Dictators Who Murder Their Own People Should be Brought to Justice

“The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates”

Celebici Appeal Judgement[1]

Introduction

A shrinking concept of state sovereignty has created conditions for decentralisation of the exercise of state powers, improved inter-states relationships and facilitated judicial process in holding to account, national political leaders and military commanders who, by ordering their subordinates to commit serious crimes against their own people, are now subjected to judicial justice by the international community. The alleged perpetrator leaders, – Leaders Who Kill Their Own People – whether presidents, military or rebel commanders increasingly find very few countries to run to, or the means to evade the long arms of international criminal justice. The choices available to perpetrator leaders are further limited by the establishment of the International Criminal Court (ICC) with jurisdiction to investigate and prosecute those most responsible for committing serious international crimes in any part of the world. The ICC is truly international because its Statute is ratified by a majority of member states of the United Nations.[2]

Criminal prosecutions of leaders responsible for serious crimes, including persons who commit transnational crimes, are recognized in international law under the legal rubric of obligations to prosecute or extradite[3] and by customary international law and general principles of law. Transnational crimes include crimes planned in one state and committed in another, or crimes partially planned in one or more states and committed in other states. These crimes may be prosecuted in any of the states where they were planned or committed, or in a third state, or by international courts or tribunals.

Transnational or cross-border crimes which are on the increase include extra-judicial killing within the state or execution of political opponents living outside the territory of perpetrator states, or the killings of civilians by the offending governments. However, political leaders and military commanders responsible for these crimes are quick to blame ‘criminal or drug gangs’ or ‘rouge elements’ within the national army and other security forces and deny their responsibility.

State-sanctioned criminality in some cases include forceful transfer or displacement of the civilian population based on political, racial or religious grounds as part of states’ demographic engineering for altering the population composition. Starvation of targeted civilians and members of political or racial groups as part of war strategy is on the increase in non-international armed conflicts (NIAC), particularly in some parts of Africa.

In contemporary international armed conflict (IAC) or non-international armed conflict (NIAC)  national leaders and military commanders as parties to armed conflict have recruited or deployed private contractors and mercenaries or ‘foreign military advisers’ and children under the age of eighteen in violation of national and international laws. The practice of sub-contracting armed conflicts to foreign or ‘rented’ mercenaries has exponentially taken over the waging of wars undertaken by national armed forces of sovereign states, particularly in Africa, as political leaders and military commanders increasingly depend on foreign states and multi-national organisations or companies to finance and fight wars as well as to gain and retain political and economic power.  The loyalty of these political leaders and military commanders are not to the state or the constitution, but to their foreign pay masters and military personnel who have effective control over them, the policies they adopt and the actions they take.

The planning, preparation and commission of serious crimes involve participation of leaders, be they presidents of a state, military leaders, rebel commanders and their circles of political, military and technical advisers. It is only reasonable that these senior advisors – who may be aptly described as ‘the President’s men’ – in law must bear criminal responsibility for their role in planning, preparation or aiding and abetting the commission of serious crimes.

Many of the leaders and their senior advisers have generally avoided criminal accountability at the national level. For Africa in particular, international criminal prosecution is the default position because most African governments are either unwilling or unable to conduct credible investigations and prosecutions. Their failure is partly due to the fact that many states in Africa are very weak or failing, with minimum infrastructure development, poor governance record and do not generally exercise effective control throughout its territory. This failure leaves international borders porous as the local population are left to fend for themselves against both domestic and foreign enemies.  Further, it is partly because of the states’ reliance on Western powers for matters as basic as funding national budgets of the weak or failing states. Exacerbating the problems of weak states is the fact that it is some African leaders themselves, in cooperation with their foreign and local advisers, private contractors and mercenaries who are often perpetrators of serious crimes and yet they do not find it convenient to investigate and prosecute them and their allies, both for domestic and foreign crimes or crimes planned in one state and committed in another.

Since the ICC became operational on 1 July 2002, most African leaders (but not the people) have blamed the ICC for targeting African rulers notwithstanding that they (the African leaders) are responsible for many deaths of civilians and have not conducted serious criminal prosecutions before national courts. However, persistent allegations that the ICC is bias against Africa are absurd and not supported by evidence of referrals of situations and cases to The Hague-based court.

The ICC, like most international organisations, is not perfect and very often its decisions are influenced by politics, economic and national interests of the Major Powers. However, the ICC must be given due credit for seeking to do justice in a divided and complex world; a world where populist ideologies and narrow nationalism as well as the North-South divide, on the one hand, and a South-South divide, on the other hand, has polarised relationships between developed, developing and undeveloped states.[4]

It needs to be emphasised, however, at least for the record, that the ICC has no official policy of targeting Africa or indeed any nation. Further, the power and authority of the ICC Prosecutor, by law, as provided in the Rome Statute, is moderated by the Chamber and any possible bias that may exist, is remedied early by a pre-Trial Chamber through a judicial process because referral of situations and cases to the ICC Prosecutor by a State Party or the United Nations Security Council (UNSC or the Council), is a procedural matter and not of substantive law.

There are three ways in which a case may be referred to the ICC Prosecutor.  First, a situation or a case may be referred to the ICC Prosecutor by the government of the state or a state-party to the Rome Treaty. It is true that some African leaders have used this process to refer their political opponents to the ICC Prosecutor. The weaponisation of this process is not the fault of the ICC Prosecutor, but an abuse of process by the ruling elite of the referring government or state. Some of these African leaders are responsible for killing their own people but actively seek to evade justice.

Second, a situation or a case may be referred by the UNSC. The Council has authority to refer any state to the ICC Prosecutor regardless whether that state is a party to the Rome Statute. The referral process may be subjected to a veto by one or more of the five permanent members (P5). A major criticism of the UNSC is the fact that three of the P5 members are not signatories to the Rome Statute yet they play active roles in the referral process. Thus, the politicisation of the referral process within the UNSC has been criticised especially with respect to the referral of Libya to the ICC Prosecutor. However, despite its imperfection, the UNSC has referred only two African situations to the ICC when the Council could have referred many more considering the wide scope of violations of international humanitarian law (IHL) in Africa. The two situations referred by the UNSC to the ICC Prosecutor are Libya and Darfur, in Sudan.

Third, investigation in a situation or case may be initiated by the ICC Prosecutor proprio motu but with the authorization of a pre-Trial Chamber. The role of the pre-Trial Chamber in authorizing investigations guarantees that the ICC Prosecutor shall not abuse his or her rights for the pre-Trial Chamber performs a supervisory role at the initial stages of investigations by approving or rejecting the Prosecutor’s request to proceed with investigations. At a practical level, it is also significant that the first ICC Prosecutor is from Latin America (Argentina), a developing country, and the second and current ICC Prosecutor is from Africa (The Gambia), another developing country. It is not only unfair but absurd to accuse the first two ICC Prosecutors for being anti-Africa or for targeting African leaders.

Overall, the referral process, whether by a State party, the UNSC or the ICC Prosecutor has the capacity to protect perpetrators from any unfair targeting, and to that extent, respects due process and rights of alleged perpetrators – some of whom are leaders who kill their own people.

In practice, the records of referrals demonstrate that a majority of situations and cases referred to the ICC Prosecutor are from Africa and are referred by the respective African governments exercising their independent sovereign rights.[5] The records show that African leaders tend to refer their political opponents or military/rebel commanders opposed to their governments, as for example, the case of Uganda, Democratic Republic of Congo (DRC) and Central African Republic (CAR). The referring governments did not investigate or prosecute combatants who fought on their side of the conflict.

The much maligned UNSC by the opponents of the ICC often neglect to point out that only two situations or cases from Africa have, so far, been referred by the UNSC to the ICC Prosecutor.[6] Considering the massive violations of IHL and the failure of many African governments to prosecute perpetrators in domestic courts, it is surprising that UNSC has referred only two states, Libya and Sudan, to the ICC Prosecutor. It is therefore hypocritical for African leaders to readily accept all manner of financial and other funding, aids or grants from the West and yet complain when the UNSC refer some African governments to the ICC, notwithstanding that the majority of member states parties to the ICC Statute are from the African continent. To that extent, it is false to argue that the ICC is a Western Court. Without the benefit of many signatories to the Rome Statute being that of African states, it is doubtful whether the ICC would have come in force at the time it did.

Finally, it needs to be emphasised that only three situations or cases were opened by the ICC Prosecutor proprio motu on the African continent.[7] And, as at the time of writing, there is one on going Preliminary investigation in Nigeria. A preliminary examination of the situation in Nigeria was made public on 18 November 2010 based on allegations that crimes against humanity or war crimes were committed in Niger Delta, the Middle-Belt states and in the context of armed conflict between Boko Haram and Nigerian security forces.

In sum, it is necessary to note three points: First, there are no suggestions, even from critics of the ICC, that no serious crimes were committed with respect to all situations and cases referred to the ICC Prosecutor by the relevant governments in Africa, the UNSC or of the investigations initiated by the ICC Prosecutor proprio motu but with the authorization of different pre-Trial Chambers. Second, none of the alleged perpetrators and their accomplices or co-perpetrators were seriously investigated or prosecuted by their respective national courts or judicial systems in states where the crimes were committed. Third, all the individuals who were the subject of investigations by the ICC Prosecutor as a result of the referral or proprio motu investigations were in positions of leadership and were not under investigations in their respective countries at the time of referral.

The subjects of investigations by the ICC Prosecutor based on analysis of cases referred, comprise important state office holders, as for example, presidents or vice-presidents of a country, cabinet ministers with enormous political and civics responsibilities, senior military and rebel commanders, and other political or party leaders. These senior officials included Mummar Gaddafi, Head of State of Libya, who following his death, the case was closed. Al Bashir Omar Hassan Ahmed, former President of Sudan; Jean-Pierre Bemba Gombo, former DRC Vice-President; Laurent Gbagbo, former President Cote d’Ivore; Uhuru Muigai Kenyatta, Deputy Prime minister at the time the alleged crimes were committed and several other military and rebel commanders some of whom though indicted are still at large as for example Joseph Kony, Commander of the Lord’s Resistance Army (LRA).

A common theme running through all the above cases are that the alleged perpetrators were ‘too big’ to be tried in their own countries and the ICC became the default position. It is absurd to accuse the ICC of being anti-African. On the contrary the ICC is performing a duty that many African governments failed to do. The fact that there are many acquittals at the ICC should persuade African leaders and their apologists that there is a higher standard of due process at the ICC than in their respective national jurisdictions where political opponents are summarily tried and executed. For those prosecuted before the country’s Military Tribunals or Courts are often tried in closed session, with no press to record and report the proceedings to the public. The accused are routinely convicted without the benefit of credible due process.

Before international criminal tribunals or courts, as for example the ICTY and the ICTR, because of the senior positions the alleged perpetrators held in their respective political systems in their countries, most of them can only be held responsible for their acts or omissions through the principle of superior or command responsibility. This is so because in many cases, the political leaders and military commanders are not necessarily direct perpetrators although they formulate policies, issue military or political orders and instigate direct perpetrators – their subordinates – who then commit serious crimes based on the orders or directives issued.

This essay examines the law on superior or command responsibility of leaders who kill, or order the killing of their own people, including senior advisors to these political leaders or military commanders, who participate in planning, preparation, and instigation, organising or execution of policies that result in the death of many civilians, including women and children – acts that constitute serious crimes under international humanitarian law.

The essay concludes with the submission that positive impact of superior or command responsibility when properly applied by an independent and impartial court in the prosecution of leaders who kill or order the killing of their own people, when these leaders are convicted and sent to jail, the result of the judgements of the court generate a ‘feel-good’ factor, a sense of relief to victims and survivors of atrocities acts committed against them by their leaders. The judgements also help create conditions for good governance and gradual establishment of accountable, independent and credible state institutions governed by the rule of law.

In conclusion, the essay submits that by holding leaders to account for their acts and omissions, the process helps to inculcate in the minds of the population a sense of moral responsibility and encourages those in position of leadership to understand and appreciate their civic duties and to not demonise those they do not like or agree with their views but whenever they are offended, to seek remedy through courts, relying on due process within the rule of law. In sum, leaders who kill, or order the killing of their own people must be held to individually account for their crimes and the ordinary people will begin to appreciate the rule of law and understand the relevance and usefulness of a positive and functional moral code of behaviour or conduct in a responsible society.

Legal Framework for Accountability of Leaders who order others to kill

General principles of criminal law in both common and civil law jurisdictions recognize the concept of individual criminal responsibility of an accused for criminal acts that he personally committed. On the other hand, the imposition of a superior criminal responsibility for acts committed by a subordinate based on the orders of a superior – a leader – is a recent development. In contemporary IHL, the concept of superior responsibility was first applied by the Nuremberg Tribunal.[8] While some scholars considered the Nuremberg Tribunal nothing more than “victor’s justice”, the concept of superior or command responsibility is now universally accepted in international criminal law based on, inter alia, jurisprudence of the ICTY and ICTR and now codified in the Statute of International Criminal Court (hereafter ICC or Rome Statute).[9]

However, in many national jurisdictions the concept of superior criminal responsibility is only gradually being recognized. General principles of criminal law require that an individual is responsible for his own acts and not for acts committed by others. The principle of vicarious responsibility applies in civil or tort cases and not in criminal prosecutions. The notion of criminal responsibility for acts of others is, to that extent, new in national criminal prosecutions before national courts.

While the concept of superior or command responsibility is now considered applicable in international criminal law and national military law, there appears to be no general consensus on whether the principle applies in all national jurisdictions, including to civilians who are in positions of authority. At the ICTR, the issue whether command or superior responsibility is recognized in national law was considered with respect to national jurisdiction under Rwanda law.

In Prosecutor v Hategekimana[10] the ICTR Prosecutor filed a motion seeking an order for the transfer of the accused to Rwanda for prosecution in its national court. The Indictment which was the basis for the Prosecutor’s request alleged that the accused was responsible for individual participation as well as for command responsibility for crimes committed in Rwanda in the 1994 NIAC. The Prosecutor’s motion was rejected by the Trial Chamber. The Judges ruled, inter alia, that Rwanda law does not expressly provide for superior or command responsibility among its various modes of liability.

Rwanda’s Penal Code provides for the prosecution of principal perpetrators and accomplices for instigation, preparation and planning, commission, direct and public incitement, provision of instruments or other assistance to principal perpetrators, and for harbouring or aiding perpetrators.[11]  According to the Hategekimana Trial Chamber, the language of the Rwanda’s Penal Code does not clearly captures the elements of command or superior responsibility as stipulated in Article 6(3) of the ICTR Statute. In arriving at the decision, the Trial Chamber opined:

“The [ICTR] Prosecutor’s and Rwanda’s submission are silent regarding command responsibility, and the Chamber is not aware of any provisions under Rwanda law that would authorize the High Court, or any Rwanda court, to hold Mr. Hategekimana criminally responsible for the failure to prevent or punish crimes he knew of or reasonably should have known of committed by his proven subordinates. The Chamber will therefore proceed on the assumption that Rwanda law does not recognise command responsibility or did not do so at the time relevant to the Amended Indictment […]. Given the importance of command responsibility to the Amended Indictment, the Chamber is not satisfied that there is an adequate legal framework under Rwanda law which criminalizes Mr. Hategekimana’s alleged conduct.”[12]

The Prosecutor appealed the decision and was dismissed by the Appeals Chamber. Hategekimana was subsequently prosecuted at the ICTR, convicted for, inter alia; command responsibility as a mode of liability and his appeal against conviction and sentence was dismissed.[13]

The Hategekimana Referral Decision underscores the level of underdevelopment of the law on superior or command responsibility in national jurisdictions. With respect to Rwanda, she has since amended its laws and expressly provide for command responsibility as a mode of liability. However, the Hategekimana Referral Decision is retrogressive because many armed conflicts, whether IAC or NIAC, which are currently fought, and shall continue to be fought, in Africa are conflicts in which military commanders and political leaders do not personally or physically go to combat zones and participate in actual fighting but it is their subordinates who act on their orders and are the actual perpetrators. Some of these conflicts are a result of disputed presidential or parliamentary elections giving rise to the so-called ‘post-election violence’ as were witnessed in Kenya and Cote I’dvore.  These leaders can only be held to account through the application of the principle of superior or command responsibility.

Further, command or superior responsibility as a mode of liability needs to be expressly provided in the statute because besides providing logistics support to the troops, senior military commanders and political leaders, men like Hategekimana, formulate general war policy and military strategy for the effective execution of the war. Their actions include issuing orders to combatants through the normal chain of command, and sometimes leaders or commanders issue orders to combatants from outside the official or normal chain of command. The rules of engagements issued to combatants may sometimes conflict with, or directly violate the provisions of Common Article 3 of the four 1949 Geneva Conventions (hereafter Common Article 3) and its Additional Protocol II of 1977 (hereafter Additional Protocol II), customary international law and general principles of law.

Viewed from that perspective, the Hategekimana Referral Decision, fails to contextualize the role of senior military commanders and political leaders who, in practice, are responsible for formulating war policies, ensuring that troops are supported with resources and equipment they need to wage effective wars and that orders, that may result in violations of the laws and customs of war are issued by the superiors and obeyed and implemented by subordinates.

However, the ICTR and ICTY have developed rich jurisprudence on the responsibility of senior military commanders and political leaders. This jurisprudence is derived from the application and interpretation of Article 6 (3) of the ICTR Statute (similar to article 7(3) of the ICTY Statute).  The cases adjudicated by the ICTR include that of the Prime Minister of Rwanda, his cabinet Ministers, army Generals and other senior military commanders and political leaders.

Article 6(3) of the ICTR Statute imposes individual criminal responsibility on superiors for failure to prevent or punish acts or omission committed by subordinates if the superior knew or had reason to know. The superiors’ responsibility cover all modes of liability that a subordinate is liable for under Article 6(1) of the ICTR Statute, namely: planning, instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the Statute (that is, crimes of genocide, crimes against humanity and war crimes).

The language of Article 6(3) of the ICTR Statute is very broad. It provides:

The fact that any of the acts [referred to in article 2 to 4 of the present Statute] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.[14]

There are four basic elements of Article 6(3) of the ICTR Statute which the Prosecutor can rely on in proving the responsibility of a superior for criminal acts committed by a subordinate. The Prosecutor need not prove all the four elements. Any one of the elements, once proved by the Prosecutor, shall impose individual criminal responsibility on a superior for the acts of his subordinates. The four elements are: First, the superior may be responsible for the acts of his subordinate if he knew, in other words, the superior had actual knowledge that the subordinate was about to commit such acts.

Second, the superior is responsible if he had reason to know that his subordinate was about to commit such acts. That is, the facts on the ground, including circumstantial evidence is such that a reasonable man or woman would have known. This is not direct or vicarious knowledge but imputed knowledge.

Third, a superior who has actual knowledge of the commission of the crime, or ought to have known, but failed to prevent the commission of the said crime is responsible for the acts of his subordinate. Fourth, a superior is responsible if, after the crime has been committed, failed to punish the subordinate.

The responsibility for failure to prevent may cover acts which were committed before the superior officer took charge of actual command of the unit or over the subordinate. The failure to prevent and the failure to punish are two distinct modes of responsibility. A superior who failed to prevent is not excused of responsibility because he later punished the subordinate. The superior is still responsible for his failure to prevent even if the subordinate was punished. The jurisprudence of the ICTR and ICTY provide useful guidelines to national Prosecutors in the course of their work in proving responsibility of superiors or commanders for acts of their subordinates committed in NIAC, a common challenge in many jurisdictions on the African continent.

From a historical perspective, and based on contemporary jurisprudence, the concept of ‘superior criminal responsibility’ is now accepted as forming part of customary international law[15] and is applicable to both IAC and NIAC.[16]  However, the concept of ‘superior criminal responsibility’ as used in Article 6(3) of the ICTR Statute (and 7(3)) of the ICTY Statute) is wider than the classical ‘command responsibility’ applied in international criminal law prosecutions.[17]  The scope of Article 6(3) of the ICTR Statute is wider than the principle of superior criminal responsibility which is now accepted as forming part of customary international law. According to the jurisprudence of the ICTR and ICTY, the apparent overlaps between paragraphs (1) and (3) of Article 6 of the ICTR Statute  can be distinguished because the paragraphs connote distinct categories of individual criminal responsibility,[18] which, if not encompassed in one count, may constitute the basis for two separate crimes in an indictment.[19]

Further, the modes of criminal responsibility of, for example, instigation and aiding and abetting, modes of responsibility stipulated in Article 6(1) of the ICTR Statute, share a common feature with that of superior criminal responsibility which is stipulated in Article 6(3) of the ICTR Statute. Instigation and aiding and abetting in Article 6(1) and superior criminal responsibility in Article 6(3) share a common feature because both are accessory to principal crimes committed by other direct perpetrators.

However, there are also fundamental differences between the modes of responsibility. Whereas for a finding of instigation and aiding and abetting, the Prosecutor must prove a ‘positive’ act as a contribution to the commission of the principal crime, responsibility under Article 6(3) is characterised by the omission of preventing the commission of the crimes or a failure by a superior to punish subordinates for having committed the crimes. The Prosecutor, with respect to Article 6(3) must therefore prove ‘omissions’ as opposed to ‘positive acts’ required in Article 6(1) to prove responsibility of the accused.

In the drafting of indictments, it is not uncommon for the Prosecutor to allege that the superior is responsible for the acts of his subordinates. This form of pleading does not mean, however, that the superior shares the same responsibility as the subordinate who commits the principal crime in terms of Article 6(1) of the ICTR Statute, but that the superior is responsible for his own omission in failing to prevent the commission of the crime, or to punish the subordinate after the commission of the crime if the superior knew or had reason to know. In this sense, the superior cannot be considered as if he had committed the crime himself, but merely for his criminal dereliction of duty with regard to crimes committed by his subordinates. By this essential element being distinct from the subordinate’s responsibility under Article 6(1) of the ICTR Statute, the superior’s individual criminal responsibility under 6(3) of the Statute can indeed be called a responsibility sui generis.[20]

For the Prosecutor to prove criminal responsibility of a superior under Article 6(3), both with regard to the crime base committed by subordinates and the superior’s responsibility for failing to prevent the commission of the crime or for failing to punish subordinates after the crimes have been committed, four additional elements, separate from the four elements already mentioned above, must be proved. First, the Prosecutor must prove that an act or omission incurring individual criminal responsibility for crimes stipulated in Articles 2 to 4 of the ICTR Statute is committed by a subordinate or subordinates of the accused and not by the accused personally. If the superior personally committed the crimes, then the proper mode of responsibility is Article 6(1) of the ICTR Statute and not Article 6(3).

Second, the Prosecutor must prove, to the satisfaction of a Trial Chamber, the existence of a superior-subordinate-relationship between the accused and the principal perpetrators. If there is no superior-subordinate relationship between the accused and the actual perpetrators, the accused shall incur no criminal responsibility for the acts committed.  Where there is a legal (de jure) relationship between the superior and the subordinate, it is generally easy to prove as the Prosecutor may rely on the legal instrument itself and the structure of the organisation or chain of command structure. However, where the relationship is fact-based (de facto) the Prosecutor has a more difficult task in proving the superior-subordinate relationship between the accused and the actual perpetrators. I will revert to this point shortly when discussing the modalities the Prosecutor uses in proving the existence of a subordinate-superior relationship based on de facto authority.

Third, the Prosecutor must prove that the accused as a superior knew or had reason to know that the subordinate was about to commit such crimes or had done so. In proving that the superior knew or had reason to know, the Prosecutor may rely on circumstantial evidence to demonstrate that a reasonable man or woman, with access to similar facts, knew or should have had reason to know, that the subordinate was about to commit the crimes or had done so. Fourth, the Prosecutor must prove that the accused as a superior failed to take the necessary and reasonable measures to prevent such crimes or punish the perpetrators.[21]

I will now discuss these inter-related elements and simultaneously address the burden of proof placed on the Prosecutor in proving each of the elements of Article 6(3) of the ICTR Statute.

Superior responsibility

The key words which are scattered throughout the ICTR Statute but are relevant in proving responsibility of a superior for acts committed by his subordinates under Article 6(3) of the ICTR Statute are: ‘committing’, ‘acts’ and ‘omissions’. These three words are also expressly stipulated in Article 6(3) of the ICTR Statute.

‘Committing’ under Article 6(3) of the ICTR Statute is a term of art which refers to any of the acts proscribed under Article 6(1) of the ICTR Statute. Consequently, a superior who fails to prevent his subordinates not only from committing the crime in person but also from instigating or aiding and abetting the commission of these crimes by others, or from permitting the crimes to be committed by omission incurs individual criminal responsibility. Prima facie, failure by the superior to prevent a subordinate from committing a crime by any of the modes of liability stipulated in Article 6(1), or failure by the superior to punish a subordinate after the crime is committed based on any of the modes of responsibility under Article 6(1) results in the superior’s individual criminal responsibility under Article 6(3) of the ICTR Statute.

The word ‘committing’ is used in different Articles of the ICTR Statute to mean different things, depending on the context in which the word is used. Thus, the precise meaning of the word ‘committing’ is determined from the context in which it is used.  For example, the word ‘committing’ is found in Articles 1, 2, 4, 6, 8, 15 and 28 of the ICTR Statute. The word ‘committing’ as used in several articles of the ICTR Statute referred to above, is a good example in demonstrating that the term may be open to different interpretations, depending on the purpose and context in which it is used.

Article 6(1) of the ICTR Statute lists various forms of individual criminal responsibility in terms of perpetration and participation. However, Article 6(3) of the ICTR Statute deals with criminal responsibility at the level of a superior by determining his duties. Even if this is done within the same Article, varied language in two different sections speaks against rather than for its understanding in only one sense. Consequently, the possibility of a different interpretation can certainly not be excluded.

From a practical point of view, since a broad interpretation of ‘committing’ in Article 6(3) of the ICTR Statute cannot be excluded, decisive weight must be given to the purpose of superior criminal responsibility which aims at obliging superiors to ensure that subordinates do not violate Articles 2 to 4 of the ICTR Statute, either by harmful acts or by omitting a protective duty. This enforcement of the law would be  undermined if a superior’s obligation is limited to prevent subordinates only from killing or torturing in person, while he could look the other way if his subordinates ‘merely’ instigated or aided and abetted others in procuring the same crime.[22]

A careful reading of the Report of the United Nations Secretary-General on the establishment of the ICTY suggest that individual criminal responsibility of a superior under Article 7(3) of its Statue (similar to Article 6(3) of the ICTR Statute) is not limited to crimes committed by subordinates in person but encompasses any modes of criminal responsibility proscribed in Article 7(1) of the ICTY Statute (similar to Article 6(1) of the ICTR Statute), in particular, instigating as well as aiding and abetting.[23]

Further,  the language  of Article 6(3) of the ICTR Statute, and the nature of the ‘acts’ referred therein, suggests that a superior’s criminal responsibility for crimes committed by subordinates is not limited to the subordinates’ active participation, but also comprises their ‘committing’ those acts by omission. This position of law is supported by the common usage of the words ‘act’ and ‘committing’ as legal umbrella-terms for conduct that consists of actively causing a certain result to occur or in failing to prevent its occurrence. Furthermore, even where the Statute describes criminalised violations of international laws, treaties and conventions in an active manner by referral to ‘acts’ against persons as enumerated in Articles 2  to 4 of the ICTR Statute, the word ‘acts’ is consistently understood as comprising both ‘acts’ and ‘omissions’.

The use of ‘acts’ to include ‘omissions’ when read together with recognized general principles of criminal law definition of ‘committing’ which covers physical perpetration of a crime by a culpable omission in violation of criminal law”,[24] it is persuasive to argue that the word ‘acts’ does subsume ‘omissions’ because crimes, such as murder, torture or cruel treatment, can all be perpetrated by ‘acts’ as well as ‘omissions.’[25]  Furthermore, since commission through culpable omission is not limited to perpetration but, according to the ICTY jurisprudence, is open to all forms of participation,[26] including instigating as well as aiding and abetting which can be carried out by omission.

In whatever mode, though, omission can incur criminal responsibility only if there was a duty to act in terms of preventing the prohibited result from occurring, and a duty to punish the subordinates if the crimes have already been committed. Such a duty can, in particular, arise out of responsibility for the safety of the person concerned, derived from international humanitarian law[27] or based on a position of authority, or can result from antecedent conduct by which the person concerned has been exposed to a danger.[28]

Superior-subordinate Relationship

A superior who is an accused will not be held individually criminally responsible for criminal acts committed by his subordinates if the Prosecutor fails to prove the existence of a superior-subordinate relationship between the Accused (as a superior) and the actual perpetrator (the subordinate) at the time the alleged crime was committed. The Prosecutor has the obligation to prove to the satisfaction of the Trial Chamber that as a matter of fact (de facto), or law (de jure); a superior-subordinate relationship exists between the direct perpetrator, who is a subordinate of the accused, and the superior, who is an accused, at the time the alleged crime was committed. In the absence of such a proof, the accused shall not bear individual criminal responsibility for the alleged crimes.

There is a wealth of jurisprudence from the ICTY and ICTR Trial and Appeals Chambers on superior or command responsibility. In the Celebici case, for example, the Trial Chamber opined that “the doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates”.[29] The Trial Chamber statement in Celebici makes two important clarifications on the scope of superior responsibility.  First, the Celebici judgement makes it clear that there is no legal distinction between ‘commanders’ and ‘superiors’ for the purpose of holding commanders or superiors responsible for the acts of their subordinates.

The pioneering decision in Celebeci, clarifying the scope of superior responsibility by stating that there is no distinction between ‘commanders’ and ‘superiors’ was later adopted in Article 28(2)(a) and (b) of the ICC Statute (also known as the Rome Statute). The ICC Statute uses exclusively the generic term of ‘superior’.[30] The ICTR jurisprudence  has as well adopted the generic use of ‘superior’ and to that extent, the scope of Article 6(3) of the ICTR Statute extends the responsibility of a superior beyond classical ‘command responsibility’ to a truly ‘superior criminal responsibility’. The wide scope of Article 6(3) of the ICTR Statute does not only include military commanders within its scope of responsibility, but also political leaders and other civilian superiors in possession of authority.[31]

The second clarification in the Celebeci judgement was to underscore the point that it is immaterial whether that power of a superior or a commander to exercise effective control over subordinates is based on a de jure or a de facto authority, what is important is that at the time the alleged crime was committed, the superior had the ability to exercise effective control over the subordinate.[32]  The Celebeci judgement recognizes that a formal appointment within a hierarchical structure of command may still prove to be the best basis for incurring individual criminal responsibility as a superior.[33]

However, the broadening of command or superior responsibility as described above is supported by the fact that the borderline between military and civil authority can be, and in many situations, have become fluid.[34]This is particularly the case with regard to many contemporary armed conflicts, particularly NIAC, where there may be only de facto self-proclaimed governments and/or de facto armies and paramilitary groups subordinate thereto or self-appointed commanders who exercise effective control over other fighters.[35]

Thus, regardless of which chain of command[36] or position of authority the superior-subordinate relationship may be based, it is immaterial whether the subordination of the perpetrator to the accused as superior is direct or indirect, and formal, informal or factual.[37] In the same vein, the mere ad hoc or temporary nature of a military unit or an armed group does not per se exclude a relationship of subordination between the member of the unit or group and its commander or leader.[38] In NIAC where a party to the conflict comprise rebels or guerrilla fighters, identifying sources of de jure authority is always problematic. The RPF, for example, did not have a clear legal source of its authority until it captured Kigali on July 4, 1994 and soon thereafter declared itself the legitimate government of Rwanda.

Within this broad platform, however, proof of a superior-subordinate relationship ultimately depends on the existence of effective control which requires that the superior must have had the material ability to prevent or punish the commission of the principal crimes.[39]

On the one hand, the exercise of effective control by the superior over a subordinate needs to be more than merely having ‘general influence’ on the behaviour of subordinates.[40] Likewise, merely being tasked with coordination does not necessarily mean whoever is temporarily exercising the authority has command and control over the subordinates.[41] However, effective control does not presuppose formal authority to issue binding orders or disciplinary sanctions, as the relevant threshold rather depends on the factual situation, i.e., the ability to maintain or enforce compliance of others with certain rules and orders. Whether this sort of control is directly exerted upon a subordinate or mediated by other sub-superiors or subordinates is immaterial, as long as the responsible superior would have the means to prevent the relevant crimes from being committed or to take efficient measures for having the subordinates sanctioned.

Similarly, proof of the existence of a superior-subordinate relationship does not require the identification of the principal perpetrators, particularly not by name, nor that the superior had knowledge of the number or identity of possible intermediaries, provided that it is at least established 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.[42]

It is tempting to conclude that it is obvious that the requisite level of control a superior exercises over a subordinate is a matter to be determined on the basis of the evidence presented in each case.[43] However, the jurisprudence of the ICTY and ICTR provides certain criteria that are more or less indicative of the existence of some authority in terms of effective control. This is in particular true with regard to the formality of the procedure used for appointment of a superior,[44] the power of the superior to issue orders[45] or take disciplinary action,[46] the fact that subordinates show in the superior’s presence greater discipline than when he is absent,[47] or the capacity to transmit reports to competent authorities for the taking of proper measures.[48]

Further, the ICTY and ICTR jurisprudence have identified as relevant criteria for the exercise of effective control as a superior’s capacity to sign orders,[49] provided that the signature on a document is not purely formal or merely aimed at implementing a decision made by others,[50] but that the indicated power is supported by the substance of the document[51] or that it is obviously complied with.[52]  Furthermore, a superior’s high public profile, manifested through public appearances and statements[53] or by participation in high-profile international negotiations,[54] although not establishing effective control per se, is an additional indicator of effective control over subordinates.

On the other hand, effective control does not necessarily presuppose a certain rank, so that even a rank-less individual commanding a small group of men can have superior criminal responsibility.[55] Nor is it required that the superior generally exercises the trappings of de jure authority.[56]

If a superior is proved to have possessed the effective control to prevent or punish relevant crimes, his own individual criminal responsibility is not excluded by the concurrent responsibility of other superiors.[57] If, however, a superior has functioned as a member of a collegiate body, as for example, a member of a Military High Command, with authority shared among various members, the power or authority actually devolved on an accused may be assessed on a case-by-case basis, taking into account the cumulative effect of the accused’s various functions.[58]

The determination of the responsibility of an individual who is a member of a collegiate body, such as a Military High Command is particularly relevant in situations of NIAC where the leadership of a guerrilla fighting force may resort to its Military High Command taking decisions and not one single individual leader or commander. Similarly, in times of armed conflicts the armed forces of the State may be decentralized and each military unit may be responsible for its own decisions without necessarily referring the matter to the Chief of General Staff. It becomes relevant for the Prosecutor to demonstrate that the accused, as a superior, knew or had reason to know that his subordinates were about to commit crimes, or had committed crimes.

Whether Accused ‘Knew or had Reason to Know’

In theory it is possible for a soldier or a civilian administrator to be in charge of others during armed conflict but may not be aware either that he is in charge or  aware that he can exercise authority over any person. Thus, a fundamental mental requirement for superior to be held criminal responsibility  for the acts of his subordinates is that a superior be aware of his own position of authority, i.e., that he has effective control, under the specific circumstances, over the subordinates who committed or were about to commit the relevant crimes. A person who is not aware that he is a superior may lack capacity to prevent the commission of a crime or to punish a subordinate who committed a crime. It is this requirement that makes it imperative for the Prosecutor in a criminal trial to commence by leading evidence to establish that the accused is a superior and he is aware of his position as a superior with the capacity to exercise effective control.

Contemporary NIAC in Africa when some combatants (both government forces and rebels) have very little or no formal education, barely read or write, and with very limited military training and skills, it is not difficult to imagine that some platoon or company commanders may not be aware of the power they may have. Recruitment and deployment of child soldiers by political leaders and military commander exacerbate the Prosecutor’s challenges on establishing the responsibility of an accused that fall in this category. With respect to child soldiers, they are indeed victims rather than perpetrators to be prosecuted.

However, beyond this general requirement of mens rea, Article 6(3) of the ICTR Statute requires no more than the superior either (a) having known or (b) having had reason to know, that his subordinates were about to commit the principal crimes or had already done so. Whereas the former requires proof of actual knowledge, the latter requires proof only of some grounds which would have enabled the superior to become aware of the relevant crimes of his subordinates. By permitting the attribution of criminal responsibility to a superior for what is in actual fact a lack of due diligence in supervising the conduct of his subordinates, Article 6(3) of the ICTR Statute in this respect sets itself apart by being satisfied with a mens rea falling short of the threshold requirement of intent under Article 6(1) of the ICTR Statute.  Nevertheless, superior criminal responsibility by no means involves the imposition of ‘strict or vicarious’ responsibility,[59] for even if it may be described as the ‘imputed responsibility or criminal negligence’,[60] a mental element is required at least in so far as an accused must have been aware of his position as a superior and of the reason that should have alerted him to relevant crimes of his subordinates.

Distinction between ‘actual knowledge’ and ‘imputed knowledge’ is relevant in determining criminal responsibility of a superior for the principal crimes committed by his subordinate. The actual knowledge of the superior, in terms of awareness that his subordinates were about to commit or have committed relevant crimes,[61] cannot be presumed.[62] In the absence of direct evidence, however, actual knowledge may still be established by way of circumstantial evidence.[63] Although in this regard, the superior’s position may per se appear to be a significant indication from which knowledge of a subordinate’s criminal conduct can be inferred,[64] such status is not to be understood as a conclusive criterion[65] but must be supported by additional factors.[66]

According to the jurisprudence of the ICTY and ICTR, circumstantial evidence can in particular be gained from the indicia listed by the United Nations Commission of Experts in its final report on the armed conflict in the former Yugoslavia.[67]  The indicia listed include: the type and scope of illegal acts, the time during which they occurred, the number and type of troops involved, the logistics involved, if any, the geographical location of the acts, their widespread occurrence, the tactical tempo of operations, the modus operandi of similar illegal acts, the officers and staff involved and the location of the commander at the time.[68]

The required knowledge is in principle the same both for military and civilian superiors.[69]  However, there are various indications that must be assessed in light of the accused’s position of command. This may, in particular, imply that the threshold required proving knowledge of a superior exercising more informal types of authority is higher than for those operating within a highly disciplined and formalised chain of command with established reporting and monitoring systems.[70]

On the other hand, in proving to the satisfaction of the Trial Chamber that the Accused had imputed knowledge, the Prosecutor may rely on circumstantial evidence. It is important that circumstantial evidence relied on by the Prosecutor must be compelling. To that extent, ‘imputed knowledge’ may be construed as an alternative of having had ‘reason to know’. In imputing criminal responsibility to a superior based on having had ‘reason to know’, the superior is deemed not to have possessed actual knowledge. Instead, the superior can be held responsible for having had reason to know, had he made use of information which, by virtue of his superior position and in compliance with his duties, was available to him, that subordinates were about to commit or had already committed the principal crimes.[71] In these terms, this mode of mental state may indeed be described as ‘imputed knowledge’.[72]

In determining whether a superior had ‘reason to know’ that subordinates were about to commit a crime, or were committing crimes, the Prosecutor has the obligation to prove that the superior was in possession of information which put him on notice of criminal acts committed or about to be committed by his subordinates.[73] This determination does not require the superior to have actually acquainted himself with the information in his or her possession,[74] nor that the information would, if read; compel the conclusion of the existence of such crimes.[75] It suffices that the information was available to the superior and that it indicated the need for additional investigation in order to ascertain whether crimes were being committed or about to be committed by his subordinates.[76] The information may be general in nature;[77] however, it must be sufficiently specific to demand further clarification.[78] This does not necessarily mean that the superior may be held liable for failing to personally acquire such information in the first place.[79] However, as soon as the superior has been put on notice of the risk of criminal acts by his subordinates,[80] he is expected to stay vigilant and to inquire about additional information, rather than doing nothing or remaining ‘wilfully blind’.[81]

Whether the relevant information has become available to the superior in written or oral form is immaterial.[82] In particular, it is not necessary for the information to have been submitted in the form of a specific report.[83] Examples of information which have been found to place a superior on notice of the risk of criminal conduct by a subordinate include that of a subordinate having a notoriously violent or unstable character and that of a subordinate drinking prior to being sent on a mission.[84] Even where such indications are present, the Trial Chamber would find that a ‘reason to know’ existed only if, as appears also to be required by the Appeals Chamber,[85] these indications point to the same type of crimes as the superior was supposed to prevent or punish, as opposed to merely general criminal activity. If the superior knew or had reason to know that his subordinates were about to commit or were committing such crimes, the superior will incur further criminal liability if he failed to prevent his subordinates from committing the crimes. Furthermore, the superior shall be criminally responsible if he failed to punish his subordinates after the crimes were committed.

Whether Accused ‘Failed to Prevent or Punish’ his subordinate

Under  the ‘failure to prevent or punish’ prong, a superior is responsible for not only the failure to have acquired sufficient knowledge about the criminal conduct of his subordinates, but ultimately he is responsible for the failure to react appropriately by preventing the commission of the crimes or punishing subordinates for having committed the relevant crimes.[86]

As a mode of criminal responsibility based on omission, superior criminal responsibility presupposes a duty of the superior[87] to prevent the commission of crimes by his subordinates that are about to be committed and the punishment of subordinates who have already committed crimes.[88] This duty does not permit a superior to choose either to prevent the crimes or to await their commission and then punish.[89] The superior’s obligations are consecutive, that is, it is the primary duty of the superior to intervene as soon as he becomes aware of crimes about to be committed, while taking measures to punish may only suffice, as substitute, if the superior became aware of these crimes only after their commission of the crime.

Therefore, a superior’s failure to prevent the commission of the crime by a subordinate, where he had the ability to do so, cannot simply be remedied by subsequently punishing the subordinate for the crime.[90] The failure of the superior to prevent or to punish the subordinates constitutes two distinct, but related, aspects of superior criminal responsibility which correlate to the timing of a subordinate’s commission of a crime. Hence, a superior has the duty to prevent future crimes and simultaneously the duty to punish past crimes of subordinates.[91]

Second, the duty to take necessary and reasonable measures to prevent crimes from being committed presupposes that a superior is in a position to take the required measures prior to, or at least, during the commission of the crimes to be prevented. This implies that, both in temporal and in functional terms, the superior, as soon and as long as he has effective control over subordinates which he knows, or has reason to know, are about to commit relevant crimes, must counteract with appropriate measures. This requirement of actual control, in terms of the coincidence of the time at which the relevant crimes are to be prevented and the superior’s effective power of taking the necessary measures, is substantially the same as that which is reflected by different terms in the jurisprudence of the ICTY and ICTR.[92]

Article 6(3) of the ICTR Statute imposes a duty on a superior to prevent a subordinate’s ‘acts’ which, according to the underlying modes of criminal responsibility set out in Article 6(1) of the ICTR Statute comprise not only the ‘execution’ but also the ‘planning’ and ‘preparation’ of crimes.  It is therefore not only the completion of a crime which must be prevented, but  the superior also has a duty to prevent  its planning and preparation, if for no other reason than as a matter of efficiency.

Further, since a superior has a legal duty to take preventive measures when he becomes aware that his subordinates ‘are about to commit such acts’, and, such acts comprise the commission of a crime from its planning and preparation until its completed execution, the superior, being aware of what might occur if not prevented, must intervene against imminent planning or preparation of such acts. This means, first, that it is not only the execution and full completion of a subordinate’s crimes which a superior must prevent, but the earlier planning or preparation. Second, the superior must intervene as soon as he becomes aware of the planning or preparation of crimes to be committed by his subordinates and as long as he has the effective ability to prevent them from starting or continuing with the preparation and planning of the crime.

In the Blaskic Appeals Chamber judgement, the court opined that the type of measures a superior must take in order to prevent the crimes of his subordinates is a matter of evidence rather than of substantive law.[93] This characterisation is correct in the sense that the appropriate measures to be taken may vary from case to case depending upon the particular circumstances.[94] Therefore any attempt to formulate a general standard in abstracto may not be meaningful.[95] This cannot mean, however, that the necessary and reasonable measures a superior is expected to take may be determined without reference to a normative yardstick.[96] Such guidance can be drawn from four criteria: first, as a superior cannot be asked for more than what is in his power,[97] the kind and extent of measures to be taken ultimately depend on the degree of effective control over the conduct of subordinates at the time a superior is expected to act.[98]

Second, in order to be efficient, a superior must undertake all measures which are necessary and reasonable to prevent subordinates from planning, preparing or executing the prospective crime.

Third, the more grievous or imminent the potential crimes of subordinates appear to be, the more attentive and quicker the superior is expected to react; and fourth, since a superior has a legal duty only to undertake what appears appropriate under the given conditions, he is not obliged to do the impossible.[99]

It should be emphasised, however, that these guiding criteria must be applied in light of the case-specific situation. As distinguished by the Trial Chamber in the Halilovic case,[100] the duty to prevent cannot simply be founded upon those general obligations a military commander or civilian superior may have with regard to ensuring order among, or exercising control over, troops or subordinates, for example, by informing subordinates of their legal responsibilities and cautioning them to act in an orderly and lawful fashion. A superior’s neglect of such elementary obligations may be a contributing factor considered in the assessment of a failure to prevent subordinates’ crimes; however, it does not entail superior criminal responsibility per se. What is required is a finding by the Chamber that the superior, in view of the factual circumstances of the case, failed to do what would have been necessary, reasonable and possible to prevent the criminal activities of his subordinates.

On the other hand, a superior cannot simply be relieved of the special obligation to prevent subordinates’ crimes by the mere showing of adherence to general obligations. Therefore, while a superior cannot be held responsible solely for neglecting a general obligation, neither can he avoid superior criminal responsibility by proving diligence in meeting those general duties while failing to take the necessary measures under his special obligation in the particular circumstances.[101]

According to the jurisprudence of the ICTY and ICTR, the superior needs to do a lot more than merely issuing orders. A superior must take measures as are necessary and reasonable for preventing crimes by his subordinates.[102]  The following are some of the actions a superior may take so as to avoid criminal responsibility for the acts of his subordinates. First, beyond issuing mere routine instructions, a superior may have to give special or specific orders aimed at bringing unlawful practices of his subordinates in compliance with the rules and regulations of law and customs of war[103] and to secure the implementation of these orders by his subordinates.[104]

Second, where a superior receives information that crimes are about to be committed, or that it is being committed, a superior may be required to investigate whether and find out whether the information is credible and if indeed crimes are about to be committed by his subordinates,[105] if such credible evidence exist, the superior must protest against or criticise criminal action of his subordinates.[106] If the subordinates, despite actions taken by the superior still went ahead and committed the crimes, the superior must take disciplinary measures against the commission of the crimes,[107] or to report to[108] and/or to insist before a superior authority that immediate action be taken against his subordinates.[109]

The measures described above may be required of a superior even if he or she lacks the formal capacity or legal competence to perform them in person. Requiring measures to be taken beyond a superior’s formal powers[110] reflects a definition of responsibility that is based more on the superior’s material ability to effectively control than on formal status.[111] An obvious case of failure would be if a superior, despite awareness of the criminal activities of his subordinates, did nothing,[112] for instance by simply ignoring such information.[113] A further example of failure would be that of a superior who failed to give any instructions to subordinates due to his frequent absence from duty[114] provided of course that the superior’s lack of presence was not necessitated by other overriding obligations.

Third, the duty to punish is a subsidiary duty that becomes relevant when the superior learns of the crime of a subordinate after its commission. If a superior, however, was already aware of the crime while it was ongoing, he can be found responsible both for the failure to prevent the crime and for not having punished the subordinate after committing the crime.

As regards the superior’s duty to punish, two issues arise. First, at what stage the commission of a crime  should have reached before a superior becomes obliged to take measures to punish, that is, should the commission of the crime have been completed; and, second,  what position of authority the superior must have held at that time.

With regard to the first issue, the ordinary description of the superior’s duty, as arising after the commission of the crime, seems to suggest that only completed crimes may be punished. This, however, is only partly true.  The rationale for punishing a perpetrator is that an attempt to commit a crime, if not punished, would mean that superior criminal responsibility according to Article 6(3) of the ICTR Statute is only applicable when the crime committed by a subordinate is completed in the same way as would be necessary for other modes of participation. This conclusion would suggest that only a subordinate who completes a crime should be punished.

It is, however, relevant to note that Article 6(3) of the ICTR Statute does not restrict the participation in a crime exclusively to acts which complete its execution, but includes inchoate acts which, in Article 6(1) of the ICTR Statute, comprise its planning and preparation, and it is therefore necessary only to prove that the criminal activities of a subordinate finally leads to a completed principal crime. This means that the superior must as well be responsible for preparatory or incomplete acts of subordinates who contributed to the principal crime merely by participating in the planning and preparation of it.

However, while it is true that without a violation of the law there is no violator to be punished;[115] such a violator is seen in the participation of a subordinate in the direct crime of others in circumstances where the superior has effective control of the relevant subordinates at the time when measures of investigation and punishment are to be taken against them.[116] Such a link, however, appears less essential, if necessary at all, with regard to the time at which the crime was committed. The duty to prevent calls for action by the superior prior to the commission of the crime, and thus presupposes that the superior has the power to control the conduct of his subordinates.

The duty to punish, by contrast, follows the commission of a crime of which the superior need not have been aware, and thus at the moment of commission was in fact out of his control to prevent. Since a superior in such circumstances is obliged to take punitive measures notwithstanding his inability to prevent the crime due to his lack of awareness and control, it seems only logical that such an obligation would also extend to the situation wherein there has been a change of command following the commission of a crime by a subordinate. The new commander in such a case, now exercising power over his subordinates and being made aware of their crimes committed prior to the change of command, for the sake of coherent prevention and control, should not let the subordinates go unpunished. This reasoning is best understood by realising that a superior’s duty to punish is not derived from a failure to prevent the crime, but rather, it is a separate duty of its own. The cohesive interlinking of preventing and punishing would be disrupted if the latter were made dependent on the superior’s control at the time of commission of the crimes. Consequently, for a superior’s duty to punish, it should be immaterial whether he had assumed control over the relevant subordinates prior to their committing the crime.[117]

In principle, the same criteria required for the duty to prevent, apply with respect to the duty to punish, with the following qualification: whereas measures to prevent must be taken as soon as the superior becomes aware of the risk of potential criminal acts about to be committed by subordinates, the duty to punish commences only if, and when, the commission of a crime by a subordinate can be reasonably suspected. Under these conditions, the superior has to order or execute appropriate sanctions[118] or, if not yet able to do so, he must at least conduct an investigation[119] and establish the facts[120] in order to ensure that offenders under his effective control are brought to justice.[121] The superior need not conduct the investigation or dispense the punishment in person, [122]but he must at least ensure that the matter is investigated[123] and transmit a report to the competent authorities for further investigation or sanction.[124]

A second prong of a superior’s duty to punish his subordinates is based on the principle of preventing future crimes. For example, in the case of preventing crimes, the superior’s own lack of legal competence does not relieve him from pursuing what his material ability enables him to do.[125] Since the duty to punish aims at preventing future crimes of subordinates, a superior’s responsibility may also arise from his failure to create or sustain, amongst the persons under his her control, an environment of discipline and respect for the law.[126]

Conclusion

The principle of superior or command responsibility is instrumental in holding to account leaders who kill or order the killing of their own people. The principle of superior responsibility was effectively applied at the ICTY and ICTR in cases that involved IAC and NIAC in the Former Republic of Yugoslavia (FRY), and NIAC in Rwanda. Political leaders and military commanders who were alleged to have killed their own people in the FRY and Rwanda were made to account for their heinous crimes.  Many of these former leaders, after free and fair trials, were convicted and sentenced to long terms of imprisonment. Some accused persons, for a variety of reasons, including witness tampering, were acquitted or the cases were discontinued. Thus, in both situations, whether there was a conviction or acquittal, the jurisprudence of these two tribunals contributed significantly to the establishment of the ICC and will continue to influence jurisprudence of many national courts.

Additionally, since the establishment of the ICC, a number of African leaders, including military and rebel commanders have been referred to the ICC by their own states but, sometimes the referrals were carried out very reluctantly or under extreme economic or diplomatic pressure from the international community. Even when some of the cases were not successfully prosecuted, primarily due to political and economic obstructions, but more so for witnesses’ tampering, the ICC continues to produce considerable important jurisprudence on both procedural and substantive law on responsibilities of leaders who kill or order the killing of their own people.

The referrals by the UNSC or proprio motu by the ICC Prosecutor, have had positive impact as African leaders in particular who in the past had a free hand in brutalising their own people are now beginning to be responsive to the idea of respect for human rights of their citizens, though very reluctantly.  The downside of The Hague prosecutions is that even after the arrest and transfer of perpetrator leaders to the ICC, some of the accused persons, through their agents and other co-conspirators continue to exercise effective powers in their countries with the result that many witnesses, including victims and survivors are threated and often decline to testify against these powerful leaders. Witness protection needs to be robust and periodically improved to provide better protections and confidence to witnesses who are brave enough to come forward and testify.  These are some of the challenges the ICC Prosecutor will continue to face as the judicial process slowly seeks to bring perpetrators to account. As time goes by, and with qualitatively improved model of protection, witnesses, victims and survivors shall marshal their strength and testify against perpetrator leaders. The long arms of the law generally, and principle of superior or command responsibility, in particular, shall reach the perpetrators.

Significantly, the establishment of the ICTY, ICTR and later the ICC created positive conditions for acceptance of the idea that persons in authority can be held to account for acts of their subordinates. The prosecution of subordinates – often the foot soldiers or the young and naïve political activists – who are direct perpetrators, were prosecuted by the regime controlled by the leaders before national courts as  covers to protect their superiors – the leaders who ordered the killing of their own people – who were then allowed to go free. The middle and upper class perpetrators were never prosecuted but rewarded with higher promotion in a system that has no respect for the rule of law.

It is submitted that enforcing the law on responsibility to account for serious crimes committed by persons in positions of authority creates conditions for good governance and due diligence in performance of their official duties. The trickledown effect of both legal and moral responsibilities from positive judicial decisions, down to the superiors and ultimately to subordinates and ordinary citizens, as a result of effective and successful prosecution of perpetrators, will hopefully create conditions for the establishment of accountable, independent and credible state institutions governed by the rule of law.

Finally, holding leaders to account for their acts and omissions inculcates in the minds of the population a sense of respect for moral codes, both traditional and legal, and ability to separate right from wrong; to do good to all manner of people without fear or favour, and to guide those in position of leadership not to demonise those they do not agree with, or treat them as mortal enemy, but should instead to seek redress in court, with respect to due process within the rule of law.

END

References

ICTR Cases

Prosecutor v Bagilishema Ignace, Case No. ICTR-95-I. (Trial Chamber Judgement, 7 June 2001)

Prosecutor v Kamuhanda Jean de Dieu, Case No. ICTR-99-54-T (Trial Chamber Judgement, 22 January 2005)

Prosecutor v Kajelijeli Juvenal, Case No. ICTR-98-44A, Appeals Chamber Judgement (23 May 2005)

Prosecutor v Kambanda Jean, Case No. ICTR-97-23- Trial Chamber Judgement (4 September 1998)

Prosecutor v Kayishema Clement, Case No. ICTR-95-I (Trial Chamber Judgement, 21 May 1999)

Prosecutor v Musema Alfred, Case No. ICTR-96-13- T (Trial Chamber Judgement, 27 January 2000)

Prosecutor v Niyitegeka Eliezer, Case No. ICTR-96-14-T (Trial Chamber Judgement, 16 May 2003)

Prosecutor v Ntagerura Andre, Bagambiki Emmanuel and Imanishimwe Samuel, Case No. ICTR-99-46-T, (Trial Chamber Judgement, 25 February 2004)

Prosecutor v Hategekimana Ildelphonse, Case No. ICTR-00-55B-R11bis “Decision on Prosecutor’s Request for Referral of the Case of Hategekimana Ildelphonse to Rwanda” of 19 June 2008

Prosecutor v Semanza Laurent, Case No. ICTR-97-20-T (Trial Chamber Judgement, 15 May 2003)

ICTY cases

Prosecutor v Aleksovski Zlatko, Case No. IT-95-14/I (Trial Chamber Judgement, 25 June 1999)

Prosecutor v Blaskic Tihomir Case No. IT-95-14A (Appeals Chamber Judgement, 29 July 2004)

Prosecutor v Galic Stanislav, Case No. IT-98-29 (Trial Chamber Judgement, 5 December 2003)

Prosecutor v Had’ihasanovic Enver, Alagic Mehmed and Kubuta Amir, Case No. IT-01-47-AR-72 (Appeals Chamber Judgement, 16 July 2003.

Prosecutor v Hailovic Sefer, Case No. IT-01-48 (Trial Chamber Judgement, 16 November 2005)

Prosecutor v Kordic & Cerkez, Case No. IT-95-14/2 (Appeals Chamber Judgement, 17 December 2007)

Prosecutor v Krnojelac Milorad, Case No. It-97-25-PT, “Decision on the Defence Preliminary Motion on the Form of Indictment” 24 February 1999

Prosecutor v Krnojelac Milorad, Case No.IT-97-25 (Trial Chamber Judgement, 15 March 2002)

Prosecutor v Krstic Radistav, Case No. IT-98-33 (Trial Chamber Judgement, 2 August 2001)

Prosecutor v Kvocka et al, Case No. It-98-30/I (Appeals Chamber Judgement, 28 February 2005)

Prosecutor v Naletilic Mladen, Case No. IT-98-34 (Trial Chamber Judgement, 31 March 2003)

Prosecutor v Stakic Milomir, Case No. IT-92-24 (Trial Chamber Judgement, 31 July 2003)

Prosecutor v Tadic Dusko, Case No. IT-94-I (Trial Chamber Judgement, 7 May 1997)

Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Land’o Case No. IT-96-21-A (Appeals Chamber Judgement, 20 February 2001)

 

ICJ Case

Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgement, I.C.J Reports 2012, p.422

United Nations’ Documents

Charter of the International Military Tribunal Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement) 8 August 1945, 82 UNTS 279, reprinted in 39(1945) American Journal of International Law, Supplement, 256

Resolution 95(I) of 11 December 1946: Affirmation of the Principles of International Law Recognized by the Charter of Nuremberg.

Statute of the International Criminal Court (Rome Statute) UNTS Series, vol 2187, No.38544, in force on 1 July 2002.

Final Report of the Commission of Experts, Established Pursuant to Security Council Resolutions 780(1992) UN.Doc. S/1994/674.

United Nations Security Council Resolution 808 (3 May 1993) UN. Doc. S/25704 (“Report of the Secretary General to the Security Council”)

Final Report of International Law Commission, 2014 – adopted by ILC at its sixty-sixth sessions in 2014, and submitted to the General Assembly as part of the Commission’s report covering the work of the session (at para.65) – Yearbook of the International Law Commission, 2014 Vo. II (Part II).

*Obote Odora, A, LLB (Hons) (MUK); LLM, LLD (Stockholm), Founder & Executive Director, Alternative Policy Forum and Specialist & Researcher in International Criminal Law.

[1] See Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Land’o, Case No. IT-96-21-A, Judgement, 20 February 2001 (“Celebici Appeal Judgement”), at para.377 the Trial Chamber opined that “the doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates”.

[2] See Statute of the International Criminal Court (Rome Statute) UNTS Series, vol. 2187, No.38544, in force on 1 July 2002.Some critics of the ICC submit that most ratifying states are small and inconsequential because the ‘big’ countries like the US, China, Russia, India, and many more have not, and are not members of the Court. This argument ignores the principle of equality of states in international law-making and ratification. While the absence of the big powers is unfortunate and regretted, it does not de-legitimise the legal standing of the ICC under national or international law.

[3] See Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgement, I.C.J Reports 2012, p.422. See also The Obligation to extradite or prosecute (aut dedere aut judicare) Final Report of the International Law Commission (ILC) 2014 adopted by the ILC at its sixty-sixth session, in 2014, and submitted to the General Assembly as part of the Commission’s report covering the work of the session (at para.65) – Yearbook of the International Law Commission, 2014 Vo. II (Part Two).

[4] The world of a North-South divide sees the states in the Northern hemisphere, for example Europe and North America, enjoy much more clout in terms of economic, military and political powers. These powers are used to influence or control states of the Southern hemisphere, mostly developing countries in Africa, Asia and Latin America. On the other hand, the South-South divide illustrates the great divide within the states in Southern hemisphere, for example, China, India, Brazil, though part of the South exercise much greater economic, military and political power than states like Central African Republic, Libya, Cote I’Ivore, Democratic Republic of the Congo or Uganda – the types of countries that are referred to, or refer their own cases to the ICC because their judicial systems and state structures are weak and dependent on the Northern states and other wealthy Southern states like China, India, etc. This unbalanced relationship is real and partly explains why the US, China, India, Russia, for example, opted to be outside the jurisdiction of the ICC notwithstanding that, theoretically at least, the United Nations Security Council (UNSC) can refer cases from those countries to the ICC but for the veto. However, this flaw does not automatically impact the judicial process before the ICC once the Court is seized of the matter.

[5](a) Democratic Republic of the Congo (DRC) referred to the ICC by the DRC government in April 2004. The referral alleged war crimes and crimes against humanity committed in the context of armed conflict in the DRC since 1 July 2002; (b) Uganda: situation referred to the ICC by government of Uganda in January 2004. The referral alleged war crimes and crimes against humanity committed in the context of armed conflicts between the Lord’s Resistance Army (LRA) and national authorities in Uganda since 1 July 2002 (c) Central African Republic (CAR). There were two referrals to the ICC by the government of CAR. The first referral was in December 2004 with respect to crimes committed between 2002 and 2003; and the second referral was in May 2014 for crimes committed starting in 2012. (d) Mali: referral to the ICC by the government of Mali in July 2012 for alleged war crimes committed since January 2012.

[6](a) Darfur – Sudan: situation referred to the ICC by UNSC in March 2005 for alleged genocide, war crimes and crimes against humanity; (b) Libya: Situation referred to the ICC by UNSC in February 2011 for alleged crimes against humanity and war crimes in the context of armed conflict in the country since 15 February 2011.

[7](a)  Kenya: ICC Prosecutor opens proprio motu investigations in March 2010 for alleged crimes against humanity committed in the context of post-election violence in Kenya in 2007/2008; (b) Cote d’Ivore: ICC Prosecutor opens proprio motu investigations after authorization by Pre-Trial Chamber on 3 October 2011 for alleged crimes committed in the context of post-election violence in 2010/2011 but also since 2002 to present; (c) Burundi: ICC Prosecutor authorized to open propiro motu investigations on 25 October 2017.

[8] See, Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement), 8 August 1945, 82 UNTS 279, reprinted in 39 (1945) American Journal of International Law Supplement, 256. Article 8 of the Charter of the International Military Tribunal, in part, provides: “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility.” See also Resolution 95(I) of 11 December 1946: Affirmation of the Principles of International Law Recognised by the Charter of Nuremberg.

[9] See, Article 28 of the Rome Statute provides:

Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the

Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (See United Nations Treaty Series, Vol 2187, No.38544, in force on 1 July 2002).

[10] Prosecutor v Hategekimana, Case No-ICTR-00-55B-R11 bis, “Decision on Prosecutor’s Request for the Referral of the Case of Ildelphonse Hategekimana to Rwanda” of 19 June 2008

[11] Id., para.18.

[12] Id, para.19

[13] Prosecutor v Hategekimana, Case No-ICTR-00-55B- A (Appeal Chamber Judgement, 8 May 2012).

[14] Article 6(3) of the ICTR Statute is in pari materia with Article 7(3) of the ICTY Statute. Whenever reference to Article 6(3) of the ICTR Statute is made, it should be read as reference to Article 7(3) of the ICTY Statute as well.

[15] See, supra, note 8.

[16] Prosecutor v. Enver Had’ihasanovic, Mehmed Alagic and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, (“Had’ihasanovic Jurisdiction Appeal Decision”), paras 13, 20 and 31.

[17] Prosecutor v Jean Kambanda, Case No. ICTR-97-23, Trial Chamber Judgement of 4 September 1998. At paragraph 39 (ii) the Trial Chamber accepted Kambanda’s criminal responsibility thus: “Jean Kambanda acknowledges that as Prime Minister of the Interim Government of Rwanda from 8 April 1994 to 17 July 1994, he was head of the 20 member Council of Ministers and exercised de jure  authority and control over the members of his government. The government determined and controlled national policy and had the administration and armed forces at its disposal. As Prime Minister, he also exercised de jure and de facto authority over senior civil servants and senior officers in the military.” The Trial Chamber Judgement was confirmed by the Appeals Chamber on 9 October 2000 judgement.  See also Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Land’o, Case No. IT-96-21-A, Judgement, 20 February 2001 (“Celebici Appeal Judgement”), at para.377 the Trial Chamber opined that “the doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates”.

[18] Prosecutor v. Juvenal Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May 2005; Prosecutor v Blaskic Case No. IT-95-4, Appeal Judgement, para. 91; Prosecutor v Kordic, Case No. IT-95-14/2, Appeal Judgement, para. 34; and Prosecutor v Halilovic, Case No. IT-01-48, Trial Judgement, para, 53.

[19]Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Land’o, Case No. IT-96-21-A, Judgement, 20 February 2001 (“Celebici Appeal Judgement”), paras 741 and 745.

[20] Prosecutor v. Enver Had’ihasanovic, Mehmed Alagic and Amir Kubura, Case No. IT-01-47-T, Judgement, 15 March 2006 (“Had’ihasanovic Trial Judgement”), para. 75 and Prosecutor v Sefer Halilovic, Case No. IT-01-48-T, Judgement, 16 November 2005 (“Halilovic Trial Judgement”), para. 78.

[21] Whereas the first requirement has so far been rarely explicitly mentioned, the second, third and fourth requirements have repeatedly been articulated in the ICTR jurisprudence. See Prosecutor v Clement Kayishema, Case No. ICTR-95-I, Trial Judgement, paras 217-231; Prosecutor v Ignace Bagilishema, Case No. ICTR-95-I, Trial Judgement, para. 38; Prosecutor v Laurent Semanza Case No. ICTR-97-20, Trial Judgement, para. 400; Prosecutor v Juvenal Kajelijeli Case No. ICTR-98-44A, Trial Judgement, para. 772; Prosecutor v Jean de Dieu Kamuhanda, Case No. ICTR-99-54, Trial Judgement, para. 603; Prosecutor v. Andre Ntagerura, Emmanuel Bagambiki and Samuel Imanishimwe, Case No. ICTR-99-46- T, Judgement, 25 February 2004 (“Ntagerura Trial Judgement”), para. 627.

[22] The Report of the UN Secretary-General that a person in a position of superior authority should not only be held individually responsible for giving the unlawful order to commit a crime under the present Statute, but also “for failure to prevent a crime or to deter the unlawful behaviour of his subordinates” supports this conclusion. The Secretary-General did not give any indication that only ‘committing’ in person should be considered unlawful behaviour. See Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (3 May 1993), UN DOC. S/25704 (“Report of the Secretary-General”), para. 56.

[23] Id, See Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (3 May 1993), UN DOC. S/25704 (“Report of the Secretary-General”), para. 56.

[24] Prosecutor v Blaskic, Case No. IT-95-14, Appeal Judgment, para. 663; Prosecutor v Krstic, Case No.IT-98-33. Trial Judgement, para. 601.

[25] In regard to ‘murder’, see Prosecutor v Kvocka, Case No. IT-98-30/1, Appeal Judgement, para. 260; Prosecutor v Krnojelac, Case No. IT-97-25, Trial Judgement, paras. 324, 329; Prosecutor v Stanislav Galic, Case No. IT-98-29, Trial Judgement, para. 150.  In respect of ‘cruel treatment’, see Prosecutor v Krstic, Case No.IT-98-33, Trial Judgement, para. 516.

[26] In particular, see Prosecutor v Kvocka, Case No. IT-98-30/1, Appeal Judgement, para. 187; Prosecutor v Stanislav Galic, Case No. IT-98-29, Trial Judgement, para. 168.

[27]  See Prosecutor v Blaskic, Case No. IT-95-14, Appeal Judgment, para. 663.

[28] Id, para. 668, holding the accused obliged to care for protected persons exposed to danger by being used as human shields.

[29]Prosecutor v Mucic et al (hereafter “Celebici”, Case No. IT-96-21-T, Trial Judgement, para. 377.

[30] Id, para. 356.

[31] See Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement, 3 July 2002 (“Bagilishema Appeal Judgement”), para. 51; Prosecutor v Alfred Musema, Case No.ICTR-96-13, Trial Judgement, para. 135; Prosecutor v Juvenal Kajelijeli, Case No.ICTR-98-44, Trial Judgement, para. 773; Prosecutor v Juvenal Kajelijeli, Case No.ICTR-98-44A, Appeal Judgement, para. 85; Prosecutor v Jean de Dieu Kamuhanda, Case No. ICTR-99-54 Trial Judgement, para. 604.

[32] Prosecutor v Alfred Musema, Case No.ICTR-96-13, Trial Judgement, para. 148; Prosecutor v Clement Kayishema, Case No. ICTR-95-I, Trial Judgement, paras 218, 222.

[33] See Prosecutor v Kordic and Cerkez, Case No. IT-95-14/2, Trial Judgement, para. 419; Prosecutor v Naletilic, Case No. IT-98-34, Trial Judgement, para. 67.

[34] See Prosecutor v Kajelijeli, Case No.ICTR-98-44A, Appeal Judgement, para. 87.

[35] See Celebici, Case No. IT-96-21A, Appeal Judgement, para. 193. See also Celebici Trial Judgement, para. 354; Prosecutor v Naletilic, Case No.ICTR-98-3, Trial Judgement, para. 67.

[36] See Prosecutor v Kordic, Case No.IT-95-14/2, Trial Judgement, para. 419.

[37] See Prosecutor v Musema, Case No. ICTR-96-13-T, Trial Judgement, para. 148.

[38] See Prosecutor v Sefer Halilovic, Case No. IT-01-48-T, Trial Judgement, para. 61.

[39] This decisive criterion of’ ‘effective control’ in terms of the actual possession, or non- possession, of powers of control over the actions of the subordinates, was first established by the Trial Chamber in Celebici: See, Celebici Trial Judgement, para. 378. The ICTR cases that uphold this reasoning include: Prosecutor v Kayishema, Case No. ICTR-95-A, Appeal Judgement, para. 294; Prosecutor v Bagilishema, Case No.ICTR-ICTR-95-IA, Appeal Judgement, para. 50. However, there are ICTR cases that follow Celebici, Trial Judgement in principle but occasionally employ different terminology, see Prosecutor v Bagilishema, Case No. ICTR-95-I, Trial Judgement, para. 39; Prosecutor v. Eliezer Niyitegeka, Case No. ICTR-96-14-T, Judgement, 16 May 2003 (“Niyitegeka Trial Judgement”), para. 472; Prosecutor v Kajelijeli, Case No. ICTR-ICTR-98-44, Trial Judgement, para. 773; Prosecutor v Kamuhanda, Case No. ICTR-99-54, Trial Judgement, para. 604.

[40] Prosecutor v Semanza, Case No. ICTR-97-20, Trial Judgement, para. 402. Accordingly, even ‘substantial influence’ has not been found per se sufficient: see Prosecutor v Ntagerura, Case No. ICTR-96-10, Trial Judgement, para. 628.

[41] Prosecutor v Tadic, Case No. IT-94-I, Trial Judgement, paras 597 et seq.

[42] It is sufficient for the prosecution to identify subordinates who allegedly committed the criminal acts at least by their ‘category’ or ‘as a group’ if it is unable to identify those directly participating in the alleged crimes by name. See Prosecutor v. Milorad Krnojelac, Case No. IT-97 -25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 46. As may be concluded from the unchallenged reference to this decision by the Appeals Chamber in the Blaskic case (Prosecutor v Blaskic, Case No. IT-95-14A, Appeal Judgement, para. 217), to establish superior responsibility, the direct perpetrators of the relevant crimes need not be identified by name, nor must it be shown that the superior knew the identity of those individuals if it is at least proved that they belong to a category or group of people over whom the accused has effective control. See also Prosecutor v Had’ihasanovic, Case No. IT-01-47, Trial Judgement, para. 90.

[43] See Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4, Trial Judgement, para. 491; Prosecutor v Halilovic, Case No. IT-01-48, Trial Judgement, para. 63.

[44] Id., Halilovic Trial Judgement, para. 58.

[45] Prosecutor v Juvenal Kajelijeli, Case No. ICTR-98-44, Trial Judgement, paras 403-404.

[46] Prosecutor v Blaskic, Case No. IT-95-14, Trial Judgement, para. 302; Prosecutor v Had’ihasanovic, Case No. IT-01-47, Trial Judgement, paras 83 et seq.

[47] Celebici Appeal Judgement, para. 206, endorsing the findings of Celebici Trial Judgement, para. 743.

[48] Prosecutor v Aleksovski, Case No. IT-95-14/1, Trial Judgement, para. 78; Prosecutor v Blaskic, Case No. IT-95-14, Trial Judgement, para. 302.

[49] Celebici Trial Judgement, para. 672; Prosecutor v Kordic, Case No.IT-95-14/2, Trial Judgement, para. 421Prosecutor v Naletilic, Case No. IT-98-34, Trial Judgement, para. 67.

[50] Prosecutor v Kordic, Case No. IT-95-14/2, Trial Judgement, para. 421.

[51] Id.

[52] Prosecutor v Naletilic, Case No. IT-98-34, Trial Judgement, para. 67.

[53] Prosecutor v Kordic, Case No. IT-95-14/2, Trial Judgement, para. 424; Prosecutor v Stakic, Case No. IT-97-24, Trial Judgement, para. 454.

[54] Prosecutor v Aleksovski, Case No. IT-95-14/1, Trial Judgement, para. 101; Prosecutor v Kordic, Case No. IT-95-14/2, Trial Judgement, para. 424.

[55] Prosecutor v Kunarac, Case No. IT-96-23&23/1, Trial Judgement, para. 398; Prosecutor v Naletilic, Case No.98-34, Trial Judgement, para. 69.

[56]Prosecutor v Kajelijeli, Case No.ICTR-98-44A, Appeal Judgement, para. 87.

[57]Prosecutor v Blaskic, Case No. IT-95-14, Trial Judgement, paras 296, 302, 303; Prosecutor v Krnojelac, Case No. IT-97-25, Trial Judgement, para. 93; Prosecutor v Naletilic, Case No. IT-98-34, Trial Judgement, para. 69; Prosecutor v Halilovic, Case No. IT-01-48, Trial Judgement, para. 62.

[58] Prosecutor v Bagilishema, Case No. ICTR-95-IA, Appeal Judgement, para. 51 (endorsing the findings in Prosecutor v Musema, Case No. ICTR-96-13, Trial Judgement, para. 135).

[59] This kind of responsibility has been rightly denied: see Prosecutor v Kajelijeli, Case No. ICTR-98-44, Trial Judgement, para. 776.

[60] See Report of the Secretary-General, para. 56. See also Prosecutor v Bagilishema, Case No. ICTR-95-I, Trial Judgement, para. 897, speaking in the context of Article 6(3) of the ICTR Statute of “gross negligence” as a “third basis of responsibility”; Prosecutor v Blaskic, Case No. IT-95-14, Trial Judgement, para. 562, holding the accused responsible “on the basis of his negligence, in other words for having ordered acts which he could only reasonably have anticipated would lead to crimes”.

[61]Prosecutor v Kordic, Case No. IT-95-14/2, Trial Judgement, para. 427.

[62]Prosecutor v Mucic et al “Celebici”, Case No. IT-96-21, Trial Judgement, para. 386; Prosecutor v Naletilic, Case No. IT-98-34, Trial Judgement, para. 71

[63] Prosecutor v Bagilishema, Case No. ICTR-95-I, Trial Judgement, para. 46; Prosecutor v Kajelijeli, Case No. ICTR-98-44, Trial Judgement, para. 778.

[64] Prosecutor v Aleksovski, Case No. IT-95-14/1, Trial Judgement, para. 80; Prosecutor v Blaskic, Case No. IT-95-14, Trial Judgement, para. 308.

[65] Prosecutor v Bagilishema, Case No. ICTR-95-I, Trial Judgement, para. 45; Prosecutor v Semanza, Case No. ICTR-97-20, Trial Judgement, para. 404; Prosecutor v Kajelijeli, Case No. ICTR-98-44, Trial Judgement, para. 776

[66] Prosecutor v Bagilishema, Case No.ICTR-95-I, Trial Judgement, para. 45; Prosecutor v Semanza, Case No. ICTR-97-20, Trial Judgement, para. 404; Prosecutor v Kajelijeli, Case No. ICTR-98-44, Trial Judgement, para. 776.

[67] Final Report of the Commission of Experts, Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, p. 17.

[68] This list of criteria is in particular referred to in Bagilishema Trial Judgement, para. 968. With regard to geographical and temporal circumstances, it has to be kept in mind that the more physically distant the commission of the subordinate’s acts from the superior’s position, the more difficult it will be, in the absence of other indicia, to establish that the superior had knowledge of them. Conversely, if the crimes were committed close to the superior’s duty-station, the easier it would be to establish a significant indicium of the superior’s knowledge, and even more so if the crimes were repeatedly committed. See Aleksovski Trial Judgement, para. 80.

[69]Prosecutor v Krnojelac, Case No. IT-97-25, Trial Judgement, para. 94, referencing Celebici Appeal Judgement, paras 196 et seq.

[70] Prosecutor v Kordic, Case No.IT-95-14/2, Trial Judgement, para. 428; Prosecutor v Naletilic, Case No. IT-98-34, Trial Judgement, para. 73; Prosecutor v Galic, Case No. IT-98-29, Trial Judgement, para. 174.

[71]Prosecutor v Bagilishema, Case No.ICTR-95-I, Trial Judgement, para. 46.

[72]Prosecutor v Kordic, Case No. IT-95-14/2, Trial Judgement, para. 429.

[73] Prosecutor v Kayishema, Case No. ICTR-95-I, Trial Judgement, para. 228; Prosecutor v Semanza, Case No. ICTR-97-20, Trial Judgement, para. 405; Prosecutor v Kajelijeli, Case No. ICTR-98-44, Trial Judgement, para. 778; Prosecutor v Kamuhanda, Case No. ICTR-99-54, Trial Judgement, para. 609.

[74] Mucic et al “Celebici” Case No. IT-96-21, Appeal Judgement, para. 239; Prosecutor v Galic, Case No. IT-98-29, Trial Judgement, para. 175.

[75] Prosecutor v Mucic et al “Celebici” Case No. IT-96-21, Trial Judgement, para. 393; Prosecutor v Naletilic, Case No. IT- 98-34, Trial Judgement, para. 74; Prosecutor v Had’ihasanovic, Case No. IT-01-47, Trial Judgement, para. 97.

[76]  Id, Celebici Trial Judgement, para. 393.

[77]  Prosecutor v Bagilishema, Case No. ICTR-95-I, Appeal Judgement, para. 28.

[78] Celebici Trial Judgement, para. 393.

[79] Celebici Appeal Judgement, para. 226; Prosecutor v Blaskic, Case No. IT-95-14, Appeal Judgement, para. 62.

[80] Instead of the “risk” of crimes by subordinates, as used in describing the standard of possible awareness in Krnojelac Appeal Judgement, para. 155 and in Celebici Trial Judgement, para. 383, in Kordic Trial Judgement, para. 437 the Chamber uses the word “likelihood”.

[81] Celebici Trial Judgement, para. 387.

[82] Celebici Appeal Judgement, para. 238.

[83] Id. Appeal Judgement, para. 238.

[84]Id., Appeal Judgement, para. 238; Prosecutor v Krnojelac, Case No. IT-97-25, Appeal Judgement, para. 154; Had’ihasanovic Trial Judgement, supra, note 543, para. 100.

[85] Prosecutor v Krnojelac, Case No. IT-97-25, Appeal Judgement, para. 155. See also Prosecutor v Had’ihasanovic Trial Judgement, paras 97 et seq.

[86] Consequently, as already stated by the Appeals Chamber in the Clebici and Blaskic cases, the “neglect of duty to acquire such knowledge” does not feature within Article 6(3) of the Statute as a separate offence on its own but, as may be added, is merely an element within the superior criminal responsibility for having failed to prevent or punish: see Celebici Appeal Judgement, para. 226; Prosecutor v Blaskic Appeal Judgement, para. 62

[87] Prosecutor vs Celebici, Trial Judgement, para. 334; Prosecutor v Kordic Trial Judgement, para. 369; Prosecutor v Halilovic Trial Judgement, para. 38.

[88] For the extension of superior criminal responsibility in customary international criminal law by criminalising the failure to punish as a separate form of responsibility, see Id., Halilovic Trial Judgement, paras 42 et seq., 91.

[89] Prosecutor vs Semanza, Trial Judgement, para. 407.

[90] Prosecutor v Stakic, Case No. IT-92-24, Trial Judgement, para. 461; Prosecutor v Halilovic Trial Judgement, para. 72.

[91] Prosecutor vs Blaskic Appeal Judgement, para. 83; Prosecutor v Halilovic Trial Judgement, para. 93; Prosecutor v Had’ihasanovic Trial Judgement, paras 125 et seq.

[92]See Prosecutor v Kayishema, Case No. ICTR-95-I, Appeal Judgement, para. 294, approving the reasoning of Kayishema Trial Judgement, para. 491; Prosecutor v Bagilishema Case No. ICTR-95-1A, Appeal Judgement, para. 50; Prosecutor v Semanza, Case No. ICTR-97-20, Trial Judgement, para. 402; Prosecutor v Niyitegeka, Case No. ICTR-96-14, Trial Judgement, para. 472; Prosecutor v Kajelijeli, Case No.ICTR-98-44, Trial Judgement, para. 773; Prosecutor v Kamuhanda, Case No. ICTR-99-54, Trial Judgement, para. 604.

[93] Prosecutor v Blaskic Appeal Judgement, paras 72, 77; Prosecutor v Halilovic Trial Judgement, para. 74; Prosecutor v Had’ihasanovic Trial Judgement, para. 124.

[94]Prosecutor vs Bagilishema, Trial Judgement, para. 48.

[95] Celebici Trial Judgement, para. 394; Prosecutor v Had’ihasanovic Trial Judgement, para. 123 and Prosecutor v Aleksovski, Case No. IT-95-14/1, Trial Judgement, para. 81.

[96] The need for “guidance” in the assessment of necessary measures is also expressed in the following Judgements: Prosecutor v Bagilishema Trial Judgement, para. 48; Prosecutor v Kajelijeli Trial Judgement, para. 779; Prosecutor v Semanza Trial Judgement, para. 406. It seems that the Appeals Chamber also recognises this position in the Blaskic case, conceding that, even though the question of measures is a matter of evidence, “the effect of such measures can be defined by law,” and when further referring to Celebici Appeal Judgement, para. 198, where considerable weight is given to the extent of effective control the superior has over his subordinates, the Appeals Chamber seems to suggest this criterion as a substantive guideline. See Prosecutor v Blaskic Appeal Judgement, para. 72.

[97]Prosecutor vs Bagilishema Trial Judgement, para. 48. In this regard, the question of the measures to be taken by the superior is, indeed, “intrinsically connected to the question of that superior’s position of power”; see Prosecutor v Halilovic Trial Judgement, para. 73.

[98] Prosecutor vs Blaskic Appeal Judgement, para. 72, upholding Blaskic Trial Judgement, para. 335; Celebici Appeal Judgement, para. 198.

[99] Celebici Trial Judgement, para. 395; Prosecutor v Krnojelac Trial Judgement, para. 95; Prosecutor v Stakic, Case No. IT-97-24, Trial Judgement, para. 461.

[100] Prosecutor v Halilovic Trial Judgement, paras 79 et seq., followed by Prosecutor v Had’hasanovic Trial Judgement, paras 145 et seq.

[101]  Id., Prosecutor v Halilovic Trial Judgement, para. 88.

[102] Prosecutor vs Had’ihasanovic Trial Judgement, paras 156 et seq.

[103]Prosecutor vs Bagilishema Trial Judgement, para. 265.

[104]Prosecutor vs Halilovic Trial Judgement, para. 74; Prosecutor v Had’ihasanovic Trial Judgement, para. 153.

[105]Prosecutor vs Halilovic Trial Judgement, para. 90.

[106] Id, para. 89.

[107] Id.

[108] Prosecutor v Blaskic Trial Judgement, paras 329, 335; Prosecutor v Had’ihasanovic Trial Judgement, para. 154..

[109] Prosecutor vs Halilovic Trial Judgement, para. 89.

[110]Prosecutor vs Kajelijeli Trial Judgement, para. 779

[111] Celebici Trial Judgement, para. 395.

[112] Prosecutor v Ntagerura, Case No. ICTR-96-10, Trial Judgement, paras 654- 657.

[113] Celebici Trial Judgement, para. 387.

[114] Celebici Appeal Judgement, para. 206; Celebici Trial Judgement, para. 773.

[115] Prosecutor vs Blaskic Appeal Judgement, para. 83.

[116] See Prosecutor v Had’ihasanovic Trial Judgement, paras 194 et seq.

[117] The same position had been taken by the Trial Chamber in Kordic Trial Judgement, para. 446, and in Had’ihasanovic Jurisdiction Trial Decision, paras 180 et seq., 202. It is also supported by the dissenting opinions of Appeals Judges Shahabuddeen and Hunt in Had’ihasanovic Jurisdiction Appeal Decision: Partial Dissenting Opinion of Judge Shahabuddeen, para. 1; Separate and Partially Dissenting Opinion of Judge David Hunt, paras 7 et seq.

[118] As for instance, by suspending a subordinate: Ntagenrura Trial Judgement, para. 650

[119]Prosecutor vs Kordic Trial Judgement, para. 446; Prosecutor v Halilovic Trial Judgement, paras 74, 97, 100.

[120] Id., Halilovic Trial Judgement, paras 97, 100

[121] Id, para. 98.

[122] Id, para. 100.

[123] Id, para. 97.

[124] Prosecutor vs Blaskic Appeal Judgement, para. 632..

[125] Prosecutor vs Halilovic Trial Judgement, para. 100.

[126] Prosecutor vs Bagilishema Trial Judgement, para. 50.