Table of contents:
5.1. Existence of a de facto or a de jure position of authority; AND
5.1.1. Evidence of a de jure position of authority.
P.31. Evidence of a formal hierarchical relationship between the superior and subordinate.
P.31.1. Evidence of a chain of command.
P.31.2. Evidence of the clear hierarchy of the military units.
P.31.3. Evidence of the clear division of the area of activity of each military unit.
P.32. Evidence of a title giving authority.
P.33. Evidence of the perpetrators functions.
P.33.1. Evidence of the cumulative effect of the perpetrators functions.
P.33.2. Evidence of the way the perpetrator exercised its powers.
P.33.3. Evidence of the perpetrators high public profile.
P.33.4. Evidence of the perpetrators participation in high-profile international negotiations.
P.33.5. Evidence of the perpetrator enjoying authority in his or her region.
5.1.2. Evidence of a de facto position of authority.
P.34. Evidence of the perpetrator enjoying a de facto position of authority.
P.34.1. Evidence the perpetrator was effectively in command of an informal structure.
P.34.2. Evidence of the perpetrator assuming authority in a de facto army or paramilitary group.
P.34.3. Evidence of the perpetrator assuming a role of civilian leader.
P.34.5. Evidence of an authority reasonably implied.
5.2. Existence of effective control over subordinate forces.
P.35. Evidence showing that the perpetrator could control the conduct of subordinates.
P.35.1. Evidence the perpetrator was able to control the acts of his or her subordinates.
P.36.1. Evidence of the perpetrators ability to report to competent authorities to ensure sanction
P.37. Evidence of the perpetrators ability to give orders to his subordinates.
P.37.1. Evidence of the perpetrators ability to give orders to his subordinates.
P.37.4. Evidence of the perpetrators ability to sign orders regarding the conduct of the troops.
P.38. Evidence that the subordinates responded to the perpetrators orders.
P.38.1. Evidence that guards had to wait for the perpetrators instructions before acting.
P.38.2. Evidence of guards beating prisoners pursuant to the perpetrators orders.
Element:
This third element of crime clarifies that only a certain category of actors are concerned by the crime, by requiring that a commander ("the perpetrator was in a position of effective command or control over the subordinate forces") give a "declaration or order". Thus, "the threat of warfare without quarter made by a simple soldier, or even a civilian, does not create criminal liability." (Gerhard Werle, Principles of International Criminal Law, para. 1076).
The wording of element 3 of the crime refers to the concept of effective command and control as seen in art. 28 of the Rome Statute, i.e. "Responsibility of commanders and other superiors". Article 7(3) of the ICTY Statute and Article 86 of Protocol I refer to "superiors" in general who exercise control over subordinates. The ICRC Commentary also states that Article 86 does not only apply to superiors "under whose direct orders the subordinate is placed" but instead "should be seen in terms of a hierarchy encompassing the concept of control"(ICRC Commentary to Additional Protocol I, para. 3544, p.1013). Furthermore, Article 87 of Protocol I specifies that the duties of military commanders extend not only to "armed forces under their command", but also to "other persons under their control". Accordingly, a commander may incur criminal responsibility for crimes committed by persons who are not formally his direct subordinates, insofar as he exercises effective control over them. Jurisprudence from the ICTY and ICTR can be borrowed until the ICC develops its own precedents.
5.1. Existence of a de facto or a de jure position of authority; AND
5.1.1. Evidence of a de jure position of authority.
P.31. Evidence of a formal hierarchical relationship between the superior and subordinate.
P.31.1. Evidence of a chain of command.
P.31.2. Evidence of the clear hierarchy of the military units.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 276, 281:
"276.[ ] both direct and indirect relationships of subordination within the hierarchy are possible739 [ ]."
"739Celebici Appeal Judgment , para. 252."
281.[ ] as in the case of military superiors, civilian superiors will only be held liable under the doctrine of superior criminal responsibility if they were part of a superior -subordinate relationship, even if that relationship is an indirect one.758"
"758Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 415."
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-A, Judgement (AC), 23 October 2001, para. 365:
"365.The Appeals Chamber is of the view that there was ample reliable evidence before the Trial Chamber to conclude that, on 16 April 1993, Santic was both Commander of the 1st Company of the 4th Battalion of the Military Police and the Jokers. There was also evidence from Witness EE, that Santic was present in Ahmici with the attacking forces on 16 April 1993. From this, it was reasonable for the Trial Chamber to infer that on 16 April 1993 Santic was in Ahmici and, given his position in the hierarchy of the units involved in the attack, that he must have been carrying out a command role during that attack."
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 43:
"43. According to the Trial Chamber in Celebici, for a civilian superiors degree of control to be "similar to" that of a military commander, the control over subordinates must be "effective",43 and the superior must, have the "material ability"44 to prevent and punish any offences. Furthermore, the exercise of de facto authority must be accompanied by "the trappings of the exercise of de jure authority".45 The present Chamber concurs. The Chamber is of the view that these trappings of authority include, for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action. It is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence."
"43Ibid.
44 Ibid.
45Ibid. para. 646."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 419-420, 422-423:
"419. A formal position of authority may be determined by reference to official appointment or formal grant of authority. Military positions will usually be strictly defined and the existence of a clear chain of command, based on a strict hierarchy, easier to demonstrate. Generally, a chain of command will comprise different hierarchical levels starting with the definition of policies at the highest level and going down the chain of command for implementation in the battlefield. At the top of the chain, political leaders may define the policy objectives. These objectives will then be translated into specific military plans by the strategic command in conjunction with senior government officials. At the next level the plan would be passed on to senior military officers in charge of operational zones. The last level in the chain of command would be that of the tactical commanders which exercise direct command over the troops.
420. In relation to military structure, the ICRC Commentary (Additional Protocol I) observes that "there is no part of the army which is not subordinated to a military commander at whatever level". Consequently, "responsibility applies from the highest to the lowest level of the hierarchy, from the Commander-in-Chief down to the common soldier who takes over as head of the platoon to which he belongs at the moment his commanding officer has fallen and is no longer capable of fulfilling his task."586
"586ICRC Commentary (Additional Protocol I), para. 3553 under Article 87."
"422. In order to determine the formal powers and duties exercised by political and military superiors an analysis of the formal procedures for appointment to civilian and military offices (through national legislation and appointment orders for instance) would be a starting point. This will not be sufficient, as it must be shown that the powers are "real" for criminal responsibility to be attached to them. Further, in situations such as that of the armed conflict in Bosnia and Herzegovina, it will often be the case that civilian leaders will assume powers more important than those with which they are officially vested. In these circumstances, de facto powers may exist alongside de jure authority, and may be more important than the de jure powers.
423. In order to assess the individual criminal responsibility of the accused, the Trial Chamber in Karadzic and Mladic turned to an examination "of the position of each of the accused in the overall [institutional, political and military] organisation described [whose purpose was to establish a territory with a homogeneous population] with a view to determining their institutional functions and how they exercised their powers."589
589Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, Case No. IT-95-5-R61/IT-95-18-R61, 11 July 1996, paras. 65-66."
Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para.303:
"303. The Appeals Chamber understands the necessity to prove that the perpetrator was the "subordinate" of the accused, not to import a requirement of direct or formal subordination but to mean that the relevant accused is, by virtue of his or her position, senior in some sort of formal or informal hierarchy to the perpetrator. The ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of the superior-subordinate relationship, will almost invariably not be satisfied unless such a relationship of subordination exists."
[B. Evidentiary comment:]
P.31.3. Evidence of the clear division of the area of activity of each military unit.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 446:
"446. Yet the accused congratulated himself on several occasions on how perfectly well organised and controlled his troops were 929. The witness Mujezinovic also stated that in Vitez, the HVO had very well organised and very well armed troops 930. According to several international observers, the HVO had very precise organisation charts defining everyones tasks and areas of responsibility. The hierarchy seemed very clear, with each unit having a number, an area of activity and a grade 931. The witness Bower stated that the military personnel were generally well trained since they had been trained in the JNA, which provided for two years of military service 932."
"929See in particular P647, dated 21 October 1992: "the activities of our forces are organised, fully co-ordinated and controlled by the command"; P456/32, dated 7 May 1993: "command and control function properly and all missions precede in a planned fashion according to orders, with detailed knowledge of the situation, full co-ordination and control".
930Witness Mujezinovic, PT of 20 August 1997 p. 1742.
931PT p. 23689.
932Witness Bower, PT p. 9782."
[B. Evidentiary comment:]
P.32. Evidence of a title giving authority.
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 104:
"104. The Trial Chamber finds first of all that the accused had the power to give the guards orders. Several witnesses of the second period said that the guards addressed the accused by calling him "commander"194 or that the accused had introduced himself as such to the detainees. 195"
"194Witnesses H; Garanovic, FPT p. 811; Meho Sivro, p. 870.
195 See Notes 150 and 151 above."
P.33. Evidence of the perpetrators functions.
P.33.1. Evidence of the cumulative effect of the perpetrators functions.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 277:
"277. In all circumstances, and especially when an accused is alleged to have been a member of collective bodies with authority shared among various members, "it is appropriate to assess on a case-by-case basis the power or authority actually devolved on an accused,"744 taking into account the cumulative effect of the accuseds various functions.745"
"744Prosecutor v. Ignace Bagilishema , Case No. ICTR-95-1A-A, Judgment, 3 July 2003 ("Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July 2002"), para. 51, endorsing the finding in the Musema Trial Judgment , para. 135.
745Stakic Trial Judgment, para. 494."
[B. Evidentiary comment:]
P.33.2. Evidence of the way the perpetrator exercised its powers.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 423, 424:
"423. In order to assess the individual criminal responsibility of the accused, the Trial Chamber in Karadzic and Mladic turned to an examination "of the position of each of the accused in the overall [institutional, political and military] organisation described [whose purpose was to establish a territory with a homogeneous population] with a view to determining their institutional functions and how they exercised their powers."589
"589Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, Case No. IT-95-5-R61/IT-95-18-R61, 11 July 1996, paras. 65-66."
"424. A superior status, when not clearly spelled out in an appointment order, may be deduced though an analysis of the actual tasks performed by the accused in question. This was the approach taken by the Trial Chamber in Nikolic. 591"
"591Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, Case No. IT-94-2-R61, 20 Oct. 1995, para. 24. The Trial Chamber appears to have endorsed the witnesses evidence in this regard: "The witnesses based their conclusions upon an analysis of the distribution of tasks within the camp. The guards were subjugated to Dragan Nikolics orders; nothing, apparently, could be carried out without his consent."
[B. Evidentiary comment:]
P.33.3. Evidence of the perpetrators high public profile.
P.33.4. Evidence of the perpetrators participation in high-profile international negotiations.
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 424:
"424. A superior status, when not clearly spelled out in an appointment order, may be deduced though an analysis of the actual tasks performed by the accused in question. This was the approach taken by the Trial Chamber in Nikolic.591Evidence that an accused is perceived as having a high public profile, manifested through public appearances and statements, and thus as exercising some authority, may be relevant to the overall assessment of his actual authority although not sufficient in itself to establish it, without evidence of the accuseds overall behaviour towards subordinates and his duties. Similarly, the participation of an accused in high-profile international negotiations would not be necessary in itself to demonstrate superior authority. While in the case of military commanders, the evidence of external observers such as international monitoring or humanitarian personnel may be relied upon, in the case of civilian leaders evidence of perceived authority may not be sufficient, as it may be indicative of mere powers of influence in the absence of a subordinate structure."
"591Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Trial Chamber I, Case No. IT-94-2-R61, 20 Oct. 1995, para. 24. The Trial Chamber appears to have endorsed the witnesses evidence in this regard: "The witnesses based their conclusions upon an analysis of the distribution of tasks within the camp. The guards were subjugated to Dragan Nikolics orders; nothing, apparently, could be carried out without his consent."
[B. Evidentiary comment:]
P.33.5. Evidence of the perpetrator enjoying authority in his or her region.
A. Legal source/authority and evidence:
Prosecutor v. Omar Serushago, Case No. ICTR-98-39, Judgement (TC), 5 February 1999, para. 28:
"28. It was submitted by the Prosecutor and admitted by the Defence, that Omar Serushago, in the commission of the crimes for which he has been found guilty, played a leading role and that he therefore incurs individual criminal responsibility under the provisions of Article 6 (3) of the Statute. At the time of commission of the offences for which he is held responsible, Omar Serushago enjoyed definite authority in his region. He participated in several meetings during which the fate of the Tutsi was decided."
[B. Evidentiary comment:]
5.1.2. Evidence of a de facto position of authority.
P.34. Evidence of the perpetrator enjoying a de facto position of authority.
P.34.1. Evidence the perpetrator was effectively in command of an informal structure.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 354:
"354. The requirement of the existence of a "superior-subordinate" relationship which, in the words of the Commentary to Additional Protocol I, should be seen "in terms of a hierarchy encompassing the concept of control"373, is particularly problematic in situations such as that of the former Yugoslavia during the period relevant to the present case - situations where previously existing formal structures have broken down and where, during an interim period, the new, possibly improvised, control and command structures, may be ambiguous and ill-defined. It is the Trial Chambers conclusion, the reasons for which are set out below, that persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so. Thus the Trial Chamber accepts the Prosecutions proposition that individuals in positions of authority, whether civilian or within military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude the imposition of such responsibility."
"373 Commentary to the Additional Protocols, para. 3544."
[B. Evidentiary comment:]
P.34.2. Evidence of the perpetrator assuming authority in a de facto army or paramilitary group.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-A, Judgement (AC), 20 Febru-ary 2001, paras.188, 193:
"188. The Trial Chamber found: :
"[ ]a position of command is indeed a necessary precondition for the imposition of command responsibility. However, this statement must be qualified by the recognition that the existence of such a position cannot be determined by reference to formal status alone. Instead, the factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. Accordingly, formal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach, as such responsibility may be imposed by virtue of a persons de facto, as well as de jure, position as a commander. Accordingly, formal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach, as such responsibility may be imposed by virtue of a persons de facto, as well as de jure, position as a commander.244
193. The power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment. In many contemporary conflicts, there may be only de facto, self-proclaimed governments and therefore de facto armies and paramilitary groups subordinate thereto. Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment. A tribunal could find itself powerless to enforce humanitarian law against de facto superiors if it only accepted as proof of command authority a formal letter of authority, despite the fact that the superiors acted at the relevant time with all the powers that would attach to an officially appointed superior or commander."
"244Trial Judgment, para 370 (emphasis added)."
[B. Evidentiary comment:]
P.34.3. Evidence of the perpetrator assuming a role of civilian leader.
A. Legal source/authority and evidence:
Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-A, Judgement (AC), 23 May 2005, para. 85:
"85. The Appeals Chamber recalls that a superior is one who possesses power or authority over subordinates either de jure or de facto; it is not necessary for that power or authority to arise from official appointment.172 Furthermore, it is settled both in ICTR and ICTY jurisprudence that the definition of a superior is not limited to military superiors; it also may extend to de jure or de facto civilian superiors.173 The Appeals Chamber finds that the Trial Chamber correctly incorporated these elements into its definition of a superior."
"172Bagilishema Appeal Judgment, para. 50 citing Čelebići Case Appeal Judgment, para. 192.
173Bagilishema Appeal Judgment, para. 51; see also Čelebići Case Appeal Judgment, paras. 196, 197."
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 362:
"362.[ ] The Trial Chamber has already found that the ARK Crisis Staff became the highest organ of civilian authority in the ARK, to which the municipal authorities were de facto subordinated [ ]".
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July 2002, paras. 50-51:
"50. Under Article 6(3), a commander or superior is the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinates crime or to punish the commission of a crime by a subordinate after the crime is committed".[81] The power or authority to prevent or to punish does not arise solely from a de jure authority conferred through official appointment.[82] Hence, "as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control." [83] The effective control test applies to all superiors, whether de jure or de facto, military or civilian.[84]
51. Indeed, it emerges from international case-law that the doctrine of superior responsibility is not limited to military superiors, but also extends to civilian superiors. In the Čelebići case, it was held that:
In this respect, the Appeals Chamber notes that the Musema Trial Judgment, which took into consideration the Rwandan situation, pointed out that "it is appropriate to assess on a case-by-case basis the power of authority actually devolved on an accused to determine whether or not he possessed the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish their perpetration."[86]"
"[81]Čelebići Appeal Judgment, para. 192: "[u]nder article 7(3), a commander or superior is thus the one who possesses the power or the authority in either a de jure or a de facto form to prevent a subordinates crime or to punish the perpetrators of the crime after the crime is committed."
[82[ Ibid., para. 193.
[83] Ibid., para. 198.
[84] Aleksovski Appeal Judgment, para. 76 in fine. The ICTY Appeals Chamber took the view "that it does not matter whether [the Accused] was a civilian or military superior, if it can be proved that [ ] he had the powers to prevent or to punish in terms of Article 7(3)."
[85]Emphasis not in the original. Čelebići Trial Judgment, para. 378, affirmed on appeal in the Čelebići Appeal Judgment, para. 197 in fine. The ICTY Appeals Chamber considered in para. 197 of the Čelebići Appeal Judgment that "[i]n determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. This would equally apply in the context of criminal responsibility. In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced. The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met. Muči}s argument that de facto status must be equivalent to de jure status for the purposes of superior responsibility is misplaced. Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts. The Appeals Chamber therefore agrees with the Trial Chambers conclusion [ ]" (footnotes omitted).
[86] Musema Trial Judgment, para. 135. The Trial Chamber based its finding on earlier case-law" established in the Akayesu Trial Judgment (para. 491)."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 422:
"422. In order to determine the formal powers and duties exercised by political and military superiors an analysis of the formal procedures for appointment to civilian and military offices (through national legislation and appointment orders for instance) would be a starting point. This will not be sufficient, as it must be shown that the powers are "real" for criminal responsibility to be attached to them. Further, in situations such as that of the armed conflict in Bosnia and Herzegovina, it will often be the case that civilian leaders will assume powers more important than those with which they are officially vested. In these circumstances, de facto powers may exist alongside de jure authority, and may be more important than the de jure powers."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
"397. The relationship between the commander and his subordinates need not have been formalized; a tacit or implicit understanding between them as to their positioning vis-à-vis one another is sufficient. The giving of orders or the exercise of powers generally attached to a military command are strong indications that an individual is indeed a commander. But these are not the sole relevant factors."
[B. Evidentiary comment:]
P.34.5. Evidence of an authority reasonably implied.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 270:
"270. [ ] it is sufficient that [ ] that authority can be reasonably implied.717 [ ]"
"717Akayesu Trial Judgment, para. 483; Blaskic Trial Judgment, paras 281-282; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 388."
[B. Evidentiary comment:]
5.2. Existence of effective control over subordinate forces.
According to the Aleksovski Trial Chamber, "the decisive criterion in determining who is a superior according to customary international law is not only the accuseds formal legal status but also his ability, as demonstrated by his duties and competence, to exercise control. As the Trial Chamber already noted in the Celebici case, "the factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. (Celebici, para. 370)." (Aleksovski Trial Chamber, Judgment, para. 76).
P.35. Evidence showing that the perpetrator could control the conduct of subordinates.
P.35.1. Evidence the perpetrator was able to control the acts of his or her subordinates.
A. Legal source/authority and evidence:
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 492:
"492. The Trial Chamber has found that acts or omissions of a de facto superior can give rise to individual criminal responsibility pursuant to Article 6(3) of the Statute. Thus, no legal or formal position of authority need exist between the accused and the perpetrators of the crimes. Rather, the influence that an individual exercises over the perpetrators of the crime may provide sufficient grounds for the imposition of command responsibility if it can be shown that such influence was used to order the commission of the crime or that, despite such de facto influence, the accused failed to prevent the crime. The Celebici case provides an exposition of the jurisprudence on this point14."
"14Ibid., paras. 375-376."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 377:
"377. While it is, therefore, the Trial Chambers conclusion that a superior, whether military or civilian, may be held liable under the principle of superior responsibility on the basis of his de facto position of authority, the fundamental considerations underlying the imposition of such responsibility must be borne in mind. The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 605:
"605. By effective control, it is meant that the superior, whether a military commander or a civilian leader, must have possessed the material ability, either de jure or de facto, to prevent or to punish offences committed by subordinates. The test to assess a superior-subordinate relationship, in the words of the Appeals Chamber in Bagilishema, is: [ ] whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority. The ICTY Appeals Chamber held in the Celebici Appeal Judgment that [a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control."
Prosecutor v Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para.459:
"459. "Effective control means the "material ability to prevent or punish the commission of the offences".993 [ ] A superior vested with de jure authority who does not actually have effective control over his or her subordinates would not incur criminal responsibility pursuant to the doctrine of superior responsibility, whereas a de facto superior who lacks formal letters of appointment or commission but does, in reality, have effective control over the perpetrators of offences might incur criminal responsibility.996"
"993Celebici Trial Judgment, para. 378, affirmed in Celebici Appeal Judgment, para. 256.
996 Celebici Appeal Judgment, para. 197."
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 43:
"43. According to the Trial Chamber in Celebici, for a civilian superiors degree of control to be "similar to" that of a military commander, the control over subordinates must be "effective",43 and the superior must, have the "material ability"44 to prevent and punish any offences. Furthermore, the exercise of de facto authority must be accompanied by "the trappings of the exercise of de jure authority".45 The present Chamber concurs. The Chamber is of the view that these trappings of authority include, for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action. It is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence."
"43Ibid.
44 Ibid.
45Ibid. para. 646."
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 415:
"415. It follows that a government official will only be held liable under the doctrine of command responsibility if he was part of a superior-subordinate relationship, even if that relationship is an indirect one. Even though arguably effective control may be achieved through substantial influence, a demonstration of such powers of influence will not be sufficient in the absence of a showing that he had effective control over subordinates, in the sense of possessing the material ability to prevent subordinate offences or punish subordinate offenders after the commission of the crimes. For instance, a government official who knows that civilians are used to perform forced labour or as human shields will be held liable only if it is demonstrated that he has effective control over the persons who are subjecting the civilians to such treatment. A showing that the official merely was generally an influential person will not be sufficient. In contrast, a government official specifically in charge of the treatment of prisoners used for forced labour or as human shields, as well as a military commander in command of formations which are holding the prisoners, may be held liable on the basis of superior responsibility because of the existence of a chain of command."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, paras. 78, 103:
"78. [ ]In the opinion of the Trial Chamber, a civilian must be characterised as a superior pursuant to Article 7(3) if he has the ability de jure or de facto to issue orders to prevent an offence and to sanction the perpetrators thereof. A civilians sanctioning power must however be interpreted broadly. It should be stated that the doctrine of superior responsibility was originally intended only for the military authorities. Although the power to sanction is the indissociable corollary of the power to issue orders within the military hierarchy, it does not apply to the civilian authorities. It cannot be expected that a civilian authority will have disciplinary power over his subordinate equivalent to that of the military authorities in an analogous command position. To require a civilian authority to have sanctioning powers similar to those of a member of the military would so limit the scope of the doctrine of superior authority that it would hardly be applicable to civilian authorities. The Trial Chamber therefore considers that the superiors ability de jure or de facto to impose sanctions is not essential. The possibility of transmitting reports to the appropriate authorities suffices once the civilian authority, through its position in the hierarchy, is expected to report whenever crimes are committed, and that, in the light of this position, the likelihood that those reports will trigger an investigation or initiate disciplinary or even criminal measures is extant."
"103. The Trial Chamber rejects the Defence argument that the guards, as members of the military police, answered for their acts solely to the commander of the military police. Even if the evidence did not establish beyond any reasonable doubt that the accused himself was a member of the military police, it cannot be deduced therefrom that he had no authority over the guards. [ ]. This authority can be inferred from the accuseds ability to give them orders and to punish them in the event of violations."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 378:
"378. Accordingly, it is the Trial Chambers view that, in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.405"
[B. Evidentiary comment:]
P.36.1. Evidence of the perpetrators ability to report to competent authorities to ensure sanction
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 302:
"302. Although the Trial Chamber agrees with the Defence that the "actual ability" of a commander is a relevant criterion, the commander need not have any legal authority to prevent or punish acts of his subordinates. What counts is his material ability531, which instead of issuing orders or taking disciplinary action may entail, for instance, submitting reports to the competent authorities in order for proper measures to be taken 532."
"531Celebici Judgment, para. 395: "a superior may only be held criminally responsible for failing to take such measures that are within his powers" (emphasis added). Likewise, Article 86(2) of Additional Protocol I refers to superiors and "feasible measures within their power to prevent or repress" (emphasis added)."
532.Aleksovski Judgment, para. 78, concerning reporting to the appropriate authorities the commission of crimes."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 78:
"78. [ ]In the opinion of the Trial Chamber, a civilian must be characterised as a superior pursuant to Article 7(3) if he has the ability de jure or de facto to issue orders to prevent an offence and to sanction the perpetrators thereof. A civilians sanctioning power must however be interpreted broadly. It should be stated that the doctrine of superior responsibility was originally intended only for the military authorities. Although the power to sanction is the indissociable corollary of the power to issue orders within the military hierarchy, it does not apply to the civilian authorities. It cannot be expected that a civilian authority will have disciplinary power over his subordinate equivalent to that of the military authorities in an analogous command position. To require a civilian authority to have sanctioning powers similar to those of a member of the military would so limit the scope of the doctrine of superior authority that it would hardly be applicable to civilian authorities. The Trial Chamber therefore considers that the superiors ability de jure or de facto to impose sanctions is not essential. The possibility of transmitting reports to the appropriate authorities suffices once the civilian authority, through its position in the hierarchy, is expected to report whenever crimes are committed, and that, in the light of this position, the likelihood that those reports will trigger an investigation or initiate disciplinary or even criminal measures is extant."
[B. Evidentiary comment:]
P.37. Evidence of the perpetrators ability to give orders to his subordinates.
P.37.1. Evidence of the perpetrators ability to give orders to his subordinates.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 380:
"380.[ ] (b) the perpetrator acted in execution of an express or implied order given by the accused to a subordinate or other person over whom the accused was in a position of authority.[ ] what matters is the authority to give orders even in the absence of a formal superior-subordinate relationship.[ ]."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 103:
"103. The Trial Chamber rejects the Defence argument that the guards, as members of the military police, answered for their acts solely to the commander of the military police. Even if the evidence did not establish beyond any reasonable doubt that the accused himself was a member of the military police, it cannot be deduced therefrom that he had no authority over the guards. For the reasons set forth above 191, The Trial Chamber considers that anyone, including a civilian, may be held responsible pursuant to Article 7(3) of the Statute if it is proved that the individual had effective authority over the perpetrators of the crimes. This authority can be inferred from the accuseds ability to give them orders and to punish them in the event of violations."
[B. Evidentiary comment:]
P.37.4. Evidence of the perpetrators ability to sign orders regarding the conduct of the troops.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 421:
"421. The capacity to sign orders will be indicative of some authority.587 The authority to issue orders, however, may be assumed de facto. Therefore in order to make a proper determination of the status and actual powers of control of a superior, it will be necessary to look to the substance of the documents signed and whether there is evidence of them being acted upon. For instance in the Ministries case, the court found that the mere appearance of an officials name on a distribution list attached to an official document could simply provide evidence that it was intended that he be provided with the relevant information, and not that "those whose names appear on such distribution lists have responsibility for, or power and right of decision with respect to the subject matter of such document ."588 Similarly, direct signing of release orders would demonstrate authority to release. An accuseds signature on such a document, however, may not necessarily be indicative of actual authority to release as it may be purely formal or merely aimed at implementing a decision made by others."
"587 See Celebici Trial Judgment, para. 672.
588Ministries case (USA v. Von Weizsaecker), 14 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No.10 (1952), p. 693."
"397. The relationship between the commander and his subordinates need not have been formalized; a tacit or implicit understanding between them as to their positioning vis-à-vis one another is sufficient. The giving of orders or the exercise of powers generally attached to a military command are strong indications that an individual is indeed a commander. But these are not the sole relevant factors."
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 586-587:
"586. That finding is essentially based on the accuseds testimony. It is further confirmed by the corroborating allegations of several witnesses. During his evidence before the Trial Chamber, the accused himself said that the Military Police was under his command at the time of the criminal events which took place at Loncari and Ocehni ci1314. Several witnesses also accepted that the Military Police was subordinate to the command of the accused1315.
587. That allegation was corroborated by the fact that during 1993 the accused regularly addressed orders to the Military Police. Those orders took many different forms1316 and referred both to organisational aspects1317 and to the conduct of the troops1318. Moreover, the accused also gave the Military Police several combat preparation orders 1319 and combat orders 1320, which is undeniably evidence of the control he exercised over it."
"1314Witness Blaskic, PT p. 18627, p. 20592.
1315 Witness HH, PT p. 6917; see also witness Baggesen, PT p. 1907."
"1316See P422, P456/5, P456/7, P456/26, P456/30, P456/33, P456/34, P456/38, P498/9 and 87, D208, D263, D380, D382, D400, D405, D511.
1317 See P456/21, P456/31.
1318 See P423, P424, P456/40, P456/27, P456/41, P456/77, P498/7, P498/8 and D354, D357, 368, D384, D386, D388, D389, D391, D456/44.
1319 See P456/6, P456/35, P456/85, D267, D298.
1320 See D268, D296."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 522-525:
"522. By analysing the content of the orders, the Trial Chamber was able to confirm that General Blaskic exercised effective control over the Vitezovi and that there was a permanent relationship of subordination between Blaskic and those troops. The Trial Chamber notes that the orders often related to aspects of organisation 1138 and conduct 1139 of the troops and therefore, owing to their content, were of a permanent nature, and that in any event they clearly went beyond the context of a specific operation.
523. The Vitezovi seemed to have participated to the same extent as the regular HVO troops in the implementation of the troops general organization. On 13 February 1993, General Blaskic asked the Vitezovi, inter alia, to organize their lines of defence, to establish "a complete record of conscripts", to carry out "a shooting test with the civilian and military police units" and to draw up additional and thorough assessments of the situation in cooperation with HVO chairmen, Heads of the Offices for defence matters and Commanders of police stations in the brigades zone of responsibility 1140. On 3 May 1993, General Blaskic asked the Vitezovi to submit a list of the Croatian soldiers killed during the fighting with the ABiH 1141 and, on 26 May 1993, he enjoined those same troops to submit the data on the demographic structure of the pre-war populations by zone of responsibility in the form of a report 1142."
"524. The Vitezovi also received orders with regard to the general conduct management of the troops. On 21 April 1993, General Blaskic asked the HVO regular troops as well as the special intervention forces to protect the civilian population and to ensure that the ICRC had free access and that the injured received medical treatment 1143. On 17 June 1993, General Blaskic demanded that arrests of civilians during military actions cease and asked for religious effects to be protected. On that occasion, he stated that the brigade and independent unit commanders should be answerable to him for implementing that order and asked those commanders to let him know that it was being properly applied by way of regular reports 1144.
525. More fundamentally, the Vitezovi obeyed preparatory orders given by General Blaskic. On 16 January 1993, the accused gave the Vitezovi an order to intensify the preparations for combat at the highest level of all the HVO formations in the CBOZ 1145. On 15 April 1993, General Blaskic enjoined the Vitezovi to prepare for an action by the ABiH troops from Stari Vitez towards the Vitez headquarters, in the event that there would be a break through the front line. He therefore ordered the Vitezovi to hold a front line between Stari Vitez and his headquarters, a few hundred meters away from the Muslim quarter 1146."
"1136 Witness Blakić, PT pp. 18111-18112.
1137P456/6; P456/16; D42; D267; P456/26; D77; D359; P456/27; D78; D39; P456/30; P456/31; P456/32; P456/33; P456/34; P456/37; P456/40; D384; P456/41; D389; D391. According to General Blakić, the Vitezovi unit was broken up on 15 January 1994.
1138P456/16; P456/30; P456/31; P456/32; P456/33.
1139D42; P456/26; D77; D359; P456/27; D78; D39; P456/34; P456/37; P456/40; D384; P456/41; D389; D391.
1140P456/15.
1141P456/31.
1142P456/33.
1143P456/26, D77.
1144P456/37.
1145P456/6.
1146D267. The front line from Stari Vitez was 300 metres from the accuseds HQ (P79)."
[B. Evidentiary comment:]
P.38. Evidence that the subordinates responded to the perpetrators orders.
P.38.1. Evidence that guards had to wait for the perpetrators instructions before acting.
P.38.2. Evidence of guards beating prisoners pursuant to the perpetrators orders.
A. Legal source/authority and evidence:
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 525:
"525. More fundamentally, the Vitezovi obeyed preparatory orders given by General Blaskic. On 16 January 1993, the accused gave the Vitezovi an order to intensify the preparations for combat at the highest level of all the HVO formations in the CBOZ 1145. On 15 April 1993, General Blaskic enjoined the Vitezovi to prepare for an action by the ABiH troops from Stari Vitez towards the Vitez headquarters, in the event that there would be a break through the front line. He therefore ordered the Vitezovi to hold a front line between Stari Vitez and his headquarters, a few hundred meters away from the Muslim quarter 1146."
"1145P456/6.
1146D267. The front line from Stari Vitez was 300 metres from the accuseds HQ (P79)."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 104:
"104. The Trial Chamber finds first of all that the accused had the power to give the guards orders. The testimony of the secretary Blazenka Vujica, in particular, clearly demonstrated that the guards acted pursuant to the accuseds orders. This witness, who was called by the Defence, specified in particular that, "the shift commanders were not allowed to make instructions of their own. They had to receive instructions from the warden".192 The accused passed on his orders and instructions in particular through a bulletin board located in the hall at the entrance to the first warehouse.193 Several witnesses of the second period said that the guards addressed the accused by calling him "commander"194 or that the accused had introduced himself as such to the detainees. 195 Other witnesses heard the accused give the guards orders196 or hand them papers in the hallway.197 Two witnesses furthermore stated they had been hit by guards at the accuseds order .198 Witness E in particular explained that the accused was present when the witness was hit, and that he indicated to the guards to go on or let off hitting "giving signs with his eyes and his head".199"
"192FPT p. 2357.
193 Witness Jerkovic, FPT p. 2132.
194 Witnesses H; Garanovic, FPT p. 811; Meho Sivro, p. 870.
195 See Notes 150 and 151 above.
196 Witness Hajdarevic, FPT p. 327.
197 Witness F, FPT p. 717.
198 Witness E, Witness H.
199 FPT p. 595."
Prosecutor v. Omar Serushago, Case No. ICTR-98-39, Judgement (TC), 5 February 1999, para. 29:
"29. He was a de facto leader of the Interahamwe in Gisenyi. Within the scope of the activities of these militiamen, he gave orders which were followed."
[B. Evidentiary comment:]
