Duty of Commanders

II. The Responsibility of Commanders in International Jurisprudence 

Decisions of international criminal tribunals have clarified the conditions of criminal responsibility of commanders and other superiors, in particular: the existence of a relationship of subordination or effective control (A); knowledge of the reprehensible acts (B); failure to fulfil the obligation to prevent, investigate and punish (C); as well as the aggravating circumstances of hierarchical position (D) and the principle of causality (E).. 

International criminal courts require four main conditions to be proven beyond reasonable doubt before holding a person responsible for crimes committed by its subordinate(s): 

1. The existence of a relationship of superiority and subordination between the accused and the perpetrator(s) of the underlying offense; 

2. The superior’s knowledge of the fact that his subordinate had committed or was about to commit the crime; 

Conversely the tribunal considered that superior responsibility is inextricably linked to the concept of effective control, which is the key to that responsibility. Effective control is often manifested through binding orders issued by a superior. If a subordinate disregarded his orders to prevent or punish, he or she may not be considered to have been in effective control at the time of the subordinate crimes as defined in article 7(3) of the ICTY Statute, article 6(3) of the ICTR Statute, or article 28 of the Rome Statute. As a result, he or she could be acquitted of superior liability. 

B. The knowledge of the wrongful acts 

The commander’s knowledge of the criminal act committed by their subordinates is a legal requirement that must be proven in each case in order to establish their criminal responsibility. In the case of specific intent crimes, such as genocide, it is also necessary to prove that the superior knew of the criminal intent of their subordinates. This knowledge is generally inferred from the circumstances of the case. (Karemera and Ngirumpatse case, 29 September 2014, para. 307). 

1. The criteria of commander knowledge of the facts

International jurisprudence has clarified the concept of knowledge to prevent its misuse for the purpose of defence or prosecution. Military commanders are not automatic responsible for crimes committed by subordinates based solely on their superior-subordinate relationship. However, commander cannot simply deny their knowledge to absolve themselves of any responsibility. 

International jurisprudence provides guidance on how to establish a commander’s knowledge or awareness of crimes being committed. This knowledge can be proven or inferred from circumstances and various indicators on a case-by-case basis. It is important to note that the knowledge of the commander or superior cannot be presumed and must be proven beyond reasonable doubt. (Bemba case, 21 March 2016, para. 191). 

In the Bemba case, the ICC Trial Chamber provided examples of direct evidence of a superior’s knowledge of crimes committed by their subordinates. This includes a commander’s admission of knowledge and their statements about the crimes. (Bemba case, 21 March 2016, para. 191). 

The ICTY Trial Chamber in the case of Mucić et al. (“Čelebići”) stated that: “[…] in the absence of direct evidence of the superior’s knowledge of the offences committed by his subordinates, such knowledge cannot be presumed, but must be established by way of circumstantial evidence. In determining whether a superior, despite pleas to the contrary, in fact must have possessed the requisite knowledge, the Trial Chamber may consider, inter alia, the following indicia […]: 

(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; 

(l) The location of the commander at the time.” (Mucić case, 16 November 1998, para. 386). 

The ICC Trial Chamber, in the Bemba case, added other relevant factors to this list: 

(m) Any order to commit crimes; 

(n) The fact that the accused was personally informed that his forces were involved in criminal activity; 

(o) The means of available communication; 

(p) The scope and nature of the commander’s position and responsibility in the hierarchical structure; 

(q) The notoriety of illegal acts, such as whether they were reported in media coverage of which the accused was aware. (Bemba case, 21 March 2016, para. 193). 

These indicators have been applied in subsequent tribunal decisions. In the Aleksovski case, the ICTY Trial Chamber established a connection between the geographical locations of the acts and the superior’s knowledge that crimes were being committed by their subordinates: “The Trial Chamber deems however that an individual’s superior position per se is a significant indicium that he had knowledge of the crimes committed by his subordinates. The weight to be given to that indicium however depends inter alia on the geographical and temporal circumstances.” (ICTY, Aleksovski case, 25 June 1999, para. 80; see also Naletilić and Martinović case, 31 March 2003, para. 72; Stakić case, 31 July 2003, para. 460 (where both Trial Chambers referred to the Aleksovski case); ICC, Bemba case, 21 March 2016, para. 193). 

These indicators help to establish that the commander knew, had reason to know or should have known of the criminal activities of their subordinates. 

2.  The ‘should have known’ standard 

The standard of ‘should have known’ was established during post-World War II trials, including the trial of Japanese General Yamashita before a United States military commission in Manila, Philippines. The military commission concluded that Yamashita’s troops had committed widespread crimes, both in space and in time. This evidence could be considered prima facie evidence that the accused knew of the crimes or that he had failed to fulfil his duty to discover the standard of conduct of his troops. The International Military Tribunal for the Far East (IMTFE) also cited this conclusion 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.” (IMT (Tokyo) Case of the Major War Criminals, Judgment, 4-12 November 1948, Chapter II(b)) According to the IMTFE Tokyo judgment, a superior cannot use lack of knowledge as a defence if they were ‘at fault in having failed to acquire such knowledge’. This limits the ability of commanding officers to use ignorance as an abusive defence. (see ICTY, Mucić case, 16 November 1998, para. 388; (referring to the Tokyo Trial Official Transcript, Judgment of 4 November 1948, p. 48, 445)). 

Recent international jurisprudence confirms that a superior cannot be wilfully blind to the acts of their subordinates, especially when the crimes are widespread or when the commander is in close proximity to where the crimes are being committed. A superior who simply ignores information in their actual possession that leads to the conclusion that crimes are being committed or are about to be committed by their subordinates commits a serious breach of their duty. They may be held criminally responsible under the doctrine of superior responsibility. 

In 2003, the ICTY Trial Chamber held in the Stakić case that: “[k]nowledge may be presumed if a superior had the means to obtain the relevant information of a crime and deliberately refrained from doing so.” (Stakić case, 31 July 2003, para. 460 (also referring to the Mucić Appeal Judgment, para. 226) and confirmed in Prosecutor v. Brđanin, Case no. IT-99-36-T, Judgment, 1 September 2004, para. 278). 

In 2008, the ICTY Appeals Chamber in the case of Strugar 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.” (Strugar case, 17 July 2008, para. 304 and see also Kordić and Čerkez case, 26 February 2001, para. 437; Mladić case, 22 November 2017, para. 3570). 

In 2015, the ICTY Appeals Chamber reiterated that the ‘reason to know’ standard under article 7(3) of the Statute: “is met if the superior possessed information sufficiently alarming to justify further inquiry.” It further specified that: “this information does not need to provide specific details about the unlawful acts committed or about to be committed but may consist of general information which would put a superior on notice of possible unlawful acts by his subordinates.” (Popović case, 30 January 2015, para. 1910; (confirmed in the Karadzić case, 24 March 2016, para. 586); Mladić case, 22 November 2017, para. 3570; Prlić case, 29 November 2017, paras. 3174, 3177 and see at the ICTR the Ndindiliyimana case, 11 February 2014, para. 397). 

A commander’s failure to punish their subordinate(s)’s past crimes could be a relevant factor in 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”. (Karadzić case, 24 March 2016, para. 586). 

In the Bemba case, the ICC Pre-Trial Chamber endorsed the factors retained by the ad hoc tribunals: “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. […]” (Bemba Decision on the confirmation on the charges, 15 June 2009, para. 429). The Pre-Trial Chamber added that: “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’. […]” (para. 430) and that “[t]he ‘should have known standard requires the superior to ‘ha[ve] merely been negligent in failing to acquire knowledge’ of his subordinates’ illegal conduct. [..]” (para. 432). The Pre-Trial Chamber concluded that “[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.” (para. 433). 

C . Failure to prevent, investigate, report or punish 

The principle of individual criminal responsibility of superiors for failing to prevent or punish crimes committed by subordinates is a well-established principle of international customary law. This principle has been consistently reaffirmed by the ad hoc international criminal tribunals. (see ICTY, Prosecutor v. Limaj et al., Case no. IT-63-06-T, Judgment, 30 November 2005, para. 519; Halilović case, 16 November 2005, para. 55; Prosecutor v. Strugar, Case no. IT-01-42-T, Judgment, 31 January 2005, para. 357; Popović et al. case, 30 January 2015, para. 1943; Karadzić case, 24 March 2016, paras. 307, 587; Prlić case, 29 November 2017, paras. 3138, 3140 and at the ICTR, Nizeyimana case, 29 September 2014, para. 204 and Butare case, 14 December 2015, para. 1268). 

The ICTY Appeals Chamber stated that a superior can be held criminally responsible for his or her subordinates’ planning, instigating, ordering, or committing of a crime or otherwise aiding and abetting a crime (Prosecutor v. Orić, Case no. IT-03-68-A, Judgment, 3 July 2008, para. 21 (Orić case). It also confirmed that superior responsibility encompasses all forms of criminal conduct by subordinates, not only the ‘commission’ of crimes in the narrow sense of the term, but all other modes of participation. It encompasses acts by “subordinates who as accomplices substantially contributed to the completion of the crime” but who did not physically commit the crime (Prosecutor v. Blagojević and Jokić, Case no. IT-02-60-A, Judgment, 9 May 2007, para. 280 and see also paras. 281 and 282 (Blagojević and Jokić case) and Kordić and Čerkez case, 26 February 2001, para. 401; Mucić case, 16 November 1998, para. 346; Blaškić case, 3 March 2000, para. 294; Orić case, 3 July 2008, para. 18; Karadzić case, 24 March 2016, para. 579 as well as at the ICTR, the Kayishema and Ruzindana case, 21 May 1999, paras. 229-231 and the Nizeyimana case, 29 September 2014, para. 347). 

The duty of a commander requires them to take measures to prevent, repress or punish crimes committed by their subordinates. International jurisprudence recognises that a commander may fulfil the duty of punishment by disciplinary investigation and sanction and/or by referring the case to other competent authorities. 

In 2008, the ICTY Appeals Chamber ruling in the Hadžihasanović and Kubura case confirmed that the duty to prevent and the duty to punish must be assessed as separate duties. It held that taking preventive measures to prevent the recurrence of alleged ill-treatment of civilians and prisoners by a military group fulfils the duty to prevent, but that failure to investigate the initial allegation does not allow the facts to be confirmed, the perpetrators to be identified and punished, and amounts to a breach of the duty to punish. (Prosecutor v. Hadžihasanović and Kubura, Case no. IT-01-47-A, Judgment, 22 April 2008, paras. 148 and 154-155; see also Karadzić case, 24 March 2016, para. 589 and the Mladić case, 22 November 2017, para. 3571). 

In 2009, the ICC Pre-Trial Chamber in its decision confirming the charges against Bemba distinguished between three duties of commanders: “[i]n order to find the suspect responsible under command responsibility, once the mental element is satisfied, it is necessary to prove that he or she failed at least to fulfil one of the three duties listed under article 28(a)(ii) of the Statute: the duty to prevent crimes, the duty to repress crimes or the duty to submit the matter to the competent authorities for investigation and prosecution.” (Bemba Decision on the confirmation on the charges, 15 June 2009, para. 435). 

On the relationship between these duties, the Pre-Trial Chamber underlined that “the three duties […] arise at three different stages in the commission of crimes: before, during and after. Thus, a failure to fulfil one of these duties is itself a separate crime under article 28(a) of the Statute. A military commander or a military-like commander can therefore be held criminally responsible for one or more breaches of duty under article 28(a) of the Statute in relation to the same underlying crimes. Consequently, a failure to prevent crimes which the commander knew or should have known about cannot be cured by fulfilling the duty to repress or submit the matter to the competent authorities”. (Bemba Decision on the confirmation on the charges, 15 June 2009, paras. 435 and 436 (confirmed in the Trial judgment of the Bemba case, 21 March 2016, para. 201). 

 1.Duty to take all necessary and reasonable/feasible measures to prevent and punish 

 The assessment of whether a commander has fulfilled their duty to take all necessary and reasonable measures within their power to prevent and punish subordinates has been the subject of much legal debate. The commander’s capacity and ability may vary depending on the circumstances and facts. However, the requirements to take all necessary and reasonable measures clearly means that simply taking some action is not enough sufficient to fulfil this duty. International criminal tribunals identify a range of necessary measures, including investigation, reporting, prevention, punishment, and disciplinary as well as criminal sanctions. 

According to the jurisprudence of the ad hoc tribunals and the ICC: “‘necessary’ measures are those appropriate for the commander to discharge his obligation, and ‘reasonable’ measures are those reasonably falling within the commander’s material power.” (ICTY, Popović case, 30 January 2015, para. 1927; see also Karadzić case, 24 March 2016, para. 5844; Mladić case, 22 November 2017, para. 3571; Prlić case, 29 November 2017, para. 3180 and at the ICC, Bemba case, 21 March 2016, para. 198). 

 In 2016, the ICC Trial Chamber recalled and identified several measures that commanders must take to prevent the commission of crimes: 

(i) Ensuring that the forces are adequately trained in IHL; 

(ii) Securing reports that military actions were carried out in accordance with international law; 

(iii) Issuing orders aiming at bringing the relevant practices into accord with the rules of war; 

(iv) Taking disciplinary measures to prevent the commission of atrocities by the forces under the commander’s command; 

(v) Issuing orders specifically meant to prevent the crimes, as opposed to merely issuing routine orders; 

(vi) Protesting against or criticizing criminal conduct; 

(vii) Insisting before a superior authority that immediate action be taken; 

(viii) Postponing military operations; 

(ix) Suspending, excluding, or redeploying violent subordinates; 

(x) Conducting military operations in such a way as to lower the risk of specific crimes or to remove opportunities for their commission. (Bemba case, 21 March 2016, paras. 203-204). 

Following the Čelebići case, the ICTY Appeals Chamber however reaffirmed that “no one can be obliged to perform the impossible” by explaining that commander’s obligation to take necessary and reasonable measures “[…] is restricted to those that are feasible, so that no responsibility attaches to a superior for whom the fulfilment of the duty to punish was not possible in the prevailing circumstances.” The concept of feasibility refers to measures that are realistic and practical in the circumstances. (Popović case, 30 January 2015, paras. 1928-1929 (referring to the Mucić case, 16 November 1998, para. 395)). 

In 2007, the Trial Chamber of the Special Court for Sierra Leone in the Fofana and Kondewa case stated that: “The Chamber is of the opinion that the duty imposed on a superior to punish subordinate offenders includes the obligation to investigate the crime or to have the matter investigated to establish the facts in order to assist in the determination of the proper course of conduct to be adopted. The superior has the obligation to take active steps to ensure that the offender will be punished. The Chamber further takes the view that in order to discharge his obligation, the superior may exercise his own powers of sanction, or if he lacks such powers, report the offender to the competent authorities.” (Prosecutor v. Fofana and Kondewa, Case no. SCSL-04-14-T, Judgment, 2 August 2007, para. 250 (with reference to the ICTY cases of Strugar, Halilović and Kordić and Čerkez; see also the Popović case, 30 January 2015, paras. 1932-1933 and 1944). 

In 2016, the ICC Trial Chamber in the Bemba case clarified that a commander’s lack of formal authority to take certain measures does not excuse them from their duty to repress. If the superior has disciplinary power, they must exercise it. If the commander lacks the authority to sanction the subordinates who have committed crimes or take appropriate measures, they have an obligation to report the crimes to competent authorities, such as a superior with disciplinary power or the judicial authority. If the commander refers the matter to an authority that is unable to conduct an adequate investigation or a non-functioning authority, their obligation is likely to remain unfulfilled in the eyes of the justice. (Bemba case, 21 March 2016, paras. 207-208; see also ICTY, Popović case, 30 January 2015, paras. 1929, 1938 and 1944). 

In 2008, the ICTY Appeals Chamber judgment in the Hadžihasanović and Kubura case held that disciplinary measures may, in some circumstances, be sufficient to fulfil the duty of hierarchical superiors to take all necessary measures to prevent and punish: 

“It cannot be excluded that, in the circumstances of a case, the use of disciplinary measures will be sufficient to discharge a superior of his duty to punish crimes under Article 7(3) of the Statute. In other words, whether the measures taken were solely of a disciplinary nature, criminal, or a combination of both, cannot in itself be determinative of whether a superior discharged his duty to prevent or punish under Article 7(3) of the Statute.” (Hadžihasanović and Kubura case, 22 April 2008, para. 33). 

However, the Appeals Chamber confirmed that due to the gravity of the crimes committed in this case by the perpetrators, Enver Hadžihasanović could not be satisfied with the imposition of a punitive measure, consisting of detention not exceeding 60 days, given that the crimes included murder and cruel treatment of prisoners. (para. 152) The Appeals Chamber reiterated that a superior is not obliged to directly punish their subordinates and may fulfil their disciplinary duty by reporting any crimes to the competent authorities. (para. 154). In this case, the Appeals Chamber ruled that notifying the local prosecutor of the crimes committed by the subordinate, in addition to the sanction imposed by the military disciplinary body, satisfies the requirement of taking reasonable and necessary measures to punish the crimes committed by the subordinates. (para. 154). 

In 2017, the ICTY Appeals Chamber emphasised the significance of considering the severity of the crimes committed by subordinates when convicting under article 7(3) of the Statute. It stated that: “[…] the gravity of a subordinate's crimes remains an ‘essential consideration’ in assessing the gravity of the superior's own conduct in sentencing.” Therefore, when assessing the gravity of a crime, it is necessary to consider two elements: “(1) the gravity of the underlying crime committed by the convicted person’s subordinate; and (2) the gravity of the convicted person’s own conduct in failing to prevent or punish the underlying crimes.” (Prlić case, 29 November 2017, para. 3238). 

2. The responsibility under the duty to prevent is not limited by the fact that a superior may not have the power to punish. 

The ICTR considered that Bagosora’s senior position in the Ministry of Defence, and his access to senior military officers, as evidenced by his attendance at meetings with them, gave him the opportunity to report incidents to the relevant military officers and trigger investigations even if he did not have direct sanctioning powers. (Bagosora case, 14 December 2011, para. 510). 

On 8 June 2018, the ICC Appeal Chamber delivered its verdict in the Bemba case after a decade of proceedings. The case was marked by numerous debates and dissenting opinions on whether Bemba had effective control over the troops accused of committing crimes. Additionally, there were debates on whether the commander’s measures to prevent and punish were sufficient to meet the requirement of taking all necessary and reasonable measures. The intention to limit the criminal responsibility of the commander was affirmed in a separate individual and dissenting opinion of the judges. However, the final decision to acquit was based on the weakness of the factual evidence supporting the charge, which did not allow the Court to convict beyond reasonable doubt. As a result, it is unclear to what extent the Court’s reasoning on the duty of the commander will remain unchallenged. The Appeals Chamber reaffirmed the legal principle that command responsibility must be assessed based on the specific circumstances of the case and therefore depends heavily on the availability of material evidence gathered during the judicial investigation. It specifically reminded that: 

“The scope of the duty to take “all necessary and reasonable measures” is intrinsically connected to the extent of a commander’s material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities for investigation and prosecution. Indeed, a commander cannot be blamed for not having done something he or she had no power to do.” (para. 167). 

The Appeal Chamber considered that the assessment of whether a commander took all ‘necessary and reasonable measures’ requires consideration of the measures available to him in the circumstances at the time. This statement is consistent with international legal precedent. (para. 168). 

It also affirmed that: “it is not the case that a commander must take each and every possible measure at his or her disposal. Despite the link between the material ability of a commander to take measures (which is directly connected to his or her level of authority) and what he or she might reasonably have been expected to do, it is not the case that a commander is required to employ every single conceivable measure within his or her arsenal, irrespective of considerations of proportionality and feasibility. Article 28 only requires commanders to do what is necessary and reasonable under the circumstances”. (para. 169). 

The Appeal Chamber even went further in stating that: “In assessing reasonableness, the Court is required to consider other parameters such as the operational realities on the ground at the time faced by the commander. Article 28 of the Statute is not a form of strict liability. Commanders are allowed to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates”. (para. 170). 

A commander can take into account the effect of measures to prevent or repress criminal behaviour on ongoing or planned operations and may choose the least disruptive measure as long as it can reasonably be expected to repress or prevent the crimes. It is important to avoid judging a commander’s actions with the benefit of hindsight information not available at the time of commander decision. The mere comparison of the fact that certain crimes were committed by a commander’s subordinates with a list of measures that the commander hypothetically could have taken does not, by itself, demonstrate that the commander acted unreasonably at the time. “The Trial Chamber must identify specifically what a commanding officer should have done in concreto. Abstract findings regarding what a commander could theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove.” It is the responsibility of the Trial Chamber to demonstrate in its reasoning that the commander failed to take specific and concrete measures that were available to him or her and that a reasonably diligent commanding officer in comparable circumstances would have taken those measures. “It is not the responsibility of the accused to show that the measures he or she did take were sufficient.” (para. 170). 

D. The hierarchical position as an aggravating circumstance 

The ICTR and ICTY considered the issue of the accused’s hierarchical position as an aggravating circumstance. In particular, the ICTY stated that: “it is not the superior position in itself which constitutes an aggravating factor, but rather the abuse of such position which may be considered as an aggravating factor.” (Prosecutor v. Đorđević, Case no. IT-05-87/1-A, Judgment, 27 January 2014, paras. 939-940 (Đorđević case); Prosecutor v. Tolimir, Case no. IT-05-88/2-A, Judgment, 8 April 2015, para. 643 (Tolimir case)). When a commander is charged under both articles 7(1) and 7(3) or under both articles 6(1) and 6(3) of the ICTY or ICTR Statute, and when the legal requirements of both articles are met, the accused’s superior position becomes in itself an aggravating circumstance. As the responsibility under both set of articles relates to the same count and the same set of facts, the superior position is considered as an aggravating factor only in order to avoid double punishment. (ICTY, Đorđević case, 27 January 2014, para. 939; Popović case, 30 January 2015, para. 1806; Karadzić case, 24 March 2016, para. 591; Mladić case, 22 November 2017, para. 5166 and at the ICTR, Karemera and Ngirumpatse case, 29 September 2014, paras. 338-339 and the Butare case, 14 December 2015, para. 1254). 

The fact that the accused held a high ministerial post at the time he committed the said crimes negates the mitigating circumstances. (Prosecutor v. Kambanda, Case no. ICTR-97-23-S, Judgment and Sentence, 4 September 1998, paras. 61 and 62). 

The fact that the accused abused his authority and played an important leading role in the commission of the crimes is considered as an aggravating circumstance. (ICTR, Prosecutor v. Rutaganda, Case no. ICTR-96-3-T, Judgment and Sentence, 6 December 1999, paras. 468-470 and the Musema case, 27 January 2000, paras. 1000-1004 as well at the ICTY, Prosecutor v. Plavsic, Case no. IT-00-39 & 40/1, 27 February 2003, para. 57; Prosecutor v. Simić, Case no. IT-95-9/2-S, Sentencing Judgment, 17 October 2002, para. 67; Prosecutor v. Sikirica et al., Case no. IT-95-8-S, Sentencing Judgment, 13 November 2001, paras. 138 and 139 and 172; Prosecutor v. Krstić, Case no. IT-98-33-T, Judgment, 2 August 2001, para. 709; Kunarac case, 22 February 2001, para. 863 and the Blaškić case, 3 March 2000, para. 788). 

Beyond the question of hierarchy and command, international courts have held that committing a crime while exercising a public function —such as that of a policeman— can be considered an aggravating factor. (ICTY, Prosecutor v. Mrđa, Case no. IT-02-59-S, Sentencing Judgment, 31 March 2004, para. 51). It is not the position of authority alone that counts, but the position combined with the way in which the authority is exercised. For example, the abuse of superior position may be considered an aggravating factor. (ICTY, Blagojević and Jokić case, 9 May 2007, para. 324; Đorđević case, 27 January 2014, paras. 939-940; Tolimir case, 8 April 2015, para. 643; at the ICTR, Prosecutor v. Simba, Case no. ICTR-01-76-A, Judgment, 27 November 2007, para. 284 and at the ICC, Bemba case, 21 March 2016, para. 181). 

E. The principle of causation 

International criminal tribunals have confirmed that a commander’s criminal responsibility is linked to the existence of a criminal act committed by them or by their subordinates. A superior cannot be held responsible for a crime that has not been established and proven beyond reasonable doubt. The proof of the crime requires the judicial determination of the criminal facts and the criminal intent of the perpetrators. 

However, when it comes to the criminal responsibility of commanders, it is not necessary to prove their criminal intent, nor that they shared the same criminal intent as their subordinates. 

The ICTR clarified the criminal responsibility of superiors in the commission of genocide and other war crimes and crimes against humanity in Rwanda. This was exemplified in the Bagosora case. The Appeals Chamber noted that, for a conviction as a superior under article 6(3) of the ICTR Statute, it is not necessary for the accused to have had the same intent as the perpetrator of the crime. It is sufficient to prove that the accused knew or had reason to know that the subordinate was about to commit or had committed such an act. (Bagosora case, 14 December 2011, para. 384). 

In the same vein, the principle of causation was applied in the case of General Gotovina and led to his acquittal. The Appeals Chamber found that the Trial Chamber had incorrectly evaluated the allegations of war crimes committed by his subordinates during the military operation, specifically the indiscriminate and systematic attacks against civilians. The lack of proof, beyond reasonable doubt, of crimes attributed to Gotovina’s subordinates exonerated him from the charge of failing, as a commander, to prevent and punish such unproven crimes. (Prosecutor v. Gotovina and Markać, Case no. IT-06-90-A, Judgment, 16 November 2012, paras. 130-136).