79. The Appeals Chamber observes that a great portion of Ndahimana’s submissions before the Appeals Chamber is devoted to explaining the various measures that he took to prevent the attacks against the Tutsi refugees in NyangeChurch,[1] or the measures that he took to punish before or while the 15 April attack was unfolding.[2] However, Ndahimana was not convicted for failure to prevent the crimes perpetrated by the communal policemen on 15 April 1994, but for his failure to punish the communal policemen for those crimes.[3] The Appeals Chamber recalls that failure to punish is a legally distinct concept and a separate basis for incurring criminal responsibility as a superior than failure to prevent.[4] A conviction on the basis of superior responsibility pursuant to Article 6(3) of the Statute due to a superior’s failure to punish his subordinates for their criminal conduct is based on the superior’s failure to take measures after the commission of the crimes, while a conviction for a superior’s failure to prevent crimes by subordinates is premised on the superior’s failure to take measures before the commission of the crimes.[5] The Appeals Chamber, therefore, fails to see how Ndahimana’s argument that he took measures to prevent the 15 April attack, even if accepted, would invalidate his conviction on the basis of superior responsibility under Article 6(3) of the Statute for failing to punish his culpable subordinates.

83. […] Disciplinary or penal action can only be initiated after a violation is discovered, and a violator is one who has already violated a rule of law. Further, it is illogical to argue both that “a superior’s responsibility for the failure to punish is construed as a sub-category of his liability for failing to prevent the commission of unlawful acts,” and that “failure to punish only led to the imposition of criminal responsibility if it resulted in a failure to prevent the commission of future crimes.”[1] The failure to punish and failure to prevent involve different crimes committed at different times: the failure to punish concerns past crimes committed by subordinates, whereas the failure to prevent concerns future crimes of subordinates.

85. In the view of the Appeals Chamber, the Trial Chamber did not err in finding to the effect that the responsibility of a commander for his failure to punish was recognised in customary law prior to the commission of crimes relevant to the Indictment. […]