Command Responsibility

7
CAUSATION
Also in the Orić Judgement, the ICTY Trial Chamber did not consider a causal link as
being necessary. 301 Similarly, in ICTR case law, a causal link has not been considered as
a requirement for command responsibility. 302
At the SCSL, the Trial Chamber in Fofana and Kondewa held:
“The Chamber notes that a casual link between the superior’s failure to prevent
the subordinates’ crimes and the occurrence of these crimes is not an element of
the superior’s responsibility; it is a question of fact rather than of law.” 303
Based on the wordings “as a result of” in Art. 28(a) and Art. 22 Rome Statute, the ICC Pre-
Trial Chamber found in the Bemba Confirmation of Charges Decision that there must be
causality between a superior’s dereliction of duty and the alleged crime.
“The Chamber also observes that the chapeau of article 28(a) of the Statute
establishes a link between the commission of the underlying crimes and a
superior’s ‘failure to exercise control properly’. This is reflected in the words ‘as
a result of’, which indicates such relationship. The Chamber therefore considers
that the chapeau of article 28(a) of the Statute includes an element of causality
between a superior’s dereliction of duty and the underlying crimes. This
interpretation is consistent with the principle of strict construction mirrored in
article 22(2) of the Statute which, as a part of the principle nullum crimen sine
lege, compels the Chamber to interpret this provision strictly.” 304
However, the Pre-Trial Chamber in the Bemba Confirmation of Charges Decision only
required such a causal link for the duty to prevent the commission of future crimes:
“Although the Chamber finds that causality is a requirement under article 28
of the Statute, its actual scope needs to be further clarified by the Chamber. As
stated above, article 28(a)(ii) of the Statute refers to three different duties: the
duty to prevent crimes, repress crimes, or submit the matter to the competent
authorities for investigation and prosecution. The Chamber considers that a
failure to comply with the duties to repress or submit the matter to the competent
authorities arise during or after the commission of crimes. Thus, it is illogical to
conclude that a failure relating to those two duties can retroactively cause the
crimes to be committed. Accordingly, the Chamber is of the view that the element
of causality only relates to the commander’s duty to prevent the commission of
future crimes. Nonetheless, the Chamber notes that the failure of a superior to
fulfill his duties during and after the crimes can have a causal impact on the
commission of further crimes. As punishment is an inherent part of prevention
of future crimes, a commander’s past failure to punish crimes is likely to increase
the risk that further crimes will be committed in the future.” 305
300 ICTY, Hadzihasanovic and Kubura, AC, Appeal Judgement, Case No. IT-01-48-A, 22 April 2008, para. 41.
301 ICTY, Oric, TC II, Judgement, Case No. IT-03-68-T, 30 June 2006, para. 338.
302 Cf., e.g., on the stipulated elements for command responsibility see ICTR, Bagilishema, TC I, Judgement, Case No. ICTR-95-1A-T, 7 June 2001, para. 38,
there is no reference to a causal link.
303 SCSL, Fofana and Kondewa, TC I, Judgement, Case No.SCSL-04-14-T, 2 August 2007, para. 251.
304 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 423 (footnotes omitted).
CMN ICJ Toolkits Project
85