M.2. The perpetrator was a military commander or a person effectively acting as a military commander

M.2.1. The perpetrator was a military commander; OR

M.2.2. The perpetrator was effectively acting as a military commander of the forces that committed the crime

M.2. The perpetrator was a military commander or a person effectively acting as a military commander

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 8-14:

"8. Jadranko Prlić was appointed head of the Department of Finance of the HVO by Mate Boban on 15 May 1992, then, starting on 14 August 1992, President of the HVO, defined at the time as the supreme executive, administrative and military body of the HZ H-B. In August 1993, he became prime minister of HR H-B, with his functions remaining largely the same, according to the Prosecution, to those he held as President of the HVO. The Prosecution contends that for most of 1992 and 1993, Jadranko Prlić was, other than Mate Boban, the most powerful official in the political and governmental structures of Herceg-Bosna/HVO, and that, by late 1993, he effectively eclipsed Mate Boban."

"9. Bruno Stojić headed the HVO Department (later Ministry) of Defence from 3 July 1992 to November 1993. On 16 December 1993, he was named head of the Office for the Production and Sales of Weapons and Military Equipment of the HR H-B. The Prosecution submits that, as Head of the Department (later, the Ministry) of Defence of the HVO, Bruno Stojić was that body‟s top political and management official and was in charge of the armed forces of Herceg-Bosna/HVO."

"10. According to the Indictment, Slobodan Praljak and Milivoj Petković held high military office within the HZ H-B, and then within the HR H-B, at the time of these events."

"11. From approximately March 1992 until July 1993, Slobodan Praljak served, according to the Prosecution, as a senior HV officer, and as Assistant Minister of Defence of Croatia, and was the senior representative of the Croatian Ministry of Defence within the government and in dealings with the armed forces of HercegBosna/HVO, exercising de facto command over the armed forces of the HVO during this period. He subsequently served as the military head of the Herceg-Bosna/HVO armed forces, with the title “Commander of the Main Staff”, from approximately 24 July 1993 to 9 November 1993."

"12. Milivoj Petković was assigned, on or about 14 April 1992, to the command of the HV Forward Command Post in Grude in BiH, which was or became the senior command staff of the HVO armed forces. Milivoj Petković thus served as the military head of the armed forces of Herceg-Bosna/HVO, with the title Chief of the Main Staff from April 1992 until about 24 July 1993. From on or about 24 July 1993 until April 1994, he became the deputy overall commander of the HVO armed forces. The Prosecution submits that, through his positions and functions, Milivoj Petković exercised de jure and/or de facto command and control over the HercegBosna/HVO armed forces."

"13. According to the Indictment, in his various positions and functions at the times relevant to the Indictment, Valentin Ćorić played a central role in the establishment, administration and operation of the HVO Military Police, specifically through his position as Chief of the Military Police Administration within the Department, later the Ministry, of Defence of the HVO from April 1992 until at least November 1993. The Prosecution alleges that he exercised de jure and/or de facto command and control of the HVO Military Police, which played an important role in administering Herceg-Bosna/HVO prisons and detention facilities. In November 1993, he was appointed HR H-B Minister of the Interior."

"14. Lastly, the Indictment says that Berislav Pušić played a decisive role within the HVO in the exchange of prisoners and the running of HVO detention facilities and prisons in 1992-1993: on 22 April 1993, Valentin Ćorić assigned him to act on behalf of the HVO Military Police in exchanging BiH Muslims detained by the HVO; on 5 July 1993, he was appointed head of the Service for the Exchange of Prisoners and Other Persons by Jadranko Prlić; from 6 August 1993 onwards, Bruno Stojić appointed him president of the commission to take charge of the Herceg-Bosna/HVO detention facilities and prisons. Bruno Stojić also appointed him HVO liaison officer to UNPROFOR on 11 May 1993."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 580:

"580. In order to establish that a superior-subordinate relationship exists between the accused and the perpetrator of an underlying crime, it must be proven that he exercised “effective control” over the perpetrator. A superior is someone 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”. In assessing whether there is a superior-subordinate relationship it does not matter whether the accused was a civilian or military superior. An evaluation of effective control is more a question of fact than of law and requires consideration of factors that show “that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate.”"

M.2.1. The perpetrator was a military commander; OR

M.2.1.1. ICC

There is no relevant case law yet.

M.2.1.2. ICTY

On subordinates who aided and abetted others to commit crimes, the Orić trial chamber of the ICTY held that:

"[…] decisive weight must be given to the purpose of superior criminal responsibility: it aims at obliging commanders to ensure that subordinates do not violate international humanitarian law, either by harmful acts or by omitting a protective duty. This enforcement of international humanitarian law would be impaired to an inconceivable degree if a superior had to prevent subordinates only from killing or maltreating in person, while he could look the other way if he observed that subordinates ‘merely’ aided and abetted others in procuring the same evil."[1]

On omission, the Orić trial chamber held further:

"[…] a superior’s criminal responsibility for crimes of subordinates is not limited to the subordinates’ active perpetration or participation, but also comprises their committing by omission."[2]

M.2.1.3. ICTR

The Nahimana et al. Appeals Chamber held:

"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"[3]

"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,’ provided, of course, that all the other elements of such responsibility have been established."[4]

Moreover, the Nahimana et al. Appeals Chamber held that:

"[I]t is not necessary for the Appellant’s subordinates to have killed Tutsi civilians: the only requirement is for the Appellant’s subordinates to have committed a criminal act provided for in the Statute, such as direct and public incitement to commit genocide."[5]

M.2.2. The perpetrator was effectively acting as a military commander of the forces that committed the crime

M.2.2.1. ICC

The Bemba Gombo Pre-Trial Chamber stated in the Confirmation of Charges Decision that:

"Article 28 of the Statute is drafted in a manner that distinguishes between two main categories of superiors and their relationships - namely, a military or military- like commander (paragraph (a)) and those who fall short of this category such as civilians occupying de jure and de facto positions of authority (paragraph (b))."[6]

"With respect to a ‘person effectively acting as a military commander’, the Chamber considers that this term is meant to cover a distinct as well as a broader category of commanders. This category refers to those who are not elected by law to carry out a military commander's role, yet they perform it de facto by exercising effective control over a group of persons through a chain of command."[7]

"[…] this category of military-like commanders may generally encompass superiors who have authority and control over regular government forces such as armed police units or irregular forces (non-government forces) such as rebel groups, paramilitary units including, inter alia, armed resistance movements and militias that follow a structure of military hierarchy or a chain of command."[8]

M.2.2.2. ICTY

The Aleksovski Trial Chamber held:

"Superior responsibility is thus not reserved for official authorities. Any person acting de facto as a superior may be held responsible under Article 7(3)."[9]

The Kordić and Čerkez Trial Chamber held:

"The capacity to sign orders will be indicative of some authority. The authority to issue orders, however, may be assumed de facto. Therefore in order to make a proper determination of the status and actual powers of control of a superior, it will be necessary to look to the substance of the documents signed and whether there is evidence of them being acted upon. For instance in the Ministries case, the court found that the mere appearance of an official’s name on a distribution list attached to an official document could simply provide evidence that it was intended that he be provided with the relevant information, and not that ‘those whose names appear on such distribution lists have responsibility for, or power and right of decision with respect to the subject matter of such document.’ Similarly, direct signing of release orders would demonstrate authority to release. An accused’s signature on such a document, however, may not necessarily be indicative of actual authority to release as it may be purely formal or merely aimed at implementing a decision made by others."[10]

Moreover the Trial Chamber in the Kordić and Čerkez the Chamber held:

"A superior status, when not clearly spelled out in an appointment order, may be deduced though an analysis of the actual tasks performed by the accused in question. This was the approach taken by the Trial Chamber in Nikolic. Evidence that an accused is perceived as having a high public profile, manifested through public appearances and statements, and thus as exercising some authority, may be relevant to the overall assessment of his actual authority although not sufficient in itself to establish it, without evidence of the accused’s overall behaviour towards subordinates and his duties. Similarly, the participation of an accused in high-profile international negotiations would not be necessary in itself to demonstrate superior authority. While in the case of military commanders, the evidence of external observers such as international monitoring or humanitarian personnel may be relied upon, in the case of civilian leaders evidence of perceived authority may not be sufficient, as it may be indicative of mere powers of influence in the absence of a subordinate structure."[11]

Similarly, the Perišić Trial Chamber held that command responsibility:

"also includes responsibility, for example, for military troops who have been temporarily assigned to a military commander, if the troops were under the effective control of that commander at the time when the acts charged in the indictment were committed. […]The superior does not need to know the exact identity of those subordinates who committed the crimes, to be held responsible under Article 7(3) of the Statute."[12]

M.2.2.3. ICTR

The Kajelijeli Appeals Chamber held:

"The Appeals Chamber recalls that a superior is one who possesses power or authority over subordinates either de jure or de facto; it is not necessary for that power or authority to arise from official appointment."[13]

In the Muvunyi Trial Judgment the Chamber found:

"As stated by the Appeals Chamber in the Celebici Judgement, the absence of a formal appointment is not fatal to a finding of criminal responsibility, provided it can be shown that the superior exercised effective control over the actions of his subordinates."[14]