Command Responsibility

6
CONTROL
“[…] The Kayishima and Ruzindana Judgement, for one, concludes that ‘the
ability to prevent and punish a crime is a question that is inherently linked
with the given factual situation’. 281 This element of superior responsibility is
intrinsically integrated in the concept of effective control which is the key to
that responsibility. 282 Effective control is often manifested through binding
orders issued by a superior. The orders will effect prevention or punishment. If
his orders to prevent or punish were disregarded by subordinates, he might be
found not to be in a position of effective control at the time when the subordinate
crimes took place, for the purposes of Article 7(3) of the ICTY Statute, Article
6(3) of the ICTR Statute, or Article 28 of the Rome Statute. This could then be
acquitted of superior liability.” 283
According to Mettraux:
“[…] it is the cumulative effect of evidence of subjugation to orders and respect
for the authority of the accused generally that might convince a tribunal of the
existence of a superior–subordinate relationship amounting to ‘effective control’
on the part of the accused over the perpetrators. 284 ” 285
Taking stock of the SCSL case law, Mettraux specifies that:
“[…] It would not, therefore, be sufficient to establish that the accused was in
charge of a particular group of men or that he otherwise exercised commanding
functions in that context short of establishing that this role or function gave
him ‘effective control’ over the members of the group who have committed
the crimes. Thus, in the Fofana case, a Trial Chamber of the SCSL highlighted
the fact that the accused Fofana had control over certain groups of Kamajor
fighters in a particular area where crimes had been committed was not enough
to conclude that he had control over all Kamajor fighters and commanders in
that region. 286 Likewise, in the Brima Judgement, the Trial Chamber refused
to adopt the Prosecution’s suggestion that different fighting parties that had at
times cooperated in military operations could be regarded as one single group
for the purpose of the doctrine of superior responsibility and that the accused
could be said to have had control over that group […]. 287 ” 288
With respect to the identity of the subordinate over which the superior exercised effect
control, van Sliedregt states:
“[…] In at least two cases before the ICTY the question arose whether a superior
can be held responsible for acts of ‘unidentified’ subordinates. The judges in
281 ICTR, Kayishema and Ruzindana, TC, Judgement, Case No. ICTR-95-1-T, 21 May 1999, para. 231.
282 Cf., ICTY, Kordic and Cerkez, TC, Judgement, Case No. IT-95-14/2-T, 26 February 2001, para. 443.
283 Bing Bing Jia, “The Doctrine of Command Responsibility: Current Problems”, in Yearbook of International Humanitarian Law, 2000, vol. 3, p. 160.
284 See, e.g., ICTY, Nikolic, TC, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-94-2-R61, 20 October 1995,
para. 24; See ICTY, Strugar, AC, Appeal Judgement, Case No. IT-01-42-A, 17 July 2008, para. 54 […].
285 Mettraux, 2009, p. 180, supra note 275.
286 See, e.g., SCSL, Fofana and Kondewa, TC I, Judgement, Case No.SCSL-04-14-T, 2 August 2007, para. 819.
287 SCSL, Brima et al., TC II, Judgement, Case No. SCSL-04-16-T, 20 June 2007, para. 1655, […]; see also, Ibid, paras. 1872-1875.
288 Mettraux, 2009, p. 160, supra note 275.
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