Command Responsibility

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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). 68 CASE MATRIX NETWORK
6 CONTROL effective control of that particular individual. The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination between the members of a unit and its commander. To be held liable for the acts of men who operated under him on an ad hoc or temporary basis, it must be shown that, at the time when the acts charged in the Indictment were committed, these persons were under the effective control of that particular individual.” 225 Concerning the identification of the person(s) who committed the crime, the Trial Chamber in Orić stated: “With respect to the Defence’s submission requiring the ‘identification of the person(s) who committed the crimes’, the Trial Chamber finds this requirement satisfied if it is at least proven that the individuals who are responsible for the commission of the crimes were within a unit or a group under the control of the superior regarding the ‘identification of the person(s) who committed the crimes’, the Trial Chamber finds this requirement satisfied if it is at least proven that the individuals who are responsible for the commission of the crimes were within a unit or a group under the control of the superior.” 226 Similarly, in Perišić, the ICTY Trial Chamber held that command responsibility: “[…] also includes responsibility, for example, for military troops who have been temporarily assigned to a military commander, if the troops were under the effective control of that commander at the time when the acts charged in the indictment were committed. […]The superior does not need to know the exact identity of those subordinates who committed the crimes, to be held responsible under Article 7(3) of the Statute.” 227 As for the temporal requirement, the ICC Pre-Trial Chamber in the Bemba Confirmation of Charges referred to the wordings of Art. 28(a) Rome Statute and held that: “[…] according to article 28(a) of the Statute, the suspect must have had effective control at least when the crimes were about to be committed.” 228 Regarding effective control, the ICTY Trial Chamber in Blaškić stated that: “[…] a commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates, insofar as he exercises effective control over them.” 229 Moreover, the Trial Chamber held: “[…] that the test of effective control exercised by the commander implies that 225 ICTY, Kunarac et al., TC, Judgement, Case No. IT-96-23-T & IT-96-23/1-T, 22 February 2001, para. 399. Note that the Trial Chamber found that in this case the Prosecutor failed to prove that Kunarac exercised effective control over the soldiers (which were under his command on a temporary ad hoc basis) at the time they committed the offences (para. 628). 226 ICTY, Oric, TC II, Judgement, Case No. IT-03-68-T, 30 June 2006, para. 31 227 ICTY, Perisic, TC I, Judgement, Case No. IT-04-81-T, 6 September 2011, para. 138. 228 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, paras. 418-419. 229 ICTY, Blaskic, TC, Judgement, Case No. IT-95-14-T, 3 March 2000, para. 301. CMN ICJ Toolkits Project 69
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Command Responsibility

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