M.6. The perpetrator either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit one or more of the crimes

M.6.1. The perpetrator knew that the forces were committing or about to commit the crime

M.6.2. The perpetrator should, owing to the circumstances at the time, have known that the forces were committing or about to commit the crime

6.2.2. Evidence that the person had the means to obtain relevant information of such crimes.

M.6. The perpetrator either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit one or more of the crimes

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, para. 246: 

"246. Superior responsibility is not a form of strict liability, inasmuch as it is necessary to establish the element of knowledge. For this purpose, the Prosecution must prove: (1) that the superior actually knew, taking into consideration the direct or circumstantial evidence at his disposal, that his subordinates (i) were committing, preparing to commit, or had committed the crimes referred to in Articles 2 through 5 of the Statute; or (2) that the superior possessed information of a sort that would at least alert him to such risks insofar as they might indicate additional inquiries were needed (ii) to ascertain whether such crimes had been committed or were about to be. The assessment of the mental element required under Article 7(3) of the Statute must be conducted according to the circumstances of the case by taking into account the specific situation of the superior concerned at the time in question."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 579, 584-586:

"579. Under Article 7(3) of the Statute, a superior may incur criminal responsibility with respect to a crime for which his subordinate is criminally responsible if the following three elements are established: (i) there was a superior-subordinate relationship between the accused and the perpetrator of the underlying crime; (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. A superior can bear responsibility under Article 7(3) with respect to the criminal conduct of his subordinates under “all other modes of participation under Article 7(1)”, namely the “planning, instigating, ordering, committing or otherwise aiding and abetting a crime” by his subordinates."

"584. For the accused to be held responsible under Article 7(3), the accused must have known or had reason to know that the subordinate committed a crime or was going to do so."

"585. Knowledge may be inferred from circumstantial evidence  but requires an assessment of the specific circumstances of each case and the “specific situation of the superior concerned at the time in question”."

"586. To prove that the accused had reason to know of crimes committed, it is necessary to show that he had information available to him which would have put him on notice of unlawful acts committed or about to be committed by his subordinates. In this regard “it must be established whether, in the circumstances of the case, he possessed information sufficiently alarming to justify further inquiry”. This information does not need to contain extensive or specific details about the unlawful acts committed or about to be committed. A failure by the accused to punish the past offences of his subordinates may be relevant to determining whether he “possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry”."

Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T, Judgement (TC), 11 May 2011, paras. 1197-1198, 1918-1920:

"1197. The ICTY Trial Chamber in the Čelebići case identified the following indicia as being relevant in determining whether a superior must have possessed the requisite knowledge of offences committed or about to be committed by his subordinates:

(i) The number of illegal acts;

(ii) The type of illegal acts;

(iii) The scope of illegal acts;

(iv) The time during which the illegal acts occurred;

(v) The number and type of troops involved;

(vi) The logistics involved, if any;

(vii) The geographical location of the acts;

(viii) The widespread occurrence of the acts;

(ix) The tactical tempo of operations;

(x) The modus operandi of similar illegal acts;

(xi) The officers and staff involved; and

(xii) The location of the commander at the time."

"1198. Regarding the question of whether Bizimungu had reason to know of the crimes committed by his subordinates, the Appeals Chamber has made it clear that the information available to the accused does not need to provide specific details about the unlawful acts committed or about to be committed by his subordinates.2120 Rather, the test for whether an accused had reason to know of the crimes is “whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry.”

"1918. The mens rea for superior responsibility under Article 6(3) exists where the Prosecution proves that: (i) the superior had actual knowledge, established through direct or circumstantial evidence, that his subordinates had committed or were about to commit a crime under the statute; or (ii) the superior had reason to know that his subordinates had committed or were about to commit a crime under the statute."

"1919. In determining whether an accused possessed actual knowledge of the role of his subordinates in the crime, the Chamber may consider the following factors: the number, type and scope of illegal acts committed by the subordinates; the time during which the illegal acts occurred; the number, type of troops and logistics involved; the geographical location of the acts; whether the acts were widespread; the tactical tempo of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the superior at the time." 

"1920. In determining whether an accused had reason to know of the role of his subordinates in the crime, the test is “whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry.” The Appeals Chamber has made it clear in a number of cases that the information available to the accused does not need to provide specific details about the unlawful acts committed or about to be committed by his subordinates. However, the Appeals Chamber has emphasised that it is “necessary to make a distinction between the fact that the Accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes.”

M.6.1. The perpetrator knew that the forces were committing or about to commit the crime

M.6.1.1. ICC

The Bemba Gombo Pre-Trial Chamber held:

"In this regard, the Chamber considers that article 28(a) of the Statute encompasses two standards of fault element. The first, which is encapsulated by the term ‘knew’, requires the existence of actual knowledge. […]"[1]

"With respect to the suspect's actual knowledge that the forces or subordinates were committing or about to commit a crime, it is the view of the Chamber that such knowledge cannot be ‘presumed’. […]"[2]

"These factors include the number of illegal acts, their scope, whether their occurrence is widespread, the time during which the prohibited acts took place, the type and number of forces involved, the means of available communication, the modus operandi of similar acts, the scope and nature of the superior's position and responsibility in the hierarchal structure, the location of the commander at the time and the geographical location of the acts. Actual knowledge may be also proven if, ‘a priori, [a military commander] is part of an organised structure with established reporting and monitoring systems’. Thus, the Chamber considers that these factors are instructive in making a determination on a superior's knowledge within the context of article 28 of the Statute."[3]

This was confirmed by the Blaškić Trial Chamber:

"[a]n individual’s command position per se is a significant indicium that he knew about the crimes committed by his subordinates"."[4]

The Orić Trial Chamber clarified:

"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, such status is not to be understood as a conclusive criterion but must be supported by additional factors."[5]

The Stakić Trial Chambers held that:

"Knowledge may be presumed if a superior had the means to obtain the relevant information of a crime and deliberately refrained from doing so." "[6]

The Trial Chambers in the Naletilić and Martinović ("Tuta and Štela") and the Stakić cases stated that:

"Considering geographical and temporal circumstances, this means that the more physically distant the superior was from the commission of the crimes, the more additional indicia are necessary to prove that he knew of the crimes. On the other hand, if the crimes were committed next to the superior’s duty-station this suffices as an important indicium that the superior had knowledge of the crimes, even more if the crimes were repeatedly committed."[7]

The Naletilić and Martinović ("Tuta and Štela") Trial Chamber concurred that:

"The fact that a military commander will most probably be part of an organised structure with reporting and monitoring systems can facilitate the showing of actual knowledge. For de facto commanders in more informal military structures and for civilian superiors the standard of proof is higher"."[8]

This was confirmed by the Orić Trial Chamber:

"This may, in particular, imply that the threshold required to prove 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."[9]

M.6.1.2. ICTY

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 247-248: 

"247. The superior’s actual knowledge may not be presumed, but may be established using direct or circumstantial evidence. In principle, the requisite actual knowledge is identical for military commanders wielding de jure or de facto authority and civilian superiors holding de facto authority, even though the standard of proof necessary to prove the actual knowledge of superiors with de facto authority or power is higher. The de jure position of a military chief who belongs, a priori, to an organised structure with reporting and monitoring systems makes it easier to prove actual knowledge."

"248. Among the circumstantial factors which enable one to infer actual knowledge, one may cite: the number, type and scope of the illegal acts; the time during which they occurred; the number and type of troops involved; the logistical means that may have been deployed; the geographic locus of the acts; whether the acts were widespread; the cadence of operations; the modus operandi of similar illegal acts; the officers and personnel involved and the location of the commander at the moment the acts were completed. Important indicia of knowledge may include the proximity of the crimes to the superior’s duty station and the fact that they were committed repeatedly. A contrario, the more physically removed the superior is from the commission of the crimes, the more supplemental indicia will be required in order to establish actual knowledge. Authority over a hierarchy constitutes an important indicium of knowledge, although it is not determinative."

M.6.1.3. ICTR

The Bagilishema Trial Chamber held that:

"The Celebici Trial Chamber declared that in determining whether a superior, despite pleas to the contrary, in fact must have possessed the requisite knowledge of offences, the following indicia, inter alia, are relevant:

(a) The number of illegal acts;

(b) The type of illegal acts;

(c) The scope of illegal acts;

(d) The time during which the illegal acts occurred;

(e) The number and type of troops involved;

(f) The logistics involved, if any;

(g) The geographical location of the acts;

(h) The widespread occurrence of the acts;

(i) The tactical tempo of operations;

(j) The modus operandi of similar illegal acts;

(k) The officers and staff involved;

"(1) The location of the commander at the time."[10]

"As discussed in the factual findings, the massacres and attacks committed by the Interahamwe, members of the Civil Defence Program, local officials who were part of the territorial administration, and administrative personnel in the ministries controlled by the MRND, among others, were so widespread and public that it would have been impossible for Karemera to be unaware of them."[11]

Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, paras. 394-398:

"394. The Prosecution submits that the Trial Chamber applied an incorrect standard when assessing Ndindiliyimana’s mens rea as it related to the crimes against civilians removed from CELA. Specifically, it contends that the Trial Chamber required proof that Ndindiliyimana knew the exact nature and details of the role the gendarmes played in the events preceding the killing of civilians taken from CELA. Instead, the Prosecution argues that it only needed to prove that Ndindiliyimana had reason to know that the gendarmes were about to commit or had committed a crime, and that general knowledge putting Ndindiliyimana on notice of possible unlawful acts by his subordinates satisfied this requirement"

"395. Ndindiliyimana responds that the test for his mens rea is not whether he had knowledge of generalised violence, but whether he had knowledge of prior crimes committed by his subordinates which would have led him to appreciate that further crimes were about to be committed by the particular subordinates involved at a given location."

"396. For the purposes of liability under Article 6(3) of the Statute, the Appeals Chamber recalls that “showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he ‘had reason to know’”. However, it is necessary to make a distinction between the fact that an accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes."

"397. In this case, the Appeals Chamber finds that the Trial Chamber applied the correct standard in assessing Ndindiliyimana’s mens rea. At the outset, the Trial Chamber correctly articulated the law as it relates to the mens rea requirements for superior responsibility under Article 6(3) of the Statute. Its statement of factors that satisfy the “reason to know” standard was also correct. Of greater significance, the Trial Chamber repeatedly considered whether the evidence established that Ndindiliyimana “knew or had reason to know” of the acts of gendarmes at the Muhima Brigade. At no point did the Trial Chamber’s evaluation indicate that the Prosecution was required to prove that Ndindiliyimana knew the exact nature and details of the role that gendarmes played in the crimes against the civilians taken from CELA. "

"398. Accordingly, the Appeals Chamber finds that the Prosecution has not demonstrated that the Trial Chamber erred in its application of the standard for assessing Ndindiliyi Ndindiliyimana’s mens rea in relation to the crimes committed against the civilians removed from CELA."

Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A, Judgement (AC), 30 June 2014, paras. 243-246, 304 :

"243. The Trial Chamber found that Bizimungu knew or had reason to know that his subordinates were about to commit or had committed killings and rapes against refugees at the Butare Prefecture office and the EER. In support of this conclusion, the Trial Chamber took into account that Bizimungu: was alerted to the dire situation in Rwanda as well as crimes against Tutsi civilians in other parts of the country; received situation reports from all Rwandan army units regarding hostilities and the security situation affecting the civilian population; and, in particular, testified that he was informed about “disturbances” that occurred in Butare. In addition, the Trial Chamber observed that the crimes at the Butare Prefecture office and the EER were committed on an organized and systematic basis and that the fact that Nyiramasuhuko, a government minister, incited soldiers to commit rapes during one incident indicated that the crimes at these locations were part of a coordinated series of events." 

"244. Bizimungu submits that the Trial Chamber erred in finding that he knew or had reason to know of the crimes committed at the Butare Prefecture office and the EER. He contends that the Trial Chamber applied an incorrect standard for the assessment of circumstantial evidence as it found that he “must have known” of the crimes in question or “certainly possessed” sufficiently alarming information. Bizimungu further claims that his awareness of the general situation prevailing in Rwanda did not mean that he knew of crimes at the Butare Prefecture office and the EER. He also asserts that while reports to him mentioned “disturbances” in Butare, they neither pertained to specific events nor implicated soldiers in crimes. In this context he also contends that, due to the ongoing fighting at the time, Kigali was isolated from Butare, communication was difficult, and no reasonable trier of fact could therefore have considered that he was informed of the commission of crimes in Butare. Finally, Bizimungu argues that the Trial Chamber erred in holding that the crimes at the Butare Prefecture office and the EER were coordinated, given that: Witness XY testified that the attacks at the Butare Prefecture office were not systematic and organized, but sporadic; and the Trial Chamber acknowledged that the Prosecution had failed to prove that the alleged murders were committed on a large scale." 

"245. The Prosecution responds that Bizimungu fails to demonstrate an error in the Trial Chamber’s conclusion that the crimes committed at the Butare Prefecture office and the EER were coordinated. It also contends that, based on the totality of the evidence, the Trial Chamber correctly found that Bizimungu knew or had reason to know of the involvement of his subordinates in these crimes." 

"246. Regarding Bizimungu’s argument that the Trial Chamber applied an incorrect legal standard by finding that he “must have known” of or that he “certainly possessed” sufficient information about killings and rapes at the Butare Prefecture office and the EER, the Appeals Chamber recalls that inferences drawn from circumstantial evidence must be the only reasonable inference available. The Trial Chamber was cognizant of this standard. While the contested language is not entirely clear, the Appeals Chamber is not persuaded that it demonstrates an incorrect application of this standard. Rather, the Trial Chamber’s overall reasoning shows that it was convinced that the only inference to be drawn from the evidence before it was that Bizimungu knew or had reason to know of the crimes committed at the Butare Prefecture office and the EER." 

"304. The Appeals Chamber observes that the Trial Chamber’s statements that it was “highly unlikely” that the crimes at Musambira would have escaped Bizimungu’s attention and that the location where these crimes were committed “heighten[ed]the possibility” that he was aware of them do not reflect the applicable standard for the assessment of circumstantial evidence. Nonetheless, the Appeals Chamber is not convinced by Bizimungu’s claim that this erroneous language demonstrates that the Trial Chamber applied an incorrect legal standard and reversed the burden of proof. When setting out the general principles governing the assessment of evidence in the Trial Judgement, the Trial Chamber correctly stated that the guilt of the accused must be proved beyond reasonable doubt and that an inference of guilt drawn from circumstantial evidence must be the only reasonable inference available. Furthermore, as indicated above, the Trial Chamber relied on a number of factors in concluding that Bizimungu knew or had reason to know of the involvement of his subordinates in crimes at Musambira. The Appeals Chamber therefore considers that the Trial Chamber was ultimately convinced beyond reasonable doubt that the only reasonable inference to be drawn from the entirety of the evidence before it was that Bizimungu possessed the mens rea required under Article 6(3) of the Statute."

Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A, Judgement (AC), 30 June 2014, para. 193:

"193. Finally, the Appeals Chamber finds that Bizimungu has failed to establish that the Trial Chamber applied the incorrect standard of proof in finding that he knew or had reason to know of the attack. The Trial Chamber’s finding that “Witness DBJ’s evidence in its entirety provides a plausible basis for the inference that soldiers killed Tutsi civilians at the Josephite Brothers compound on 7 June 1994” does not reflect the applicable standard for drawing inferences from the evidence. However, the Appeals Chamber is satisfied that the Trial Chamber was indeed convinced that this was the only reasonable inference available from the evidence in light of its subsequent finding that “[h]aving considered the entirety of Witness DBJ’s evidence, the Chamber  is satisfied that the Prosecution has established beyond reasonable doubt” that soldiers committed the crimes at the Josephite Brothers compound on 7 June 1994. Similarly, while the Trial Chamber stated that Bizimungu’s evidence regarding attacks at religious centres in Kigali in early June 1994 was “a probative indication of his knowledge or notice of those crimes”, the Appeals Chamber recalls that this was only one of the factors upon which the Trial Chamber relied in finding that he knew or had reason to know of the attacks. As such, it was merely stating that this factor supported its finding based on multiple indicia of his knowledge. The Appeals Chamber finds no error in this respect."

M.6.1.4. SCSL

The Taylor Trial Chamber summarizes:

"Actual knowledge may be defined as the awareness that the relevant crimes were committed or about to be committed."[12]

M.6.2. The perpetrator should, owing to the circumstances at the time, have known that the forces were committing or about to commit the crime

In the Bemba Gombo case, however, the Pre-Trial Chamber held that:

"The ‘should have known standard requires the superior to ‘ha[ve] merely been negligent in failing to acquire knowledge’ of his subordinates' illegal conduct. [..] [I]t is the Chamber's view that the ‘should have known’ standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime. The drafting history of this provision reveals that it was the intent of the drafters to take a more stringent approach towards commanders and military-like commanders compared to other superiors that fall within the parameters of article 28(b) of the Statute. This is justified by the nature and type of responsibility assigned to this category of superiors."[13]

"Thus, it is the Chamber's view that the ‘should have known’ standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime. The drafting history of this provision reveals that it was the intent of the drafters to take a more stringent approach towards commanders and military-like commanders compared to other superiors that fall within the parameters of article 28(b) of the Statute. This is justified by the nature and type of responsibility assigned to this category of superiors."[14]

The Bemba Gombo Pre-Trial Chamber also found that:

"[T]he ‘had reason to know’ criterion embodied in the statutes of the ICTR, ICTY and SCSL sets a different standard to the ‘should have known’ standard under article 28 (a) of the Statute. However, despite such a difference, which the Chamber does not deem necessary to address in the present decision, the criteria or indicia developed by the ad hoc tribunals to meet the standard of ‘had reason to know’ may also be useful when applying the ‘should have known’ requirement. [..] [T]he suspect may be considered to have known, if inter alia, and depending on the circumstances of each case: (i) he had general information to put him on notice of crimes committed by subordinates or of the possibility of occurrence of the unlawful acts; and (ii) such available information was sufficient to justify further inquiry or investigation. The Chamber also believes that failure to punish past crimes committed by the same group of subordinates may be an indication of future risk."[15]

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"584. For the accused to be held responsible under Article 7(3), the accused must have known or had reason to know that the subordinate committed a crime or was going to do so.

585. Knowledge may be inferred from circumstantial evidence but requires an assessment of the specific circumstances of each case and the "specific situation of the superior concerned at the time in question".

586. To prove that the accused had reason to know of crimes committed, it is necessary to show that he had information available to him which would have put him on notice of unlawful acts committed or about to be committed by his subordinates. In this regard "it must be established whether, in the circumstances of the case, he possessed information sufficiently alarming to justify further inquiry". This information does not need to contain extensive or specific details about the unlawful acts committed or about to be committed. A failure by the accused to punish the past offences of his subordinates may be relevant to determining whether he "possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry". " [16]

"An interpretation of the terms of [article 86(2) of Additional Protocol I] […] leads to the conclusion […] that a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates. This standard, which must be considered to reflect the position of customary law at the time of the offences alleged in the Indictment, is accordingly controlling for the construction of the mens rea standard established in Article 7(3). The Trial Chamber thus makes no finding as to the present content of customary law on this point. It may be noted, however, that the provision on the responsibility of military commanders in the Rome Statute of the International Criminal Court provides that a commander may be held criminally responsible for failure to act in situations where he knew or should have known of offences committed, or about to be committed, by forces under his effective command and control, or effective authority and control."[17]

"The pertinent question is this: was customary international law altered with the adoption of Additional Protocol I, in the sense that a commander can be held accountable for failure to act in response to crimes by his subordinates only if some specific information was in fact available to him which would provide notice of such offences? Based on the following analysis, the Trial Chamber is of the view that this is not so."[18]

"[…] if a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties […]."[19]

However, the Mucić et al. ("Čelebići") Appeals Chamber affirmed the position held by the Mucić et al. ("Čelebići") Trial Chamber:

"Article 7(3) of the Statute is concerned with superior liability arising from failure to act in spite of knowledge. Neglect of a duty to acquire such knowledge, however, does not feature in the provision as a separate offence, and a superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or to punish. The Appeals Chamber takes it that the Prosecution seeks a finding that ‘reason to know’ exists on the part of a commander if the latter is seriously negligent in his duty to obtain the relevant information. The point here should not be that knowledge may be presumed if a person fails in his duty to obtain the relevant information of a crime, but that it may be presumed if he had the means to obtain the knowledge but deliberately refrained from doing so. The Prosecution’s argument that a breach of the duty of a superior to remain constantly informed of his subordinates actions will necessarily result in criminal liability comes close to the imposition of criminal liability on a strict or negligence basis. It is, however, noted that although a commander’s failure to remain apprised of his subordinates’ action, or to set up a monitoring system may constitute a neglect of duty which results in liability within the military disciplinary framework, it will not necessarily result in criminal liability."[20]

The Mucić et al.("Čelebići") Appeals Chamber further confirmed that:

"In the Appeals Chamber’s view, an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question. Thus, as correctly held by the Trial Chamber, as the element of knowledge has to be proved in this type of cases, command responsibility is not a form of strict liability. A superior may only be held liable for the acts of his subordinates if it is shown that he ‘knew or had reason to know’ about them. The Appeals Chamber would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability."[21]

The Mucić et al. ("Čelebići") Appeals Chamber later on specified:

"The Appeals Chamber upholds the interpretation given by the Trial Chamber to the standard ‘had reason to know’, that is, a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates. This is consistent with the customary law standard of mens rea as existing at the time of the offences charged in the Indictment."[22]

Hereto, the Appeals Chamber Judgment in Krnojelac held that:

"[T]his information [the information in the superior’s possession] does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge. […] In other words, and again using the above example of the crime of torture, in order to determine whether an accused ‘had reason to know’ that his subordinates had committed or were about to commit acts of torture, the court must ascertain whether he had sufficiently alarming information (bearing in mind that, as set out above, such information need not be specific) to alert him to the risk of acts of torture being committed, that is of beatings being inflicted not arbitrarily but for one of the prohibited purposes of torture. Thus, it is not enough that an accused has sufficient information about beatings inflicted by his subordinates; he must also have information – albeit general – which alerts him to the risk of beatings being inflicted for one of the purposes provided for in the prohibition against torture."[23]

In the Brđ;anin case the Trial Chamber held that:

"It is therefore necessary to distinguish between the mens rea required for the crimes perpetrated by the subordinates and that required for the superior. [...] If the elements dictated by Article 7(3) are fulfilled, there is no reason why superiors should not be convicted pursuant to Article 7(3) for genocide; genocide is, after all, the crime with which the superiors associated themselves with, through the deliberate failure to carry out their duty to exercise control."[24]

The Mucić et al. ("Čelebići") Trial Chamber held:

"[...] that a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offenses committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offenses were being committed or about to be committed by his subordinates."[25]

The Appeals Chamber in Mucić et al. ("Čelebići") approved the Trial Chamber’s conclusion:

"The Prosecution position is essentially that the reference to "had reason to know" in Article 7(3) of the Statute, refers to two possible situations. First, a superior had information which put him on notice or which suggested to him that subordinates were about to commit or had committed crimes. Secondly, a superior lacked such information as a result of a serious dereliction of his duty to obtain the information within his reasonable access."[26]

Furthermore, the Mucić et al. ("Čelebići") Appeals Chamber held:

"The Prosecution’s argument that a breach of the duty of a superior to remain constantly informed of his subordinates actions will necessarily result in criminal liability comes close to the imposition of criminal liability on a strict or negligence basis. It is however noted that although a commander’s failure to remain apprised of his subordinates’ action, or to set up a monitoring system may constitute a neglect of duty which results in liability within the military disciplinary framework, it will not necessarily result in criminal liability."[27]

Affirming the Mucić et al.("Čelebići") Appeals Chamber’s interpretation, the Hadžihasanović and Kubura ("Central Bosnia") Trial Chamber held that:

"[A] superior may be held criminally responsible through the principles of superior responsibility only if specific information was available to him which would have put him on notice of offences committed or about be committed by his subordinates. It is clear from the Appeals Chamber’s finding that the mental element for ‘had reason to know’ is determined only by reference to the information in fact available to the superior and that it is sufficient for the information to be of a nature which, at least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were or were about to be committed. By adopting that interpretation, the Appeals Chamber rejected the stricter criteria of ‘should have known’, and held that a superior cannot be held criminally responsible for neglecting to acquire knowledge of the acts of subordinates, but only for failing to take the necessary and reasonable measures to prevent or to punish."[28]

Regarding the form of the information available, the Mucić et al.("Čelebići") Appeals Chamber held that:

"As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge."[29]

Another example was given by the Trial Chamber in Kvočka et al.:

"The information available to the superior may be written or oral. It need not be explicit or specific, but it must be information – or the absence of information -- that would suggest the need to inquire further. Information that would make a superior suspicious that crimes might be committed includes past behaviour of subordinates or a history of mistreatment: ‘For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.’ Similarly, if a superior has prior knowledge that women detained by male guards in detention facilities are likely to be subjected to sexual violence, that would put him on sufficient notice that extra measures are demanded in order to prevent such crimes."[30]

The ?ainović et al. Trial Chamber confirmed:

"An accused has ‘reason to know’ if he has information available to him putting him on notice of the need for additional investigation, in order to ascertain whether his subordinates were about to engage, were engaging, or had engaged in conduct constituting a crime or underlying offence under the Statute of the Tribunal. This information does not need to be specific; if a military commander, for example, has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, he may be considered as having the requisite knowledge. It is not required that he actually acquainted himself with such information: it suffices that such information was available to him. […] Furthermore, if an accused deliberately refrains from obtaining further information, despite having the means to do so, he may be considered to have had ‘reason to know’. However, the accused’s duty to investigate further only arises from the time at which admonitory information becomes available to him, and a failure to seek out such information in the first place will not, on its own, trigger liability under Article 7(3)."[31]

In the Mucić et al. ("Čelebići") case the Appeals Chamber also held that:

"Finally, the relevant information only needs to have been provided or available to the superior, or in the Trial Chamber’s words, ‘in the possession of’. It is not required that he actually acquainted himself with the information. In the Appeals Chamber’s view, an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question. Thus, as correctly held by the Trial Chamber, as the element of knowledge has to be proved in this type of cases, command responsibility is not a form of strict liability. […] The Appeals Chamber would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability."[32]

In the Krnojelac ("Foča") Appeals Judgment the Appeals Chamber consented:

"The Appeals Chamber considers that the question for the Trial Chamber was not whether what was reported to Krnojelac was in fact true but whether the information he received from the detainees was enough to constitute ‘alarming information’ requiring him, as superior, to launch an investigation or make inquiries."[33]

The Jokić, Miodrag ("Dubrovnik") Appeals Chamber recalled:

"[…] that under the correct legal standard, sufficiently alarming information putting a superior on notice of the risk that crimes might subsequently be carried out by his subordinates and justifying further inquiry is sufficient to hold a superior liable under Article 7(3) of the Statute."[34]

In Kordić and Čerkez the Trial Chamber held that:

"It appears clearly from the Appeals Chamber’s findings that a superior may be regarded as having ‘reason to know’ if he is in possession of sufficient information to be on notice of the likelihood of subordinate illegal acts, i.e., if the information available is sufficient to justify further inquiry. The level of training, or the character traits or habits of the subordinates, are referred to by way of example as general factors which may put a superior on notice that subordinate crimes may be committed. The indicia listed in the United Nations Commission of Experts Report, referred to in the context of actual knowledge, could also be used in this context to determine whether knowledge of the underlying offences alleged could be imputed to an accused."[35]

The Orić Trial Chamber added that:

"What is required though, beyond solely negligent ignorance, is the superior’s factual awareness of information which, due to his position, should have provided a reason to avail himself or herself of further knowledge. Without any such subjective requirement, the alternative basis of superior criminal responsibility by having had ‘reason to know’ would be diminished into a purely objective one and, thus, run the risk of transgressing the borderline to ‘strict liability."[36]

As to the theory of negligence, the Blaškić ("Lašva Valley") Appeals Chamber found that:

"[…] [T]he Appeals Chamber recalls that the ICTR Appeals Chamber has on a previous occasion rejected criminal negligence as a basis of liability in the context of command responsibility, and that it stated that ‘it would be both unnecessary and unfair to hold an accused responsible under a head of responsibility which has not clearly been defined in international criminal law.’ It expressed that ‘references to ‘negligence’ in the context of superior responsibility are likely to lead to confusion of thought....’ The Appeals Chamber expressly endorses this view."[37]

Recalling the criterias held in Celebici, the Đorđ;ević Trial Chamber stated:

"‘‘A superior’s knowledge of and failure to punish his subordinates’ past offences is insufficient, in itself, to conclude that the superior knew that similar future offences would be committed by the same group of subordinates, yet this may, depending on the circumstances of the case, nevertheless constitute sufficiently alarming information to justify further inquiry under the "had reason to know" standard. If the superior deliberately refrains from obtaining further information, even though he had the means to do so, he may well be considered to have "had reason to know" of the crimes."[38]

In the Bagilishema case the Appeals Chamber held that:

"The ‘had reason to know’ standard does not require that actual knowledge, either explicit or circumstantial, be established. Nor does it require that the Chamber be satisfied that the accused actually knew that crimes had been committed or were about to be committed. It merely requires that the Chamber be satisfied that the accused had ‘some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates.’"[39]

Moreover, it found that:

"[…] pursuant to Article 6(3) of the Statute, the accused either ‘knew’ or ‘had reason to know’, whether such a state of knowledge is proved directly or circumstantially."[40]

In Casu, the Bagilishema Appeals Chamber distinguished:

"[...] between the fact that the Accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes."[41]

To the term of "negligence" in this context, the Appeals Chamber found that:

"References to ‘negligence’ in the context of superior responsibility are likely to lead to confusion of thought, as the Judgement of the Trial Chamber in the present case illustrates. The law imposes upon a superior a duty to prevent crimes which he knows or has reason to know were about to be committed, and to punish crimes which he knows or has reason to know had been committed, by subordinates over whom he has effective control. A military commander, or a civilian superior, may therefore be held responsible if he fails to discharge his duties as a superior either by deliberately failing to perform them or by culpably or wilfully disregarding them."[42]

About the "had reason to know " criteria, the Ndindiliyimana Trial Chamber recalls a requirement set by the Čelebići Appeal Chamber :

" Rather, the test for whether an accused had reason to know of the crimes is "whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry."[43]

"[...] a commander is responsible for offences committed within his command if the evidence establishes that he had actual knowledge or should have had knowledge, and thereafter failed to act"."[44]

The standard can be traced back to the IMTFE (International Military Tribunal for the Far East), which stated that:

"[...] if such a person had, or should, but for negligence or supineness, have had such knowledge he is not excused for inaction if his office required or permitted him to take any action to prevent such crimes"."[45]

The same Tribunal also held that:

"Army or Navy commanders can, by order, secure proper treatment and prevent ill treatment of prisoners. So can Ministers of War and of the Navy. If crimes are committed against prisoners under their control, of the likely occurrence of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes."[46]

In the Toyoda case, the IMTFE stated that:

"In the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished. In determining the guilt or innocence of an accused charged with dereliction of his duty as a commander, consideration must be given too many factors. The theory is simple, its application is not. […] His guilt cannot be determined by whether he had operational command, administrative command, or both. If he knew, or should have known, by use of reasonable diligence, of the commission by his troops of atrocities and if he did not do everything within his power and capacity under the existing circumstances to prevent their occurrence and punish the offenders, he was derelict in his duties. Only the degree of his guilt would remain."[47]

In the Hostages case held before a US Military Tribunal under Control Council Law No. 10, the Tribunal rejected the defence of the accused General List that he had no knowledge of unlawful killings committed by his subordinates, stating that:

"A commanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime, and protecting lives and property within the area of his command. His responsibility is coextensive with his area of command. He is charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprize him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence. Absence from headquarters cannot and does not relieve one from responsibility for acts committed in accordance with a policy he instituted or in which he acquiesced."[48]

The US Military Tribunal hearing the High Command case held that:

"Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his particle In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence."[49]

Commenting on these developments, the ICTY Trial Chamber in Mucić et al.("Čelebići") held that:

"[I]t is to be noted that the jurisprudence from the period immediately following the Second World War affirmed the existence of a duty of commanders to remain informed about the activities of their subordinates. Indeed, from a study of these decisions, the principle can be obtained that the absence of knowledge should not be considered a defence if, in the words of the Tokyo judgement, the superior was ‘at fault in having failed to acquire such knowledge’."[50]

After reviewing the jurisprudence following World War II, the Blaškić Trial Chamber also concluded that:

"[A]fter World War II, a standard was established according to which a commander may be liable for crimes by his subordinates if ‘he failed to exercise the means available to him to learn of the offence and, under the circumstances, he should have known and such failure to know constitutes criminal dereliction’."[51]

More precisely, the SCSL Taylor Trial Chamber defines the ?should have known? requirement this way :

"In determining whether a superior "had reason to know", or imputed knowledge, that his or her subordinates were committing or about to commit a crime, it must be shown that specific information was available which would have put the superior on notice of crimes committed or about to be committed. The superior may not be held liable for failing to acquire such information in the first place. However, it suffices for the superior to be in possession of sufficient information, even general in nature, written or oral, of the likelihood of illegal acts by subordinates. The superior need only have notice of a risk that crimes might be carried out and there is no requirement that this be a strong risk or a substantial likelihood. It is clear from the case law referred to above that negligence is insufficient to attribute imputed knowledge, and that a superior cannot be held liable for having failed in his duty to obtain information in the first place. What is required is the superior’s awareness of information which should have prompted him or her to acquire furtherknowledge. Responsibility pursuant to Article 6(3) of the Statute will attach when the superior remains wilfully blind to the information that is available to him."[52]

6.2.2. Evidence that the person had the means to obtain relevant information of such crimes.

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 249-252: 

"249. According to the case-law of the Tribunal, the superior “had reason to know” if he had specific information available to him that would have put him on notice regarding the offences committed or the risk that such offences might be committed by his subordinates. It is not necessary to establish that the superior actually possessed information concerning the crimes committed. Rather, it is sufficient that the information available indicate the need for further information to ascertain whether offences were being committed or were just about to be committed. The Appeals Chamber has ruled that the superior’s approach may incur responsibility, not because he has refrained from informing himself, but because he had the means of knowing, and deliberately avoided making use of them. It declined to recognise criminal negligence as the basis for superior responsibility. As such, under customary law, there is no obligation to know for military commanders, and the same holds true for civilian superiors. Thus, the superior is not responsible because he “ought to have known”, but because he had the means to know, so that he might react, and he refrained from making use of them."

"250. Concerning the information available to the superior, general information may suffice. For a superior to be judged responsible on the basis of Article 7(3) of the Statute, it is sufficient to prove that he possessed information sufficiently alarming so as to warrant further inquiry. Thus, a superior may be found to possess the required knowledge when he knows that his subordinates have a violent or unstable character, are under the influence of alcohol prior to being sent on assignment, or even when they are reputed criminals or lack professionalism. Thus, the Hadžihasanović Chamber found that, under the circumstances of that case, by failing to take measures to punish crimes of which the superior had knowledge, the superior had reason to know that there was a real and reasonable risk that these unlawful acts might recur."

"251. However, the Chamber subscribes to the case-law of the Tribunal whereby the prior knowledge of a superior must be narrowly interpreted to the extent it derives from a situation of repeated similar criminal actions and from a set of circumstances such that these actions could not arise in isolation, committed as they were by the same identifiable group of subordinates."

"252. Lastly, the Appeals Chamber has ruled that, at law as well as in fact, knowledge of the crime and knowledge of the criminal conduct of someone else are two distinct matters."