M.6. The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent or repress the commission of such crime 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:

"[t]hat, 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 that:

"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 Delalić et al. ("Čelebići") Trial Chamber, held that:

"[t]he 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 Delalić 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 that:

"[n]ecessary 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 the determination of what constitutes "necessary and reasonable measures" to prevent the commission of crimes or to punish the perpetrators 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 that:

"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]

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:

"[s]uperior 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:

"[h]ad 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]

Other Tribunals

The SCSL statute provides for superior responsibility being a mode of liability due to Art. 6(3). The SCSL Fofana and Kondewa Trial Chamber demanded ‘material ability’, whereby it clarified that:

"[t]he 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 stated that:

"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]

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 that:

"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 fulfill 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 that:

"‘‘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 Delalić et al. ("Čelebići") Appeals Chamber held that:

"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]

"[R]esponsibility 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:

"[f]ailure 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:

"[v]ery 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:

"[t]his 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]

M.6.1 The perpetrator failed to take the necessary and reasonable measures within his or her power to prevent the commission of such crime; OR

M.6.1.1. ICC

The Bemba Gombo Pre-Trial Chamber considered the duty to prevent and the duty to repress independently from each other. On the duty to prevent, it held:

"[t]hat 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 that:

"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.6.1.2. ICTY

On the duty to prevent, 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 that:

"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;evic Trial Chamber stated 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 Orić Trial Chamber:

"[c]alled 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).[194] 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 that:

"[t]he 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:

"[a]rmed 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:

"[t]he 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:

"[t]he 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 that:

"[a]n 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]

M.6.1.3. ICTR

The Kajelijeli Trial Chamber found that:

"[t]he Accused failed to take the necessary and reasonable measures to prevent the acts of genocide committed by his subordinates,"[210] 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]

"With regard to his material ability to prevent or repress crimes committed by his civilian subordinates, Karemera submitted that this ability was confusing because the obligation for a subordinate to obey an order is not as clearly defined as in military structures. Karemera further submitted that neither he nor Ngirumpatse had the military ability to prevent MRND party members from committing crimes or punish them for these crimes, as stated in Article 60 of the MRND Statute"[72]

However, the Trial Chamber dismissed Karamera’s concern by stating:

"[t]hat civilian superiors are also included in the command responsibility doctrine" and by recalling that "The Aleksovki and Brdjanin Trial Chambers of the ICTY have held that civilian superiors, who may lack the disciplinary or sanctioning powers of military commanders, may discharge their obligation to punish by reporting to the competent authorities whenever a crime has been committed if these reports are likely to trigger an investigation or initiate disciplinary or criminal proceedings […] Furthermore, the Chamber notes that Article 60 of the MRND Statute clearly states that expulsion is one of the measures envisioned as punishment."[73]

The Karemera et al. Trial Chamber concluded:

"Karemera failed in his duty to prevent the crimes because he in fact participated in them."[74]

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"[75]

According to the Bagosora and Nsengiyumva Appeal 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,[216] or with his authorisation.[217] 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."[76]

M.6.2 The perpetrator failed to take the necessary and reasonable measures within his or her power to repress the commission of such crime; OR

M.6.2.1. 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."[77]

"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."[78]

"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."[79]

M.6.2.2. 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"."[80]

"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"."[81]

"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."[82]

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."[83]

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

"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."[84]

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’"[85]

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."[86]

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."[87]

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

"[w]hen 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."[88]

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."[89]

According to the Orić Trial Chamber,

"[t]he 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."[90]

The Orić Trial Chamber further stated that:

"[t]he 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.’"[91]

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:

"[i]f 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."[92]

M.6.2.3. 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 Mucić, 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 Blaskić, the accused had led his subordinates to understand that certain types of illegal conduct were acceptable and would not result in punishment. Both Mucić and Blaskić 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."[93]

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."[94]

Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68-A, Judgment (AC), 16 December 2013, para. 79:

"79. The Appeals Chamber observes that a great portion of Ndahimana’s submissions before the Appeals Chamber is devoted to explaining the various measures that he took to prevent the attacks against the Tutsi refugees in Nyange Church, or the measures that he took to punish before or while the 15 April attack was unfolding. However, Ndahimana was not convicted for failure to prevent the crimes perpetrated by the communal policemen on 15 April 1994, but for his failure to punish the communal policemen for those crimes. The Appeals Chamber recalls that failure to punish is a legally distinct concept and a separate basis for incurring criminal responsibility as a superior than failure to prevent. A conviction on the basis of superior responsibility pursuant to Article 6(3) of the Statute due to a superior’s failure to punish his subordinates for their criminal conduct is based on the superior’s failure to take measures after the commission of the crimes, while a conviction for a superior’s failure to prevent crimes by subordinates is premised on the superior’s failure to take measures before the commission of the crimes. The Appeals Chamber, therefore, fails to see how Ndahimana’s argument that he took measures to prevent the 15 April attack, even if accepted, would invalidate his conviction on the basis of superior responsibility under Article 6(3) of the Statute for failing to punish his culpable subordinates."

 

M.6.2.4. Other Tribunals

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

"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." "[95]

"The tribunals in the aftermath of World War II held as a basic principle, that a superior cannot be obliged to perform the impossible."[96]

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."[97]

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."[98]

M.6.3. 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.6.3.1. 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 that:

"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."[99]