M.3. The perpetrator had effective command and control, or effective authority and control over the forces that committed the crime

Prosecutor v. Momčilo Perišić, Case No. IT-04-81-A, Judgement (AC), 28 February 2013, paras. 87-88:

87. The Appeals Chamber recalls that a superior cannot be held criminally liable under Article 7(3) of the Statute unless he or she exercised effective control over his or her subordinates. Indicators 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”. The Appeals Chamber further recalls that an accused may not be held liable under Article 7(3) of the Statute for failure to punish crimes that were committed by a subordinate before the accused assumed command over the subordinate.

88. As a threshold matter, the Appeals Chamber first addresses Perišić’s assertion that, by not pursuing charges for his failure to prevent the Zagreb Crimes, the Prosecution conceded that he lacked effective control over the Zagreb Perpetrators. The Appeals Chamber recalls that the duty to prevent is distinct from the duty to punish, involving different conduct committed at different times. In addition, the ability to prevent a crime is not necessarily a prerequisite to proving effective control. In these circumstances, the Appeals Chamber is not persuaded that the Prosecution conceded that Perišić lacked effective control over the Zagreb Perpetrators.

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 238-244: 

"238. A superior-subordinate relationship exists (i) when the subordinate who committed the crime is subject to the effective control of the accused, that is to say, (ii) when the accused has the material ability to prevent the crime or punish the criminally responsible subordinate."

"239. A charge of superior responsibility first requires that a crime, as provided for in Articles 2 through 5 of the Statute, be committed by a subordinate. In this respect, it must be stressed that the superior is responsible for not having prevented or punished the commission of a crime by his subordinate whether that subordinate physically carried out the crime or participated in it in the modes contemplated under Article 7(1) of the Statute, by action or omission. The subordinates need not be identified by name; rather it is enough if the “category” to which they belong as a group is specified, or even their official duties. That the link of subordination between the superior and his subordinate passes through other intermediate subordinates matters little under the law. Several superiors may, as a result, be held responsible for one and the same crime committed by a subordinate, for it is not necessary that the superior-subordinate relationship be direct or immediate. The Chamber notes that, in its Final Trial Brief, the Petković Defence raised the fact that the existence of two concurrent chains of command would make it impossible to determine who was wielding effective control over the perpetrators of the crime. In this regard, the Chamber recalls the case-law of the Tribunal, whereby if it has been established that the superior is responsible under Article 7(3) of the Statute, the concurrent individual criminal responsibility of the other superiors will not release him from his responsibility. As a consequence, the Chamber rejects the argument of the Petković Defence in its Final Trial Brief."

"240. To hold an accused responsible for crimes committed by a subordinate, a superior-subordinate relationship must be established, which results from the status of the superior, whether de jure or de facto. The superior-subordinate relationship manifests itself in the exercise of effective control over subordinates. That control has been defined as “the material ability to prevent or punish criminal conduct” and pertains to every superior, whether a military chief or any civilian person vested with authority within a hierarchy, even a leader of a paramilitary group. Influence alone is not enough. Lastly, the Chamber adopts the clarification provided by the Halilović Chamber that the commanding officer’s responsibility applies to every commanding officer in the chain, regardless of their place in the hierarchy, and comprises responsibility for acts committed by troops placed temporarily under his command, provided that he wielded effective control over these troops at the time the crimes were committed."

"241. Responsibility under Article 7(3) of the Statute may attach as a result of the de jure or de facto exercise of the position of a commander. Authority under law is not synonymous with effective control in matters of superior responsibility – the first cannot be equated with the second. It is the same for de facto authority: to be held criminally responsible for the acts of his subordinates, the de facto superior’s authority must be similar to that held by a de jure superior. In other words, as the Praljak Defence underscores in its Final Trial Brief, the requisite degree of authority or de facto control must be commensurate with that required for de jure control."

"242. Therefore, it cannot be said that pleading the exercise of both de jure and de facto power amounts to pleading effective control. Although the de jure exercise of the responsibilities of a commander may suggest a material ability to prevent or punish criminal conduct, it is not sufficient to prove such ability. Not only must it be established on a case-by-case basis that the superior was able to give orders but also that these orders were actually followed. The presumption of effective control is not irrebuttable in this regard. It is actually necessary to show that the position held by the accused at the time the crime was committed by the subordinate carries the power and authority that ordinarily accompany such a position. By the same token, the members of a self-proclaimed government who hold de facto power may be held responsible as superiors if they have the material ability to issue orders and have them executed by their subordinates."

"243. The Chamber observes that the Prlić Defence noted that, in the context of an armed conflict, de facto authority may be of greater importance than de jure authority. The Chamber subscribes to the jurisprudence of the Tribunal in this regard, whereby, in cases where a civilian leader has more extensive powers than those formally vested in him, this de facto situation will be more important and more relevant than the de jure situation that was formally bestowed upon the superior but does not reflect his actual powers. Likewise, the Chamber agrees with the view of the Milutinović Judgement, wherein the Trial Chamber held that it was the nature of the authority wielded, rather than the source of such authority, that mattered."

"244. The indicators of effective control depend on the evidence and serve only to show that the accused had the power to prevent crimes and punish their perpetrators, or when necessary, to initiate criminal proceedings against such persons. Among the factors which support a finding that an accused was vested with authority and wielded effective control, one may refer inter alia to: his formal position, the procedure whereby he was appointed, his de jure or de facto authority to issue orders, his authority to order combat actions and re-subordination, whether his orders were actually followed, whether materiel and human resources were available to him, and the authority he had to enforce disciplinary measures."

Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-A, Judgment (AC) 29 September 2014, para. 342:

"342. The Appeals Chamber recalls that the threshold for a superior-subordinate relationship within the meaning of Article 6(3) of the Statute is the possession of effective control on the part of the superior, in the sense of a material ability to prevent or punish criminal conduct by his subordinate(s). It is settled jurisprudence that the test for effective control is the material ability to prevent or punish the proven offences."

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, paras. 580-583:

"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.”"

Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T, Judgement (TC), 11 May 2011, para.1917:

1917. A superior-subordinate relationship is established by showing a formal or informal hierarchical relationship. The superior must have the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates. At the time that the offence is committed, the superior must have had effective control in terms of the material ability to prevent the commission of the offence or to punish the principal offenders. Effective control is not satisfied by a showing of general influence on the part of the Accused.

Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, para. 378:

"378. The Appeals Chamber recalls that the essential element of a superior-subordinate relationship within the meaning of Article 6(3) of the Statute is the possession of effective control on the part of the superior in the sense of a material ability to prevent or punish criminal conduct by his subordinate(s). The Trial Chamber did not expressly find that Sagahutu exercised effective control over Corporal Nzeyimana. However, the Appeals Chamber considers that such a finding was implicit in the Trial Chamber’s conclusions that Corporal Nzeyimana was a member of Squadron A and Sagahutu had de jure and de facto authority over him."

Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A, Judgement (AC), 30 June 2014, para. 133: 

"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. 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 Ecole des sciences infirmières de Kabgayi (ESI), the Musambira Commune office and dispensary, the Butare Prefecture office and EER, or the Cyangugu stadium. 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. 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."

M.3.1 The perpetrator had effective command and control; OR

M.3.1.1. ICC

The Pre-Trial Chamber in the Bemba Gombo case held in its Confirmation of Charges Decision:

"The Chamber observes that article 28(a) of the Statute refers to the terms ‘effective command and control’ or ‘effective authority and control’ as applicable alternatives in situations of military commanders strictu sensu and military-like commanders. In this regard, the Chamber considers that the additional words ‘command’ and ‘authority’ under the two expressions has no substantial effect on the required level or standard of ‘control’. This is apparent from the express language of the two terms, which uses the words ‘effective’ and ‘control’ as a common denominator under both alternatives. This conclusion is also supported by a review of the travaux préparatoires of the Statute, in which it was acknowledged by some delegations that the addition of the term ‘effective authority and control’ as an alternative to the existing text was ‘unnecessary and possibly confusing. This suggests that some of the drafters believed that the insertion of this expression did not add or provide a different meaning to the text."[1]

"In this context, the Chamber underlines that the term ‘effective command’ certainly reveals or reflects ‘effective authority’. Indeed, in the English language the word ‘command’ is defined as ‘authority, especially over armed forces’, and the expression ‘authority’ refers to the ‘power or right to give orders and enforce obedience. However, the usage of the disjunctive ‘or’ between the expressions ‘effective command’ and ‘effective authority’ calls the Chamber to interpret them as having close, but distinct meanings in order to remedy the appearance of redundancy in the text. Thus, the Chamber is of the view that although the degree of ‘control’ required under both expressions is the same as argued in paragraph 412 above, the term ‘effective authority’ may refer to the modality, manner or nature, according to which, a military or military-like commander exercise ‘control’ over his forces or subordinates."[2]

"That said, the Chamber concurs with the view adopted by the ad hoc tribunals that indicia for the existence of effective control are ‘more a matter of evidence than of substantive law’, depending on the circumstances of each case, and that those indicia are confined to showing that the suspect had the power to prevent, repress and/or submit the matter to the competent authorities for investigation."[3]

Further the Bemba Gombo Confirmation of Charges Decision reads:

"As for the temporal requirement, considering two different opinions of the majority and minority, the court referred to the wordings of Art. 28(a) Rome Statute and held that according to article 28(a) of the Statute, the suspect must have had effective control at least when the crimes were about to be committed."[4]

The Decision on the Confirmation of Charges in the Bemba Gombo case reads:

"[…] although the degree of ‘control’ required under both expressions is the same as argued in paragraph 412 above, the term ‘effective authority’ may refer to the modality, manner or nature, according to which, a military or military-like commander exercise ‘control’ over his forces or subordinates."[5]

"[…] ‘effective control’ is generally a manifestation of a superior-subordinate relationship between the suspect and the forces or subordinates in a de jure or de facto hierarchal relationship (chain of command). As the ICTY Appeals Chamber stated in the Celebici case: ’[t]he ability to exercise effective control [...] will almost invariably not be satisfied unless such a relationship of subordination exists’."[6]

"The concept of ‘effective control’ is mainly perceived as ‘the material ability [or power] to prevent and punish’ the commission of offences, […]. In the context of article 28(a) of the Statute, ‘effective control’ also refers to the material ability to prevent or repress the commission of the crimes or submit the matter to the competent authorities. To this end, this notion does not seem to accommodate any lower standard of control such as the simple ability to exercise influence over forces or subordinates, even if such influence turned out to be substantial."[7]

"[…] indicia for the existence of effective control are ‘more a matter of evidence than of substantive law’, depending on the circumstances of each case, and that those indicia are confined to showing that the suspect had the power to prevent, repress and/or submit the matter to the competent authorities for investigation."[8]

Several factors have been summarized by the Bemba Gombo Pre-Trial Chamber, which may indicate the existence of the authority and effective control:

"(i) the official position of the suspect; (ii) his power to issue or give orders; (iii) the capacity to ensure compliance with the orders issued (i.e., ensure that they would be executed); (iv) his position within the military structure and the actual tasks that he carried out; (v) the capacity to order forces or units under his command, whether under his immediate command or at a lower levels, to engage in hostilities; (vi) the capacity to re-subordinate units or make changes to command structure; (vii) the power to promote, replace, remove or discipline any member of the forces; (viii) the authority to send forces where hostilities take place and withdraw them at any given moment."[9]

M.3.1.2. ICTY

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"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."

581. Factors to be considered in assessing whether a superior exercised effective control include, inter alia, (i) his capacity to issue orders and whether those orders were in fact followed, (ii) the authority to issue disciplinary measures, and (iii) the power to promote personnel and terminate positions held. The superior’s de jure authority "constitutes prima facie a reasonable basis for assuming that he has effective control over his subordinates" but still requires the Prosecution to prove that he exercised effective control.

582. In assessing effective control what is relevant is whether the "superior has the material ability to prevent or punish the criminally responsible subordinate". In this regard the Appeals Chamber has held: "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."

583. Furthermore, for the purposes of liability under Article 7(3), the accused need not know the exact identity of a subordinate perpetrator." [10]

In the Perišić Appeal Judgement, the Appeals Chamber held that:

"87. The Appeals Chamber recalls that a superior cannot be held criminally liable under Article 7(3) of the Statute unless he or she exercised effective control over his or her subordinates. Indicators 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". The Appeals Chamber further recalls that an accused may not be held liable under Article 7(3) of the Statute for failure to punish crimes that were committed by a subordinate before the accused assumed command over the subordinate.

88. As a threshold matter, the Appeals Chamber first addresses Perišić’s assertion that, by not pursuing charges for his failure to prevent the Zagreb Crimes, the Prosecution conceded that he lacked effective control over the Zagreb Perpetrators. The Appeals Chamber recalls that the duty to prevent is distinct from the duty to punish, involving different conduct committed at different times. In addition, the ability to prevent a crime is not necessarily a prerequisite to proving effective control. In these circumstances, the Appeals Chamber is not persuaded that the Prosecution conceded that Perišić lacked effective control over the Zagreb Perpetrators." [302]

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)."[11]

According to the Aleksovski Trial Judgment:

"Control is: ‘the commander is in the formal and actual position of having the authority over the subordinate persons’ and if ‘authority is the result of his or her function in the military or civil or political hierarchy"’"[12]

The Trial Chamber in the Mucić et al. ("Čelebići") Trial Judgment found:

"Accordingly, it is the Trial Chamber's view that, in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission 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."[13]

Regarding effective control, the Blaškić Trial Chamber of the ICTY stated that:

"[…] a commander may incur criminal responsibility for crimes committed by persons who are not formally his (direct) subordinates, insofar as he exercises effective control over them."[14]

Further the Blaškić Trial Chamber held:

"[…] that the test of effective control exercised by the commander implies that more than one person may be held responsible for the same crime committed by a subordinate."[15]

The Appeals Chamber in the Mucić et al. ("Čelebići") case stated:

"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."[16]

Further the Mucić et al. ("Čelebići") Appeals Chamber held:

"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."[17]

Moreover the Mucić et al. ("Čelebići") Appeals Chamber held:

"The Appeals Chamber understands the necessity to prove that the perpetrator was the ‘subordinate’ of the accused, not to import a requirement of direct or formal subordination but to mean that the relevant accused is, by virtue of his or her position, senior in some sort of formal or informal hierarchy to the perpetrator. 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 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."[18]

The Trial Chamber in the Kunarac et al. Trial Judgment stated:

"Depending on the circumstances, a commander with superior responsibility under Article 7(3) may be a colonel commanding a brigade, a corporal commanding a platoon or even a rankless individual commanding a small group of men."[19]

In the Naletilić and Martinović ("Tuta and ?tela") trial judgment it was found that:

"Even a rank-less individual commanding a small group of men can have superior responsibility. When the subordinate perpetrator was under the command of two superiors, both of them may be held responsible for the same crime." "[20]

The Aleksovski Trial Chamber stated:

"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). The decisive criterion in determining who is a superior according to customary international law is not only the accused’s formal legal status but also his ability, as demonstrated by his duties and competence, to exercise control."[21]

The Trial Chamber of the ICTY in the Blaškić case held:

"Although the Trial Chamber agrees with the Defence that the ‘actual ability’ of a commander is a relevant criterion, the commander need not have any legal authority to prevent or punish acts of his subordinates. What counts is his material ability, which instead of issuing orders or taking disciplinary action may entail, for instance, submitting reports to the competent authorities in order for proper measures to be taken."[22]

The Kunarac Trial Judgment reads:

"Both those permanently under an individual’s command and those who are so only temporarily or on an ad hoc basis can be regarded as being under the effective control of that particular individual. The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination between the members of a unit and its commander. To be held liable for the acts of men who operated under him on an ad hoc or temporary basis, it must be shown that, at the time when the acts charged in the Indictment were committed, these persons were under the effective control of that particular individual."[23]

The Mucić et al. ("Čelebići") Trial Chamber agrees that:

"[I]n order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences."[24]

The Appeals Chamber in the Halilović Case held:

"Regarding the first of these elements, 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. 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. 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."[25]

The Mucić et al. ("Čelebići") Appeals Chamber stated:

"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."[26]

"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."[27]

Moreover the Mucić et al. ("Čelebići") Appeals Chamber held:

"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."[28]

The Kordić and Čerkez trial chamber held that:

"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."[29]

Concerning the identification of the person(s) who committed the crime, in the Orić Trial Chamber states:

"With respect to the Defence’s submission requiring the ‘identification of the person(s) who committed the crimes’, the Trial Chamber finds this requirement satisfied if it is at least proven that the individuals who are responsible for the commission of the crimes were within a unit or a group under the control of the superior regarding the ‘identification of the person(s) who committed the crimes’, the Trial Chamber finds this requirement satisfied if it is at least proven that the individuals who are responsible for the commission of the crimes were within a unit or a group under the control of the superior."[30]

The Perišić Trial Chamber recalls the factors held at the ICC:

"Factors indicative of an individual’s position of authority and effective control may include: the procedure used for appointment of an accused, his official position, his ability to issue orders and whether these are in fact followed, the power to order combat action and re-subordinate units, the availability of material and human resources, the authority to apply disciplinary measures, the authority to promote, demote or remove particular soldiers and the capacity to intimidate subordinates into compliance."[31]

M.3.1.3. ICTR

The Karera et al. Trial Chamber found :

"With respect to the first element, a superior-subordinate relationship is established by showing a formal or informal hierarchical relationship. The superior must have possessed the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates. The superior must have had effective control over the subordinates at the time the offence was committed. Effective control means the material ability to prevent the commission of the offence or to punish the principal offenders. This requirement is not satisfied by a simple showing of an accused individual’s general influence."[32]

The Kayishema and Runzindana Trial Chamber found:

"However, the jurisprudence on this issue clearly reflects the need to look beyond simply the de jure authority enjoyed in a given situation and to consider the de facto power exercised. The Trial Chamber in the Čelebići case stated that in the fact situation of the Former Yugoslavia, where the command structure was often ambiguous and ill-defined, ‘[…] persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so. Thus the Trial Chamber accepts the […] proposition that individuals in positions of authority, whether civilian or military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as their de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude impositions of such responsibility’."[33]

The Trial Chamber in the Musema case held:

"It is also significant to note that a civilian superior may be charged with superior responsibility only where he has effective control, be it de jure or merely de facto, over the persons committing violations of international humanitarian law."[34]

M.3.2. The perpetrator had effective authority and control

M.3.2.1. ICC

The Bemba Gombo Pre-Trial Chamber found in the Decision on the Confirmation of Charges, that:

"[…] ‘effective control’ is generally a manifestation of a superior-subordinate relationship between the suspect and the forces or subordinates in a de jure or de facto hierarchal relationship (chain of command). As the ICTY Appeals Chamber stated in the Celebici case: ‘[t]he ability to exercise effective control [...] will almost invariably not be satisfied unless such a relationship of subordination exists’."[35]

"The concept of ‘effective control’ is mainly perceived as ‘the material ability [or power] to prevent and punish’ the commission of offences, […]. In the context of article 28(a) of the Statute, ‘effective control’ also refers to the material ability to prevent or repress the commission of the crimes or submit the matter to the competent authorities. To this end, this notion does not seem to accommodate any lower standard of control such as the simple ability to exercise influence over forces or subordinates, even if such influence turned out to be substantial."[36]

"[…] indicia for the existence of effective control are ‘more a matter of evidence than of substantive law’, depending on the circumstances of each case, and that those indicia are confined to showing that the suspect had the power to prevent, repress and/or submit the matter to the competent authorities for investigation."[37]

As for the measures taken by the superior, the Bemba Gombo Pre-Trial Chamber is of the view that:

"the measures taken by a superior does not depend on whether they ‘were of a disciplinary or criminal nature’ so far as they were necessary and reasonable in the circumstances of the case. […] Rather, the Chamber believes that the assessment of any measures taken by Mr Jean-Pierre Bemba should be first and foremost based on his material ability."[38]

M.3.2.2. ICTY

The Aleksovski Trial Chamber stated that:

"[…] the factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. Accordingly, formal designation as a commander should not be considered to be a necessary prerequisite for superior responsibility to attach, as such responsibility may be imposed by virtue of a person’s de facto, as well as de jure, position as a commander"."[39]

The Mucić et al. ("Čelebići") Trial Chamber found that:

"[…] on the basis of either their de facto or their de jure positions as superiors. The mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude the imposition of such responsibility."[40]

Further the Trial Chamber stated:

"Instead, the factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. Accordingly, formal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach, as such responsibility may be imposed by virtue of a person's de facto, as well as de jure, position as a commander."[41]

The Mucić et al. ("Čelebići") Appeals Chamber held:

"Under Article 7(3), a commander or 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."[42]

Further the Mucić et al. ("Čelebići") Appeals Chamber stated:

"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. Mucić’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."[43]

Moreover Mucić et al. ("Čelebići") Appeals Chamber held:

"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."[44]

"The capacity to sign orders is indicative of some authority, but in order to ascertain the actual powers of control of the superior it is also necessary to consider the substance of the documents signed and if they were complied with."[45]

The Kordić and Čerkez Trial Chamber found:

"A starting point will be the official position held by the accused. Actual authority however will not be determined by looking at formal positions only. Whether de jure or de facto, military or civilian, the existence of a position of authority will have to be based upon an assessment of the reality of the authority of the accused."[46]

Further the Kordić and Čerkez Trial Chamber held:

"[…] it will often be the case that civilian leaders will assume powers more important than those with which they are officially vested. In these circumstances, de facto powers may exist alongside de jure authority, and may be more important than the de jure powers."[47]

The Mrkšić et al. Trial Judgment states:

"Likewise, there need not be a permanent relationship of command and subordination, 1950 and the temporary nature of a unit has been held not to be, in itself, sufficient to exclude the existence of a superior-subordinate relationship."[48]

In Perišić Trial Judgement, the Court judged that, even if he had influence over his suboridates, the accused didn’t have enough control over them to be held criminally responsible:

"Perišić could influence conduct of the 30th PC members through exercising certain discretion in terminating their professional contracts, suspending their salaries or through verification of their promotions for the purposes of acquiring certain benefits. Nevertheless, his ability to effectively control the acts of the 30th PC members is called into question by his inability to issue binding orders to them. His material ability to prevent or punish them is also partly called into question by his secondary role in the process of imposing disciplinary sanctions for their conduct while serving in the VRS."[49]

M.3.2.3. ICTR

The Trial Chamber in the Kayishema and Runzindana Trial Judgment stated:

"Thus, even 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."[50]

Further the Kayishema and Runzindana Trial Chamber held:

"The Trial Chamber has found that acts or omissions of a de facto superior can give rise to individual criminal responsibility pursuant to Article 6(3) of the Statute. Thus, no legal or formal position of authority need exist between the accused and the perpetrators of the crimes. Rather, the influence that an individual exercises over the perpetrators of the crime may provide sufficient grounds for the imposition of command responsibility if it can be shown that such influence was used to order the commission of the crime or that, despite such de facto influence, the accused failed to prevent the crime."[51]

The Bagilishema Appeals Chamber held:

"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". The power or authority to prevent or to punish does not arise solely from a de jure authority conferred through official appointment. 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.’ The effective control test applies to all superiors, whether de jure or de facto, military or civilian."[52]

The Semanza Trial Chamber held:

"The superior must possess the power or authority, either de jure or de facto, to prevent or punish an offence committed by his subordinates. The Trial Chamber must be satisfied that the superior had effective control over the subordinates at the time the offence was committed. Effective control means the material ability to prevent the commission of the offence or to punish the principal offenders. This requirement is not satisfied by a simple showing of an accused individual’s general influence."[53]

The Karera et al. Trial Chamber found:

"With respect to the first element, a superior-subordinate relationship is established by showing a formal or informal hierarchical relationship. The superior must have possessed the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates. The superior must have had effective control over the subordinates at the time the offence was committed. Effective control means the material ability to prevent the commission of the offence or to punish the principal offenders. This requirement is not satisfied by a simple showing of an accused individual’s general influence."[54]