1932. The Appeals Chamber now turns to the second implicit legal finding on the duty to punish, namely whether measures that would ordinarily be considered insufficient to fulfill the duty to punish might in certain circumstances be considered as the only necessary and reasonable measures available. The Appeals Chamber affirms that what constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.[1] This means that the assessment of measures taken, in view of the material ability of the superior, must be evaluated on a case-by-case basis.[2] That being said, the Tribunal’s case law has established a minimum standard for measures that may fulfil the duty to punish. A trial chamber must look at what steps were taken to secure an adequate investigation capable of leading to the criminal prosecution of the perpetrators.[3] In this respect, it is well accepted that a superior’s duty to punish the perpetrators of a crime includes at least an obligation to investigate possible crimes, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities.[4] In respect of merely reporting crimes, this would only suffice to fulfil the duty to punish if such a report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.[5] The Appeals Chamber notes that the duty of commanders to report to competent authorities is specifically provided for under Article 87(1) of Additional Protocol I, and that the duty may also be deduced from the provision of Article 86(2) of Additional Protocol I.[6] In addition, Article 87(3) of Additional Protocol I specifies that where a commander is aware that his subordinates have committed breaches of the Conventions or the Protocol, he must “initiate disciplinary or penal action against violators thereof”. While these provisions indicate that the report by a commander must be made to a body tasked with investigation and punishment, in military practice such reports may sometimes be made either directly to the competent authorities or through a superior officer.[7] The crucial point is that in order to constitute a necessary and reasonable measure to punish, the commander’s report must be sufficient to trigger the action of the competent authorities.

1933. As indicated by the above, a particular measure can only be regarded as necessary and reasonable where it has been shown to be capable of contributing to investigating or punishing the crimes in the circumstances which prevailed at the time. This is so even if the result ultimately falls short of punishment.[8] […]

1938. […] The Appeals Chamber considers that a duty to punish is not fulfilled where a commander was content to rely on assurances which he knew would not be or were not being implemented.[9] […]

510. The Appeals Chamber is concerned that the Trial Chamber failed to explicitly consider whether Bagosora had the material ability to punish culpable subordinates in the Trial Judgement. The Appeals Chamber considers that this amounts to a failure to provide a reasoned opinion. Nonetheless, the Appeals Chamber recalls that even where a superior personally lacks disciplinary or sanctioning powers, the duty can be fulfilled by reporting the crimes to the competent authorities to trigger investigation or disciplinary action.[1] In light of Bagosora’s senior position in the Ministry of Defence, and his access to senior military officers, as demonstrated by his attendance at meetings with them, even if he did not have direct sanctioning powers, he nonetheless had the ability to report the incidents to the relevant military officers to trigger investigations.

683. The Appeals Chamber recalls that the duty to punish will be fulfilled when necessary and reasonable measures to punish perpetrators have been taken.[2] What measures fulfil an accused’s duty to punish will be determined in relation to his material ability to take such measures.[3] In certain circumstances, although the necessary and reasonable measures may have been taken, the result may fall short of the punishment of the perpetrators.[4] Accordingly, the Appeals Chamber considers that the Trial Chamber’s statement that “[t]here is absolutely no evidence that the perpetrators were punished afterwards” was insufficient, in itself, to establish that Bagosora failed to fulfil his duty to punish the crimes of which he was convicted. The Appeals Chamber considers that, given the absence of any further reasoning supporting the conclusion that Bagosora failed to fulfil his duty to punish culpable subordinates, the Trial Chamber failed to provide a reasoned opinion. In these circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Bagosora failed to take reasonable and necessary measures to punish his subordinates for the crimes committed.[…]

302.    […] Article 6 (3) of the Statute establishes a duty to prevent a crime that a subordinate was about to commit or to punish such a crime after it is committed, by taking “necessary and reasonable measures”. The Appeals Chamber recalls that the interpretation of “necessary and reasonable measures” has been considered in previous cases before ICTY. The Čelebići Trial Judgement found that:

[A] superior should be held responsible for failing to take such measures that are within his material possibility… [T]he lack of formal legal competence to take the necessary measures to prevent or repress the crime in question does not necessarily preclude the criminal responsibility of the superior”.[1]

          The Appeals Chamber agrees with this interpretation and further notes that the Trial Chamber applied a similar approach when it found that:

In order to establish responsibility of a superior under Article 6 (3), it must also be shown that the accused was in a position to prevent or, alternatively, punish the subordinate perpetrators of those crimes. Clearly, the Trial Chamber cannot demand the impossible. Thus, any imposition of responsibility must be based upon a material ability of the accused to prevent or punish the crimes in question.[2]

          Thus, it is the effective capacity of the Accused to take measures which is relevant.  Accordingly, in the assessment of whether a superior failed to act, it is necessary to look beyond formal competence to actual capacity to take measures. […]