M.5. The crimes committed by the subordinates resulted from the perpetrator’s failure to exercise control properly over such subordinates

M.5. The crimes committed by the subordinates resulted from the perpetrator’s failure to exercise control properly over such subordinates

M.5.1. ICC

With respect to the "effective control" and "exercise control properly", the Bemba Gombo Confirmation of Charges Decision reads that:

"[t]he Chamber considers that it cannot be said that a superior failed to ‘exercise control properly’, without showing that he had ‘effective control’ over his forces. Since effective control is actually the ‘material ability’ to prevent, repress or submit the matter to the competent authorities, then a failure to ‘exercise control properly’ is, in fact, a scenario of noncompliance with such duties. This suggests that the reference to the phrase ‘failure to exercise control properly’ must be read and understood in light of article 28(a)(ii) of the Statute."[1]

Based on the wordings "as a result of" in Art. 28(a) and Art. 22, the Court confirmed that there must be causality of a superior’s dereliction of duty and the alleged crime.

"The Chamber also observes that the chapeau of article 28(a) of the Statute establishes a link between the commission of the underlying crimes and a superior's ‘failure to exercise control properly’. This is reflected in the words ‘as a result of’, which indicates such relationship. The Chamber therefore considers that the chapeau of article 28(a) of the Statute includes an element of causality between a superior's dereliction of duty and the underlying crimes. This interpretation is consistent with the principle of strict construction mirrored in article 22(2) of the Statute which, as a part of the principle nullum crimen sine lege, compels the Chamber to interpret this provision strictly."[2]

However, the Bemba Gombo Pre-Trial Chamber only required such a causal link for the duty to prevent the commission of future crimes:

"Although the Chamber finds that causality is a requirement under article 28 of the Statute, its actual scope needs to be further clarified by the Chamber. As stated above, article 28(a)(ii) of the Statute refers to three different duties: the duty to prevent crimes, repress crimes, or submit the matter to the competent authorities for investigation and prosecution. The Chamber considers that a failure to comply with the duties to repress or submit the matter to the competent authorities arise during or after the commission of crimes. Thus, it is illogical to conclude that a failure relating to those two duties can retroactively cause the crimes to be committed. Accordingly, the Chamber is of the view that the element of causality only relates to the commander's duty to prevent the commission of future crimes. Nonetheless, the Chamber notes that the failure of a superior to fulfill his duties during and after the crimes can have a causal impact on the commission of further crimes. As punishment is an inherent part of prevention of future crimes, a commander's past failure to punish crimes is likely to increase the risk that further crimes will be committed in the future."[3]

As for the examination of causality, the Court adopted the "but for test" with respect to the positive act:

"The Chamber also considers that since article 28(a) of the Statute does not elaborate on the level of causality required, a possible way to determine the level of causality would be to apply a ‘but for test’, in the sense that, but for the superior's failure to fulfill his duty to take reasonable and necessary measures to prevent crimes, those crimes would not have been committed by his forces. However, contrary to the visible and material effect of a positive act, the effect of an omission cannot be empirically determined with certainty. In other words, it would not be practical to predict exactly what would have happened if a commander had fulfilled his obligation to prevent crimes. There is no direct causal link that needs to be established between the superior's omission and the crime committed by his subordinates. Therefore, the Chamber considers that it is only necessary to prove that the commander's omission increased the risk of the commission of the crimes charged in order to hold him criminally responsible under article 28(a) of the Statute."[4]

M.5.2. ICTY

The Blaškić Trial Chamber holds that:

"[t]he test of effective control exercised by the commander implies that more than one person may be held responsible for the same crime committed by a subordinate."[5]

The Blaškić Appeals Chamber held not being:

"[p]ersuaded by the argument] that existence of causality between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, is an element of command responsibility that requires proof by the Prosecution in all circumstances of the case. […] [I]t is more a question of fact to be established on a case by case basis, than a question of law in general."[6]

Concerning the "failure to punish" as a failure to exercise control properly, the Blaškić Appeals Chamber stated that:

"Disciplinary or penal action can only be initiated after a violation is discovered, and a violator is one who has already violated a rule of law. Further, it is illogical to argue both that ‘a superior’s responsibility for the failure to punish is construed as a sub-category of his liability for failing to prevent the commission of unlawful acts,’ and that ‘failure to punish only led to the imposition of criminal responsibility if it resulted in a failure to prevent the commission of future crimes.’ The failure to punish and the failure to prevent 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."[7]

Rejecting a nexus of causation in the concept of command responsibility, the Delalić et al.. ("Čelebići") Trial Chamber held that:

"Notwithstanding the central place assumed by the principle of causation in criminal law, causation has not traditionally been postulated as a conditio sine qua non for the imposition of criminal liability on superiors for their failure to prevent or punish offences committed by their subordinates. Accordingly, the Trial Chamber has found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formulation of the principle in existing treaty law, or, with one exception, in the abundant literature on this subject. This is not to say that, conceptually, the principle of causality is without application to the doctrine of command responsibility insofar as it relates to the responsibility of superiors for their failure to prevent the crimes of their subordinates. In fact, a recognition of a necessary causal nexus may be considered to be inherent in the requirement of crimes committed by subordinates and the superior’s failure to take the measures within his powers to prevent them. In this situation, the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfill his duty to act, the acts of his subordinates would not have been committed."[8]

The Delalić et al..("Čelebići") Trial Chamber concluded that:

"[n]o such causal link can possibly exist between an offence committed by a subordinate and the subsequent failure of a superior to punish the perpetrator of that same offence. The very existence of the principle of superior responsibility for failure to punish, therefore, recognised under Article 7(3) and customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility."[9]

Also, the Halilović ("Grabovica-Uzdol") Trial Chamber, noted that:

"[t]he nature of command responsibility itself, as a sui generis form of liability, which is distinct from the modes of individual responsibility set out in Article 7(1), does not require a causal link. Command responsibility is responsibility for omission, which is culpable due to the duty imposed by international law upon a commander. If a causal link were required this would change the basis of command responsibility for failure to prevent or punish to the extent that it would practically require involvement on the part of the commander in the crime his subordinates committed, thus altering the very nature of the liability imposed under Article 7(3)."[10]

Based on the aforementioned, the Hadžihasanović and Kubura ("Central Bosnia") Appeals Chamber stated that:

"Considering that superior responsibility does not require that a causal link be established between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes, there is no duty for an accused to bring evidence demonstrating that such a causal link does not exist."[11]

"Also, the Orić Trial Chamber did not consider a causal link as being necessary."[12]

M.5.3. ICTR

"In the ICTR case law, a causal link has not been considered as a requirement for command responsibility."[13]

M.5.4. Other Tribunals

At the SCSL, the Fofana and Kondewa Trial Chamber held that:

"The Chamber notes that a causal link between the superior’s failure to prevent the subordinates’ crimes and the occurrence of these crimes is not an element of the superior’s responsibility; it is a question of fact rather than of law."[14]