In the Mucić et al. (“ Čelebići Camp ”) judgement, the ICTY Trial Chamber stated that:

“[p]ersons 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 […] proposition that individuals in positions of authority, whether civilian or 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.” (See Prosecutor v. Mucić et al. , Case no. IT-96-21-T, Judgment , 16 November 1998, paras. 251 (regarding the existence of an IAC) and 354 ( Mucić case ). This has been confirmed in subsequent ICTY and ICTR decisions. (see Prosecutor v. Kunarac et al. , Case no. IT-96-23-T & IT-96-23/1-T, Judgment , 22 February 2001, para. 396 ( Kunarac case ); Prosecutor v. Kordić and Čerkez , Case no. IT-95-14/2-T, Judgment , 26 February 2001, paras. 415 and 416 ( Kordić and Čerkez case ); Prosecutor v. Naletilić and Martinović , Case no. IT-98-34-T, Judgment , 31 March 2003, para. 67 ( Naletilić and Martinović case) ; Prosecutor v. Stakić , Case no. IT-97-24-T, Judgment , 31 July 2003, para. 459 ( Stakić case ); Prosecutor v. Blaškić , Case no. IT-95-14-T, Judgment , 3 March 2000, paras. 300-302 ( Blaškić case ); Prosecutor v. Karadzić , Case no. IT-95-5/18-T, Judgment , 24 March 2016, para. 580 ( Karadzić case ); Prosecutor v. Mladić , Case no. IT‑09‑92-T, Judgment , 22 November 2017, para. 3569 ( Mladić case ); Prosecutor v. Kayishema and Ruzindana , Case no. ICTR-95-1-T, Judgment , 21 May 1999, paras. 229-231 ( Kayishema and Ruzindana case ); Prosecutor v. Musema , Case no. ICTR-96-13-T, Judgment and Sentence , 27 January 2000, para. 141 ( Musema case ); Prosecutor v. Bagilishema , Case no. ICTR-95-1-A-T, Judgment , 7 June 2001, para. 39; Prosecutor v. Karemera and Ngirumpatse , Case no. ICTR-98-44-A, Judgment , 29 September 2014, para. 258 ( Karemera and Ngirumpatse case ).

In the Aleksovski judgment, the ICTY Trial Chamber confirmed:

“that anyone, including a civilian, may be held responsible […] if it is proved that the individual had effective authority over the perpetrators of the crimes. This authority can be inferred from the accused’s ability to give them orders and to punish them in the event of violations.” (para. 103) It also added that: “Superior responsibility is thus not reserved for official authorities. Any person acting de facto as a superior may be held responsible under Article 7(3).” (para. 76) ( Prosecutor v. Aleksovski , Case no. IT-95-14/1-T, Judgment , 25 June 1999, paras. 67-72, 75-78 and 103-106 ( Aleksovski case ).

*Military commander or person acting as a military commander:

In the Bemba case, the ICC Trial Chamber explained that: “[t]he term ‘military commander’ refers to a person who is formally or legally appointed to carry out a military command function”. Although military commanders are usually part of a State’s regular armed forces, the term also includes individuals appointed to this role in non-governmental irregular forces. ( Prosecutor v. Bemba , Case no. ICC-01/05-01/08, Judgment , 21 March 2016, para. 176 ( Bemba case ). In addition, the term “military commander” extends to persons that “effectively act as commanders over the forces that committed the crimes”. These individuals are not legally nor formally appointed to carry out a military command function, but in reality, they act as military commanders. Furthermore, an individual does not have to perform exclusively military duties to be considered a military commander or person effectively acting as such. (para. 177). Both terms apply to “the immediate commanders of the forces that committed the crimes” as well as to “superiors at every level, irrespective of their rank, from commanders at the highest level to leaders with only a few men under their command.” (para. 179).

**Agreeing on the responsibility of informal and de facto commanders or superiors raises additional concerns about the relevant evidence and the threshold of proof required to trigger the criminal responsibility of superiors.

Subordination can be established by showing a formal or informal hierarchical relationship. There need not be a formal superior-subordinate relationship between the accused and the perpetrator. It is sufficient that there is evidence of a position of authority on the part of the accused which would compel another to commit a crime by obeying the accused’s order (ICTR: Prosecutor v. Semanza, Case no. ICTR-97-20-T, Judgment and Sentence , 15 May 2003, para. 401; Prosecutor v. Renzaho , Case no. ICTR-97-31-T, Judgment and Sentence , 14 July 2009, para. 738; Prosecutor v. Nyiramasuhuko et al. , Case no. ICTR-98-42-A, Judgment , Volume I, 14 December 2015, para. 995 (Butare case) and at the ICC, Bemba case , 21 March 2016, para. 184).

However, a superior’s authority to give orders does not automatically establish that a superior had effective control over his or her subordinates but is one of the indicators to be taken into account in establishing the effective control. Whether a superior’s orders are actually followed may also be an indicator of whether a superior has effective control over his or her subordinates (ICTY, Prosecutor v. Strugar , Case no. IT-01-42-A, Judgment , 17 July 2008, paras. 253 and 256 ( Strugar case ); ICTR, Prosecutor v. Bizimungu , Case no. ICTR-00-56B-A, Judgment , 30 June 2014, para. 121 ( Bizimungu case ); Karemera and Ngirumpatse case , 29 September 2014, para. 260; Prosecutor v. Nizeyimana, Case no. ICTR-00-55C-A, Judgment , 29 September 2014, para. 202 ( Nizeyimana case ); Butare case , 14 December 2015, paras. 1471, 1934 and 2568).

Similarly, while the fact that a person has been legally or formally appointed to a position of military command may be an indicator of effective control, it is neither required by article 28 of the Rome Statute nor sufficient in itself to successfully establish effective control. (ICC, Bemba case , 21 March 2016, para. 189).

In 2001, the ICTY Appeals Chamber ruled in the Čelebići case that: “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.” ( Prosecutor v. Mucić et al. (“ Čelebići Camp ”), Case no. IT-96-21-A, Judgmen t, 20 February 2001, para. 198 ( Mucić Appeal Judgment )).

Subsequent decisions confirmed meaning of effective control as “the material ability to prevent the commission of the offence or to punish the principal offenders” (ICTR, Renzaho case , 14 July 2009, paras. 744 and 745; Prosecutor v. Ndindiliyimana et al. , Case no. ICTR-00-56-A, Judgment , 11 February 2014, para. 378 ( Ndindiliyimana case ); Bizimungu case , 30 June 2014, para. 115; Karemera and Ngirumpatse case , 29 September 2014, paras. 254 and 256; Nizeyimana case , 29 September 2014, para. 342; Butare case , 14 December 2015, para. 995; and ICTY, Prosecutor v. Halilović , Case no. IT-01-48, Judgment , 16 October 2007, para. 59 ( Halilović case ); Kunarac case , 22 February 2001, para. 396; Kordić and Čerkez case , 26 February 2001, paras. 405-406; Prosecutor v. Krnojelac , Case no. IT-97-25-T, Judgment , 15 March 2002, para. 93; Stakić case , 31 July 2003, para. 459; Prosecutor v. Popović et al. , Case no. IT‑05-88-A, Judgment , 30 January 2015, paras. 1857-1858 ( Popović case ); Karadzić case , 24 March 2016, paras. 580-582; Mladić case , para. 3569; Prosecutor v. Prlić et al. , Case no. IT-04-74-A, Judgment , 29 November 2017, para. 3138 ( Prlić case) and ICC, Bemba case , 21 March 2016, para. 183).

In the Bemba case, the ICC Pre-Trial Chamber confirmed previous decisions of the ad hoc international criminal tribunals. It retained eight factors that may indicate the existence of a superior’s position of authority and effective control:

“(i) the official position of the suspect; (ii) his power to issue or give orders; (iii) the capacity to ensure compliance with the orders issued (i.e., ensure that they would be executed); (iv) his position within the military structure and the actual tasks that he carried out; (v) the capacity to order forces or units under his command, whether under his immediate command or at a lower levels, to engage in hostilities; (vi) the capacity to re-subordinate units or make changes to command structure; (vii) the power to promote, replace, remove or discipline any member of the forces; (viii) the authority to send forces where hostilities take place and withdraw them at any given moment.” ( Prosecutor v. Bemba , Case no. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo , 15 June 2009, paras. 414-417 ( Bemba Decision on the confirmation on the charges ).

In the same case, the ICC Trial Chamber added in its 2016 judgment the following factors to this assessment: (ix) “his independent access to, and control over, the means to wage war, such as communication equipment and weapons”; (x) “his control over finances”; (xi) “the capacity to represent the forces in negotiations or interact with external bodies or individuals on behalf of the group” and (xii) “whether he represents the ideology of the movement to which the subordinates adhere and has a certain level of profile, manifested through public appearances and statements”. ( Bemba case , 21 March 2016, para. 188).

On the other hand, the ICC Trial Chamber identified certain factors that may indicate a lack of effective control: “(i) the existence of a different exclusive authority over the forces in question; (ii) disregard or non-compliance with orders or instructions of the accused; or (iii) a weak or malfunctioning chain of command.” ( Bemba case , 21 March 2016, para. 190).

In 2011, the ICTR Appeals Chamber, while reviewing the Bagosora case, recalled that indicators of effective control are a matter of evidence showing that the accused had the power to prevent, punish or, where appropriate, initiate measures leading to proceedings against the alleged perpetrators. An accused’s superior position and effective control are matters which together with the other elements of superior responsibility, must be established beyond reasonable doubt on the basis of the totality of the evidence presented. ( Prosecutor v. Bagosora et al. , Case no. ICTR-98-41-A, Judgment , 14 December 2011, para. 450 ( Bagosora case ) and see also Prosecutor v. Nahimana et al. , Case no. ICTR-99-52-A, Judgment , 28 November 2007, para. 789 and Prosecutor v. Ntagerura et al. , Case no. ICTR-A, Judgment , 7 July 2006, paras. 172-175, 399 and following ( Ntagerura case )).

However, in the same case, the Appeals Chamber went on to emphasise that a Trial Chamber may infer the existence of a particular fact on which the guilt of the accused depends on circumstantial evidence only if that is the only reasonable inference that can be drawn from the evidence presented. If there is another inference which is also reasonably open to the Trial Chamber, and which is consistent with the non-existence of that fact, guilt beyond a reasonable doubt cannot be drawn. ( Bagosora case , 14 December 2011, para. 515; see also Prosecutor v. Karera , Case no. ICTR-01-74-A, Judgment , 2 February 2009, para. 34; Ntagerura case , 7 July 2006, para. 306 and Prosecutor v. Nchamihigo, Case no. ICTR-01-63-A, Judgment , 18 March 2010, para. 80 citing the Stakić case , 31 July 2003, para. 219).

Furthermore, international jurisprudence recognises the possibility that multiple commanders may be jointly responsible for the actions of their subordinates. It is not legally required for a commander to be the sole individual exercising effective control over their forces in order to be held criminally responsible for the actions of their subordinates ( Bemba case , 21 March 2016, para. 185; ICTY, Popović case , 30 January 2015, para. 1892; ICTY, Prlić case , 29 November 2017, para. 1859; ICTR, Nizeyimana case , 29 September 2014, paras. 201, 346; ICTR, Butare case , 14 December 2015, para. 1474). However, if there was another exclusive authority over the forces, this may indicate a lack of effective control and exonerate the accused. ( Bemba case , 21 March 2016, para. 190).

***

*Effective control goes beyond substantial influence:

The tribunal determined that an individual’s significant influence does not meet the necessary level of control required to trigger criminal responsibility. The concept of ‘effective control’ serves as the threshold for establishing a superior-subordinate relationship for the purposes of superior responsibility. ( Bemba case , 21 March 2016, para. 183; also see ICTR, Karemera and Ngirumpatse case , 29 September 2014, para. 168 (according to which general influence is also insufficient to prove effective control.)).

In 2001, the ICTY Appeals Chamber ruled in the Čelebići case that substantial influence was not enough to establish effective control. In this case, the Prosecutor’s theory that substantial influence constituted a sufficient degree of control to establish command responsibility was rejected by the Court. The Prosecutor relied on several precedents to demonstrate that substantial influence was sufficient to establish superior responsibility. These precedents include the convictions of members of the Japanese government, such as Hirota and Shigemitzu, and military commanders, such as Muto, who was General Yamashita’s Chief of Staff. The military tribunal convicted him after the second World War. The Appeals Chamber concluded that the notion of substantial influence which falls short of effective control over subordinates, lacks sufficient support in State practice and judicial decisions. Effective control requires the possession of material capabilities to prevent subordinates from committing offences or to punish subordinates who commit offences. The Appeals Chamber concluded that the Prosecution failed to provide sufficient evidence of State practice or judicial authority to support the theory that substantial influence, as a means of exercising command responsibility, has acquired the status of customary law, in particular a rule that would impose criminal liability. ( Mucić Appeal Judgment , paras. 257-266).

In the 2011 Perišić trial judgment, the ICTY elaborated on this point, stating that an accused individual cannot be held criminally responsible for the actions of their subordinates, unless they had sufficient control over them, even if they had sufficient influence over them.

“Perišić could influence conduct of the 30th PC members through exercising certain discretion in terminating their professional contracts, suspending their salaries or through verification of their promotions for the purposes of acquiring certain benefits. Nevertheless, his ability to effectively control the acts of the 30th PC members is called into question by his inability to issue binding orders to them. His material ability to prevent or punish them is also partly called into question by his secondary role in the process of imposing disciplinary sanctions for their conduct while serving in the VRS.” ( Prosecutor v. Perišić , Case no. IT-04-81-T, Judgment , 6 September 2011, para. 1777).

**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.

**

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).

**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;

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).

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).

*Duty to take all necessary and reasonable/feasible measures to prevent and punish:

**

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:

24. 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).

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).

**

“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:

**

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).

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, J udgment 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 Judgmen t, 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).

**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.

**

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).

➔ Attacks ▸ Combatants ▸ Non-international armed conflict ▸ Non-state armed groups ▸ Penal sanctions in humanitarian law ▸ Proportionality ▸ Responsibility