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.

A. Legal source/authority and evidence:

Prosecutor v. Ndahimana, Case No. ICTR-01-68-A, Judgement (AC), 16 December 2013, para. 206:

"206. The Appeals Chamber recalls that when an accused is charged with superior responsibility pursuant to Article 6(3) of the Statute, the indictment must plead that the accused is the superior of sufficiently identified subordinates, as well as the criminal conduct of the subordinates for whom the accused is alleged to be responsible. 537 A review of the Indictment reveals that it clearly pleaded that Ndahimana had de jure and de facto authority over the communal policemen of Kivumu Commune and the communal policemen’s participation in the killings perpetrated at Nyange Parish. 538 The Appeals Chamber finds that the Indictment sufficiently identified Ndahimana’s subordinates for whose acts he was alleged to be responsible 539 and their criminal conduct, 540 and finds no merit in Ndahimana’s argument that the Indictment failed to plead the name and specific conduct of Niyitegeka."

537 See, e.g., Ntabakuze Appeal Judgement, para. 100; Bagosora and Nsengiyumva Appeal Judgement, para. 191; Muvunyi Appeal Judgement of 29 August 2008, para. 19.

538 See Indictment, paras. 12, 21, 37. See also Trial Judgement, para. 733.

539 Cf. Bagosora and Nsengiyumva Appeal Judgement, paras. 197-199.

540 The Appeals Chamber recalls that "the facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior […] will usually be stated with less precision because the detail[s] of those acts are often unknown, and because the acts themselves are often not very much in issue". Muvunyi Appeal Judgement of 29 August 2008, para. 58, citing Ntagerura et al. Appeal Judgement, para. 26, fn. 82, quoting Blaškić Appeal Judgement, para. 218.

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 914-915:

"914. The Chamber finds that it has also been established that Musema was the superior of said employees and that he not only held de jure power over them, but also de facto power. Considering that Musema was personally present at the attack sites, the Chamber is of the view that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused, nevertheless, failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation.

915. Consequently, the Chamber finds that for the acts committed by the employees of the Gisovu Tea Factory on Muyira Hill, Musema incurs individual criminal responsibility as their superior, on the basis of the provisions of Article 6(3) of the Statute."