M.7. The perpetrator either knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes

Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, para. 63:

"63. The Appeals Chamber recalls that the mens rea of superior responsibility is established when the accused "knew or had reason to know” that his subordinate was about to commit or had committed a criminal act. The "reason to know" standard is met “when the accused had "some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates"; such information need not provide specific details of the unlawful acts committed or about to be committed by his subordinates."

M.7.1 The perpetrator knew that the subordinates were committing or about to commit the crimes.

M.7.1.1. ICC

The Bemba Gombo Pre-Trial Chamber held that:

"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]

M.7.1.2. ICTY

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". " [2]

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." "[3]

This presumption of knowledge has been rejected by the Hadžihasanović and Kubura ("Central Bosnia") and the Delić Trial Chambers:

"A superior’s actual knowledge that his subordinates were committing or were about to commit a crime may be established by direct or circumstantial evidence, but it may not be presumed."[4]

Similarly reads the Orić Trial Judgment:

"The actual knowledge of the superior, in terms of awareness that his subordinates were about to commit or have committed relevant crimes, cannot be presumed."[5]

M.7.1.3. 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."[6]

"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."[7]

M.7.2 The perpetrator consciously disregarded information which clearly indicated that the subordinates were committing or about to commit the crimes