M.3. The perpetrator had effective authority and control over the subordinates

M.3.1. ICTY

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

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

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

582. In assessing effective control what is relevant is whether the "superior has the material ability to prevent or punish the criminally responsible subordinate". In this regard the Appeals Chamber has held: "Whether the effective control descends from the superior to the subordinate culpable of the crime through intermediary subordinates is immaterial as a matter of law; instead; what matters is whether the superior has the material ability to prevent or punish the criminally responsible subordinate. The separate question of whether - due to proximity or remoteness of control - the superior indeed possessed effective control is a matter of evidence, not of substantive law."

583. Furthermore, for the purposes of liability under Article 7(3), the accused need not know the exact identity of a subordinate perpetrator." [1]

In Aleksovski, the Trial Chamber stated that:

"[A] civilian must be characterized as a superior pursuant to Article 7(3) if he has the ability de jure or de facto to issue orders to prevent an offence and to sanction the perpetrators thereof. […] A civilian’s sanctioning power must however he interpreted broadly. […] It cannot be expected that a civilian authority will have disciplinary powers over his subordinate equivalent to that of the military authorities in an analogous command position. […] [T]he superior’s ability de jure or de facto to impose sanctions is not essential. The possibility of transmitting reports to the appropriate authorities suffices once the civilian authority through its position in the hierarchy is expected to report whenever crimes are committed, and that, in the light of this position, the likelihood that those reports will trigger an investigation or initiate disciplinary or even criminal measures is extant."[2]

Two year later, in Delalić et al. (Čelebići) the Trial Chamber held that:

"[t]he doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders."[3]

In the Delalić et al. (Čelebići) Appeals Judgment, it was held that:

"The principle that military and other superiors may be held criminally responsible for the acts of their subordinates is well-established in conventional and customary law"[4]

"[t]he Appeals Chamber does not consider that the rule is controversial that civilian leaders may incur responsibility in relation to acts committed by their subordinates or other persons under their effective control."[5]

In the same year, the Trial Chamber applied the above notion in Kordić and Čerkez and held that:

"Kordić was a civilian and a politician with tremendous influence and power in Central Bosnia. He occupied an important position in the leadership of the HZ H-B, but was not in the top echelon."[6]

"While he played an important role in military matters, even at times issuing orders, and exercising authority over HVO forces, he was, and remained throughout the Indictment period, a civilian, who was not part of the formal command structure of the HVO."[7]

Nevertheless, the Trial Chamber found that:

"Kordić lacked effective control, which the Appeals Chamber in the Čelebići case defined as ‘a material ability to prevent or punish criminal conduct, however that control is exercised’."[8]

"In sum, the Chamber finds that Kordić was neither a commander nor a superior in respect of the HVO, since he possessed neither the authority to prevent the crimes that were committed, nor to punish the perpetrators of those crimes."[9]

In Kvočka et al., the Trial Chamber held that:

"[K]vočka exercised authority in Omarska […] and that he performed the role of deputy commander of the camp. He was also the duty officer and he passed on ?eljko Meakic’s orders to others. Detainees reported that Kvočka ordered the other guards to perform tasks on occasion. He clearly had broad authority and influence within the camp."[10]

However the Chamber found that:

"[t]he evidence does not sufficiently demonstrate a superior-subordinate relationship between Kvočka and known perpetrators of the crimes, nor is there credible evidence that Kvočka exercised effective control over subordinates who committed crimes."[11]

"There was certainly a duty to train and control the guards in the camp, and to prevent and punish criminal conduct. However, it does not appear to the Trial Chamber that the Prosecution has fully established what crimes were committed by which of his subordinates during the time he was working in the camp."[12]

With regard to the superior responsibility of Draglojub Prcać, the Chamber held that:

"[P]rcać exercised authority in Omarska camp. However, the evidence does not prove that he held a superior-subordinate relationship with those perpetrating crimes, exercised effective control over any who committed crimes, or that he had clear authority to prevent or punish crimes."[13]

With regard to the superior responsibility of Milojica Kos, the Chamber held that:

"[K]os exercised authority over guards on his shift. However, the Trial Chamber was not satisfied that sufficient proof was provided demonstrating that Kos exercised the necessary degree of effective control over those guards who were shown to have committed specific crimes, or that he had clear authority to prevent or punish crimes committed by his subordinates in the camp."[14]

With regard to the superior responsibility of Mlađ;o Radić, the Chamber established that:

"[R]adić was one of the three guard shift leaders in Omarska camp. It has also established that guards on Radić’s shift committed crimes particularly perversely and ruthlessly. Indeed, there is a vast amount of evidence pertaining to crimes committed by guards on Radić’s shift."[15]

"The Trial Chamber has found that Radić exercised authority over guards on his shift, although it is not entirely clear that Radić exercised "effective control" over these guards. More pertinently, although there is substantial credible evidence of crimes committed by Radić’s subordinates, there is some doubt as to whether, within the context of a joint criminal enterprise, a co-perpetrator or aider or abettor who is held responsible for the totality of crimes committed during his tenure on the basis of a criminal enterprise theory can be found separately responsible for part of those crimes on an Article 7(3) superior responsibility theory. […] The Trial Chamber declines to find that Radić incurs superior responsibility pursuant to Article 7(3) of the Statute."[16]

The Trial Chamber in Krnojelac held that:

"The position of prison warden, in the ordinary usage of the word, necessarily connotes a supervisory role over all prison affairs. This general understanding of the position of warden accords with the structure of the KP Dom prior to the conflict."

"The deputy warden, the commander of the guards, the chief of service for rehabilitation and the head of the economic unit were all subordinate to the warden. Each of these persons was required to report to the warden with respect to the management of their areas of responsibility."[17]

"[t]he Trial Chamber is satisfied […] that the Accused exercised supervisory responsibility over all subordinate personnel and detainees at the KP Dom."[18]

Two years later, in Brđ;anin Trial Chamber Judgment (September 1, 2004), the Trial Chamber held that:

"It cannot be expected that civilian superiors will have disciplinary power over their subordinates equivalent to that of military superiors in an analogous command position. For a finding that civilian superiors have effective control over their subordinates, it suffices that civilian superiors, through their position in the hierarchy, have the duty to report whenever crimes are committed, and that, in light of their position, the likelihood that those reports will trigger an investigation or initiate disciplinary or criminal measures is extant. In situations of armed conflict, it is often the case that civilian superiors assume more power than that with which they are officially vested. In such circumstances, de facto authority may exist alongside, and may turn out to be more significant than, de jure authority. The capacity to sign orders will be indicative of some authority; it is necessary to look to the substance of the documents signed and whether there is evidence of them being acted upon."[19]

"Civilian superiors are under similar obligations to prevent their subordinates’ crimes and to punish the perpetrators thereof as military superiors. Depending on the effective de jure or de facto powers enjoyed, one would need to consider whether these include an ability to require the competent authorities to take action."[20]

With regard to Brđ;anin though, the Chamber found that:

"Due to lack of specific evidence, it is not possible to examine whether a superiorsubordinate relationship existed between the Accused and Bosnian Serb armed civilians or unidentified individuals."[21]

In Boškoski and Tarčulovski, the accused Boškoski was the minister of the Interior. The Trial Chamber held that:

"The Minister has the duty to secure that the work performed in his Ministry is performed lawfully and efficiently. Of necessity this requires that, consistently with any express statutory requirements, the Minister be able to order and determine the work to be performed in his Ministry, direct the officials performing the tasks of the Ministry, (including those powers and functions conferred on particular officials by statutory provisions,) and to enforce compliance with his directions."[22]

"for these reasons [...] the Chamber is satisfied that Ljube Boškoski, as Minister, had the de jure power to control and direct the police, and any other operative employees of the MoI, including members of the reserve and special police units, in respect of the operation conducted in Ljuboten on 12 August 2001, and consequential events at police checkpoints and police stations."

"This de jure power also extended to ensuring that […] the criminal police in MoI, performed their functions efficiently and lawfully."[23]

"There is no doubt he was in a position to effectively enforce his ministerial powers to the extent he chose."[24]

In the Perišić Judgment, the Trial Chamber stated that:

"Superior responsibility applies to every superior at every level […] The superior does not need to know the exact identity of those subordinates who committed the crimes, to be held responsible under Article 7(3) of the Statute"[25]

The Trial Chamber also held that:

"The subordination does not need to be direct or formal. A superior may be held responsible pursuant to Article 7(3) whether he was a de jure or de facto commander, as long as by virtue of his position, he was ‘’senior in some sort of formal or informal hierarchy to the perpetrator" and exercised effective control over such subordinate"[26]

The Đorđ;ević Trial Chamber stated that:

"[j]urisprudence has established that Article 7(3) is applicable to both civilian and military leaders, once it has been determined that they had the requisite effective control over their subordinates. In particular in armed conflict, civilian superiors may exercise a wide de facto authority alongside their de jure authority over subordinates, It is, therefore, necessary to carefully examine both the de facto and the de jure authority and the effective control exercised by the civilian superior in the particular circumstances of the case."[27]

M.3.2. ICTR

The Judgments of the ICTR relating to non-military responsibility will be presented chronologically.

In 2000, in Musema, the accused was, the director of a public enterprise, the Gisovu Tea Factory. The Trial Chamber held that:

"[i]t has been established that employees of the Gisovu Tea Factory were among the attackers. The Chamber is of the view that their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute, including, in particular, causing serious bodily and mental harm to members of the Tutsi group."[28]

"[i]t has also been established that Musema was the superior of said employees and that he held not only de jure power over them, but also de facto power. Considering that Musema was personally present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused nevertheless failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation."[29]

"Consequently, the Chamber finds that, for the acts committed by the employees of the Gisovu Tea Factory during the attack of 26 April 1994 on Gitwa Hill, Musema incurs individual criminal responsibility, as their superior, on the basis of the provisions of Article 6 (3) of the Statute."[30]

A year later, in Bagilishema Trial Chamber Judgment (June 7, 2001), the Accused was at the relevant times, a bourgmestre (mayor) of Mabanza commune. Trial Chamber held that:

"While there can be no doubt, therefore, that the doctrine of command responsibility extends beyond the responsibility of military commanders to encompass civilian superiors in positions of authority, the Chamber agrees with the approach articulated by the International Law Commission, and, more recently, in Čelebići, namely that the doctrine of command responsibility "extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders."[31]

"According to the Trial Chamber in Čelebići, for a civilian superior’s degree of control to be "similar to" that of a military commander, the control over subordinates must be "effective", and the superior must have the "material ability" to prevent and punish any offences. Furthermore, the exercise of de facto authority must be accompanied by "the trappings of the exercise of de jure authority". The Chamber took the view that these trappings of authority include, for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action. It is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence."[32]

"[U]nable to conclude from the evidence before it that the employees of Mabanza commune were, vis-à-vis the Accused, in a de jure-like relationship, whether pre-existing or contrived, that bore the marks of a military-style command. The Prosecution has not adduced sufficient proof on this point, even though its charges of command responsibility presuppose such evidence. The Chamber therefore finds that no administrative communal employees were subordinates of the Accused in the sense required by Article 6(3) of the Statute."[33]

With regard to the gendarmes assigned to the commune, the Trial Chamber found that:

"[t]he Accused did not have de jure authority over [them] […] The Prosecution has led no evidence that the Accused sought to establish a contrived de jure-like authority over them. Therefore, the gendarmes were not the Accused’s subordinates and he is not liable under Article 6(3) for their actions."[34]

However, a year later, the Appeals Chamber in Bagilishema held that:

"[t]he Trial Chamber’s approach to the notion of "effective control" in relation to civilian superior was erroneous in law, to the extent that it suggested that the control exercised by a civilian superior must be of the same nature as that exercised by a military commander. As the Appeals Chamber has already stated, this is not the case. It is sufficient that, for one reason or another, the accused exercises the required "degree" of control over his subordinates, namely, that of effective control. […]"[35]

"The Appeals Chamber notes the ambiguity of the expression a contrived de jure-like authority (in French, "autorité quasi-de jure factice") and acknowledges that it is difficult to grasp the meaning thereof. In the context of paragraph 152 of the Judgment, the concept seems to form part of the reasoning used by the Trial Chamber in examining the de jure authority exercised by the Accused, but it can be interpreted in different ways. The Appeals Chamber reiterates that the case law of the International Tribunals makes it mandatory to use the effective control test for both de jure and de facto superiors. Creating intermediate levels of authority is unnecessary and it would impair the legal analysis of the criminal liability of a superior under Article 6(3) of the Statute, as well as heighten the confusion in identifying the various forms of authority and instituting effective control."[36]

The Judgment of the Bagilishema Appeals Chamber has since been followed by the Ntakirutimana Trial Chamber, which held that:

"Article 6(3) provides that civilian leaders may incur criminal responsibility for acts committed by their subordinates or others under their "effective control", although the control exercised need not be of the same nature as that exercised by a military commander."[37]

In E. and G. Ntakirutimana the accused, Gérard Ntakirutimana, managed a hospital. The chamber held that:

"For Gérard Ntakirutimana to be held criminally responsible under Article 6(3), the Prosecution has to prove beyond a reasonable doubt that Gérard Ntakirutimana had "effective control" over persons at the relevant time, like Mathias Ngirinshuti."[38]

"[t]here is some evidence that Gérard Ntakirutimana took charge of Mugonero Hospital in the days before 16 April 1994 and even thereafter. Additionally, there is evidence that Gérard Ntakirutimana played a prominent role during some attacks at Bisesero during the period April to June 1994. However, it does not follow from any of the testimonies that Gérard Ntakirutimana had effective control over any person."[39]

"Therefore, the Chamber did not find that Gérard Ntakirutimana had effective control over any person during the period up to and including 16 April 1994 or thereafter."[40]

In Bagambiki, the Accused being a prefect, the Trial Chamber held with regard to gendarmes that:

"Bagambiki, as prefect, had the ability to requisition gendarmes to participate in operations for the maintenance and the re-establishment of order in the prefecture."[41]

"The [Rwandan] law contains no provision indicating that a prefect had the legal authority as a superior to prevent a gendarme from committing a crime by giving an order during the execution of an operation or to punish a gendarme who had committed a crime during the execution of an operation."[42]

"The Chamber is also not satisfied that there is sufficient reliable evidence to indicate that Bagambiki had de facto authority over the gendarmes. While there is ample evidence that Bagambiki requisitioned gendarmes to provide security at a number of sites, there is insufficient evidence that he maintained any control over how these gendarmes carried out their mission upon deployment."[43]

With regard to soldiers, the Trial Chamber held that:

"Under Rwandan law, Bagambiki, as prefect, had a measure of authority to requisition soldiers to participate in operations for the maintenance and reestablishment of order in the prefecture. However, the Chamber is not convinced that Bagambiki’s ability to requisition soldiers gave him de jure authority over them."[44]

With regard to the Kagano Commune Officials, the chamber held that:

"[a]s prefect [Bagambiki] was the direct supervisor of the bourgmestres, that he assessed them on an annual basis, and that he could sanction them, which is confirmed by the laws on the organisation and function of the prefecture and the commune."

"The law on the organisation of the commune provides that commune police are subordinate to the bourgmestre and that the prefect has the authority to requisition the commune police and place them under his direct authority."

"The Chamber therefore finds that Bagambiki was a superior with effective control over Bourgmestre Kamana and the Kagano commune police."[45]

With regard to the responsibility of a rector of a school, the Trial Chamber held in Nsengimana Trial Chamber Judgment that:

"Nsengimana as rector was the superior of […] all other Christ-Roi employees, such as handymen and watchmen. […] this authority continued even during school holidays where the rector remained responsible for administrative activities as opposed to pedagogical issues. As rector, Nsengimana had the obligation to ensure the proper administration of the school and to reprimand or to institute disciplinary proceedings in the case of any act contrary to the governing laws or regulations."[46]

"[a]lthough a rector had no unilateral authority to impose disciplinary sanctions against an employee beyond a reprimand, he did have the ability to trigger the administrative mechanisms leading to more serious measures."

"Nsengimana emphasised discipline within the school. […] this is illustrated by his suspension of five students when machetes were found under their mattresses. He also acknowledged that he had the authority to suspend a contract worker, such as a watchman, pending approval from the Ministry of Education for termination. […] the foregoing clearly reflects that Nsengimana had de jure authority over Christ-Roi employees."[47]

Nevertheless the Chamber concluded that:

"[t]he Prosecution has not proved beyond reasonable doubt that Nsengimana exercised effective control over the employees and students of the Collège Christ-Roi."[48]

In the Ndindiliyimana et al. Judgment, the Trial Chamber reiterates that:

"[a] superior-subordinate relationship is established by showing a formal or informal hierarchical relationship. The superior must have the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates. At the time that the offence is committed, the superior must have had effective control in terms of the material ability to prevent the commission of the offence or to punish the principal offenders. Effective control is not satisfied by a showing of general influence on the part of the accused."[49]

Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphone Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement (AC), 14 December 2015, para. 995:

"995. The Appeals Chamber recalls that " indicators of effective control are more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent ₣orğ punish." It further recalls that the material ability to prevent or punish can only amount to effective control over the perpetrators if it is premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators. The concepts of subordination, hierarchy, and chains of command need not be established in the sense of formal organisational structures so long as the fundamental requirement of effective control over the subordinate, in the sense of material ability to prevent or punish criminal conduct, is satisfied."

 

 

Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-A, Judgement (AC), 29 September 2014, para. 254:

"254. The Appeals Chamber recalls that the threshold for the establishment of a superior subordinate relationship within the meaning of Article 6(3) of the Statute is the possession of effective control on the part of the superior, in the sense of a material ability to prevent or punish criminal conduct by his subordinates."

 

 

M.3.3. Other Tribunals

In US v. Pohl et al., the US Military Tribunal Nuremberg held that:

"Karl Mummenthey joined the Allgemeine SS in 1934. In 1938 he became a legal assistant in the administrative office of the SS under Dr. Salpeter. In 1940, in order to avoid being drafted into the army he arranged with Salpeter to be taken into the Waffen SS and placed on detached service with the WVHA. In his direction and management of the German Earth and Stone Works, known as DEST, none of the defendants was more directly associated with concentration camp inmate labor than Karl Mummenthey."[50]

"Mummenthey […] professes an ignorance as to the hours of work required of concentration camp inmates. […] the record shows that Mummenthey received a copy of Pohl's order that inmates must work at least 11 hours a day and a half day on Sunday in case of emergency. In his own letter to Baier on 2 May 1944, he revealed his knowledge of the 11 hour rule and said: "I have directed Blizyn to increase the production of the undertaking by making all efforts, and to be particularly anxious that the best use be made of the Polish prisoners."

"Mummenthey conceded that he visited the DEST gravel works at Auschwitz in 1940, 1941 and 1943, and at Treblinka in the spring of 1943. Whether he knew of the Jewish extermination program at Auschwitz is not demonstrated by concrete proof, but it is difficult to assume that with his position and opportunity for gaining information he could go to Auschwitz and not learn of what was transpiring in the gas chambers and crematoria."

"Mummenthey had to know of OSTI and its nefarious program. The final audit of OSTI was prepared by one Fischer who said in his statement of the audit: "I received through SS Obersturmbannfuehrer Mummenthey the order to audit the Ostindustrie." Mummenthey also professed ignorance about the Action Reinhardt. Yet the Allach Ceramic Works under Mummenthey received a loan of over 500,000 marks in May 1943 from the Reinhardt fund through the DWB."

"Mummenthey could see nothing illegal or improper in the whole concentration camp setup. He even went so far as to say that at the time he could see nothing illegal or improper in all of Hitler's doings and in all of the Gestapo doings. Mummenthey's assertions that he did not know what was happening in the labor camps and enterprises under his jurisdiction does not exonerate him. It was his duty to know. […] the camp commanders were themselves plant directors of DEST, and therefore subordinated to WVHA."[51]

In US v Flick et al. the US Military Tribunal Nuremberg stated that:

"[d]efendant Steinbrinck also was a member of the Praesidium of RVE (1941-45) and in that capacity-exerted extensive influence upon the formulation and administration of the slave-labor program and that between September 1939 and April 1945 defendant Steinbrinck held the position of Beauftragter Kohle-West, also known as Bekowest (Plenipotentiary for Coal in the Occupied Western Territories) of France, Holland, Belgium, and Luxembourg and the position of Generalbeauftragter fuer die Stahlindustrie (Plenipotentiary General for the Steel Industry) in northern France, Belgium, and Luxembourg, and that by virtue of these positions, he exercised wide authority over the procurement, use, treatment, allocation, and transportation of thousands of slave laborers and prisoners of war."[52]

"We must conclude that the cruel and atrocious practices which are known to have characterized the slave labor program in many places where it was employed did not prevail in the plants and establishments under the control of the defendants. Isolated instances of ill treatment or neglect shown by the evidence were not the result of a policy of the plants' managements, but were in direct opposition to it."[53]

The International Military Tribunal for the Far East stated that:

"[t]he only evidence relating [Hirota] to such crimes deals with the atrocities at Nanking in December 1937 and January and February 1938. As Foreign Minister he received reports of these atrocities immediately after the entry of the Japanese forces into Nanking. According to the Defence evidence credence was given to these reports and the matter was taken up with the War Ministry. Assurances were accepted from the War Ministry that the atrocities would be stopped. After these assurances had been given reports of atrocities continued to come in for at least a month. The Tribunal is of opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence."[54]

"We do no injustice to SHIGEMITSU when we hold that the circumstances, as he knew them, made him suspicious that the treatment of the prisoners was not as it should have been. Indeed a witness gave evidence for him to that effect. Thereupon he took no adequate steps to have the matter investigated, although he, as a member of the government, bore overhead responsibility for the welfare of the prisoners. He should have pressed the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which he suspected was not being discharged."[55]