M.2. The perpetrator dominated over subordinates through an organized structure of power and was in the position to replace a subordinate who did not comply with his or her will.

M.2.1 Control over the organization

M.2.2. Organized and hierarchical apparatus of power

M.2.3. Execution of the crimes secured by almost automatic compliance with the orders

M.2. The perpetrator dominated over subordinates through an organized structure of power and was in the position to replace a subordinate who did not comply with his or her will.

In the Charles Ble Goude Decision on the Confirmation of Charges, the Trial Chamber held that:

M.2.1 Control over the organization

In the Katanga Trial Judgement, the Trial Chamber held that:

"In respect of the second criterion, the Chamber will consider the matter of control wielded by the leadership of the organisation. Whilst the existence of an apparatus of power is, in Roxin’s theory, a sine qua non, the liability of the perpetrator also rests on the exertion of control and genuine authority over the organisation. The Chamber considers that the criterion of control must be construed as requiring that the indirect perpetrator use at least part of the apparatus of power subordinate to him or her, so as to steer it intentionally towards the commission of a crime, without leaving one of the subordinates at liberty to decide whether the crime is to be executed.

The two criteria of this form of indirect commission, as described above, ensure that an accused will be found to be a perpetrator only where he or she really exerts control over the course of events occasioning the crime. Persons wielding control over the apparatus of power, therefore, are unquestionably those in the organisation who conceived the crime, oversaw its preparation at different hierarchical levels, and controlled its performance and execution. Ultimately only where they effectively wield their authority over the apparatus of power such that its members execute the material elements of the crimes may they be viewed as perpetrators.

Otherwise put, only those persons who control, effectively and undisturbed, at least part of an apparatus of power may oversee the execution of a criminal activity."[35]

According to the Katanga and Chui Confirmation Decision:

"The crimes falling within the jurisdiction of this Court – those of ‘the most serious [...] concern to the international community as a whole’, and which ‘threaten the peace, security, and well-being of the world’ – will almost inevitably concern collective or mass criminality. The Chamber finds that by specifically regulating the commission of a crime through another responsible person, the Statute targets the category of cases which involves a perpetrator’s control over the organisation."[1]

"Prior and subsequent to the drafting of the Statute, numerous national jurisdictions relied on the concept of perpetration through control over an organisation in order to attribute principal responsibility to ‘leaders’ in respect of such crimes. Generally, in crimes committed by several people, these jurisdictions have treated those further from the actual execution of the criminal acts as less culpable."[10] "However, a person’s blameworthiness has also been described as increasing in tandem with a rise in the hierarchy: the higher in rank or farther detached the mastermind is from the perpetrator, the greater that person’s responsibility will be."[2]

M.2.2. Organized and hierarchical apparatus of power

The Katanga and Chui Pre-Trial Chamber held in the Confirmation Decision:

"The organisation must be based on hierarchical relations between superiors and subordinates. The Organisation must also be composed of sufficient subordinates to guarantee that superiors’ orders will be carried out, if not by one subordinate, then by another."[3]

M.2.3. Execution of the crimes secured by almost automatic compliance with the orders

In the Katanga Trial Judgement, the Trial Chamber held that:

"In respect of the first criterion, the Chamber recalls that the organisation must possess very specific features in order for some of its leaders to be considered perpetrators for the purposes of article 25(3)(a) of the Statute. The key to the superior’s securing of control over the crime is the functional automatism which propels the apparatus of power. The superior need not control the will of each executor through, for example, coercion or deception, since the superior knows that if a member of the organisation refuses to comply, another will usually be available to step in and somehow ensure the execution of the orders issued. It is the interchangeability of potential executors which makes it possible to establish that the organisation consists of several persons who may replace one another and who are all in a position to bring about the material elements of the crimes. Stated otherwise, in an apparatus of power, the superior’s orders are automatically executed, at least on account of the interchangeability of the potential physical perpetrators."[34]

In the Katanga and Chui Confirmation Decision it was stated that:

"In essence, the leader’s control over the apparatus allows him to utilize his subordinates as ‘a mere gear in a giant machine’ in order to produce the criminal result ‘automatically’. [...] Above all, this ‘mechanisation’ seeks to ensure that the successful execution of the plan will not be compromised by any particular subordinate’s failure to comply with an order. Any one subordinate who does not comply may simply be replaced by another who will; the actual executor of the order is merely a fungible individual. As such, the organisation also must be large enough to provide a sufficient supply of subordinates."[4]

According to the Katanga and Chui Confirmation Decision:

"Attributes of the organisation – other than the replaceability of subordinates – may also enable automatic compliance with the senior authority’s orders. An alternative means by which a leader secures automatic compliance via his control of the apparatus may be through intensive, strict, and violent training regimens. For example, abducting minors and subjecting them to punishing training regimens in which they are taught to shoot, pillage, rape, and kill, may be an effective means for ensuring automatic compliance with leaders’ orders to commit such acts. The leader’s ability to secure this automatic compliance with his orders is the basis for his principal – rather than accessorial – liability. The highest authority does not merely order the commission of a crime, but through his control over the organisation, essentially decides whether and how the crime would be committed."[5]

The Katanga and Chui Confirmation Decision found that:

"The main attribute of this kind of organisation[15] is a mechanism that enables its highest authorities to ensure automatic compliance with their orders. Thus, ‘such Organisaion develops namely a life that is independent of the changing composition of its members. It functions, without depending on the individual identity of the executants, as if it were automatic.’ An authority who issues an order within such an organisation therefore assumes a different kind of responsibility than in ordinary cases of criminal ordering. In the latter cases, article 25(3)(b) of the Statute provides that a leader or commander who orders the commission of a crime may be regarded as an accessory."[6]

The Kupreškić et al. Trial Chamber found:

"As was described with respect to the accused Drago Josipović, Vladimir ?antić, together with the latter, participated in the murder of Musafer Pušcul and the burning of his house. In addition, from his position as a company commander of the Military Police and commander of the Jokers, it can be safely inferred that he passed on the orders of his superiors to his men, and his presence on the scene of the attack also served as an added encouragement for his subordinates to abide by the orders they had received."[7]

Further the Kupreškić et al. Trial Chamber stated that:

"Concerning the conviction on the persecution count, Vladimir ?antić’s role was most serious, since he was a commander, who assisted in the strategic planning of the whole attack. He also passed on orders from his superiors to his subordinates, which amounted to the reissuing of the orders that were illegal in the circumstances. This role renders particularly grave his participation in the offences committed. Furthermore, he played an active role in the killing of Bosnian Muslim civilians in Ahmići, the destruction of Bosnian Muslim homes and property and the expulsion of Bosnian Muslims from the Ahmići-Antići region."[8]

In the Blaškić Trial Judgment it was held that:

"The orders given to the Vitezovi showed that, in 1993, there was a permanent relationship of superiority between General Blaškic and those troops giving him effective control over them. That is sufficient to prove that there was a relationship of subordination."[9]

The Kordic and Cerkez Trial Chamber held:

"In relation to ordering, the Blaškić Trial Chamber further held that the order ‘does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence. Furthermore, what is important is the commander’s mens rea, not that of the subordinate executing the order’."[10]

According to the Gacumbitsi Appeals Chamber: