INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY 6 6. Control The perpetrator had effective command and control, or effective authority and control over the forces that committed the crime 6.1. 6.2. The perpetrator had effective command and control; OR The perpetrator had effective authority and control Publicists 64 CASE MATRIX NETWORK
6. Control The perpetrator had effective command and control, or effective authority and control over the forces that committed the crime. 6.1. The perpetrator had effective command and control; OR Keywords/Summary Effective Control – Material Ability – Hierarchy – Chain of <strong>Command</strong> – Temporary Structure of the Military Unit – Identity of the Direct Perpetrator – Temporal Requirement - Multiple <strong>Command</strong> <strong>Responsibility</strong> – Indicia for the Existence of Effective Control International Case Law The ICTY Trial Chamber in the Mucić et al. (“Čelebići”) Judgement found: “Accordingly, it is the Trial Chamber’s view that, in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.” 211 The Trial Chamber further asserted: “[I]n order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences.” 212 In Aleksovski, the Trial Chamber stated: “The decisive criterion in determining who is a superior according to customary international law is not only the accused’s formal legal status but also his ability, 211 ICTY, Mucic et al. (“Celebici”), TC, Judgement, Case No. IT-96-21-T, 16 November 1998, para. 378. Also ICTY, Naletilic and Martinovic, TC, Judgement, Case No. IT-98-34-T, 31 March 2003, para. 66; ICTY, Stakic, TC II, Judgement, IT-97-24-T, 31 July 2003, para. 459. 212 ICTY, Mucic et al. (“Celebici”), TC, Judgement, Case No. IT-96-21-T, 16 November 1998, para. 378. CMN ICJ Toolkits Project 65
Change language