199. The Appeals Chamber recognises that the power to give orders and have them executed can serve as an indicium of effective control.[1] […].

203. At the outset, the Appeals Chamber points out that, if taken literally, there is little basis in the jurisprudence of this International Tribunal for considering what the Trial Chamber termed as the “conduct of combat operations involving the forces in question”[2] as an indicium of effective control.[3] A reading of the relevant sections of the Trial Judgement suggests that what the Trial Chamber sought to demonstrate by defining this criterion was the degree of subordination of the El Mujahedin detachment to the OG Bosanska Krajina during combat operations.[4] Accordingly, the Appeals Chamber will discuss the Trial Chamber’s findings within this latter context.

209. These findings confirm that the El Mujahedin detachment took part in several combat operations in September and October 1993 and that this occurred within the framework established by the OG Bosanska Krajina and the 3^rd Corps. This, however, does not in itself necessarily provide sufficient support for the conclusion that Hadžihasanović had effective control over the El Mujahedin detachment in the sense of having the material ability to prevent or punish its members should they commit crimes.[5] […].

210. The Appeals Chamber notes that the El Mujahedin detachment took part in combat operations alongside 3^rd Corps formations, including the OG Bosanska Krajina, as of the second half of 1992.[6] The Appeals Chamber stresses that, with respect to the period before 13 August 1993, the Trial Chamber found that the relationship between the El Mujahedin detachment and the 3^rd Corps was one of cooperation, not effective control. The Trial Chamber found that “frequent cooperation in itself [did] not allow the conclusion that the mujahedin were subordinated to the 3^rd Corps […] and were under [its] effective control”.[7] Neither the 6 September Order nor the conduct of combat operations demonstrate that the relationship between the 3^rd Corps and the mujahedin, later officially renamed the El Mujahedin detachment, evolved from cooperation to effective control.

213. In its concluding remarks on the issue of Hadžihasanović’s effective control, the Trial Chamber stated the following:

It must be noted, however, that this exceptional position was in fact accepted by the 3^rd Corps, insofar as it did not in effect prevent the 3^rd Corps and its units from using the detachment in combat and benefiting militarily from its existence. It should also be noted that nothing forced the 3^rd Corps commanders to use the detachment in combat. In so doing, they accepted all the consequences of their decisions and inevitably assumed full responsibility for them.[8]

The Appeals Chamber does not dispute that the 3^rd Corps may have benefited from the El Mujahedin detachment, and that a circumstance of this kind may entail some form of responsibility, if the particulars of such responsibility are adequately pleaded in an Indictment.[9] The Appeals Chamber nevertheless questions the relevance of that consideration for demonstrating the existence of Hadžihasanović’s effective control over the El Mujahedin detachment. The Appeals Chamber clarifies, however, given that the expression “full responsibility” adopted by the Trial Chamber may be somewhat misleading, that the responsibility of a superior under Article 7(3) of the Statute is only triggered by a superior’s failure to prevent and punish the crimes of his subordinates of which he has the requisite knowledge. Thus, even if Hadžihasanović benefited militarily from the El Mujahedin detachment, his responsibility as a superior under Article 7(3) of the Statute would be, eventually, triggered only upon a showing that the members of the El Mujahedin detachment were his subordinates. As the Trial Chamber made its remark in the context of its discussion on effective control, it presumably used the remark as an argument to justify attributing Hadžihasanović with effective control. This argument, however, does not provide support for the existence of effective control.

214.  Thus, while these Trial Chamber’s findings indicate that the 3^rd Corps cooperated with the El Mujahedin detachment, they are insufficient to establish the existence of effective control. The Appeals Chamber will examine whether any of the Trial Chamber’s additional findings provide a proper basis for its conclusion that Hadžihasanović exercised effective control over the El Mujahedin detachment.

217. Assuming that the Trial Chamber’s conclusion that there was no other authority over the El Mujahedin detachment is correct, the Appeals Chamber disputes the relevance of the criterion identified by the Trial Chamber as an indicator of the existence of effective control. Hadžihasanović’s effective control cannot be established by process of elimination. The absence of any other authority over the El Mujahedin detachment in no way implies that Hadžihasanović exercised effective control in this case.

270. In support of its assertion that Setako had effective control over the perpetrators of the 25 April and 11 May Killings, the Prosecution argues that he was a high-ranking military officer “whose orders were immediately and unquestioningly complied with by the soldiers and militiamen at Mukamira Camp” and that he had the power to prevent or punish the soldiers there “by initiating investigations against them for collaboration and other violations of military regulations.”[1]

271. The Appeals Chamber notes that, at trial, the Prosecution submitted essentially the same arguments to contend that Setako bore superior responsibility for all crimes with which he had been charged.[2] The Trial Chamber rejected this general assertion, finding that: (i) the fact that Setako was a person of influence and an authority figure did not on its own demonstrate that he was a superior; (ii) there was no evidence that his position as lieutenant colonel in the Rwandan army and head of the division of legal affairs in the Ministry of Defence vested him with any particular legal authority over members of the armed forces, apart from his section at the Ministry; and (iii) it had not been established that Setako exercised authority over militia groups or members of the population.[3] The Appeals Chamber discerns no error in these findings.

272. Furthermore, the Appeals Chamber recalls that a superior’s authority to issue orders is one indicator of effective control, but that it does not automatically establish such control.[4] Consequently, the fact that the 25 April and 11 May Killings were committed upon Setako’s orders is not sufficient to show that he exercised effective control over the perpetrators within the meaning of Article 6(3) of the Statute.

59. […] The ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of a superior-subordinate relationship for the purpose of superior responsibility, will almost invariably not be satisfied unless such a relationship of subordination exists.[1] The Appeals Chamber considers that a material ability to prevent and punish may also exist outside a superior-subordinate relationship relevant for Article 7(3) of the Statute. For example, a police officer may be able to “prevent and punish” crimes under his jurisdiction, but this would not as such make him a superior (in the sense of Article 7(3) of the Statute) vis-à-vis any perpetrator within that jurisdiction. […]

69. […] while being in “overall control of combat operations” is not an express requirement under Article 7(3) of the Statute, the Trial Chamber is expected to make a finding in this respect if such a fact is pleaded as underlying one of the requirements of superior responsibility. In the present case, although the Prosecution did not explicitly allege “control of combat operations”, it argued that Halilović had authority to “command combat activities”[2] and that he issued combat orders “consistent with those a commander of an operation would normally issue”,[3] as a way of showing that a superior-subordinate relationship existed. The Trial Chamber was therefore expected to rule on this allegation as part of its overall analysis regarding Halilović’s authority to issue orders which would, in turn, assist in assessing whether a superior-subordinate relationship existed.[4]

154. […] The Appeals Chamber considers that the qualification of a location as an IKM [Forward Command Post (Istureno Komandno Mesto)] bears significance as “IKMs were used by commanders in order to exercise command when they were in the field”[5] and their establishment could as such amount to one of the “indicators of effective control” as outlined by the Trial Chamber.[6] […]

207. […] the Appeals Chamber considers that proof that an accused is not only able to issue orders but that his orders are actually followed, provides another example of effective control.[7] […] The Appeals Chamber therefore finds that a reasonable trier of fact could have concluded that Halilović’s orders were not followed and could have taken into account this important consideration in the overall assessment of Halilović’s effective control over the perpetrators.

53. As the Appeals Chamber has held, “[i]ndicators of effective control are ‘more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent [or]] punish’.”[1] In finding that Ndahimana had effective control over the communal policemen, the Trial Chamber first relied on the fact that Ndahimana possessed de jure authority, as bourgmestre, over the communal policemen under Rwandan law and that this authority encompassed disciplinary powers.[2] Ndahimana does not dispute that he possessed such de jure disciplinary powers,[3] nor does he demonstrate that it was unreasonable for the Trial Chamber to consider his de jure authority over the communal policemen as an indicator of his effective control over them. The Appeals Chamber recalls in this regard that the possession of de jure authority over subordinates, while not synonymous with effective control, may suggest a material ability to prevent or punish their criminal acts.[4]

54. The Trial Chamber further cited extensive evidence of Ndahimana’s ability to issue binding orders to the communal policemen and the compliance of the policemen with these orders, namely: (i) Ndahimana’s order to a communal policeman to escort a Tutsi refugee to safety on the night of 15 April 1994; (ii) Ndahimana’s assignment of communal policemen to protect the Les Soeurs de l’Assomption Convent in Kivumu on 16 April 1994; (iii) Ndahimana’s assignment of communal policemen to protect Tutsi refugees at the health center around 17 April 1994; and (iv) Ndahimana’s demotion of Brigadier Mbakilirehe and promotion of Abayisenga and Niyitegeka to brigadier and to deputy brigadier, respectively, on 29 April 1994.[5] Contrary to Ndahimana’s contention, the Trial Chamber therefore did not “wrongly define[] the parameters” of effective control by focusing on Ndahimana’s power to issue binding orders or take disciplinary measures.[6] The Trial Judgement reflects that the Trial Chamber also relied on the fact that Ndahimana’s orders were obeyed and his disciplinary measures implemented.[7] It is well-settled that these factors are indicative of a superior’s effective control over his subordinates.[8]

169. Turning first to Ntabakuze’s submissions concerning effective control, the Appeals Chamber recalls that, while de jure authority is not synonymous with effective control, the possession of de jure powers may suggest a material ability to prevent or punish criminal acts of subordinates.[1]

159. Whether Orić and the Srebrenica Armed Forces Staff had effective control over Mirzet Halilović depended on their “material ability to prevent and punish” the crimes.[1] The Appeals Chamber considers that if a superior-subordinate relationship existed, it cannot be relevant to ask whether the subordinate’s behaviour was erratic. However, if it is not clear whether that relationship existed, it can be relevant to take into account the erratic behaviour of the subordinate in determining whether the superior had the “material ability to prevent or punish” necessary for effective control. The Trial Chamber therefore did not misconstrue the first and the third elements of Article 7(3) of the Statute when it assessed Mirzet Halilović’s erratic behaviour in analysing Orić’s effective control over the Military Police. The Prosecution’s bare assertion that Orić’s failure to prevent or punish “is not evidence of lack of effective control”[2] fails to demonstrate an error in that assessment.