M.2. Superior and subordinate relationship not described in paragraph art. 28(a) of the Rome Statute existed between the perpetrator and the subordinates

M.2. Superior and subordinate relationship not described in paragraph art. 28(a) of the Rome Statute existed between the perpetrator and the subordinates

M.2.1. ICC

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

"With respect to a ‘person effectively acting as a military commander’, the Chamber considers that this term is meant to cover a distinct as well as a broader category of commanders. This category refers to those who are not elected by law to carry out a military commander's role, yet they perform it de facto by exercising effective control over a group of persons through a chain of command."[1]

"Thus, the Chamber finds that this category of military-like commanders may generally encompass superiors who have authority and control over regular government forces such as armed police units or irregular forces (non-government forces) such as rebel groups, paramilitary units including, inter alia, armed resistance movements and militias that follow a structure of military hierarchy or a chain of command."[2]

M.2.2. ICTR

With regard to Nsengiyumva’s authority over the civilian attackers, the Bagosora and Nsengiyumva Appeals Chamber held that:

"The only demonstrable link the Trial Chamber found between Nsengiyumva and the civilian attackers was the ‘‘coordination between soldiers and civilians’’ reflected in Witness DO’s evidence. However, the Appeals Chamber is not convinced that coordination between soldiers and civilians is sufficient to establish that a superior-subordinate relationship existed between Nsengiyumva and the civilian attackers."[3]