High level of authority

Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA

320. The Appeals Chamber recalls that a position of authority does not in and of itself attract a harsher sentence.[1] Further, in the context of a conviction under Article 7(3) of the Statute, use of the superior’s position of authority as an aggravating circumstance would be inappropriate since it is itself an element of criminal liability.[2] Nor would a high level of authority, to echo the Prosecution’s distinction, necessarily attract greater responsibility were it to be considered. Rather, it is the superior’s abuse of that level of authority which could be taken into consideration at sentencing.[3] […].

321. In any event, the principle of graduation upon which the Prosecution relies is not absolute. Indeed, the ICTR Appeals Chamber in Musema qualified its statement that sentences should be graduated by noting that this principle “is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence”.[4] The Prosecution’s contention that Hadžihasanović must receive a harsher sentence based on his high level of authority is not substantiated by the practice of the International Tribunal.

[1] Stakić Appeal Judgement, para. 411; Babić Judgement on Sentencing Appeal, para. 80.

[2] See Naletilić and Martinović Appeal Judgement, para. 626; Miodrag Jokić Judgement on Sentencing Appeal, para. 30.

[3]  See Galić Appeal Judgement, para. 412 (discussing the abuse of a high level of authority in the context of the mode of liability of ordering).

[4] Musema Appeal Judgement, para. 382.

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ICTR Rule Rule 101(B)(i) ICTY Rule Rule 101(B)(i)
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent

336. It is true that the Trial Chamber found “that the evidence of the Accused’s influence in this case [did] not sufficiently demonstrate that he was a superior in some formal or informal hierarchy with effective control over the known perpetrators.”[1]  But that finding is not inconsistent with the finding that his “prominence and influence made it more likely that others would follow his negative example.”[2] […] The question of criminal responsibility as a superior is analytically distinct from the question of whether an accused’s prominent status should affect his or her sentence.  It was within the Trial Chamber’s competence and reasonable for it to conclude that the Appellant did not hold a hierarchical position sufficient to render him liable for criminal responsibility as a superior while also finding that his influence was substantial enough to constitute an aggravating factor.

[1] Trial Judgement, para. 417.

[2] Ibid., para. 573.

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ICTR Rule Rule 101(B)(i) ICTY Rule Rule 101(B)(i)