Effective control at the time of the commission of the crimes

Notion(s) Filing Case
Appeal Judgement - 30.06.2014 BIZIMUNGU Augustin

369. The Appeals Chamber considers that the Prosecution has not demonstrated any error in the Trial Chamber’s conclusion that it was bound by the Hadžihasanović et al. Appeal Decision of 16 July 2003 in its consideration of Bizimungu’s liability pursuant to Article 6(3) of the Statute. Article 6(3) of the Statute reflects verbatim the language of Article 7(3) of the Statute of the ICTY, and the Appeals Chambers of both the ICTR and ICTY have taken a consistent approach to interpreting the provisions.[1]

370. In addition, the Appeals Chamber is not satisfied that the Prosecution has demonstrated cogent reasons for departing from the principle set forth in the Hadžihasanović et al. Appeal Decision of 16 July 2003. In this respect, the Prosecution points principally to criticism of the majority position in the Hadžihasanović et al. Appeal Decision of 16 July 2003 in the dissenting opinions of that decision as well as declaratory statements attached to the Orić Appeal Judgement. However, the Appeals Chamber recalls that once the law applicable to a particular issue has been determined on appeal, it should in principle be followed, in the interests of certainty and predictability of the law.[2] Moreover, the Prosecution fails to appreciate that the Appeals Chambers of the ICTR and ICTY have consistently applied the principle that a commander is only responsible for the crimes of his subordinates if he has effective control over them at the time of commission.[3]

[1] See, e.g., Nahimana et al. Appeal Judgement, paras. 485, 486; Kayishema and Ruzindanda Appeal Judgement, para. 294. Divergences in the jurisprudence of the Appeals Chambers of the ICTY and ICTR result primarily from differences between Rules or the Statutes of the ICTY or ICTR. Where such differences are not present, the jurisprudence of the Appeals Chambers of the ICTR and ICTY has developed consistently. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 414 (adopting ICTY Appeals Chamber jurisprudence in determining whether persecution and murder as crimes against humanity possess materially distinct elements); Karera Appeal Judgement, para. 24 (interpreting Rule 90(G)(ii) of the Rules consistent with the interpretation by the ICTY Appeals Chamber of similarly worded Rule 90(H)(ii) of the ICTY Rules of Procedure and Evidence); Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 6 (following the approach of the ICTY Appeals Chamber in relation to the reconsideration of final judgements); Niyitegeka Appeal Judgement, paras. 193-199, 201 (stating the law on notice principles in a manner consistent with preceding jurisprudence from the ICTY Appeals Chamber); Musema Appeal Judgement, paras. 185, 186 (adopting the standard of review applicable to evidence admitted on appeal as stated by the ICTY Appeals Chamber).

[2] Rutaganda Appeal Judgement, para. 26; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, originally filed in French, English translation filed on 4 July 2001, para. 92, fn. 125, citing Aleksovski Appeal Judgement, paras. 107-109.

[3] See, e.g., Ntabakuze Appeal Judgement, para. 174; Blagojević and Jokić Appeal Judgement, para. 303.

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