Superior-subordinate relationship
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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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] […] [1] Nizeyimana Appeal Judgement, para. 201. [2] Nizeyimana Appeal Judgement, paras 201, 346. |
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| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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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.
[1] See Ojdanić Decision, paras. 9-10. [2] See Prosecutor v. Milutinović, Sainović & Ojdanić, Case No. IT-99-37-AR72, “Decision on Dragolub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise,” 21 May 2003, para. 9 (“The scope of the Tribunal’s jurisdiction ratione materiae may therefore said to be determined both by the Statute, insofar as it sets out the jurisdictional framework of the International Tribunal, and by customary international law, insofar as the Tribunal’s power to convict an accused of any crime listed in the Statute depends on its existence qua custom at the time this crime was allegedly committed.”). See also Čelebići Appeal Judgment, para. 178. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 16.10.2007 |
HALILOVIĆ Sefer (IT-01-48-A) |
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59. […] the Appeals Chamber recalls that the concept of effective control over a subordinate – in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised – is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute. Against this backdrop, the Appeals Chamber recalls that the necessity of proving that the perpetrator was the “subordinate” of the accused (against whom charges have been brought under Article 7(3) of the Statute) does not require direct or formal subordination. Rather, the accused has to be, by virtue of his position, senior in some sort of formal or informal hierarchy to the perpetrator. 210. In any event, even assuming that Halilović had the ability to contribute to an investigation or to the punishment of the perpetrators of the crimes committed in Grabovica, these abilities can only amount to effective control relevant for Article 7(3) of the Statute if they are the consequence of a relationship of subordination between Halilović and these perpetrators.[2] Indeed, the Appeals Chamber recalls that the material ability to punish and its corresponding duty to punish can only amount to effective control over the perpetrators if they are premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators. In this regard, the ability to exercise effective control in the sense of a material power to prevent or punish necessitates a pre-existing relationship of subordination, hierarchy or chain of command.[3] Of course, the concepts of subordination, hierarchy and chains of command need not be established in the sense of formal organisational structures so long as the fundamental requirement of effective control over the subordinate, in the sense of material ability to prevent or punish criminal conduct, is satisfied.[4] [1] Čelebići Appeal Judgement, para. 256. [2] See supra, para. 59. [3] Čelebići Appeal Judgement, para. 303, where the Appeals Chamber explained that the doctrine of command responsibility “developed with an emphasis on persons who, by virtue of the position which they occupy, have authority over others”. This approach also underlies the reasoning in the Blaškić Appeal Judgement, paras 372ff: the Appeals Chamber first ascertained whether Blaškić had “command authority” over the Military Police (an authority it found he could have for ad hoc missions pursuant to specific requests, paras 375-381), before assessing whether he had effective control over said Military Police (paras 382 ff). In the Kajelijeli Appeal Judgement (paras 85-86), the ICTR Appeals Chamber first recalled that “a superior is one who possesses power or authority over subordinates either de jure or de facto” (para. 85), before outlining the threshold to be reached in establishing a superior-subordinate relationship, namely “that it be found beyond reasonable doubt that the accused was able to exercise effective control over his or her subordinates” (para. 86). See also Blagojević and Jokiæ Appeal Judgement, paras 301-303. [4] Čelebići Appeal Judgement, para. 254. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 29.09.2014 |
NIZEYIMANA Ildéphonse (ICTR-00-55C-A) |
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201. […] 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 under Article 6(3) of the Statute for their failure to prevent the crimes of their subordinates or to punish them.[1] […] […] 346. Furthermore, to the extent that Nizeyimana seeks to show that it was not he, but rather Muvunyi, who had the authority and material ability to prevent crimes or punish perpetrators, the Appeals Chamber considers that proof of Muvunyi’s authority does not cast doubt on that of Nizeyimana, as such power is not necessarily exclusive.[2] […] [1] Cf. Bagosora and Nsengiyumva Appeal Judgement, paras. 491, 494, 495. [2] Cf. Bagosora and Nsengiyumva Appeal Judgement, paras. 491, 494, 495. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 24.03.2000 |
ALEKSOVSKI Zlatko (IT-95-14/1-A) |
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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). [1] Appellant’s Brief [Zlatko Aleksovski’s Appellant’s Brief in Opposition to the Condemnatory Part of the Judgement dated 25 June 1999, Case No.: IT-95-14/1-A, 24 September 1999], para. 22. [2] Judgement, paras. 101-106. [3] The Appellant relies in this regard on the 1998 ICC Statute in particular: Appellant’s Brief, para. 17. Article 28 of the Statute clearly envisages responsibility for both military and civilian superiors. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 03.07.2002 |
BAGILISHEMA Ignace (ICTR-95-IA-A) |
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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. […] [1] Čelebići Appeal Judgement, para. 192: “[u]nder article 7(3), a commander or superior is thus the one who possesses the power or the authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the perpetrators of the crime after the crime is committed.” [2] [Čelebići Appeal Judgement], para. 193. [3] [Čelebići Appeal Judgement], para. 198. [4] Aleksovski Appeal Judgement, para. 76 in fine. The ICTY Appeals Chamber took the view “that it does not matter whether [the Accused] was a civilian or military superior, if it can be proved that […] he had the powers to prevent or to punish in terms of Article 7(3).” [5] Emphasis not in the original. Čelebići Trial Judgement, para. 378, affirmed on appeal in the Čelebići Appeal Judgement, para. 197 in fine. The ICTY Appeals Chamber considered in para. 197 of the Čelebići Appeal Judgement that “[i]n determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. This would equally apply in the context of criminal responsibility. 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. The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met. Mučić’s argument that de facto status must be equivalent to de jure status for the purposes of superior responsibility is misplaced. Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts. The Appeals Chamber therefore agrees with the Trial Chamber’s conclusion […]” (footnotes omitted). [6] Musema Trial Judgement, para. 135. The Trial Chamber based its finding on earlier case-law established in the Akayesu Trial Judgement (para. 491). [7] Čelebići Appeal Judgement, paras. 196, 197 and 256. The ICTY Appeals Chamber considered that “‘Command’, a term which does not seem to present particular controversy in interpretation, normally means powers that attach to a military superior, whilst the term ‘control’, which has a wider meaning, may encompass powers wielded by civilian leaders. In this respect, the Appeals Chamber does not consider that the rule is controversial that civilian leaders may incur responsibility in relation to acts committed by their subordinates or other persons under their effective control. Effective control has been accepted, including in the jurisprudence of the Tribunal, as a standard for the purposes of determining superior responsibility […]” (footnotes omitted) (para. 196). It further held that “The concept of effective control over a subordinate - in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised - is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute” (footnotes omitted) (para. 256). [8] Trial Judgement, para. 183. [9] See in particular paras. 163, 165, 183, 186 and 199 of the Trial Judgement. [10] The Appeals Chamber held in para. 192 of its Čelebići Appeal Judgement that “under Article 7(3), a commander or a superior is thus 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 perpetrators of the crime after the crime is committed”. [11] Čelebići Appeal Judgement, para.198. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 14.12.2011 |
BAGOSORA et al. (Military I) (ICTR-98-41-A) |
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295. […] The only demonstrable link the Trial Chamber found between Nsengiyumva and the civilian attackers was the “coordination between soldiers and civilians” reflected in Witness DO’s evidence.[1] However, the Appeals Chamber is not convinced that coordination between soldiers and civilians is sufficient to establish that a superior-subordinate relationship existed between Nsengiyumva and the civilian attackers.[2] Accordingly, the Appeals Chamber finds that the Trial Chamber erred in finding that the civilian attackers were Nsengiyumva’s subordinates within the meaning of Article 6(3) of the Statute. [1] Trial Judgement, para. 1065. See also ibid., para. 2078. [2] In this regard, the Appeals Chamber recalls that a material ability to prevent and punish may also exist outside a superior-subordinate relationship. See Halilović Appeal Judgement, para. 59 (“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.”). |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 30.06.2014 |
BIZIMUNGU Augustin (ICTR-00-56B-A) |
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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. [1] See Halilović Appeal Judgement, para. 210. [2] See Trial Judgement, paras. 1984-1986. [3] See Trial Judgement, paras. 1978-1983. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 07.07.2006 |
GACUMBITSI Sylvestre (ICTR-2001-64-A) |
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The Appeals Chamber recalled that no formal superior-subordinate relationship is required for ordering under Article 6(1). It then held that all what is required is authority to order: 182. Thus, after finding that no formal superior-subordinate relationship existed, the Trial Chamber proceeded to consider whether, under the circumstances of the case, the Appellant’s statements nevertheless were perceived as orders. This is in accordance with the most recent judgements of the Appeals Chamber. In the Semanza Appeal Judgement, the Appeals Chamber explained: As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order.[1] The Appeals Chamber notes that this element of “ordering” is distinct from that required for liability under Article 6(3) of the Statute, which does require a superior-subordinate relationship (albeit not a formal one but rather one characterized by effective control).[2] Ordering requires no such relationship -- it requires merely authority to order, a more subjective criterion that depends on the circumstances and the perceptions of the listener. (emphasis added). [1] Semanza Appeal Judgement, para. 361, referring to Kordić and Čerkez Appeal Judgement, para. 28. See also Kamuhanda Appeal Judgement, para. 75 (“To be held responsible under Article 6(1) of the Statute for ordering a crime, on the contrary, it is sufficient that the accused have authority over the perpetrator of the crime, and that his order have a direct and substantial effect on the commission of the illegal act.” (internal citations omitted)). [2] See supra section III.B.3. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 04.12.2001 |
KAYISHEMA & RUZINDANA (ICTR-95-1-A) |
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294. Article 6(3) of the Statute on “Individual criminal responsibility”, provides that: The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. With respect to the nature of the superior-subordinate relationship, the Appeals Chamber refers to the relevant principles expressed in the Čelebići Appeal Judgement in relation to the identical provision in Article 7(3) of ICTY Statute, as follows: (i) [A] superior is “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 perpetrators of the crime after the crime is committed”.[1] Thus, “[t]he power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment.”[2] (ii) “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. [T]he ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and […] the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met.”[3] (iii) “The showing of effective control is required in cases involving both de jure and de facto superiors.” This Appeals Chamber accepts these statements and notes that the Trial Chamber, in its Judgement, applied a similar approach when it found that: [E]ven where a clear hierarchy based upon de jure authority is not present, this does not prevent the finding of command responsibility. Equally, as we shall examine below, the mere existence of de jure power does not always necessitate the imposition of command responsibility. The culpability that this doctrine gives rise to must ultimately be predicated upon the power that the superior exercises over his subordinates in a given situation.[5] Thus, “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”.[6] Therefore, Kayishema’s argument that without de jure authority, there can be no subordinate and hence, no de facto authority, is misconceived. This question turns on whether the superior had effective control over the persons committing the alleged crimes. The existence of effective control may be related to the question whether the accused had de jure authority. However, it need not be; such control or authority can have a de facto or a de jure character.[7] [1] Čelebići Appeal Judgement, para. 192. [2] Ibid., para. 193. [3] Ibid., para. 197. [4] Ibid., para. 196. [5] Trial Judgement, para. 491. [6] Čelebići Appeal Judgement, para. 198. [7] Čelebići Trial Judgement, para. 378, referred to and agreed with in the Čelebići Appeal Judgement, para. 196. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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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] [1] The Appeals Chamber recalls that, in the Kajelijeli Appeal Judgement, the Appeals Chamber upheld the Trial Chamber’s reliance, with respect to establishing Kajelijeli’s de facto superior position over Interahamwe, on evidence that the Interahamwe reported to him the details of the massacres they participated in following his instructions to kill Tutsis and orders to dress up and start work. However, the Interahamwe’s daily reporting was only considered as one of several relevant evidentiary indicia of authority in the circumstances of the case and was not considered a necessary element for the establishment of superior authority in general. See Kajelijeli Appeal Judgement, para. 90. See also Ndahimana Appeal Judgement, para. 53, referring to Blaškić Appeal Judgement, para. 69. [2] Halilović Appeal Judgement, para. 210 (“Indeed, the Appeals Chamber recalls that the material ability to punish and its corresponding duty to punish can only amount to effective control over the perpetrators if they are premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators. In this regard, the ability to exercise effective control in the sense of a material power to prevent or punish necessitates a pre-existing relationship of subordination, hierarchy or chain of command.”) (internal reference omitted). See also Bizimungu Appeal Judgement, para. 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.”) (internal reference omitted). [3] See Halilović Appeal Judgement, para. 207. See also Blaškić Appeal Judgement, para. 69. [4] See Čelebići Appeal Judgement, para. 303 (internal reference omitted). [5] This is the type of authority that could allow for the imposition of ordering liability under Article 6(1) of the Statute. See Semanza Appeal Judgement, para. 361 (“Thus, in its definition, the Trial Chamber did not require proof of a formal superior-subordinate relationship for the Appellant to be found responsible for ordering. All that it required was the implied existence of a superior-subordinate relationship. The Trial Chamber’s approach in this case is consistent with recent jurisprudence of the Appeals Chamber. As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of ‘ordering’ is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order. The Trial Chamber thus committed no legal error in its enunciation of the elements of ordering.”) (internal references omitted). [6] See supra, para. 2568. [7] The Appeals Chamber stresses that only through an accused’s superior position does the corresponding duty arise to exercise effective control to prevent the crimes of subordinates or punish them. See Halilović Trial Judgement, para. 87 (“[I]nternational humanitarian law entrusts commanders with a role of guarantors of laws dealing with humanitarian protection and war crimes, and for this reason they are placed in a position of control over the acts of their subordinates, and it is this position which generates a responsibility for failure to act.”). Cf. Bagilishema Appeal Judgement, paras. 33, 35. |
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