Command Responsibility (Modes of Responsibility)

Question 1

Where can command responsibility be found in ICC Statute?

Answer 1

Art 28 ICC

Question 2

What is command responsibility?

Answer 2

The criminal responsibility of a commander for offences committed by his or her subordinates.

Question 3

When did command responsibility first make an appearance?

Answer 3

Art 86 and 97 of AP I.

Question 4

What does Art 7(3) of ICTY Statute say about CR?

Answer 4

Commander not relieved of responsibility if:
- He knew or had reason to know

• Failed to take necessary and reasonable measures to prevent or punish

Question 5

What are the three requirements of modern case law? (Delalic, ICTY)

Answer 5

1) Existence of superior-subordinate relationship
2) Mental element: superior know or had reason to know that a criminal act was about to be or had been committed.
3) The superior’s failure to take necessary and reasonable measures to prevent criminal acts and punish them.

Question 6

What fourth requirement did Rome statute add? (Art 28)

Answer 6

Causation

Question 7

How can assess if a superior/ subordinate relationship exists?

Answer 7

Standard of effective control

Question 8

How is effective control measured?

Answer 8

• Material ability to prevent or punish criminal conduct (Celebici).
• Formal or informal hierarchy (de jure (legal relationship) or de facto).
• Largely factual ability to prevent and punish.

Question 9

What factors indicate effective control?

Answer 9

• De jure position (legal relationship)
• Issuance of orders
• Capacity to alter command structures and promote or remove people, and ability to require people to engage or withdraw from hostilities (Bemba).
• Payment of salaries

Question 10

How was effective control defined in case of civilian commanders?
(Bagilishema, ICTR)

Answer 10

Exercised a degree of control over subordinates similar to that of degree of control of military commanders.

Question 11

What does article 28(b)(ii) of ICC Statute set out?

Answer 11

Crimes must fall within the area of responsibility of a civilian commander.

Question 12

What was test for mens rea by ICTY? (Delalic)

Answer 12

1) Actual knowledge (direct and circumstantial evidence)
2) Had in his possession information of a nature which would put him on notice of the risk of such offences - need for additional investigation.

Question 13

How can actual knowledge be determined?

Answer 13

1) Direct proof

2) Circumstantial evidence
Which includes:
- Number, type and scope of illegal acts.

• Time during which the illegal acts occurred.
• Number and types of troops and logistics involved.
• Geographical location.
• Location of commander at time.

Question 14

What is mens rea for military commanders? (ICC)

Answer 14

Knew, or owing to the circumstances, should have known.

Question 15

What is mens rea for civilian commanders?

Answer 15

Knew, or consciously disregarded information.

Question 16

How do the ad hoc tribunals differ from ICC in their standard for mens rea?

Answer 16

ICC: Should have known = criminal negligence standard and failure to seek out information could lead to liability.

ICTY: Had reason to know.

Question 17

What does failure to take measures correspond to?

Answer 17

A breach of a duty

Question 18

What are the two types of duties to act?

Answer 18

1) When crime has not been committed = prevent

2) When crime has been committed = punish or report.

Question 19

What does ‘necessary and reasonable’ measures mean?

Answer 19

Refers to the commander’s material ability to prevent or repress.

Bemba:

• Depends on what power superior has, and this requires contextual analysis.
• What measures were at his disposal.
• Operational realities on ground.
• Art 28 isn’t a strict form of liability - may make a cost/ benefit analysis when deciding what measures to take.
• -> consider impact of measures and may choose least disruptive measure.

Question 20

What was final conclusion of necessary and reasonable in Bemba?

Answer 20

Must demonstrate that:

1) commander did not take specific and concrete measures that were available to him
2) And which a reasonably diligent commander in comparable circumstances would have taken.

Question 21

Can liability be found under the Rome Statute where there is no causation?

Answer 21

• No, Rome Statute excludes liability where there is no form of causation.
• Imposes general requirement for liability that crimes occur as a result of a failure to supervise.

Question 22

How has ICTY differed with regard to causation?

Answer 22

ICTY : Celebici and Blaskic - found no support for existence of requirement for proof of causation as a separate element of CR.

ICTY: Orio - no requirement for either failure to prevent or punish. Such a requirement would run counter to basis of CR as criminal liability of omission.