judges to the innovative finding that “the mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude the imposition of such responsibility” [§ 131], and that conse¬quently the Tribunal had to “be prepared to pierce such veils of formalism that may shield those individuals carrying the greatest responsibility for heinous acts” [§ 140].” 206 Thus, Gordy concludes that: “[…] the verdict [in Čelebići, Trial Judgement] established a precedent in the sense that chains of command could not be established by purely formal means, and that the possibility had to be considered that somebody occupying a position of command may not have exercised it, while somebody outside of a chain of command may have exercised informal authority. In all cases it is necessary not simply to rely on evidence of how chains of command would have functioned if military organisations followed their own procedures, but rather to determine how chains of command actually operated on the ground.” 207 Meloni observes that the ad hoc tribunal case law on de facto commander has been upheld by the ICC: “In line with the jurisprudence of the ICTY and ICTR, in its first decision on the issue [Bemba] the ICC affirmed that the category of military-like commanders may encompass superiors who have authority and control over irregular forces, such as rebel groups, paramilitary units, including armed resistance movements and militias structured in a military hierarchy and having a chain of command. 208 ” 209 With respect to de facto commanders in irregular forces, Sivakumaran cautions: “[…] It is important to keep in mind that responsible command in irregular groups may not look the same as that in regular armed forces. The very notion of the de facto commander and judging superior-subordinate relationships by reference to effective control testify to this.” 210 206 Eric Gordy, “The Blaskic Trial: Politics, the Control of Information and <strong>Command</strong> <strong>Responsibility</strong>”, in Southeastern Europe, 2012, vol. 36, no. 1, p. 64. 207 Ibid., p. 65. 208 See ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 410. 209 Meloni, 2010, p. 156, supra note 198. 210 Sandesh Sivakumaran, “<strong>Command</strong> <strong>Responsibility</strong> in Irregular Groups”, in Journal of International Criminal Justice, 2012, vol. 10, no. 5, p. 1137. 62 CASE MATRIX NETWORK
5 SUPERIOR – SUBORDINATE STATUS CMN ICJ Toolkits Project 63
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