20. In Čelebići, the Appeals Chamber underscored that effective control is the ultimate standard and that a showing of effective control is required in cases involving both de jure and de facto superiors.[1] The Appeals Chamber further noted:

In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […] In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.[2]

21. Even when a superior is found to have de jure authority over his subordinates, the Prosecution still has to prove beyond reasonable doubt that this superior exercised effective control over his subordinates, unless the accused does not challenge having exercised such control.[3] By holding that “a court may presume that possession of [de jure] power prima facie results in effective control”,[4] the Appeals Chamber in Čelebići did not reverse the burden of proof. It simply acknowledged that the possession of de jure authority constitutes prima facie a reasonable basis for assuming that an accused has effective control over his subordinates. Thus, the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates ultimately rests with the Prosecution.

33. As the Appeals Chamber previously held, “what constitutes [necessary and reasonable] measures is not a matter of substantive law but of evidence”;[1] the assessment of whether a superior fulfilled his duty to prevent or punish under Article 7(3) of the Statute has to be made on a case-by-case basis, so as to take into account the “circumstances surrounding each particular situation”.[2] Under Article 86 of Additional Protocol I, for example, superiors have a duty to take “all feasible measures within their power” to prevent or punish a breach of the laws of war and, under Article 87 of Additional Protocol I, such “feasible measures” may take the form of both “disciplinary or penal” measures.[3] It cannot be excluded that, in the circumstances of a case, the use of disciplinary measures will be sufficient to discharge a superior of his duty to punish crimes under Article 7(3) of the Statute. In other words, whether the measures taken were solely of a disciplinary nature, criminal, or a combination of both, cannot in itself be determinative of whether a superior discharged his duty to prevent or punish under Article 7(3) of the Statute. The Prosecution’s argument is dismissed.

142. As a preliminary matter, the Appeals Chamber notes that the Trial Judgment and the Parties’ arguments on appeal place undue emphasis on the nature of the measures taken. The Appeals Chamber recalls that the relevant inquiry is whether a reasonable trier of fact could conclude that Hadžihasanović took measures to punish the perpetrators which were “necessary and reasonable” in the circumstances of the case,[4] not whether those measures were of a disciplinary or criminal nature.

154. The Appeals Chamber recalls that a superior need not dispense punishment personally and may discharge his duty to punish by reporting the matter to the competent authorities.[5] Here, the Appeals Chamber finds that the reporting of the 5 August 1993 Slavonija Furniture Salon crimes to the Bugojno municipal public prosecutor, in conjunction with the disciplinary sanctions imposed by the military disciplinary organ in Bugojno, constituted necessary and reasonable measures to punish the perpetrators. The Appeals Chamber recognises that the District Military Prosecutor’s Office, rather than that of the municipal public prosecutor, would have likely been a more appropriate forum for the filing of a criminal report,[6] but finds that Hadžihasanović’s responsibility should not turn on the Bugojno municipal public prosecutor’s possible failure to initiate criminal proceedings or to refer the matter to the District Military Prosecutor.[7] The Appeals Chamber notes that Witness Sead Zerić, the former Travnik District Military Prosecutor, testified that municipal public prosecutors had an obligation to pass on criminal reports they received regarding army personnel to the military prosecutor’s office when these dealt with crimes outside their jurisdiction.[8]

189. The ultimate question under this ground of appeal is whether Hadžihasanović exercised effective control over the El Mujahedin detachment. Since de jure authority is only one factor that helps to establish effective control, and because the present question is resolvable on the basis of effective control alone, the Appeals Chamber declines to address whether Hadžihasanović had de jure authority over the El Mujahedin detachment.

260. The failure to prevent and the failure to punish are not only legally distinct, but are factually distinct in terms of the type of knowledge that is involved for each basis of superior responsibility.[1] The duty to prevent arises for a superior from the moment he knows or has reason to know that a crime is about to be committed, while the duty to punish only arises after the commission of the crime. Thus, knowledge which is relevant to a superior’s duty to punish may or may not be relevant to his duty to prevent depending on when the superior acquired actual knowledge or had reason to know about it. […].

313. The Appeals Chamber reiterates that, when assessing the gravity of a crime in the context of a conviction under Article 7(3) of the Statute, two matters must be taken into account:

(1) the gravity of the underlying crime committed by the convicted person’s subordinate; and

(2) the gravity of the convicted person’s own conduct in failing to prevent or punish the underlying crimes.[1]

Thus, in the context of a conviction under Article 7(3) of the Statute, the gravity of a subordinate’s crime remains, contrary to Hadžihasanović’s assertion, an “essential consideration” in assessing the gravity of the superior’s own conduct at sentencing.[2]

1857. […] Effective control has been defined to mean the material ability to prevent offences or punish the offender.[1] The concept of material ability necessarily takes into account all factors which might impede a superior’s ability to prevent and punish.[2] In circumstances where a superior would not be able to perform the functions necessary to prevent or punish, the superior could not be said to possess the material ability required to exercise effective control.

1860. […] [T]he Appeals Chamber recalls that there is no definitive list of indicators of effective control. Indicators considered will necessarily depend on the case and are a matter of evidence showing that the accused had the power to prevent or punish the alleged perpetrators where appropriate.[3]

1928. With regard to what constitutes reasonable measures, the Appeals Chamber agrees that the obligation to take measures is restricted to those that are feasible, so that no responsibility attaches to a superior for whom the fulfilment of the duty to punish was not possible in the prevailing circumstances.[1] It is well-established in the case law of the Tribunal that the determination of what is materially possible in terms of fulfilling the duty to punish is primarily linked to the question of a superior’s effective control.[2] […]

1929. […] While the Appeals Chamber agrees that feasibility relates to what is realistic and practical in the circumstances,[3] it considers that when used in the context of command responsibility, the assessment must remain anchored in the material powers of the superior. […] The Appeals Chamber recalls its finding in the Hadžihasanović and Kubura case that a superior’s responsibility should not turn on the competent authority’s possible failure to initiate criminal proceedings.[4] If the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, this entails that such a report would not be sufficient to fulfil the obligation to punish offending subordinates.[5] It does not mean that the action of reporting becomes impossible in the circumstances.

1931. The Appeals Chamber is mindful of the complex situation facing commanders during armed conflict when their subordinates have committed crimes upon the orders of the top echelons of the military and political structures. However, international law requires commanders to take some action to punish their subordinates for committing crimes, even in these circumstances.[6] […]

1892. […] The Appeals Chamber recalls that to “the extent that more than one person is found to have effective control over the subordinates who have committed a crime, they may all incur criminal responsibility”.[1] Thus, the exercise of effective control by one commander does not necessarily exclude effective control being exercised by a different commander.[2] […]

After reiterating (at paras 297-301) the legal standard set out in the Hadžihasanović and Kubura Appeal Judgement, the Appeals Chamber made the following findings:

303. The Appeals Chamber observes that the Trial Chamber found that prior to the commencement of the attack against Srđ, Strugar had reason to know of the risk that the forces under his command might repeat their previous conduct and unlawfully shell the OldTown.[1] The Trial Chamber characterised this risk as “a real and obvious prospect”, “a clear possibility”, “a risk that was not slight or remote”, and a “real risk”.[2] The Appeals Chamber moreover notes that the Trial Chamber found that the mens rea element of Article 7(3) of the Statute was not met before the commencement of the attack against Srđ because it found that it had not been established that Strugar “had reason to know that [unlawful shelling] would occur”,[3] that the risk of such shelling was shown “to have been so strong as to give rise, in the circumstances, to knowledge that his forces were about to commit an offence”[4] or that “there was a substantial likelihood of the artillery” unlawfully shelling the Old Town.[5] In addition, the Trial Chamber held that it was “not apparent that additional investigation before the attack could have put the Accused in any better position”.[6] The Appeals Chamber finally notes that the Trial Chamber found that Strugar’s notice, after the commencement of the attack against Srđ, of a “clear and strong risk”[7] or a “clear likelihood”[8] that his forces were repeating its previous conduct and unlawfully shelling the Old Town did however meet the mens rea requirement under Article 7(3).

304. Taking into consideration the relevant factual findings of the Trial Chamber, the Appeals Chamber finds that the Trial Chamber committed an error of law by not applying the correct legal standard regarding the mens rea element under Article 7(3) of the Statute. The Trial Chamber erred in finding that Strugar’s knowledge of the risk that his forces might unlawfully shell the Old Town was not sufficient to meet the mens rea element under Article 7(3) and that only knowledge of the “substantial likelihood” or the “clear and strong risk” that his forces would do so fulfilled this requirement. In so finding, the Trial Chamber erroneously read into the mens rea element of Article 7(3) the requirement that the superior be on notice of a strong risk that his subordinates would commit offences. In this respect, the Appeals Chamber recalls that under the correct legal standard, sufficiently alarming information putting a superior on notice of the risk that crimes might subsequently be carried out by his subordinates and justifying further inquiry is sufficient to hold a superior liable under Article 7(3) of the Statute.[9]

51.     […] [T]he Appeals Chamber holds that an accused cannot be charged under Article 7(3) of the Statute for crimes committed by a subordinate before the said accused assumed command over that subordinate. […]

See also paragraphs 45-50.

16.     […] It is evident that there cannot be an organized military force save on the basis of responsible command. It is also reasonable to hold that it is responsible command which leads to command responsibility. Command responsibility is the most effective method by which international criminal law can enforce responsible command.

See also paragraphs 17-18, 20, 22-23.

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.

61. The Appeals Chamber will now consider the Prosecution’s submissions that the Trial Chamber erred in restating the law on the third element of superior responsibility.[1] According to the Prosecution, in paragraphs 81 to 90 of the Trial Judgement, the Trial Chamber created an unnecessary and unwarranted distinction between a general obligation and a specific obligation to prevent crimes.[2]

63. […] The Appeals Chamber stresses that “necessary” measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and “reasonable” measures are those reasonably falling within the material powers of the superior.[3] What constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.[4]

64. The Appeals Chamber holds that the Trial Chamber erred when giving the impression that there is an additional requirement to the third element of superior responsibility and agrees with the Prosecution that the correct legal standard is solely whether the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.[5] Of course, this single standard will have to be applied differently in different circumstances; however, the artificial distinction between “general” and “specific” obligations creates a confusing and unhelpful dichotomy.

119. However, in relation to the third category [of material facts which must be pleaded in an indictment charging superior responsibility pursuant to Article 6(3) of the Statute], the Appeals Chamber recalls that Renzaho was found by the Trial Chamber to have reason to know of the rapes due to his vocal encouragement of them.[1] The conduct by which Renzaho was found to have reason to know that the rapes were about to be committed was therefore not pleaded in the Indictment. The failure to include this material fact in the Indictment renders it defective. The Appeals Chamber will therefore consider whether this defect was cured by the provision of clear, consistent, and timely information by the Prosecution.

485. The Appeals Chamber adds that, for the purposes of Article 6(3) of the Statute, the “commission” of a crime by a subordinate must be understood in a broad sense. In the Blagojević and Jokić Appeal Judgement, the ICTY Appeals Chamber confirmed that an accused may be held responsible as a superior not only where a subordinate committed a crime referred to in the Statute of ICTY, but also where a subordinate planned, instigated or otherwise aided and abetted in the planning, preparation or execution of such a crime: […][1]

486. The Appeals Chamber endorses this reasoning and holds that an accused may be held responsible as a superior under Article 6(3) of the Statute where a subordinate “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute”,[2] provided, of course, that all the other elements of such responsibility have been established.

625. […] The test for effective control is not the possession of de jure authority, but rather the material ability to prevent or punish the proven offences. Possession of de jure authority may obviously imply such material ability, but it is neither necessary nor sufficient to prove effective control. […]

791. Under Article 6(3) of the Statute, the mens rea of superior responsibility is established when the accused “knew or had reason to know” that his subordinate was about to commit or had committed a criminal act.[1] The “reason to know” standard is met when the accused had “some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates”; such information need not provide specific details of the unlawful acts committed or about to be committed by his subordinates.[2] The Appellant is therefore wrong when he contends that direct personal knowledge, or full and perfect awareness of the criminal discourse, was required in order to establish his superior responsibility. The Appellant cites no precedent and provides no authority to support his assertion that the crime of direct and public incitement requires direct personal knowledge of what is being said. The Appeals Chamber rejects this submission.

840. […]In this respect, the Appeals Chamber stresses that the fact that no crime was denounced at the time or that the Ministry of Information did not describe the broadcasts as criminal is irrelevant: the Appellant had at a minimum reason to know that there was a significant risk that RTLM journalists would incite the commission of serious crimes against the Tutsi, or that they had already done so.

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]

202. […] While a superior need not have ordered or authorized a crime to be convicted pursuant to Article 6(3) of the Statute,[1] proof that an accused is able to issue orders and that his orders are actually followed, are indicators of effective control.[2] […]

123. The Appeals Chamber recalls that in respect of [failure to prevent or punish], in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[1] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[2]

125. [A] review of the Indictment reflects that the Prosecution did not explicitly plead Ntabakuze’s failure to prevent or punish the crimes of his subordinates. However, the Appeals Chamber observes that paragraph 6.18 of the Indictment, which was specifically relied on in support of Ntabakuze’s superior responsibility, pleads that the crimes alleged in the Indictment were carried out on his orders and directives. This, in the Appeals Chamber’s opinion, gave notice to Ntabakuze that he was alleged to have failed to take the necessary measures to prevent or punish the crimes. Further notice was provided through the allegations of repeated and continuing crimes by Ntabakuze’s subordinates from the Para-Commando Battalion,[3] and the allegation at paragraph 6.44 of the Indictment that “[c]ertain units of the Para‑Commando, Reconnaissance and Presidential Guard battalions were the most implicated in these crimes”.[4]

Footnote 88:            The Appeals Chamber notes that the Prosecution appears to submit that, given the widespread nature of the massacres, and the involvement of virtually every unit of the army in perpetrating them in multiple locations throughout Kigali and other prefectures, it was “legitimate” for the Indictment to only provide examples of some locations where massacres occurred. See [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Prosecutor’s Brief in Response to Aloys Ntabakuze’s Appeal, 7 September 2009 (“Prosecution Response Brief”)], para. 31. See also AT. 27 September 2011 p. 39. The Appeals Chamber considers this argument to be ill-founded. The Appeals Chamber has previously stated that “the facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior [...]] will usually be stated with less precision because the detail[s] of those acts are often unknown, and because the acts themselves are often not very much in issue”. See Muvunyi Appeal Judgement of 29 August 2008, para. 58, citing Ntagerura et al. Appeal Judgement, para. 26, fn. 82, quoting Blaškić Appeal Judgement, para. 218. However, the indictment must plead the criminal conduct of the subordinates for whom the accused is alleged to be responsible. See infra, para. 100. At a minimum, this includes pleading the location and approximate date of the alleged criminal acts and the means by which they were committed when this information is in possession of the Prosecution.

302. The Appeals Chamber recalls that the sentence must reflect the gravity of the offences.[1] The determination of the gravity of the offences requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime. Further, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates, i.e. the gravity of the crimes committed by the direct perpetrator(s).[3]

303. Regarding Ntabakuze’s degree of responsibility by virtue of his conviction pursuant to Article 6(3) of the Statute, the Appeals Chamber observes that the Statute does not accord any “lesser” form of individual criminal responsibility to superior responsibility. While the Appeals Chamber also acknowledges that, in appropriate cases, a conviction under Article 6(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 6(1) conviction,[4] it reiterates its view that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute.[5] The Appeals Chamber also recalls the well-established principle of gradation in sentencing, which holds that leaders and planners should bear heavier criminal responsibility than those further down the scale.[6]

305. In light of the foregoing, the Appeals Chamber finds no abuse of discretion in the Trial Chamber’s holding that the gravity of the crimes committed by Ntabakuze warranted similar treatment to those who planned or ordered atrocities as well as the most senior authorities.[7] In the same vein, the fact that Ntabakuze was the first person before the Tribunal to be sentenced to life imprisonment solely based on superior responsibility does not have any bearing on the reasonableness of the Trial Chamber’s findings on the matter. The Appeals Chamber emphasises that a sentence of life imprisonment is provided for in Rule 101(A) of the Rules irrespective of the mode of liability of which an accused is convicted. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

76. Article 7(3) provides the legal criteria for command responsibility, thus giving the word “commander” a juridical meaning, in that the provision becomes applicable only where a superior with the required mental element failed to exercise his powers to prevent subordinates from committing offences or to punish them afterwards.  This necessarily implies that a superior must have such powers prior to his failure to exercise them.  If the facts of a case meet the criteria for the authority of a superior as laid down in Article 7(3), the legal finding would be that an accused is a superior within the meaning of that provision.  In the instant appeal, the Appellant contends that, because he was appointed by the Ministry of Justice rather than the Ministry of Defence, he did not have such powers over the guards as a civilian prison warden,[1] whereas the Trial Chamber finds that he was the superior to the guards by reason of his powers over them.[2]  The Appeals Chamber takes the view that it does not matter whether he was a civilian or military superior,[3] if it can be proved that, within the Kaonik prison, he had the powers to prevent or to punish in terms of Article 7(3).  The Appeals Chamber notes that the Trial Chamber has indeed found this to be proven, thus its finding that the Appellant was a superior within the meaning of Article 7(3).

50. Under Article 6(3), a commander or superior is the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the commission of a crime by a subordinate after the crime is committed”.[1] The power or authority to prevent or to punish does not arise solely from a de jure authority conferred through official appointment.[2] Hence, “as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control.” [3] The effective control test applies to all superiors, whether de jure or de facto, military or civilian.[4]

51. Indeed, it emerges from international case-law that the doctrine of superior responsibility is not limited to military superiors, but also extends to civilian superiors. In the Čelebići case, it was held that:

[…] the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.[5]

In this respect, the Appeals Chamber notes that the Musema Trial Judgement, which took into consideration the Rwandan situation, pointed out that “it is appropriate to assess on a case-by-case basis the power of authority actually devolved on an accused to determine whether or not he possessed the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish their perpetration.”[6]

52. Hence, the establishment of civilian superior responsibility requires proof beyond reasonable doubt that the accused exercised effective control over his subordinates, in the sense that he exercised a degree of control over them which is similar to the degree of control of military commanders. It is not suggested that “effective control” will necessarily be exercised by a civilian superior and by a military commander in the same way, or that it may necessarily be established in the same way in relation to both a civilian superior and a military commander.

[…]

55. The Appeals Chamber holds the view that the Trial Chamber’s approach to the notion of “effective control” in relation to civilian superior was erroneous in law, to the extent that it suggested that the control exercised by a civilian superior must be of the same nature as that exercised by a military commander.[7] As the Appeals Chamber has already stated, this is not the case. It is sufficient that, for one reason or another, the accused exercises the required “degree” of control over his subordinates, namely, that of effective control. […]

56. The Appeals Chamber notes the ambiguity of the expression a contrived de jure-like authority (in French, “autorité quasi-de jure factice”)[8] and acknowledges that it is difficult to grasp the meaning thereof. In the context of paragraph 152 of the Judgement, the concept seems to form part of the reasoning used by the Trial Chamber in examining the de jure authority exercised by the Accused, but it can be interpreted in different ways. The Appeals Chamber reiterates that the case law of the International Tribunals makes it mandatory to use the effective control test for both de jure and de facto superiors. Creating intermediate levels of authority is unnecessary and it would impair the legal analysis of the criminal liability of a superior under Article 6(3) of the Statute, as well as heighten the confusion in identifying the various forms of authority and instituting effective control. […]

[…]

61. The Appeals Chamber is of the view that, when the Trial Chamber came to apply the test of “effective control” to the facts of the case, it made little allowance for the possibility that the Accused could be considered as a superior on the basis of a de facto power or authority over his or her subordinates.[9] Furthermore, in paragraph 151 of the Judgement, the Trial Chamber wrongly held that both de facto and de jure authority need to be established before a superior can be found to exercise effective control over his or her subordinates. The Appeals Chamber reiterates that the test in all cases is whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority.[10] The ICTY Appeals Chamber held in the Čelebići Appeal Judgement that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”.[11]

62. The Appeals Chamber is therefore of the view that the lack of proper consideration of the de facto character of the Accused’s responsibility by the Trial Chamber was incorrect and upholds the Appellant’s third submission. […]

384. The Appeals Chamber recalls that, for a conviction as a superior pursuant to Article 6(3) of the Statute, it is not necessary for an accused to have had the same intent as the perpetrator of the criminal act; it suffices to prove that the accused knew or had reason to know that the subordinate was about to commit such act or had done so.[1] The Trial Chamber was therefore not required to establish that Nsengiyumva shared his subordinates’ intent to find that he could be held responsible as a superior. It follows that the Trial Chamber did not err in finding that Nsengiyumva was liable as a superior without considering evidence suggesting that he might not have had such intent.

510. The Appeals Chamber is concerned that the Trial Chamber failed to explicitly consider whether Bagosora had the material ability to punish culpable subordinates in the Trial Judgement. The Appeals Chamber considers that this amounts to a failure to provide a reasoned opinion. Nonetheless, the Appeals Chamber recalls that even where a superior personally lacks disciplinary or sanctioning powers, the duty can be fulfilled by reporting the crimes to the competent authorities to trigger investigation or disciplinary action.[1] In light of Bagosora’s senior position in the Ministry of Defence, and his access to senior military officers, as demonstrated by his attendance at meetings with them, even if he did not have direct sanctioning powers, he nonetheless had the ability to report the incidents to the relevant military officers to trigger investigations.

683. The Appeals Chamber recalls that the duty to punish will be fulfilled when necessary and reasonable measures to punish perpetrators have been taken.[2] What measures fulfil an accused’s duty to punish will be determined in relation to his material ability to take such measures.[3] In certain circumstances, although the necessary and reasonable measures may have been taken, the result may fall short of the punishment of the perpetrators.[4] Accordingly, the Appeals Chamber considers that the Trial Chamber’s statement that “[t]here is absolutely no evidence that the perpetrators were punished afterwards” was insufficient, in itself, to establish that Bagosora failed to fulfil his duty to punish the crimes of which he was convicted. The Appeals Chamber considers that, given the absence of any further reasoning supporting the conclusion that Bagosora failed to fulfil his duty to punish culpable subordinates, the Trial Chamber failed to provide a reasoned opinion. In these circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Bagosora failed to take reasonable and necessary measures to punish his subordinates for the crimes committed.[…]

102. The Trial Chamber found that Bizimungu failed to prevent the crimes for which he was convicted or to punish his subordinates for their roles in these crimes.[1]

103. Bizimungu submits that the Indictment does not state how it could be inferred from his conduct that he failed to take the necessary and reasonable measures to prevent the crimes or punish his subordinates as it merely reproduced the wording of Article 6(3) of the Statute.[2] He asserts that neither the Prosecution Pre-Trial Brief nor its opening statement remedied this defect.[3] The Prosecution responds that Bizimungu’s submissions lack merit.[4]

104. The Appeals Chamber recalls that, in respect of this element of superior responsibility, in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[5] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[6] The Appeals Chamber finds the Indictment sufficient in this respect, particularly in light of the Indictment’s further qualification that Bizimungu did not “use his statutory powers to punish the perpetrators or to institute proceedings against them”.[7] Accordingly, this argument is dismissed.

133. The Appeals Chamber recalls that the material ability to prevent or punish can only amount to effective control over the perpetrators if it is premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators.[1] The Trial Chamber did not explicitly find the existence of a superior-subordinate relationship between Bizimungu and the Interahamwe who it found committed the criminal acts which formed the basis of his related convictions, that is, attacks at the École des sciences infirmières de Kabgayi (ESI), the Musambira Commune office and dispensary, the Butare Prefecture office and EER, or the Cyangugu stadium.[2] Nonetheless, the Appeals Chamber considers that the Trial Chamber implicitly found that there was a pre-existing hierarchical relationship based on the same factors it relied upon in establishing that the Interahamwe were under his effective control.[3] The Appeals Chamber will therefore consider Bizimungu’s challenges to the Trial Chamber’s assessment in the context of both Bizimungu’s effective control of, and his superior-subordinate relationship with the Interahamwe.

302. The Appeals Chamber does not consider the conclusions regarding the scope of Blagojević’s authority irreconcilable with the finding that he exercised no effective control over Momir Nikolić. In the Čelebići Appeal Judgement, the Appeals Chamber discussed the possibility that de jure authority alone may not lead to the imposition of command responsibility.[1] The relevant discussion indicated “possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control.”[2] […]

218. In accordance with the jurisprudence of the International Tribunal, the Appeals Chamber considers that in a case where superior criminal responsibility pursuant to Article 7(3) of the Statute is alleged, the material facts which must be pleaded in the indictment are:

(a) (i) that the accused is the superior[1] of (ii) subordinates sufficiently identified,[2] (iii) over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct [3]– and (iv) for whose acts he is alleged to be responsible;[4]

(b) the conduct of the accused by which he may be found to (i) have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates,[5] and (ii) the related conduct of those others for whom he is alleged to be responsible.[6] The facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior, although the Prosecution remains obliged to give all the particulars which it is able to give, will usually be stated with less precision,[7] because the detail of those acts are often unknown, and because the acts themselves are often not very much in issue;[8] and

(c) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who committed them.[9]

219. With respect to the mens rea, there are two ways in which the relevant state of mind may be pleaded: (i) either the specific state of mind itself should be pleaded as a material fact, in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred, should be pleaded.[10] Each of the material facts must usually be pleaded expressly, although in some circumstances it may suffice if they are expressed by necessary implication.[11] This fundamental rule of pleading is, however, not complied with if the pleading merely assumes the existence of the legal pre-requisite.[12]

69. The Appeals Chamber also notes that the duty of commanders to report to competent authorities is specifically provided for under Article 87(1) of Additional Protocol I, and that the duty may also be deduced from the provision of Article 86(2) of Additional Protocol I.[1] The Appeals Chamber also notes the Appellant’s argument that to establish that effective control existed at the time of the commission of subordinates’ crimes, proof is required that the accused was not only able to issue orders but that the orders were actually followed. The Appeals Chamber considers that this provides another example of effective control exercised by the commander. The indicators of effective control are more a matter of evidence than of substantive law,[2] and those indicators are limited to showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate.[3] […]

The Trial Chamber acquitted Boškoski of superior responsibility for the counts charged against him, finding that it was not shown that he had failed to take the necessary and reasonable measures to punish his subordinates for crimes committed in Ljuboten on 12 August 2001.[1] With respect to the alleged error of law, the Appeals Chamber held:

230. […]. The Appeals Chamber is satisfied that the […] findings [in paras 406, 415 and 417 of the Trial Judgement] correctly articulate the legal standard for failure to punish responsibility under Article 7(3) of the Statute. The Trial Chamber correctly held that the relevant question for liability for failure to punish is whether the superior took the necessary and reasonable measures to punish under the circumstances and that the duty to punish may be discharged, under some circumstances, by filing a report to the competent authorities.

231.  With respect to these legal findings, the Prosecution submits that the Trial Chamber erred in relying on the Aleksovski and Brđanin Trial Judgements in finding that:

civilian superiors, who may lack the disciplinary or sanctioning powers of military commanders, may discharge their obligation to punish by reporting to the competent authorities whenever a crime has been committed if these reports are likely to trigger an investigation or initiate disciplinary or criminal proceedings.[2]

The Prosecution argues that in this passage the Trial Chamber erroneously overlooked that the relevant findings in the Aleksovski and Brđanin Trial Judgements were made in the context of determining the requirement of effective control, and not in relation to the element of necessary and reasonable measures. The Appeals Chamber recalls, however, that these two elements are interrelated, as the degree of effective control over subordinates can be evidence for the necessary and reasonable measures within the competence of a superior.[3] Consequently, the Trial Chamber was correct in finding that a civilian superior may, under some circumstances, discharge his obligation to punish an offending subordinate by reporting to the competent authorities when a crime has been committed, provided that this report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.[4]

232. After having articulated the correct legal standard for responsibility for failure to punish under Article 7(3) of the Statute, the Trial Chamber found that Boškoski did not incur criminal liability for the crimes that occurred.[5] The Appeals Chamber is satisfied that the relevant findings show that the Trial Chamber applied the correct legal standard in this respect. In particular, the Trial Chamber did not, as alleged by the Prosecution, interpret the requirement of necessary and reasonable measures to punish the criminal acts of subordinates, as meaning that the superior need only provide a report to the competent authorities that is likely to trigger an investigation into the alleged criminal conduct.[6] Instead, the Trial Chamber held that the reports by the MoI to the competent authorities constituted a type of measure that satisfied the legal standard which was correctly identified as the “necessary and reasonable measures”.

234. The Appeals Chamber recalls that under the correct legal standard, a report to the appropriate authorities may be sufficient to discharge the obligation to punish offending subordinates: whether it is indeed sufficient depends on the circumstances of each case.[7] If, for instance, the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, such a report would not be sufficient to fulfil the obligation to punish offending subordinates.

For the Appeal Chamber’s assessment of the Trial Chamber’s factual findings in this regard, see paragraphs 229-236, 237-241, 259-272.

91. It is well established that the Prosecution must prove effective control beyond reasonable doubt in establishing a superior-subordinate relationship within the meaning of Article 7(3) of the Statute.[1] For that purpose, de jure authority is not synonymous with effective control.[2] Whereas the possession of de jure powers may certainly suggest a material ability to prevent or punish criminal acts of subordinates, it may be neither necessary nor sufficient to prove such ability.[3] If de jure power always results in a presumption of effective control, then the Prosecution would be exempted from its burden to prove effective control beyond reasonable doubt.[4] The Appeals Chamber is therefore unable to agree with the Prosecution’s proposed legal presumption.

92. The Appeals Chamber acknowledges that its jurisprudence might have suggested otherwise, using the terms “presume” or “prima facie evidence of effective control”.[5] The import of such language has not always been clear. Although in some common law jurisdictions “prima facie evidence” leads by definition to a burden-shifting presumption,[6] the Appeals Chamber underscores that before the International Tribunal the Prosecution still bears the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates.[7] The possession of de jure authority, without more, provides only some evidence of such effective control. Before the International Tribunal there is no such presumption to the detriment of an accused.

35. The Appeals Chamber considers that, notwithstanding the degree of specificity with which the culpable subordinates must be identified, in any event, their existence as such must be established. If not, individual criminal liability under Article 7(3) of the Statute cannot arise. In the present case, the Trial Chamber established the existence of the “Military Police” as an entity and repeatedly referred to its responsibility and duties.[1] However, when discussing the conduct of the actual members of the Military Police with respect to detention matters, it only identified its successive Commanders, Mirzet Halilović and Atif Krd‘ić.[2] Nowhere in the Trial Judgement did the Trial Chamber mention other potentially culpable members of the Military Police, nor did it suggest that unidentified military policemen were implicated in the crimes at issue. Because the Trial Chamber did not identify any member of the Military Police other than Atif Krd‘ić who would have taken part in the commission of the crimes for which Orić was found responsible, not even by mere reference to their membership in the Military Police, the Prosecution’s argument fails.

177. The Appeals Chamber considers that it need not discuss the merits of this sub-ground of appeal. It only recalls its finding in the Halilović Appeal Judgement that the general duty of commanders to take the necessary and reasonable measures is well rooted in customary international law and stems from their position of authority.[1] The Appeals Chamber stresses again that “‘necessary’ measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and ‘reasonable’ measures are those reasonably falling within the material powers of the superior” and that what constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.[2] The correct legal standard is solely whether the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.[3] While this single standard will have to be applied differently in different circumstances, “the artificial distinction between ‘general’ and ‘specific’ obligations creates a confusing and unhelpful dichotomy.”[4]

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.

338. [The Trial Chamber’s findings could be interpreted as suggesting that the] Trial Chamber believed that, as a legal matter, there could be no liability for unlawful confinement under Article 7(1) without superior responsibility under Article 7(3) being established. Such a legal interpretation is clearly incorrect, as it entwines two types of liability, liability under Article 7(1) and liability under Article 7(3). As emphasised by the Secretary-General’s Report,[1] the two liabilities are different in nature. Liability under Article 7(1) applies to direct perpetrators of crimes and to accomplices. Article 7(3) applies to persons exercising command or superior responsibility. As has already been acknowledged by the Appeals Chamber in another context, these principles are quite separate and neither is dependent in law upon the other. In the Aleksovski Appeal Judgement, the Appeals Chamber rejected a Trial Chamber statement, made in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields, that the accused “cannot be held responsible under Article 7(1) in circumstances where he does not have direct authority over the main perpetrators of the crimes”.[2] There is no reason to believe that, in the context of the offence of unlawful confinement, there would be any special requirement that a position of superior authority be proved before liability under Article  7(1) could be recognised.

266. The Appeals Chamber considers, therefore, that customary law has specified a standard of effective control, although it does not define precisely the means by which the control must be exercised.  It is clear, however, that substantial influence as a means of control in any sense which falls short of the possession of effective control over subordinates, which requires the possession of material abilities to prevent subordinate offences or to punish subordinate offenders, lacks sufficient support in State practice and judicial decisions.  Nothing relied on by the Prosecution indicates that there is sufficient evidence of State practice or judicial authority to support a theory that substantial influence as a means of exercising command responsibility has the standing of a rule of customary law, particularly a rule by which criminal liability would be imposed.

See also paragraphs 258-265.

Having concluded that the Trial Chamber’s findings that Milošević planned and ordered the crimes resulting from the sniping incidents were unreasonable, the Appeals Chamber proceeded to analyse whether he could be held responsible for the same crimes as a superior for having failed to prevent and punish them.

278. However, the Appeals Chamber notes that its findings above do not exclude Milošević being held responsible for the sniping incidents under Article 7(3) of the Statute. The Appeals Chamber notes that the Indictment alleges Milošević’s responsibility for planning and ordering the crimes charged (and in addition or in the alternative, for aiding and abetting the planning, preparation and/or execution of the crimes), as well as for the crimes committed by his subordinates which he knew or had reason to know about and failed to take reasonable and necessary measures to prevent or punish.[1]

279. The Trial Chamber concluded that there was a conflict between the Indictment and the Prosecution Closing Brief as to whether Milošević was charged under Article 7(3) in the alternative, or in addition to, Article 7(1).[2] The Trial Chamber did not pursue the discussion with respect to Milošević’s alleged responsibility under Article 7(3) given that it found him guilty under Article 7(1).[3] The Appeals Chamber recalls that both cumulative and alternative charging on the basis of the same conduct are generally permissible[4] and is satisfied that Milošević’s responsibility under Article 7(3) was correctly pleaded in the present case.

281. The Appeals Chamber is satisfied that, although the Trial Chamber did not convict Milošević under Article 7(3) of the Statute, it made the findings necessary for the establishment of his responsibility under this provision for the sniping incidents. […] Having applied the correct legal framework to the conclusions of the Trial Chamber,[5] the Appeals Chamber is satisfied that Milošević’s responsibility under Article 7(3) of the Statute for having failed to prevent and punish the said crimes committed by his subordinates is established beyond reasonable doubt.

154.    The Čelebići Appeals Judgement defines the “had reason to know” standard by setting out that “[a] showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he ‘had reason to know’ […] This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.”[1]

155.    The Appeals Chamber finds that this case-law shows only that, with regard to a specific offence (torture for example), the information available to the superior need not contain specific details on the unlawful acts which have been or are about to be committed. It may not be inferred from this case-law that, where one offence (the “first offence”) has a material element in common with another (the “second offence”) but the second offence contains an additional element not present in the first, it suffices that the superior has alarming information regarding the first offence in order to be held responsible for the second on the basis of Article 7(3) of the Statute (such as for example, in the case of offences of cruel treatment and torture where torture subsumes the lesser offence of cruel treatment).[2] Such an inference is not admissible with regard to the principles governing individual criminal responsibility. In other words, and again using the above example of the crime of torture, in order to determine whether an accused “had reason to know” that his subordinates had committed or were about to commit acts of torture, the court must ascertain whether he had sufficiently alarming information (bearing in mind that, as set out above, such information need not be specific) to alert him to the risk of acts of torture being committed, that is of beatings being inflicted not arbitrarily but for one of the prohibited purposes of torture. Thus, it is not enough that an accused has sufficient information about beatings inflicted by his subordinates; he must also have information – albeit general – which alerts him to the risk of beatings being inflicted for one of the purposes provided for in the prohibition against torture.

156.    The Appeals Chamber reiterates that an assessment of the mental element required by Article 7(3) of the Statute should, in any event, be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question.[3]

The Appeals Chamber held the following:

412. While the mode of liability of ordering necessarily entails that the person giving the order has a position of authority,[1] the level of authority may still play a role in sentencing as it is not an element of the mode of liability of “ordering” that an accused is high in the chain of command and thus wields a high level of authority.[2] […]

302.    […] Article 6 (3) of the Statute establishes a duty to prevent a crime that a subordinate was about to commit or to punish such a crime after it is committed, by taking “necessary and reasonable measures”. The Appeals Chamber recalls that the interpretation of “necessary and reasonable measures” has been considered in previous cases before ICTY. The Čelebići Trial Judgement found that:

[A] superior should be held responsible for failing to take such measures that are within his material possibility… [T]he lack of formal legal competence to take the necessary measures to prevent or repress the crime in question does not necessarily preclude the criminal responsibility of the superior”.[1]

          The Appeals Chamber agrees with this interpretation and further notes that the Trial Chamber applied a similar approach when it found that:

In order to establish responsibility of a superior under Article 6 (3), it must also be shown that the accused was in a position to prevent or, alternatively, punish the subordinate perpetrators of those crimes. Clearly, the Trial Chamber cannot demand the impossible. Thus, any imposition of responsibility must be based upon a material ability of the accused to prevent or punish the crimes in question.[2]

          Thus, it is the effective capacity of the Accused to take measures which is relevant.  Accordingly, in the assessment of whether a superior failed to act, it is necessary to look beyond formal competence to actual capacity to take measures. […]

307.   […] In the case of specific intent crimes such as genocide, the Appeals Chamber has found that this requires proof that the superior was aware of the criminal intent of the subordinate.[1] In most cases, the superior’s knowledge or reason to know of his subordinate’s genocidal intent will be inferred from the circumstances of the case.[2]

1003.            […] The reporting of subordinates to a superior and rewards by a superior for doing so are indicia relevant to determining effective control but are not a necessary requirement.[1]

[…]

2568.            The Appeals Chamber recalls that the imposition of superior responsibility necessitates a pre‑existing superior-subordinate relationship between the accused and the perpetrators.[2] While proof that an accused is not only able to issue orders but that his orders are actually followed provides an example of effective control,[3] the Appeals Chamber has held that:

[t]he 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 the superior-subordinate relationship, will almost invariably not be satisfied unless such a relationship of subordination exists. However, it is possible to imagine scenarios in which one of two persons of equal status or rank – such as two soldiers or two civilian prison guards – could in fact exercise ‘effective control’ over the other at least in the sense of a purely practical ability to prevent the conduct of the other by, for example, force of personality or physical strength. The Appeals Chamber does not consider the doctrine of command responsibility – which developed with an emphasis on persons who, by virtue of the position which they occupy, have authority over others – as having been intended to impose criminal liability on persons for the acts of other persons of completely equal status.[4]

[…]

2570.            The Appeals Chamber considers that the Trial Chamber’s findings that Kanyabashi ordered soldiers to shoot at Tutsis and that the soldiers obeyed this order may be demonstrative of the fact that Kanyabashi was in a position of authority or influence that could compel the commission of a crime through the execution of his orders.[5] As noted above, these findings could be indicative of the fact that Kanyabashi exercised effective control over the soldiers.[6] However, the Appeals Chamber finds that no reasonable trier of fact could have found that a single order from a civilian authority which was followed by soldiers demonstrated a pre-existing superior‑subordinate relationship, which, in turn, imposed a duty on that civilian authority to prevent the soldiers from committing crimes or to punish them for the crimes committed.[7]