Command Responsibility

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ACTS OF OMISSION
in the circumstances of the case. […] Rather, the Chamber believes that the
assessment of any measures taken by Mr Jean-Pierre Bemba should be first and
foremost based on his material ability.” 329
In Đorđević, the ICTY Trial Chamber specified:
“A superior may be held liable for failing to take measures, even in the absence of
explicit legal capacity to do so, if it is proven that it was within his material ability
to take such measures. As held by the Appeals Chamber “‘necessary’ measures are
the measures appropriate for the superior to discharge his obligation (showing
that he genuinely tried to prevent or punish) and ‘reasonable’ measures are those
reasonably falling within the material power of the superior.” Any measures
taken by a superior should, however, be specific and closely linked to the acts
that they are intended to prevent. Further, it is the degree of effective control
that may guide a Chamber in its assessment of whether the measures an accused
took were necessary and reasonable under the circumstances.” 330
Similarly, the SCSL Trial Chamber in Taylor specified:
“Generally, it can be said that the measures required of the superior are limited to
those within his or her material ability under the circumstances, including those
that may lie beyond his or her formal powers. The type and extent of measures
to be taken depend on the degree of effective control exercised by the superior
at the relevant time, and on the severity and imminence of the crimes that are
about to be committed.” 331
Several Judgements of the ad hoc tribunals have found that material possibility must be
individually assessed on a case-by-case basis, e.g.:
“Such a material possibility must not be considered abstractly but must be
evaluated on a case-by-case basis depending on the circumstances.” 332
In Strugar, the ICTY Appeals Chamber found the following factors to be examples of the
material ability of the superior:
“For example, with respect to the capacity to issue orders, the nature of orders
which the superior has the capacity to issue, the nature of his capacity to do
so as well as whether or not his orders are actually followed would be relevant
to the assessment of whether a superior had the material ability to prevent or
punish.” 333
329 ICC, Bemba, PTC II, Decision on the Confirmation of Charges, Case No. ICC-01/05-01/08-424, 15 June 2009, para. 495 (footnotes omitted).
330 ICTY, Dordevic, TC II, Judgement, Case No. IT-05-87/1-T, 23 February 2011, para. 1887.
331 SCSL, Taylor, TC II, Judgement, Case No. SCSL-03-01-T, 18 May 2012, para. 501.
332 ICTY, Aleksovski, TC, Judgement, Case No. IT-95-14/1-T, 25 June 1999, para. 81 (emphasis added); see also ICTY, Aleksovski, AC, Appeal Judgement,
Case No. IT-95-14/1-A, 24 March 2000, paras. 73-74; ICTY, Blaskic, AC, Appeal Judgement, Case No. IT-95-14-A, 29 July 2004, para. 72; ICTY, Mucic et al.
(“Celebici”), AC, Appeal Judgement, Case No. IT-96-21-A, 20 February 2001, para. 206; ICTY, Hadzihasanovic and Kubura, TC, Judgement, Case No. IT-
01-47-T, 15 March 2006, para. 123; ICTY, Halilovic, TC I, Judgement, Case No. IT-01-48-T, 16 November 2005, para. 74 (seeing this as “well established”),
reaffirmed ICTY, Halilovic, AC, Appeal Judgement, Case No. IT-01-48-A, 16 October 2007, para. 175.
333 ICTY, Strugar, AC, Appeal Judgement, Case No. IT-01-42-A, 17 July 2008, para. 254; similarly in ICTY, Delic, TC I, Judgement, Case No. IT-04-83-T,
15 September 2008, para. 76.
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