Link between accused and perpetrators: remoteness

Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser

20. First, Orić submits that a superior cannot, as a matter of law, incur criminal responsibility under Article 7(3) of the Statute when the link to the perpetrators of the crimes at issue is “too remote”.[1] The Appeals Chamber recalls that the concept of effective control is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute.[2] Whether the effective control descends from the superior to the subordinate culpable of the crime through intermediary subordinates is immaterial as a matter of law; instead, what matters is whether the superior has the material ability to prevent or punish the criminally responsible subordinate. The separate question of whether – due to proximity or remoteness of control – the superior indeed possessed effective control is a matter of evidence, not of substantive law.[3] Likewise, whether the subordinate is found to have participated in the crimes through intermediaries is immaterial as long as his criminal responsibility is established beyond reasonable doubt.

[1] Orić Appeal Brief, paras. 8 and 9; Orić Reply Brief, paras. 16 and 17; AT. 1 April 2008, pp. 39, 61.

[2] Halilović Appeal Judgement, para. 59, referring to Čelebići Appeal Judgement, para. 256.

[3] See Blaškić Appeal Judgement, para. 69. 

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