Command Responsibility

INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
or informal hierarchy to the perpetrator. The ability to exercise effective control
in the sense of a material power to prevent or punish, which the Appeals Chamber
considers to be a minimum requirement for the recognition of a superiorsubordinate
relationship for the purpose of superior responsibility, will almost
invariably not be satisfied unless such a relationship of subordination exists. The
Appeals Chamber considers that a material ability to prevent and punish may
also exist outside a superior-subordinate relationship relevant for Article 7(3) of
the Statute.” 221
The Appeals Chamber then added:
“[t]he material ability to punish and its corresponding duty to punish can only
amount to effective control over the perpetrators if they are premised upon a
pre-existing superior-subordinate relationship between the accused and the
perpetrators. In this regard, the ability to exercise effective control in the sense
of a material power to prevent or punish necessitates a preexisting relationship
of subordination, hierarchy or chain of command. Of course, the concepts of
subordination, hierarchy and chains of command need not be established
in the sense of formal organisational structures so long as the fundamental
requirement of effective control over the subordinate, in the sense of material
ability to prevent or punish criminal conduct, is satisfied.” 222
In the Naletilić and Martinović Trial Judgement it was found that:
“Even a rank-less individual commanding a small group of men can have superior
responsibility. When the subordinate perpetrator was under the command of two
superiors, both of them may be held responsible for the same crime.” 223
In the Karera et al. Judgement, the ICTR. Trial Chamber found:
“With respect to the first element, a superior-subordinate relationship is
established by showing a formal or informal hierarchical relationship. The
superior must have possessed the power or the authority, de jure or de facto,
to prevent or punish an offence committed by his subordinates. The superior
must have had effective control over the subordinates at the time the offence was
committed. Effective control means the material ability to prevent the commission
of the offence or to punish the principal offenders. This requirement is not
satisfied by a simple showing of an accused individual’s general influence.” 224
With regard to the temporal structure of a military unit, the ICTY Trial Judgement in
Kunarac reads:
“Both those permanently under an individual’s command and those who are
so only temporarily or on an ad hoc basis can be regarded as being under the
221 ICTY, Halilovic, AC, Appeal Judgement, Case No. IT-01-48-A, 16 October 2007, para. 59.
222 Ibid., para. 210 (footnote omitted).
223 ICTY, Naletilic and Martinovic, TC, Judgement, Case No. IT-98-34-T, 31 March 2003, para. 69.
224 ICTR, Karera, TC I, Judgement, Case No. ICTR-01-74-T, 7 December 2007, para. 564, refering to ICTY, Mucic et al. (“Celebici”), AC, Appeal Judgement,
Case No. IT-96-21-A, 20 February 2001, para. 266, 303; ICTR, Ntagerura et al., Appeal Judgement, Case No. ICTR-99-46-A, 7 July 2006, para. 341 (quoting
with approval); ICTR, Ntagerura et al., TC III, Judgement, Case No. ICTR-99-46-T, 25 February 2004, para. 628).
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