Command Responsibility

INTERNATIONAL CRIMINAL LAW GUIDELINES: COMMAND RESPONSIBILITY
term encompassing command and authority. While the command refers in
a rather material sense to ‘an order, a directive’, possibly backed by threats;
‘authority’ seems to have a rather formal meaning in the sense of the ‘the right
or permission to act legally’. Both terms imply control: command explicitly as
power to control, authority implicitly as a right to command. Thus, a superior
with command and authority normally controls his or her ‘forces’ or subordinates
and has the capacity to issue orders.” 255
As Meloni indicates, the ICC has found effective command and effective control to be
substantially similar:
“[…] dealing with letter a) of Article 28 the judges [in Bemba] found that the
expressions ‘effective command and control’ and ‘effective authority and control’
are applicable alternatives in situations of military commanders stricto sensu
and military-like commanders. The words ‘command’ and ‘authority’ would not
have any substantial effect on the required standard of control of the superior
and would not provide a different meaning to the text. 256 ” 257
Thus, according to Ambos:
“[…] various persons may—as superiors—be responsible for a crime committed
by a subordinate. 258 However, responsibility is excluded if such control was
‘absent or too remote’, or if the superior lacked ‘the material ability to prevent
and punish the commission of the[se] offences’. 259 ” 260
Van Sliedregt summarises the ad hoc tribunal case law on multiple superior responsibility
as follows:
“Multiple superior responsibility implies a remote link to the perpetrators. In the
view of the Appeals Chamber judges in Orić, this in itself is irrelevant as long as
there is ‘effective control’, ie the material ability to prevent the crime or punish,
over the subordinate. The appellate judges held that it does not matter ‘whether
the effective control descends from the superior to the subordinate culpable
of the crime through intermediary subordinates’. 262 It was felt that whether
the superior indeed possesses effective control is a matter of evidence and not
one of substantive law. 263 In the Karadzic indictment, the ICTY prosecutor
charged the latter for crimes on the basis of multiple superior responsibility. 264
255 Kai Ambos, “Superior Responsibility”, in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds), The Rome Statute of the International Criminal
Court: A Commentary, Oxford University Press, 2002, p. 834 (footnotes omitted).
256 See ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, paras. 415-417.
257 Chantal Meloni, Command Responsibility in International Criminal Law, T.M.C. Asser, 2010, p. 161.
258 ICTY, Aleksovski, TC, Judgement, Case No. IT-95-14/1-T, 25 June 1999, para. 106; ICTY, Blaskic, TC, Judgement, Case No. IT-95-14-T, 3 March 2000,
para. 303.
259 ICTY, Mucic et al. (“Celebici”), TC, Judgement, Case No. IT-96-21-T, 16 November 1998, para. 377.
260 Ibid., para. 378 (emphasis added); ICTY, Aleksovski, TC, Judgement, Case No. IT-95-14/1-T, 25 June 1999, para. 81; ICTY, Blaskic, TC, Judgement, Case
No. IT-95-14-T, 3 March 2000, paras. 302, 335: `capacité matérielle’.
261 Ambos, 2002, p. 834, supra note 255.
262 ICTY, Oric, AC, Appeal Judgement, Case No. IT-03-68-A, 3 July 2008, para. 39 20 ff. In the view of the Appeals Chamber the link between the accused
and the crime was too remote. It held that the Trial Chamber failed to establish the level of control, if any, that the accused exercised over the principal
perpetrators.
263 Ibid.
264 ICTY, Karadzic, Third Amended Indictment, Case No. IT-95-5/18-PT, 27 February 2009, para 35.
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