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Element:

M.5. The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime(s) or failed to submit the matter to the competent authorities for investigation and prosecution

ICC

The Bemba Gombo Pre-Trial Chamber held:

"The Chamber considers that what constitutes ‘necessary and reasonable measures’ must be addressed in concreto. A commander or military-like commander will only be responsible under article 28(a) of the Statute for failing to take measures ‘within his material possibility’. The Chamber's assessment of what may be materially possible will depend on the superior's degree of effective control over his forces at the time his duty arises. This suggests that what constitutes a reasonable and necessary measure will be assessed on the basis of the commander's de jure power as well as his de facto ability to take such measures."[1]

In concreto, the Bemba Gombo Pre-Trial Chamber found:

"The Chamber considers that, regardless of Mr Jean-Pierre Bemba's warning to his troops that any soldier who was involved in misconduct would be arrested and tried under the Movement's military law, only two commanders were preventively suspended and seven soldiers were charged of pillaging before the military court in Gbadolite. In this regard, the Chamber recalls the conclusion reached by the ICTY Appeals Chamber in the Kubura and the Halilovic cases in which it was stated 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. Thus, it is the Chamber's view that its assessment in the present case is not dependent on the fact that Mr Jean-Pierre Bemba merely took a disciplinary measure against the two commanders or any other measure of a specific nature, if at all. 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. Moreover, the reasonable and necessary measures were those ‘suitable to contain the situation’ at the time in term of preventing and/or repressing the crimes and thus were within his powers and abilities. The Chamber considers that this was not the case and that Mr Jean-Pierre Bemba disregarded the scale and gravity of the crimes committed and opted for measures that were not reasonably proportionate to those crimes during his visit in November 2002. This was followed by a passive attitude in relation to the prevention of future crimes that were committed thereafter or repression thereof. According to the evidence before the Chamber, such disproportionate measures taken by Mr Jean-Pierre Bemba with respect to the acts of pillaging were the only measure resorted to by him throughout the five-month period of intervention, and accordingly, crimes continued to be carried out thereafter."[2]

On the due point of time for the superior to take action, the Bemba Gombo Pre-Trial Chamber held:

"In its written submission, the Defence contends that Mr Jean-Pierre Bemba called upon the United Nation Secretary General Special Representative to open an international investigation into any crimes that were committed in the CAR during the 2002-2003 intervention."[3]

"With respect to the Defence submission, the Chamber observes that the letter was only sent on 4 January 2003 - i.e., more than two months after the beginning of the 2002-2003 intervention in the CAR. In the Chamber's opinion, Mr Jean-Pierre Bemba had the material ability to trigger internal investigations into the allegations at the time, as he had previously done during the first week of the 2002-2003 intervention in the CAR (although the measure was not proportionate). Yet, he failed to do so since the beginning of November 2002 throughout the remaining period of intervention. Thus, sending a letter to the United Nations to request an international investigation, let alone two months after the beginning of the intervention, is in the Chamber's opinion neither a necessary nor a reasonable a measure."[4]

ICTY

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

"587. For the accused to be held responsible under Article 7(3), it must be established that he failed to take the necessary and reasonable measures to prevent or punish the commission of the crimes charged. Determining what measures are necessary and reasonable to prevent or punish crimes committed by subordinates is a question of fact and not of substantive law. The degree of effective control can be used to determine "the necessary and reasonable measures within the competence of a superior".

588. The measures which are "necessary" are those which are "appropriate for the superior to discharge his obligation" to prevent or punish the underlying crime, while "reasonable" measures are those "reasonably falling within the material powers of the superior". Reasonable and necessary measures can include reporting the matter to competent authorities where this report is likely to trigger an investigation or initiate disciplinary or criminal proceedings, carrying out an effective investigation to establish the facts, issuing specific orders prohibiting or stopping the criminal activities and securing implementation of those orders, protesting or criticising criminal action and taking disciplinary measures against the commission of crimes.

589. The duty to prevent a crime is distinct from the duty to punish a crime as it involves "different conduct committed at different times". The failure to punish relates to past crimes committed by subordinates and the failure to prevent concerns future crimes of subordinates. The obligation to prevent or punish "does not provide an accused with two alternative and equally satisfying options" in that where the accused knew or had reason to know that subordinates were about to commit a crime and failed to prevent that crime, "he cannot make up for his failure to act by punishing the subordinates afterwards".

590. For the purposes of Article 7(3), there is no requirement of causality between the superior’s failure to prevent and the occurrence of the crime." [5]

On the connection between a commander’s powers and his failure to take measures, the Mucić et al. ("Čelebići") Trial Chamber, held:

"The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates. A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates, and a failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine."[6]

Similarly, the Aleksovski Appeals Chamber stated:

"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 requirement 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."[7]

To assess a commander’s failure, an action of the superior firstly has to be materially possible, as was held by the Mucić et al. ("Čelebići") Trial Chamber:

"It must, however, be recognized that international law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question then arises of what actions are to be considered to be within the superior’s powers in this sense. As the corollary to the standard adopted by the Trial Chamber with respect to the concept of superior, we conclude that a superior should be held responsible for failing to take such measures that are within his material possibility. The Trial Chamber accordingly does not adopt the position taken by the ILC [International Law Commission] on this point, and finds that the 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."[8]

According to the Blaškić ("Lašva Valley") Trial Chamber:

" [I]t is a commander’s degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator."[9]

On the terms ‘necessary’ and ‘reasonable’, the Halilović ("Grabovica-Uzdol") Appeals Chamber stated:

"‘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 power of the superior."[10]

Moreover, the Blaškić ("Lašva Valley") Appeals Chamber recognized that:

"[what constitutes "necessary and reasonable measures" is] not a matter of substantive law but of evidence"."[11]

Several Chambers held, that material possibility is to be assessed individually in each case, e.g.:

"Such a material possibility must not be considered abstractly but must be evaluated on a case-by-case basis depending on the circumstances."[12]

As exemplary factors in this regard to consider, the Strugar ("Dubrovnik") Appeals Chamber named:

"For example, with respect to the capacity to issue orders, the nature of orders which the superior has the capacity to issue, the nature of his capacity to do so as well as whether or not his orders are actually followed would be relevant to the assessment of whether a superior had the material ability to prevent or punish."[13]

The aforementioned need of a decision case-by-case was the underlying argument to dismiss an argument of the Prosecution’s appeal in the Hadžihasanović and Kubura ("Central Bosnia") Appeal Judgment, here specifically on the sufficiency of disciplinary measures:

"?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."[14]

The Đorđ;ević Trial Chamber specifies:

"A superior may be held liable for failing to take measures, even in the absence of explicit legal capacity to do so, if it is proven that it was within his material ability to take such measures. As held by the Appeals Chamber "‘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 power of the superior." Any measures taken by a superior should, however, be specific and closely linked to the acts that they are intended to prevent. Further, it is the degree of effective control that may guide a Chamber in its assessment of whether the measures an accused took were necessary and reasonable under the circumstances."[15]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 253-255: 

"253. In order to discharge his duty to prevent or punish the crimes committed by his subordinates, the case-law of the Tribunal emphasises that the superior is not required to do the impossible, and that the issue is knowing what measures are considered to be within his powers, in other words, what measures lay within his material ability. Stated otherwise, it must be demonstrated that the superior (i) did not take “necessary and reasonable” measures (ii) enabling him to discharge his duty to prevent or (iii) to punish the crimes committed by his subordinates."

"254. The Appeals Chamber has recalled that “what constitutes „necessary and reasonable‟ measures” is more a matter of evidence than of substantive law”; knowing whether a superior has discharged his duty to prevent a crime or punish its perpetrators in keeping with Article 7(3) of the Statute must be examined “case-bycase” and with particular consideration given to the specific circumstances of the case at issue. In particular, as set out by the Ćorić Defence, what must be pleaded in the Indictment is conduct by the accused by which he may be found to have failed to take such necessary and reasonable measures. It cannot be ruled out that, under the specific circumstances of a case, the superior might have discharged his duty to punish the perpetrators of crimes under Article 7(3) of the Statute by taking disciplinary measures. In other words, the fact that he took disciplinary measures, penal measures or both is not in itself determinative of whether a superior discharged the duty imposed on him by Article 7(3) of the Statute to prevent the crimes or punish the perpetrators thereof."

"255. The Chamber notes, moreover, that the Ćorić Defence pointed out in its Final Trial Brief that, in the Hadžihasanović Case, the Trial Chamber found, in respect of the reasonableness of the measures, that there was no rule of customary international law whereby States are obliged to prosecute war crimes solely on the basis of international humanitarian law, and that, as a result, a commander cannot be impugned for relying on domestic law in order to determine his obligations towards his subordinates. The Chamber notes that in the Hadžihasanović Judgement, the Trial Chamber, acting in relation to a question put by the Prosecution concerning the number of cases heard by the Zenica District Military Court and the Military Prosecutor’s Office for the district of Travnik that implicated the members of the ABiH for “war crimes”, examined the state of customary international law and, in this regard, took into consideration the practice as well as the conviction of States regarding whether they are bound to prosecute war crimes on the basis of international indictments for war crimes, regardless of any characterisations of national criminal law, and concluded that there was no such rule in international customary law binding on States, and therefore, on the courts of the RBiH. The Chamber subscribes to the case-law of the Tribunal in this regard."

ICTR

Similar to the ICTY-jurisprudence, an involvement of the superior’s effective control in the measures of him/her required to be taken has been acknowledged, e.g. by the Ntagerura et al. Trial Chamber:

"The degree of the superior’s effective control guides the assessment of whether the individual took reasonable measures to prevent, stop, or punish a subordinates’ [sic] crime."[16]

With respect to the requirement of ‘material possibility’, the Kayishema and Ruzindana Trial Judgment Chamber held:

"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."[17]

In Bagilishema, the Trial Chamber described:

"‘necessary’ to be those measures required to discharge the obligation to prevent or punish in the circumstances prevailing at the time; and, ‘reasonable’ to be those measures which the commander was in a position to take in the circumstances."[18]

The Bagilishema Trial Chamber further stated, that a:

"superior may be held responsible for failing to take only such measures that were within his or her powers. Indeed, it is the commander’s degree of effective control – his or her material ability to control subordinates – which will guide the Chamber in determining whether he or she took reasonable measures to prevent, stop, or punish the subordinates’ crimes. Such a material ability must not be considered abstractly, but must be evaluated on a case-by-case basis, considering all the circumstances."[19]

As an example in concreto, the Renzaho Trial Chamber found that the accused:

"had the legal ability to requisition gendarmes, although they remained under the operational command of their officers. Furthermore, as an army officer, he had the right and duty to enforce compliance with the general rules governing discipline by all soldiers below him in the hierarchy, even where the soldiers were not under his operational authority. Nonetheless, given his position within the civilian administration, and the formal limitations on his authority over gendarmes, the Chamber is not convinced beyond reasonable doubt that Renzaho’s effective control extended to all gendarmes or every army soldier of a lesser rank. Instead, the Chamber must assess his authority over these individuals on a case by case basis."[20]

According to the Kamuhanda Trial Chamber, the accused’s possibilities and material abilities are to ascertain regardless existing formal legal competences:

"[Necessary and reasonable] measures have been described as those within the ‘material possibility’ of the superior, even though the superior lacked the ‘formal legal competence’ to take these measures. Thus a superior has a duty to act in those circumstances in which he or she has effective control over subordinates, and the extent of an individual’s effective control, under the circumstances, will guide the assessment of whether he or she took reasonable measures to prevent, stop, or punish a subordinate’s crimes."[21]

To affirm a failure to take measures, all possible necessary and reasonable measures and all taken measures are to be ascertained, whereby the Prosecution takes the burden of proof of an accused’s failure, as highlighted by the Ntagerura et al. Trial Chamber:

"The Chamber finds that the Prosecutor did not prove beyond a reasonable doubt that Bagambiki failed to take necessary and reasonable measures to punish Kamana for his role in the massacre. The Chamber notes that Bagambiki suspended Kamana, which was the extent of the disciplinary measures available to a prefect under the law on the organisation of the commune. A bourgmestre’s suspension involves a disciplinary proceeding allowing the bourgmestre to explain his actions and appeal to higher authorities. As such, a suspension is one component of a larger process involving authorities in addition to and beyond the prefect. The Chamber has no evidence about what followed the suspension or if Bagambiki took other actions as well. The Prosecutor submitted no evidence indicating what other possible forms of punishment were available to Bagambiki, as prefect, and indicating that Bagambiki failed to take these measures."[22]

In case the accused did not take any measures at all, the Appeals Chamber in Nahimana et al. held:

"Having found that Appellant [Nahimana] had the power to prevent or punish the broadcasting of criminal discourse by RTLM [Radio Télévision Libre des Mille Collines], the Trial Chamber did not need to specify the necessary and reasonable measures that he could have taken. It needed only to find that the Appellant had taken none."[23]

Similarly, the Bagosora et al. (‘Military I’) Trial Chamber found for the high-ranking militarists Bagosora, Ntabakuze and Nsengiyumva, each time unproblematic and in same wording, that the accused:

"failed in his duty to prevent the crimes because he in fact participated in them. There is absolutely no evidence that the perpetrators were punished afterwards."[24]

Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T, Judgement (TC), 11 May 2011, paras. 1994, 2005 :

"1994. The Chamber notes that a determination of a superior’s failure to prevent the

commission of crimes or punish its perpetrators is not an objective test drawn in the abstract. Rather, the Chamber must consider the actual situation of the commander and the means available to him at the time when the underlying crimes were committed."

 

"2005. The Chamber further recalls that Bizimungu stated, “People died, Prime Minister

 

Agathe died, blue berets died, other people died … do you really think that one could have a grip over such impunity, over such acts? ... we are fighting ... when somebody is killed, you don’t look around you, he is dead. You carry on”. In the Chamber’s opinion, this is a clear indication that he viewed the protection of civilian lives as less important than military considerations. The Chamber considers that the protection of civilian lives cannot simply be subordinated to other considerations, military or otherwise. Even in a desperate situation, the protection of civilians is of fundamental importance. As stated above, the Chamber is not satisfied the ongoing war with the RPF negated Bizimungu’s material ability to prevent and punish crimes to such an extent that he could not reasonably be expected to take measures to protect civilian lives. Under these circumstances, the Chamber finds no plausible explanation for Bizimungu’s gross failure to honour his duties as a commander other than his disregard for civilian lives."

Other Tribunals

The SCSL Fofana and Kondewa Trial Chamber demanded ‘material ability’, whereby it clarified that:

"the question of whether the superior had the explicit legal capacity to do so is irrelevant if it is proven that he had the material ability to act."[25]

In the same way, the SCSL Taylor Trial Chamber precises :

"Generally, it can be said that the measures required of the superior are limited to those within his or her material ability under the circumstances, including those that may lie beyond his or her formal powers. The type and extent of measures to be taken depend on the degree of effective control exercised by the superior at the relevant time, and on the severity and imminence of the crimes that are about to be committed."[26]

Distinct duties: the duty to prevent, to repress and/or to punish

ICC

The ICC Pre-Trial Chamber in Bemba Gombo distinguished between three duties, which a suspect might have failed to meet: to prevent, to repress and/or to punish:

"In order to find the suspect responsible under command responsibility, once the mental element is satisfied, it is necessary to prove that he or she failed at least to fulfill one of the three duties listed under article 28(a)(ii) of the Statute: the duty to prevent crimes, the duty to repress crimes or the duty to submit the matter to the competent authorities for investigation and prosecution."[27]

On the relationship between these duties, the Bemba Gombo Pre-Trial Chamber held:

"The Chamber first wishes to underline that the three duties under article 28(a)(ii) of the Statute arise at three different stages in the commission of crimes: before, during and after. Thus, a failure to fulfil one of these duties is itself a separate crime under article 28(a) of the Statute. A military commander or a military-like commander can therefore be held criminally responsible for one or more breaches of duty under article 28(a) of the Statute in relation to the same underlying crimes. Consequently, a failure to prevent crimes which the commander knew or should have known about cannot be cured by fulfilling the duty to repress or submit the matter to the competent authorities."[28]

ICTY

According to ICTY judgments, command responsibility includes two distinct duties of the superior: a duty to prevent and a duty to punish. This was pointed out by the Hadžihasanović and Kubura ("Central Bosnia") Trial Chamber:

"Tribunal case law has clearly established that Article 7(3) of the Statute distinguishes between two different duties of a superior. The Trial Chamber in Strugar ("Dubrovnik") recently reaffirmed this distinction unambiguously by holding that Article 7(3) does not provide a superior with two alternative options but contains two distinct legal obligations: (1) to prevent the commission of the crime and (2) to punish the perpetrators. The duty to prevent arises for a superior from the moment he acquires knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed, while the duty to punish arises after the commission of the crime."[29]

Similarly, the Blaškić ("Lašva Valley") Trial Chamber stressed that the obligation to ‘prevent or punish’ does not provide the accused with two alternative and equally satisfying options:

"Obviously, where the accused knew or had reason to know that subordinates were about to commit crimes and failed to prevent them, he cannot make up for the failure to act by punishing the subordinates afterwards."[30]

The relationship between the duty to prevent and the duty to punish has been described as ‘consecutive’, ‘distinct’ and ‘related’ by the Orić Trial Chamber:

"The superior’s obligations are instead consecutive: it is his primary duty to intervene as soon as he becomes aware of crimes about to be committed, while taking measures to punish may only suffice, as substitute, if the superior became aware of these crimes only after their commission. Consequently, a superior’s failure to prevent the commission of the crime by a subordinate, where he had the ability to do so, cannot simply be remedied by subsequently punishing the subordinate for the crime. Therefore, the failure to prevent or to punish constitutes two distinct, but related, aspects of superior responsibility, which correlate to the timing of a subordinate’s commission of a crime. Hence, the duty to prevent concerns future crimes whereas the duty to punish concerns past crimes of subordinates."[31]

"Similarly, the Đorđ;ević Trial Chamber underlines the fact that the duty to prevent and the duty to punish are not "alternative obligations"[32]

As to factors taken into account when considering whether all necessary and reasonable measures to prevent or to punish have been taken, the Strugar ("Dubrovnik") Trial Chamber, stated:

"Factors relevant to the Chamber’s assessment include, but are not limited to, whether specific orders prohibiting or stopping the criminal activities were issued; what measures to secure the implementation of these orders were taken; what other measures were taken to secure that the unlawful acts were interrupted and whether these measures were reasonably sufficient in the specific circumstances; and, after the commission of the crime, what steps were taken to secure an adequate investigation and to bring the perpetrators to justice."[33]

The Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment acknowledged national law as a relevant source to detect existing duties:

"To determine measures a superior must take, an examination of national law is relevant. […] [T]he national law of a State establishes the powers and duties of civilian or military representatives of that State, but international law lays down the way in which they may be exercised within the area governed by it."[34]

"In accordance, the Aleksovski Trial Chamber considered the fact, that the law of Bosnia and Herzegovina imposed a civic duty on its citizens to report unlawful acts to the judicial authorities."[35]

"Finally, one may ask when the superior is required to take action. The Trial Chamber in Kvočka et al. ("Omarska, Keraterm and Trnopolje Camps") was of the view that a superior must take action from the point at which he "knew or had reason to know" of the crimes committed or about to be committed by the subordinates."[36]

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

"The point here should not be that knowledge may be presumed if a person fails in his duty to obtain the relevant information of a crime, but that it may be presumed if he had the means to obtain the knowledge but deliberately refrained from doing so. The Prosecution’s argument that a breach of the duty of a superior to remain constantly informed of his subordinates actions will necessarily result in criminal liability comes close to the imposition of criminal liability on a strict or negligence basis. It is however noted that although a commander’s failure to remain apprised of his subordinates’ action, or to set up a monitoring system may constitute a neglect of duty which results in liability within the military disciplinary framework, it will not necessarily result in criminal liability."[37]

ICTR

On the relationship between ‘prevent’ and ‘punish’, the Trial Chamber in Semanza stated:

"The obligation to prevent or punish is not a set of alternative options. If a superior is aware of the impending or on-going commission of a crime, necessary and reasonable measures must be taken to stop or prevent it. A superior with such knowledge and the material ability to prevent the commission of the crime does not discharge his responsibility by opting simply to punish his subordinates in the aftermath."[38]

On omission as a failure of the duty to prevent and/or punish, the Mpambara Trial Chamber held:

"[Responsibility] for an omission may arise […] where the accused is charged with a duty to prevent or punish others from committing a crime. The culpability arises not by participating in the commission of a crime, but by allowing another person to commit a crime which the Accused has a duty to prevent or punish."[39]

"The circumstances in which such a duty has been recognized in international criminal law are limited indeed. […] Article 6(3) of the Statute creates an exception to [the] principle [of nulla poena sine culpa] in relation to a crime about to be, or which has been, committed by a subordinate. Where the superior knew or had reason to know of the crime, he or she must ‘take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.’"[40]

"[…] [Responsibility] for failing to discharge a duty to prevent or punish requires proof that: (i) the Accused was bound by a specific legal duty to prevent a crime; (ii) the accused was aware of, and wilfully refused to discharge, his legal duty; and (iii) the crime took place."[41]

Other Tribunals

At the SCSL, the Sesay et al. Trial Chamber held on the relationship between the duties to prevent and to punish:

"Under Article 6(3), the superior has a duty both to prevent the commission of the offence and to punish the perpetrators. These are not alternative obligations – they involve different crimes committed at different times: ‘the failure to punish concerns past crimes committed by subordinates, whereas the failure to prevent concerns future crimes of subordinates.’ The duty to prevent arises from the time a superior acquires knowledge, or has reason to know that a crime is being or is about to be committed, while the duty to punish arises after the superior acquires knowledge of the commission of the crime. ‘A superior must act from the moment that he acquires such knowledge. His obligations to prevent will not be met by simply waiting and punishing afterwards.’"[42]

The SCSL Fofana and Kondewa Trial Chamber named possible failures due to Art. 6(3) SCSL-Statute:

"[…] failure to secure reports that military actions have been carried out in accordance with international law, the failure to issue orders aimed at bringing the relevant practices into accord with international law, the failure to protest against or to criticize criminal action, the failure to take disciplinary measures to prevent the commission of atrocities by the troops under the superior’s command and the failure to insist before a superior authority that immediate action be taken. As part of his duty to prevent subordinates from committing crimes, the Chamber is of the view that a superior also has the obligation to prevent his subordinates from following unlawful orders given by other superiors."[43]

On the point of time when a superior’s responsibility possibly accrues (especially on a duty to punish crimes committed prior the accused’s command), SCSL Sesay et al. Trial Chamber held:

"Given this basis of superior responsibility, the Chamber considers that the focus of the liability must be on the time during which the superior failed in his duty to prevent or punish. Thus, the Chamber is satisfied that, in order to incur criminal responsibility as a superior, the superior must have had effective control over the perpetrator at the time at which the superior is said to have failed to exercise his powers to prevent or to punish. [footnote] While in practice the superior will also often have effective control at the time that the subordinate commits or is about to commit a criminal act, this in itself is not required. Thus, if a superior assumes command after a crime has been committed by his subordinates and he knows or has reason to know that such a crime has been committed, the Chamber is of the opinion that to assume his responsibility as a superior officer, he will have the duty to punish the perpetrators from the moment he assumes effective control."[44]

While further discussing the same question, the SCSL Sesay et al. Trial Chamber considered Article 28 ICC Statute as a:

"[…] very complex provision compared to that of Article 6(3) of the SCSL Statute", as having "value in determining the state of customary international law [but is also aware] of the fact that the ICC Statute was often the product of delicate negotiations and compromises."[45]

Moreover, the SCSL Sesay et al. Trial Chamber held that:

"this Chamber is satisfied that the principle of superior responsibility as it exists in customary international law does include the situation in which a Commander can be held liable for a failure to punish subordinates for a crime that occurred before he assumed effective control. While it must clearly be established that the superior exercised effective control over the subordinate who committed the crime at the time that there was an alleged failure in his duty to punish, it is not necessary that the effective control also existed at the time of the criminal act."[46]

Again at the SCSL, the Sesay et al. Appeals Chamber, on the timeframe in which a superior has to meet duties to prevent and punish (especially on the duty to prevent crimes committed after the accused’s command), corrected a Trial Chambers conviction for a failure to prevent crimes committed between February and December 2008, though the accused Kallon only had effective control for a shorter period from February until August 2008. It found:

"Kallon is responsible for his failure to prevent the crime of enslavement up to and including the last day on which he was found to have exercised effective control over Rocky and the RUF troops who detained civilians in camps in Kono District. Thereafter, the consequent harm caused by the continuation of the crime of enslavement, which he is found to have failed to prevent at the time when he had the ability to do so, continues to be relevant to sentencing and properly reflected in findings on the gravity of his offence. However, the Trial Chamber has failed to support, either by findings of facts or reasoning of applicable law, its conclusion that Kallon is criminally liable under Article 6(3) for the crimes of enslavement in Kono District found to have been committed, after August 1998."[47]

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. 579, 587-590, 5844:

"579. Under Article 7(3) of the Statute, a superior may incur criminal responsibility with respect to a crime for which his subordinate is criminally responsible if the following three elements are established: (i) there was a superior-subordinate relationship between the accused and the perpetrator of the underlying crime; (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof. A superior can bear responsibility under Article 7(3) with respect to the criminal conduct of his subordinates under “all other modes of participation under Article 7(1)”, namely the “planning, instigating, ordering, committing or otherwise aiding and abetting a crime” by his subordinates."

 

"587. For the accused to be held responsible under Article 7(3), it must be established that he failed to take the necessary and reasonable measures to prevent or punish the commission of the crimes charged. Determining what measures are necessary and reasonable to prevent or punish crimes committed by subordinates is a question of fact and not of substantive law. The degree of effective control can be used to determine “the necessary and reasonable measures within the competence of a superior”."

 

"588. The measures which are “necessary” are those which are “appropriate for the superior to discharge his obligation” to prevent or punish the underlying crime, while “reasonable” measures are those “reasonably falling within the material powers of the superior”. Reasonable and necessary measures can include reporting the matter to competent authorities where this report is likely to trigger an investigation or initiate disciplinary or criminal proceedings, carrying out an effective investigation to establish the facts, issuing specific orders prohibiting or stopping the criminal activities and securing implementation of those orders, protesting or criticising criminal action and taking disciplinary measures against the commission of crimes."

 

"589. The duty to prevent a crime is distinct from the duty to punish a crime as it involves “different conduct committed at different times”. The failure to punish relates to past crimes committed by subordinates and the failure to prevent concerns future crimes of subordinates. The obligation to prevent or punish “does not provide an accused with two alternative and equally satisfying options” in that where the accused knew or had reason to know that subordinates were about to commit a crime and failed to prevent that crime, “he cannot make up for his failure to act by punishing the subordinates afterwards”."

 

"590. For the purposes of Article 7(3), there is no requirement of causality between the superior’s failure to prevent and the occurrence of the crime."

 

"5844. The Chamber recalls that the duty of a superior to punish will be fulfilled when necessary and reasonable, or feasible, measures to punish perpetrators have been taken. “Necessary” measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to punish) and “reasonable” measures are those reasonably falling within the material powers of the superior."

M.5.1. The perpetrator failed to take the necessary and reasonable measures within his or her power the prevent the commission of such crime; OR

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 256-261: 

"256. The case-law of the Tribunal distinguishes two duties for the superior: one is to prevent a crime from being committed and the other is to punish its perpetrators. The duty to punish is to be distinguished from the duty to prevent. Therefore, the superior is criminally responsible for his breach of the duty to take what were necessary and reasonable measures to prevent a crime from being committed, regardless of whether he took punitive measures after the crimes were committed. Under no circumstances can he “redeem” the breach of the duty to prevent by punishing the subordinates after the fact."

"257. Responsibility for the superior’s failure to act under Article 7(3) is intended to ensure compliance with the rules of humanitarian law. For this reason, the superior has the general obligation to monitor the actions of subordinates and to act so that they are duly informed of the responsibilities they bear under international law. Although the superior manifestly cannot be held criminally responsible for his breach of a general obligation, his failure may nevertheless be taken into consideration when assessing the facts of the case. That being the case, compliance with this general obligation will not relieve him of criminal responsibility if he failed in his specific obligation to take preventive measures with regard to crimes of which he possessed knowledge."

"258. The scope of the duty to prevent, in any given case, will depend on the superior’s material ability to act. His specific obligation will vary according to the rank he holds and the powers vested in him. This is therefore analysed case by case but must take the form of specific measures taken that pertain directly to the actions they are intended to prevent. Moreover, the duty to prevent a crime from being committed is present at every stage prior to the time one of his subordinates commits a crime, if the superior knew or had reason to know that the crime was about to be committed."

"259. Moreover, the duty to stop the crime is recognised by the case-law and is comprised within the scope of the duty to prevent. This duty to “stop” the crime must be considered as corresponding to the duty to prevent because it seeks to prevent continuation of the crimes. Moreover, as the Hadžihasanović Chamber observed, although the duty to prevent is distinct from the duty to punish, there are situations where these two obligations are linked, because the one may be the consequence of the other. Thus, independently of his breach of the duty to punish the commission of a crime, the superior may be held responsible for condoning similar acts later on."

"260. The duty to punish arises only once the crime has been committed. As with the duty to prevent, the scope of the duty to punish depends on the degree of effective control and the material ability of the superior. If the superior lacks the power to sanction conduct, the duty to punish will at least entail the duty to investigate the crimes or to cause them to be investigated, to establish the facts and to signal them to the competent authorities. The superior need not necessarily be the one who punishes but he must play a significant role in the disciplinary proceedings. The appropriateness of the sanctions administered is determined based on what is reasonable and necessary in light of the facts of the case, which is more a matter of the assessment of the evidence than a matter of substantive law."

"261. The Trial Chamber in the Strugar Case also considered that the duty to carry out an investigation is an example of a reasonable measure satisfying the superior’s duty to punish and recalled the jurisprudence of the post-war tribunals. It ruled that the fact that a superior requested an incident report and that the investigation conducted was thorough were relevant factors in assessing whether he discharged his duty to respond. For the purposes of Article 7(3) of the Statute, the superior’s report submitted to the authorities responsible for investigating must meet the requisite threshold for initiating an official investigation into the act charged. However, if the investigation proves unsatisfactory because of failures by the authorities responsible for investigating, and the failures are not linked to the superior and he possessed no knowledge of them, he cannot be held responsible within the meaning of Article 7(3) of the Statute. Moreover, when the Accused could, at most, have reported the unlawful actions to those persons who ordered them, he cannot be held responsible within the meaning of Article 7(3) of the Statute."

M.5.1.1. ICC

The Bemba Gombo Pre-Trial Chamber held:

"[…] that the duty to prevent arises when the commander or military-like commander knew or should have known that forces under his effective control and command/authority ‘were committing or about to commit’ crimes. Thus, such a duty is triggered at any stage prior to the commission of crimes and before it has actually been committed by the superior's forces."[48]

On factors to assess required measures to meet the duty to prevent, the Bemba Gombo Pre-Trial Chamber found:

"Article 28 of the Statute does not define the specific measures required by the duty to prevent crimes. In this context, the Chamber considers it appropriate to be guided by relevant factors such as measures: (i) to ensure that superior’s forces are adequately trained in international humanitarian law; (ii) to secure reports that military actions were carried out in accordance with international law; (iii) to issue orders aiming at bringing the relevant practices into accord with the rules of war; (iv) to take disciplinary measures to prevent the commission of atrocities by the troops under the superior’s command."[49]

M.5.1.2. ICTY

The Hadžihasanović and Kubura ("Central Bosnia") Trial Chamber stated:

"As for the duty to prevent, a superior clearly has a limited time to perform it. Once the crime has been committed by his subordinates, it is too late and the superior has failed in his duty. […] In no case may the superior ‘make up’ for the failure to act by punishing the subordinates afterwards. Accordingly, if it is established that a superior did nothing to prevent his subordinates from committing a crime, an examination of the measures taken to punish them serves no purpose. He has failed in his duty to prevent and therefore entails responsibility."[50]

The Trial Chamber in Kordiand Čerkez held:

"The duty to prevent should be understood as resting on a superior at any stage before the commission of a subordinate crime if he acquires knowledge that such a crime is being prepared or planned, or when he has reasonable grounds to suspect subordinate crimes."[51]

The Strugar ("Dubrovnik") Trial Chamber continued:

"?What the duty to prevent will encompass will depend on the superior’s material power to intervene in a specific situation."[52]

Similarly, the Dorđ;ović Trial Chamber precises that:

"If an accused’s material ability to intervene merely allows that he report imminent or ongoing crimes or underlying offences of which he knows or has reason to know to the competent authorities, then such reporting may be sufficient to satisfy his duty to prevent."[53]

The Trial Chamber in Orić

"[…] called for further determination with regard to what a superior must prevent and at what time he must do so. […] it cannot be merely the completion of a crime which must be prevented, but also its planning and preparation, if for no other reason than as a matter of efficiency. Further, since a superior is duty bound to take preventive measures when he or she becomes aware that his or her subordinates ‘are about to commit such acts’, and, as stated before, such acts comprise the commission of a crime from its planning and preparation until its completed execution, the superior, being aware of what might occur if not prevented, must intervene against imminent planning or preparation of such acts. This means, first, that it is not only the execution and full completion of a subordinate’s crimes which a superior must prevent, but the earlier planning or preparation. Second, the superior must intervene as soon as he becomes aware of the planning or preparation of crimes to be committed by his subordinates and as long as he has the effective ability to prevent them from starting or continuing."[54]

On a "duty to suppress", Hadžihasanović and Kubura ("Central Bosnia") Trial Chamber clarified:

"The case law makes an unequivocal distinction between the duty to prevent and the duty to punish: the first arises prior to the commission of the criminal offence by the subordinate and the second, after. Nevertheless, the duty to "suppress" is recognised by the case law and seems to be included in the duty to prevent, even though it arises while the unlawful act is in the process of being committed. The duty to suppress should be considered part of the superior’s duty to prevent, as its aim is to prevent further unlawful acts."[55]

The Hadžihasanović and Kubura ("Central Bosnia") Trial Chamber dealt with imaginable situations, where both the duty to prevent and the duty to punish have a causal link (typically in situations, where a failure to punish caused a reoccurrence of unlawful acts).[202] This issue is closely connected to the perpetrators knowledge and to the legal requirement of "know, or owing to the circumstances, should have known" dealt with above. Confining, Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment held:

"It follows that the duty to prevent the recurrence of similar acts must be limited to the acts of subordinates who form part of an ‘identifiable group’, some members of which have already committed similar acts. That limitation bears a relationship to the very nature of the duty to prevent, which is based on the risk of a recurrence of similar acts. In fact, such responsibility can be established only when the recurrence is foreseeable, since it is premised on the fact that the failure to punish encourages soldiers – who have already committed unlawful acts – to commit those acts once again. The failure to intervene results in the foreseeable consequence of such conduct being repeated."[56]

For the Majority in the Gotovina and Markać Appeal Judgment, the superior responsibility and aiding and abetting (the alternate forms of liability in that case) have more severe requirements than the Joint Criminal Enterprise:

"[f]indings sufficient to demonstrate a significant contribution to JCE are not necessarily sufficient to support convictions under alternate forms of liability."[57]

On the opposite, Judge Agius, one of the dissenting judges in the Gotovina and Markać Appeal Judgment, stated that:

"[t]he Trial Chamber’s findings leave no doubt that – Markač’s contribution to the JCE aside – his failure to prevent or punish created an environment conducive to the commission of crimes, and that he also created a climate of impunity which encouraged the commission of further crimes against Krajina Serbs […] this would be sufficient to establish the requisite substantial contribution"[58]

Regarding components of the duty to prevent, Hadžihasanović and Kubura ("Central Bosnia") Trial Chamber held:

"the role of a commander is decisive for the proper application of the Conventions and Additional Protocol I and to avoid a fatal gap between the undertakings entered into by parties to the conflict and the conduct of individuals under their orders. A superior must therefore provide structure for his subordinates to ensure they observe the rules of armed conflict and must also prevent the violation of these norms."[59]

Furthermore, the Trial Chamber in Hadžihasanović and Kubura ("Central Bosnia") distinguished between general and specific preventive measures:

"a distinction must be made between general measures taken by a commander to provide structure for his subordinates and those ordered to prevent specific crimes of which he has knowledge. By failing to take the first, the commander runs the increased risk that his subordinates will engage in unlawful acts, although this will not necessarily entail his criminal responsibility. Failure to take the second will result in criminal sanctions."[60]

"Although international law intends to bar not only actual but also potential breaches, the fact remains that a commander’s failure to take general preventive measures does not entail the same consequences for his criminal responsibility as the failure to act in a specific circumstance where a crime of which he has knowledge is about to be committed."[61]

In the Halilović ("Grabovica-Uzdol") Trial Judgment, a similar differentiation was made:

"?The duty to prevent may be seen to include both a ‘general obligation’ and a ‘specific obligation’ to prevent crimes within the jurisdiction of the Tribunal. The Trial Chamber notes, however, that only the "specific obligation" to prevent triggers criminal responsibility as provided for in Article 7(3) of the Statute."[62]

The Halilović ("Grabovica-Uzdol") Trial Judgment further elucidated on the general obligation:

"The existence of a general obligation to prevent the commission of crimes stems from the duty of a commander, arising from his position of effective control, which places him in the best position to prevent serious violations of international humanitarian law. […] This obligation can be seen to arise from the importance which international humanitarian law places on the prevention of violations."[63]

"There also appears to be a requirement that a commander ensure order and exercise control over troops, which includes, for example, a need to be aware of the condition of troops, and to impose discipline."[64]

"[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. It is a natural element of the preventative constituent of command responsibility that a commander must make efforts to ensure that his troops are properly informed of their responsibilities in international law, and that they act in an orderly fashion."[65]

"However, the adherence to this general obligation does not suffice by itself to avoid the commanders criminal liability in case he fails to take the necessary appropriate measure under his specific obligation."[66]

On a general obligation, the Hadžihasanović and Kubura ("Central Bosnia") Trial Chamber held for example, that:

"[…] armed forces must be subject to an internal disciplinary system enforcing compliance with the rules of international law applicable in armed conflict; commanders are responsible for carrying out this task. In this respect, commanders have a duty to disseminate those rules and to include the study thereof in their programmes of military instruction. Legal advisers must be available to advise military commanders on the instruction to be given to the armed forces on the subject of the application of the Conventions and Additional Protocol I. The purpose of such instruction is to ensure that the members of the armed forces under their command are aware of their obligations under the Conventions and Additional Protocol I."[67]

For the specific obligation, Halilović ("Grabovica-Uzdol") Trial Chamber stated that:

"[…] the duty to prevent entails in a particular case will depend on the superior’s material ability to intervene in a specific situation."[68]

Moreover, the Halilović ("Grabovica-Uzdol") Trial Chamber found that:

"[…] the preventative element of the duty to prevent attaches where the subordinate ‘was about to commit such acts’, but before the actual offence has been committed."[69]

The Strugar ("Dubrovnik") Trial Chamber held:

"[…] an accused cannot avoid the intended reach of the provision by doing nothing, on the basis that what he knows does not make it entirely certain that his forces were actually about to commit offences, when the information he possesses gives rise to a clear prospect that his forces were about to commit an offence. In such circumstances the accused must at least investigate, i.e. take steps inter alia to determine whether in truth offences are about to be committed, or indeed by that stage have been committed or are being committed."[70]

ICTR

The Kajelijeli Trial Chamber found that:

"the Accused failed to take the necessary and reasonable measures to prevent the acts of genocide committed by his subordinates,"[218] but that there was "insufficient evidence for the Chamber to find that the Accused failed to take the necessary and reasonable measures to punish the acts of genocide committed by his subordinates"."[71]

The Karemera et al. Trial Chamber concluded:

"Karemera failed in his duty to prevent the crimes because he in fact participated in them."[72]

On the other hand, the Karemera et al. Trial Chamber found that Ngirumpatse failed to prevent the crimes because he didn’t take the right actions to prevent the crimes to be committed:

"In light of these circumstances, the Chamber considers that the necessary and only reasonable measure for preventing mass killings by the Kigali Interahamwe would have been to take any step that delivered the unequivocal message that the Interahamwe should stop massacring innocent Tutsi civilians immediately.

"Instead, Ngirumpatse chose to either use unreasonably vague language that completely ignored the unfolding genocide being perpetrated by his subordinates, or make unreasonably abstract requests that killings be stopped. Instead of ordering the Kigali Interhamwe to immediately stop massacring innocent Tutsi civilians, Ngirumpatse, the individual with ultimate authority over this group, squandered his first opportunity to prevent the killings by deliberately restricting his address to comments like: ‘opt for the path of security;’ ‘see to other people’s security;’ ‘leave the roads;’ ‘thieves should stop stealing;’ ‘instead of doing evil…provide security for others, especially the weak ones;’ ‘we have dispatched people…to free the roads so that they could provide security for others instead of robbing and attacking them;’ ‘we should fight those who attack us…not those who are not armed;’ and ‘members must know that those…attacking them are the Inkotanyi…not the ordinary citizen.’ " "[73]

According to the Bagosora and Nsengiyumva Appeals Chamber,

"However, the paragraphs relied upon by the Trial Chamber as a basis for Nsengiyumva’s convictions charged pursuant to Article 6(3) of the Statute either allege that the crimes were committed on Nsengiyumva’s orders,[222] or with his authorisation.[223] This, in the Appeals Chamber’s opinion, gave sufficient notice to Nsengiyumva of the conduct by which he was alleged to have failed to take the necessary measures to prevent or punish the crimes."[74]

Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T, Judgement (TC), 11 May 2011, para. 2008 :

"2008. The Chamber notes that international law does not provide a detailed list of preventive mechanisms or modes of punishment that a superior is bound to adopt in order to fulfil his duties. The law only requires that a superior adopt measures that are necessary and reasonable in order to prevent or punish crimes committed by his subordinates. A determination of what constitutes necessary and reasonable measures in a specific case will depend on the circumstances of that case, and in particular on the extent of the superior’s material ability to take action to prevent or punish crimes."

Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T, Judgement (TC), 11 May 2011, paras. 1953, 1958-1963 :

"1953. In assessing whether Ndindiliyimana failed in his duty to punish these crimes, the Chamber must bear in mind the degree of effective control that he in fact exercised over his subordinates at the time – that is, his material ability to punish the crimes. The Chamber notes that although a superior is not obliged to perform the impossible, he is obliged to take all measures that are within his material possibility."

"1958. The Chamber notes that some of the crimes underlying the charges of superior responsibility against Bizimungu are alleged to have been committed by soldiers and Interahamwe prior to Bizimungu’s appointment to the position of Chief of Staff of the Rwandan Army on 16 April 1994 and his assumption of office on 19 April 1994. Of thoseunderlying factual allegations, the Chamber has found that only two have been proved beyond reasonable doubt: these are the killings of Tutsi civilians committed by soldiers andInterahamwe at the Josephite Brothers compound on 8 April 1994; and the killings of Tutsi civilians committed by soldiers and Interahamwe at the ETO complex at Nyanza Hill (“ETO-Nyanza”) on 11 April 1994." 

"1959. While the Chamber is not satisfied beyond reasonable doubt that Bizimungu knew or had reason to know of the crimes committed by soldiers and Interahamwe at the Josephite Brothers compound on 8 April, the Chamber is convinced that Bizimungu knew or had reason to know of the killings of Tutsi civilians, most of whom were refugees, by soldiers and Interahamwe at ETO-Nyanza on 11 April 1994. The manner in which thousands of Tutsi civilians were marched to Nyanza Hill and subjected to a protracted gun attack, the possible involvement of Colonel Bagosora (then the Chef de Cabinet at the Ministry of Defence), the number of victims (approximately 2,400 Tutsi civilians) and the fact that these killings were partly triggered by the withdrawal of the Belgian detachment of UNAMIR from Rwanda, combine to leave the Chamber satisfied beyond reasonable doubt that Bizimungu knew or had reason to know of the involvement of his subordinates in the killings at ETO-Nyanza." 

"1960. Nonetheless, the Chamber does not find Bizimungu guilty of the crimes committed at ETO-Nyanza on 11 April 1994 because the current jurisprudence precludes finding a superior responsible for failing to punish crimes that were committed before he assumed the position of command over the perpetrators. The Appeals Chamber’s decision in Hadžihasanović et al. emphasises that there must be a temporal coincidence between a superior’s exercise of effective control, or lack thereof, and the time when the crimes in relation to which he is charged were committed." 

"1961. In the view of the Chamber, the position that a superior should not be held criminally responsible for failing to punish crimes that were committed by his subordinates before the commencement of his command has the potential to undermine the interests that the doctrineof superior responsibility seeks to protect. The insistence upon a temporal concurrence between a superior’s effective control and the time when the crimes were committed conflates the distinct duties of prevention and punishment into a unitary obligation. While the duty to prevent presupposes that a superior has the material ability to prevent the crimes of his subordinates proscribed under the Statute of the Tribunal, the Chamber is not persuaded that a superior’s duty to punish his subordinates for committing such crimes requires him to be vested with effective control at the time when the crimes were committed. Therefore, a superior’s duty to punish crimes does not necessarily require coincidence in time between his effective control and the commission of the crimes in relation to which he is charged." 

"1962. This argument is particularly persuasive in situations where the commission of crimes occurs shortly before the superior assumes command. A superior who is informed of his subordinates’ commission of crimes proscribed under the Statute should be required to punish the perpetrators provided that he has the material ability to do so. The requirement of a temporal coincidence between a superior’s effective control and the commission of crimes is likely to allow superiors to escape criminal sanction for the role of their subordinates in the commission of grave crimes, even where the superiors knew or had reason to know of those crimes and had the material ability to punish the perpetrators."

"1963. The limitations of the current jurisprudence on retroactive command responsibility are particularly clear in this case. The killings of thousands of Tutsi civilians at ETO-Nyanza occurred approximately one week before Bizimungu assumed command over the Rwandan Army as Chief of Staff. There is no suggestion that Bizimungu could have prevented the commission of the killings at ETO-Nyanza because there is no evidence that he had prior knowledge of plans to commit those crimes. However, the evidence is clear that Bizimungu knew or had reason to know of the crimes that had been committed by his subordinates at ETO-Nyanza on 11 April and had the material ability to punish the perpetrators of those crimes. That Bizimungu’s failure to sanction his subordinates who killed thousands of Tutsicivilians is not a punishable offence is a sharp indictment of the jurisprudence on retroactive command responsibility as it currently stands."

Prosecutor v. Augustin Ndindiliyimana, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-A, Judgement (AC), 11 February 2014, para. 387:

"387. Finally, the Appeals Chamber is not convinced by Sagahutu’s reliance on the Bagosora and Nsengiyumva Appeal Judgement. In that case, the trial chamber found that there was no evidence that perpetrators of certain crimes were punished without considering what measures, if any, Bagosora had taken to punish the crimes and without making an explicit finding that he failed to punish the crimes. On appeal, the Appeals Chamber held that the finding that the perpetrators of the crimes were not punished was, on its own, insufficient to establish as a fact that Bagosora personally had failed in his duty to punish culpable subordinates. This situation is different from the present case where the Trial Chamber explicitly found that Sagahutu failed to punish his subordinates for their participation in the attack against the Belgian peacekeepers.931 Moreover, the Appeals Chamber had also concluded that the trial chamber in that case had erred in finding that  Bagosora ordered or authorized the crimes and thus his failure to punish his subordinates could not be based on his direct involvement in the killings. As noted above, the Trial Chamber reasonably concluded that Sagahutu was directly involved in his subordinate’s crime."

M.5.2. The perpetrator failed to take the necessary and reasonable measures within his or her power to repress the commission of such crime; OR

M.5.2.1. ICC

The ICC’s Bemba Gombo Pre-Trial Chamber held on the duty to punish and the duty to repress:

"The duty to ‘repress’ encompasses two separate duties arising at two different stages of the commission of crimes. First, the duty to repress includes a duty to stop ongoing crimes from continuing to be committed. It is the obligation to ‘interrupt a possible chain effect, which may lead to other similar events’. Second, the duty to repress encompasses an obligation to punish forces after the commission of crimes."[75]

"The Chamber wishes to point out that the duty to punish requiring the superior to take the necessary measures to sanction the commission of crimes may be fulfiled in two different ways: either by the superior himself taking the necessary and reasonable measures to punish his forces, or, if he does not have the ability to do so, by referring the matter to the competent authorities. Thus, the duty to punish (as part of the duty to repress) constitutes an alternative to the third duty mentioned under article 28(a)(ii), namely the duty to submit the matter to the competent authorities, when the superior is not himself in a position to take necessary and reasonable measures to punish."[76]

"Moreover, as explained later, the power of a superior, and thus the punitive measures available to him, will vary according to the circumstances of the case and, in particular, to his position in the chain of command. Accordingly, whether the duty to punish requires exercising his power to take measures himself or to submit the matter to the competent authorities will therefore depend on the facts of the case."[77]

M.5.2.2. ICTY

On the duty to punish, the Halilović ("Grabovica-Uzdol") Trial Chamber stated:

"The duty to punish is a separate form of liability, distinct from the failure to prevent it has in fact developed from the importance attached to a commander’s duty to take preventative actions"."[78]

"The argument that a failure to punish a crime is a tacit acceptance of its commission is not without merit. The Trial Chamber recognises that a commander, as the person in possession of effective control over his subordinates is entrusted by international humanitarian law with the obligation to ensure respect of its provisions. The position of the commander exercising authority over his subordinates dictates on his part to take necessary and reasonable measures for the punishment of serious violations of international humanitarian law and a failure to act in this respect is considered so grave that international law imputes upon him responsibility for those crimes. He has, in the words of the ICRC Commentary to the Additional Protocol "tolerated breaches of the law of armed conflict"."[79]

"Finally, the Trial Chamber considers that punishment is an inherent part of prevention of future crimes. It is insufficient for a commander to issue preventative orders or ensure systems are in place for the proper treatment of civilians or prisoners of war if subsequent breaches which may occur are not punished. This failure to punish on the part of a commander can only be seen by the troops to whom the preventative orders are issued as an implicit acceptance that such orders are not binding."[80]

In Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment was noted, that the duty to punish naturally arises after a crime has been committed:

"The duty to punish the subordinates arises after the crimes have already been committed."[81]

On a minimum standard of the duty to punish, the Kordi and Čerkez Chamber held:

"The duty to punish includes at least an obligation to investigate possible crimes or have the matter investigated, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities."[82]

The Kvočka et al. ("Omarska, Keraterm and Trnopolje Camps") Trial Chamber emphasized the latter point, while adding that a superior does not have to be the person who dispenses the punishment:

"The superior does not have to be the person who dispenses the punishment, but he must take an important step in the disciplinary process. […] material ability to punish, which is key to incurring liability as a commander for crimes committed by subordinates, may simply entail such things as ‘submitting reports to the competent authorities in order for proper measures to be taken’"[83]

Reporting crimes to the appropriate authorities may be sufficient to discharge the obligation to punish, whereas this depends on the circumstances of each case. The Boškoski and Tarčulovski Appeals Chamber gave an example where such a report may not be sufficient:

"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 report would not be sufficient to fulfil the obligation to punish offending subordinates."[84]

If an accused reported crimes to appropriate authorities, but these authorities did not handle the case(s) properly, the Popović et al. ("Srebrenica") Trial Chamber held:

"Even if, in fact, the investigation undertaken was not satisfactory, if the failure of the investigating authorities was not attributable to the superior, and he or she did not know of their failure, or could not anticipate it at the time, the superior cannot be held responsible under Article 7(3). No further reporting or action is required in such a case."[85]

Similarly, the Popović et al. ("Srebrenica") Trial Chamber held a superior for not being required to report crimes,

"[…] when the most which could be done by a superior would be to report the illegal conduct of subordinates to the very persons who had ordered it."[86]

According to the Hadžihasanović & Kubura ("Central Bosnia") Appeals Chamber, disciplinary measures may be sufficient to fulfil the duty to punish:

"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."[87]

According to the Orić Trial Chamber,

"[…] the superior must have had control over the perpetrators of a relevant crime both at the time of its commission and at the time that measures to punish were to be taken."[88]

The Orić Trial Chamber further stated that:

"[…] the duty to punish commences only if, and when, the commission of a crime by a subordinate can be reasonably suspected and further summarized a given standard for the efforts to punish: ‘the superior has to order or execute appropriate sanctions or, if not yet able to do so, he or she must at least conduct an investigation and establish the facts in order to ensure that offenders under his or her effective control are brought to justice. The superior need not conduct the investigation or dispense the punishment in person, but he or she must at least ensure that the matter is investigated and transmit a report to the competent authorities for further investigation or sanction.’"[89]

The Orić Trial Chamber negated the requirement of a causal link between the superiors omission and the commission of crimes of subordinates, but held in this context, that:

"[…] if measures taken by the superior have in fact been successful in preventing or repressing relevant crimes of subordinates, this can serve as prima facie evidence that he did not fail in his duties."[90]

M.5.2.3. ICTR

According to the Bagilishema Trial Chamber, the failure to punish may spring from a failure to create or sustain an environment of discipline and respect for the law:

"The Chamber is of the view that, in the case of failure to punish, a superior’s responsibility may arise from his or her failure to create or sustain among the persons under his or her control, an environment of discipline and respect for the law. For example, in Celebici, the Trial Chamber cited evidence that Mucic, the accused prison warden, never punished guards, was frequently absent from the camp at night, and failed to enforce any instructions he did happen to give out. In Blaskic, the accused had led his subordinates to understand that certain types of illegal conduct were acceptable and would not result in punishment. Both Mucic and Blaskic tolerated indiscipline among their subordinates, causing them to believe that acts in disregard of the dictates of humanitarian law would go unpunished. It follows that command responsibility for failure to punish may be triggered by a broadly based pattern of conduct by a superior, which in effect encourages the commission of atrocities by his or her subordinates."[91]

On the duty to punish, the Bagosora and Nsengiyamva Appeals Chamber stated:

"The Trial Chamber’s finding that the perpetrators were not punished afterwards cannot in itself amount to a finding that Nsengiyumva failed to discharge his duty to take necessary and reasonable measures to punish the perpetrators of the crimes."[92]

Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A, Judgement (AC), 30 June 2014, paras. 365-371:

"365. The Prosecution sought to hold Bizimungu responsible as a superior for an attack committed by soldiers of the Rwandan army against Tutsis at the Ecole technique officielle (“ETO”) Complex and Nyanza Hill in Kigali on 11 April 1994. Based on the evidence of Prosecution Witnesses AR and Roméo Dallaire, the Trial Chamber found that the Prosecution proved beyond reasonable doubt the allegation that soldiers of the Rwandan army committed killings of Tutsis at the ETO Complex and Nyanza Hill on 11 April 1994. However, the Trial Chamber did not hold  Bizimungu responsible as a superior under Article 6(3) of the Statute for this attack since it took place before Bizimungu’s appointment as Chief of Staff of the Rwandan army." 

"366. The Trial Chamber found that Bizimungu “knew or had reason to know” that his subordinates had committed crimes at the ETO Complex and Nyanza Hill. Nevertheless, based on jurisprudence from the ICTY Appeals Chamber in the Hadžihasanovi}ć et al. case, the Trial Chamber considered itself “precluded” from finding Bizimungu responsible as a superior for failing to punish the perpetrators in view of the absence of “temporal coincidence between a superior’s exercise of effective control, or lack thereof, and the time when the crimes in relation to which he is charged were committed”.

"367. The Prosecution submits that the Trial Chamber erred in failing to find Bizimungu responsible as a superior for not punishing the soldiers who perpetrated the crimes committed at the ETO Complex and Nyanza Hill. It contends that the Trial Chamber erred in concluding that it was bound by the “divided decision” of the ICTY Appeals Chamber in the Hadžihasanovi}ć et al. Appeal Decision of 16 July 2003. In the alternative, the Prosecution argues that there are cogent reasons to depart from the Hadžihasanovi}ć et al. Appeal Decision of 16 July 2003. It requests the Appeals Chamber to find Bizimungu liable as a superior for the crimes committed by his subordinates at the ETO Complex and Nyanza Hill and increase his sentence to life imprisonment."

"368. Bizimungu responds that the Trial Chamber was correct in finding that he was not responsible as superior for the events at the ETO Complex and Nyanza Hill since it was bound by the precedent set out in the Hadžihasanovi}ć et al. Appeal Decision of 16 July 2003." 

"369. The Appeals Chamber considers that the Prosecution has not demonstrated any error in the Trial Chamber’s conclusion that it was bound by the Hadžihasanovi}ć et al. Appeal Decision of 16 July 2003 in its consideration of Bizimungu’s liability pursuant to Article 6(3) of the Statute. Article 6(3) of the Statute reflects verbatim the language of Article 7(3) of the Statute of the ICTY, and the Appeals Chambers of both the ICTR and ICTY have taken a consistent approach to interpreting the provisions."

"370. In addition, the Appeals Chamber is not satisfied that the Prosecution has demonstrated cogent reasons for departing from the principle set forth in the Hadžihasanovi}ć et al. Appeal Decision of 16 July 2003. In this respect, the Prosecution points principally to criticism of the majority position in the Hadžihasanovi}ć et al. Appeal Decision of 16 July 2003 in the dissenting opinions of that decision as well as declaratory statements attached to the Ori}ć Appeal Judgement. However, the Appeals Chamber recalls that once the law applicable to a particular issue has been determined on appeal, it should in principle be followed, in the interests of certainty and predictability of the law. Moreover, the Prosecution fails to appreciate that the Appeals Chambers of the ICTR and ICTY have consistently applied the principle that a commander is only responsible for the crimes of his subordinates if he has effective control over them at the time of commission."

 

"371. Accordingly, the Appeals Chamber dismisses the Prosecution’s Fourth Ground of Appeal."

M.5.2.4. Other Tribunals

On the duty to punish, the SCSL Taylor Trial Chamber stated:

"The duty to punish only arises once a crime under the Statute has been committed. A superior is bound to conduct a meaningful investigation with a view to establish the facts, order or execute appropriate sanctions, or report the perpetrators to the competent authorities in case the superior lacks sanctioning powers. According to the ICTY Appeals Chamber, there is no support in customary international law for the proposition that a commander can be held responsible for crimes committed by a subordinate prior to the commander’s assumption of command over that subordinate." "[93]

"The tribunals in the aftermath of World War II held as a basic principle, that a superior cannot be obliged to perform the impossible."[94]

At the United States Military Tribunal, in the trial of Wilhelm von Leeb and Thirteen Others, it was stated, that where subordinates act pursuant to criminal orders passed down from higher up in the chain of command, bypassing the commander, the commander remains under an obligation to take whatever measures may be possible in the circumstances:

"The choices which he has for opposition in this case are few: (1) he can issue an order countermanding the order; (2) he can resign; (3) he can sabotage the enforcement of the order within a somewhat limited sphere. [...] Under basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal, violates a moral obligation under International Law. By doing nothing he cannot wash his hands of international responsibility."[95]

The SCSL Fofana and Kondewa Trial Chamber stated:

"The Chamber is of the opinion that the duty imposed on a superior to punish subordinate offenders includes the obligation to investigate the crime or to have the matter investigated to establish the facts in order to assist in the determination of the proper course of conduct to be adopted. The superior has the obligation to take active steps to ensure that the offender will be punished. The Chamber further takes the view that in order to discharge his obligation, the superior may exercise his own powers of sanction, or if he lacks such powers, report the offender to the competent authorities."[96]

M.5.3. The perpetrator failed to take the necessary and reasonable measures within his or her power to submit the matter to the competent authorities for investigation and prosecution

M.5.3.1. ICC

As a distinguished, yet related duty, Bemba Gombo Pre-Trial Chamber considered the duty to submit the matter to the competent authorities for investigation and prosecution, and held:

"The duty to submit the matter to the competent authorities, like the duty to punish, arises after the commission of the crimes. Such a duty requires that the commander takes active steps in order to ensure that the perpetrators are brought to justice. It remedies a situation where commanders do not have the ability to sanction their forces. This includes circumstances where the superior has the ability to take measures, yet those measures do not seem to be adequate."[97]

Prosecutor v. Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu, Case No. ICTR-00-56-T, Judgement (TC), 11 May 2011, paras. 1953, 2008:

"1953. In assessing whether Ndindiliyimana failed in his duty to punish these crimes, the Chamber must bear in mind the degree of effective control that he in fact exercised over his subordinates at the time – that is, his material ability to punish the crimes. The Chamber notes that although a superior is not obliged to perform the impossible, he is obliged to take all measures that are within his material possibility."

"2008. The Chamber notes that international law does not provide a detailed list of preventive mechanisms or modes of punishment that a superior is bound to adopt in order to fulfil his duties. The law only requires that a superior adopt measures that are necessary and reasonable in order to prevent or punish crimes committed by his subordinates. A determination of what constitutes necessary and reasonable measures in a specific case will depend on the circumstances of that case, and in particular on the extent of the superior’s material ability to take action to prevent or punish crimes."

 

 

Footnotes:

[7] ICTY, Aleksovski Appeals Judgment 24 March 2000, para. 76.

[8] ICTY, Prosecutor v. Mucić et al. ("Čelebići"), "Trial Judgment", IT-96-21-T, 16 November 1998, para. 394-395 (emphasis added); confirmed, e.g., in ICTY, Prosecutor v. Hadžihasanović and Kubura ("Central Bosnia"), "Judgment", IT-01-47-T, 15 March 2006, para. 122; also recalled in ICTY, Prosecutor v. Limaj et al., "Appeal Judgment", IT-03-66-A, 27 September 2007, para. 273; see moreover ICTY, Prosecutor v. Krnojelac ("Foča"), "Judgment", IT-97-25-T, 15 March 2002, para. 95 holding that the superior has a duty to exercise the measures possible under the circumstances; ICTY, Prosecutor v. Blagojević and Jokić, "Judgment", IT-02-60-T, 17 January 2005, para. 793; ICTY, Prosecutor v. Brđanin ("Krajina"), "Judgment", IT-99-36-T, 1 September 2004, para. 279.

a") Trial Judgment 15 March 2002, para. 95 holding that the superior has a duty to exercise the measures possible under the circumstances; ICTY, Blagojević and Jokić Trial Judgment 17 January 2005, para. 793; ICTY, Brđanin ("Krajina") Trial Judgment 1 September 2004, para. 279.

[9] ICTY, Blaškić ("Lašva Valley") Trial Judgment 3 March 2000, para. 335; referring to ICTY, Mucić et al. ("Čelebići") Trial Judgment 16 November 1998, para. 395, and ICTY, Aleksovksi Trial Judgment 25 June 1999, para. 81.

[10] ICTY, Halilović ("Grabovica-Uzdol") ("Grabovica-Uzdol") Appeals Judgment 16 October 2007, para. 63; reaffirmed in ICTY, Ori.

Appeals Judgment 3 July 2008, para. 177.

[11] ICTY, Blaškić ("Lašva Valley") Appeals Judgment 29 July 2004, para. 72; hereto also ICTY, Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment 15 March 2006, para. 124 with further references; affirmed in ICTY, Blaškić ("Lašva Valley") Appeals Judgment 29 July 2004, para. 72; ICTY, Halilović ("Grabovica-Uzdol") Appeals Judgment 16 October 2007, para. 63-64; ICTY, Hadžihasanović & Kubura ("Central Bosnia"). Appeals Judgment 22 April 2008, para. 33, ICTY, Ori.

Appeals Judgment 3 July 2008, para. 177.

[12] ICTY, Aleksovski Trial Judgment 25 June 1999, para. 81 (emphasis added); see also ICTY, Aleksovski Appeals Judgment 24 March 2000, para. 73-74; ICTY, Blaškić ("Lašva Valley") Appeals Judgment 29 July 2004, para. 72; ICTY, Mucić et al. ("Čelebići") Appeals Judgment 20 February 2001, para. 206; ICTY, Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment 15 March 2006, para. 123; ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para. 74 (seeing this as "well established"), reaffirmed in ICTY, Halilović ("Grabovica-Uzdol") Appeals Judgment 16 October 2007, para. 175.

[13] ICTY, Strugar ("Dubrovnik") Appeals Judgment 17 July 2008, para. 254; similarly in ICTY, Delić Trial Judgment 15 September 2008, para. 76.

[16] ICTR, Ntagerura et al. Trial Judgment 25 February 2004, para. 630 (footnote omitted); with reference to ICTR, Semanza Trial Judgement 15 May 2003, para. 406; see also ICTR, Kayishema and Ruzindana Trial Judgment 21 May 1999, para. 217; ICTR, Ntakirutimana Trial Judgment 21 February 2003, para. 438.

[18] ICTR, Bagilishema Trial Judgment 7 June 2001, para. 47 (emphasis added).

[19] ICTR, Bagilishema Trial Judgment, 7 June 2001, para. 48, with reference to ICTY, Mucić et al. ("Čelebići") Trial Judgment 16 November 1998, para. 395.

[21] ICTR, Kamuhanda Trial Judgment 22 January 2004, para. 610 (footnotes omitted); similarly ICTR, Semanza Trial Judgment 15 May 2003, para. 406.

[22] ICTR, Ntagerura et al. Trial Judgment 25 February 2004, para. 650 (footnotes omitted).

[24] ICTR, Bagosora et al. ("Military I") Trial Judgment 18 December 2008, para. 2040 (Bagosora), para. 2067 (Ntabakuze) and para. 2083 (Nsengiyumva).

[28] ICC, Bemba Gombo Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges 15 June 2009, para. 436, citing ICTY, Delić Trial Judgment 15 September 2008, para. 69, and with further references.

[29] ICTY, Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment 15 March 2006, para. 125 (emphasis added), referring to ICTY, Strugar ("Dubrovnik") Trial Judgment 28 January 2005, para. 373.

[30] ICTY, Blaškić ("Lašva Valley") Trial Judgment 3 March 2000, para. 336; cf. also ICTY, Stakić ("Prijedor") Trial Judgment 31 July 2003, para. 461.

[33] ICTY, Strugar ("Dubrovnik") Trial Judgment 25 January 2005, para. 378; confirmed by ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para. 74.

[34] ICTY, Prosecutor v. Hadžihasanović and Kubura ("Central Bosnia"), "Judgment", IT-01-47-T, 15 March 2006, para. 137 with further references.

[35] ICTY, Aleksovski Trial Judgment 25 June 1999, para. 135 et seq.

[38] ICTR, Semanza Trial Judgment 15 May 2003, para. 407; confirmed in ICTR, Bagilishema Trial Judgment 7 June 2001, para. 49.

[40] ICTR, Mpambara Trial Judgment 11 September 2006, para. 26; referring to ICTY, Blaškić ("Lašva Valley") Appeals Judgment 29 July 2004, para. 53-85, where the conditions for such liability are discussed.

[41] ICTR, Mpambara Trial Judgment 11 September 2006, para. 27 (footnote omitted).

[42] SCSL, Sesay et al. ("RUF-case") Trial Judgment 2 March 2009, para. 314 (footnotes omitted), with references to ICTY-jurisdiction: ICTY, Blaskic Appeals Judgement 29 July 2004, para. 83; ICTY, Limaj et al. Trial Judgement 30 November 2005, para. 527; ICTY, Kordic and Čerkez ("Lašva Valley") Trial Judgement 17 December 2004, para. 445 - 446; ICTY, Strugar ("Dubrovnik") Trial Judgement 28 January 2005, para. 373.

[43] SCSL, Prosecutor v. Fofana and Kondewa ("CDF-case"), "Judgment", SCSL-04-14-T, 2 August 2007, para. 248 (footnotes omitted), referring to ICTY, Prosecutor v. Strugar ("Dubrovnik"), "Judgment", IT-01-42-T、 28 January 2005, para. 374, the case law developed by the military tribunals in the aftermath of World War II; and additionally to ICTY, Prosecutor v. Limaj et al., "Judgment", IT-03-66-T、 30 November 2005, para. 528; ICTY, Prosecutor v. Orić, "Judgement", IT-03-68-T、 30 June 2006, para. 331, ICTY, Prosecutor v. Halilović ("Grabovica-Uzdol"), "Judgment", IT-01-48-T、 16 November 2005, para. 89.

Trial Judgment 30 June 2006, para. 331, ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para. 89.

[44] SCSL, Sesay et al. ("RUF-case") Trial Judgment 2 March 2009, para. 299 (emphasis added, footnote to ICTY, Orić Appeals Judgment 3 July 2008, Dissenting Opinion of Judge Liu, para. 2).

[47] SCSL, Sesay et al. ("RUF-case") Appeals Judgment 26 October 2009, para. 875 (discussion in para. 872 - 876).

[48] ICC, Bemba Gombo Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute 15 June 2009, para. 437, referring to ICTY, Delić Trial Judgment 15 September 2008, para. 72.

[49] ICC, Bemba Gombo Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute 15 June 2009, para. 438; citing, a.o., ICTY, Strugar, Trial Judgment 31 January 2005, para. 374; and ICTY, Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment 15 March 2006, para. 153.

[50] ICTY, Hadžihasanović and Kubura ("Central Bosnia") Trial Judgment 15 March 2006, para. 126 (footnotes omitted), referring to ICTY, Blaškić ("Lašva Valley") Trial Judgment 3 March 2000, para. 336; and ICTR, Kayishema and Ruzindana Trial Judgement 21 May 1999, para. 515.

[51] ICTY, Kordic and Čerkez ("Lašva Valley") Trial Judgment 17 December 2004, para. 445; confirmed in ICTY, Strugar ("Dubrovnik") Trial Judgment 25 January 2005, para. 373; and ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para 79.

[52] ICTY, Strugar ("Dubrovnik") Trial Judgment 25 January 2005, para. 374 (continuing further with references to actual factors considered by the military tribunals in the aftermath of World War II).

[55] ICTY, Prosecutor v. Hadžihasanović and Kubura ("Central Bosnia"), "Judgment", IT-01-47-T, 15 March 2006, para. 127 (with further references).

[58] ICTY, Prosecutor v. Gotovina and Markać, " Appeal Judgment", IT-06-90-A, 16 November 2012, para. 83 (Dissenting opinion of Judge Carmel Agius).

[59] ICTY, Prosecutor v. Hadžihasanović and Kubura ("Central Bosnia"), "Judgment", IT-01-47-T, 15 March 2006, para. 143 (with reference to the ICRC Commentary on Additional Protocol I).

[62] ICTY, Prosecutor v. Halilović ("Grabovica-Uzdol"), "Judgment", IT-01-48-T, 16 November 2005, para. 80; (confirmed in ICTY, Prosecutor v. Orić, "Judgement", IT-03-68-T、 30 June 2006, para. 330).

Trial Judgment 30 June 2006, para. 330).

[63] ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para. 81 with further references (a.o., on World War II jurisprudence and ICRC Commentary on Article 87 of Additional Protocol I).

[67] ICTY, Prosecutor v. Hadžihasanović and Kubura ("Central Bosnia"), "Judgment", IT-01-47-T, 15 March 2006, para. 145 (footnotes omitted), referring to ICRC Commentary on Additional Protocol I, Art. 87, para. 3550 and 3557.

[69] ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para. 90; confirmed by ICTY, Orić Trial Judgment 30 June 2006, para. 330 - 331.

[70] ICTY, Strugar ("Dubrovnik") Trial Judgment 25 January 2005, para. 415; confirmed by ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para. 90.

[82] ICTY, Kordic and Čerkez ("Lašva Valley") Trial Judgment 17 December 2004, para. 446; similarly, a.o., in ICTY, Blaškić ("Lašva Valley") Trial Judgment 3 March 2000, para. 302; confirmed by ICTY, Halilović ("Grabovica-Uzdol") Trial Judgment 16 November 2005, para. 97; ICTY, Blagojević and Jokić Trial Judgment 17 January 2005, para. 793; ICTY, Strugar ("Dubrovnik") Trial Judgment 25 January 2005, para. 376; ICTY, Limaj et al., Trial Judgment 30 November 2005, para. 529.

[83] ICTY, Prosecutor v. Kvočka et al. ("Omarska, Keraterm and Trnopolje Camps"), "Judgment", IT-98-30/1-T, 2 November 2001, para. 316, with reference to Prosecutor v. Blaškić ("Lašva Valley"), "Judgement", IT-95-14-T, 3 March 2000, para. 302.

("Lašva Valley") Trial Chamber Judgement 3 March 2000, para. 302.

[84] ICTY, Prosecutor v. Boškoski and Tarčulovski, "Appeal Judgment", 19 May 2010, para. 234.

[85] ICTY, Popović et al. ("Sebrenica") Trial Judgment 10 July 2010, para. 1046; with reference to ICTY, Boškoski and Tarčulovski Trial Judgment 10 July 2008, para. 536.

[86] ICTY, Popović et al. ("Sebrenica") Trial Judgment 10 July 2010, para. 1046; with reference to the ICTY, Krnojelac ("Foča") Trial Judgment 15 March 2010, para. 127, which has not been challenged on appeal.

[89] ICTY, Orić Trial Judgment 30 June 2006, para. 336 (emphasis added, footnotes omitted).

[94] In re Yamashita, 327 U.S. 1, 15 (1945) (referring to the "duty to take such appropriate measures as are within his power to control the troops under his command"); Medical Trial, The Trials of War Criminals before the Nuremberg Military Tribunals, Volume II, p. 212 ("the law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power").

[95] Trial of Wilhelm von Leeb and Thirteen Others, United States Military Tribunal(1948) (The German High Command Trial), Law Reports of Trials of War Criminals, Volume XII, pp. 74-75).

[96] SCSL, Fofana and Kondewa ("CDF-case") Trial Judgment 2 August 2007, para. 249 (with reference to ICTY-jurisdiction).

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