294.    Article 6(3) of the Statute on “Individual criminal responsibility”, provides that:

The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

          With respect to the nature of the superior-subordinate relationship, the Appeals Chamber refers to the relevant principles expressed in the Čelebići Appeal Judgement in relation to the identical provision in Article 7(3) of ICTY Statute, as follows:

(i)         [A] superior is “one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed”.[1] Thus, “[t]he power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment.”[2]

(ii)         “In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […]. 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. [T]he ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and […] the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met.”[3]

(iii)        “The showing of effective control is required in cases involving both de jure and de facto superiors.”

          This Appeals Chamber accepts these statements and notes that the Trial Chamber, in its Judgement, applied a similar approach when it found that:

[E]ven where a clear hierarchy based upon de jure authority is not present, this does not prevent the finding of command responsibility. Equally, as we shall examine below, the mere existence of de jure power does not always necessitate the imposition of command responsibility. The culpability that this doctrine gives rise to must ultimately be predicated upon the power that the superior exercises over his subordinates in a given situation.[5]

Thus, “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”.[6] Therefore, Kayishema’s argument that without de jure authority, there can be no subordinate and hence, no de facto authority, is misconceived. This question turns on whether the superior had effective control over the persons committing the alleged crimes. The existence of effective control may be related to the question whether the accused had de jure authority. However, it need not be; such control or authority can have a de facto or a de jure character.[7]