COMMAND RESPONSIBILITY

MARCH 29, 2017

OSGOODE HALL LAW
SCHOOL
Hassan Ahmad

The information presented is for general discussion purposes only and does not constitute legal advice for any
specific situation. Please contact any of the presenters if you have need for any specific legal advice.
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 OUTLINE
1. Individual Responsibility
2. Origins of Command Responsibility
3. ICTY/ICTR Interpretation of Command Responsibility
4. Rome Statute: Article 28
5. Bemba Appeal: Contentious Issues
6. The Future
7. Case Study
The information presented is for general discussion purposes only and does not constitute legal advice for any
specific situation. Please contact any of the presenters if you have need for any specific legal advice.
INDIVIDUAL CRIMINAL RESPONSIBILITY
VS.
COMMAND RESPONSIBILITY
INDIVIDUAL VS. COMMAND RESPONSIBILITY

Article 25: Individual criminal responsibility

3. In accordance with this Statute, a person shall be criminally responsibility and liable for
punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or

through another person, regardless of whether that other person is criminally
responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs
or is attempted;

(c) aids, abets or otherwise assists in its commission or its attempted

commission, including providing the means for its commission;
INDIVIDUAL VS. COMMAND RESPONSIBILITY

Article 25: Individual criminal responsibility

3. In accordance with this Statute, a person shall be criminally responsibility and liable for
punishment for a crime within the jurisdiction of the Court if that person:

(d) In any other way contributes to the commission or attempted commission of

such a crime by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose
of the group, where such activity or purpose involves the commission of a
crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the
crime;

INDIVIDUAL VS. COMMAND RESPONSIBILITY

Art. 25(3)(a):
Perpetration / commission (Katanga and Ngudjolo)
Physically carrying out the offence
Co-perpetration (essential tasks)
Co-ordinated individual contributions (Lubanga)
Controlling the will of others (commission through another person)
Omission concrete influence (Ori)

Art. 25(3)(b):
Ordering (secondary liability) Blaskic
Soliciting / inducing:
Indirect co-perpetration
INDIVIDUAL VS. COMMAND RESPONSIBILITY

Art. 25(3)(c):
Aiding and abetting
Substantial contribution (Mbarushimana)
carries out acts specifically directed to assist, encourage or lend
moral support to the perpetration of a certain specific crime
and this support has a substantial effect. (Tadic AC)
Lesser sentences than co-perpetration

Art. 25(3)(d):
Contribution
De minimis standard
INDIVIDUAL VS. COMMAND RESPONSIBILITY

Joint Criminal Enterprise

(Tadic AC)
1) JCE I: Co-perpetration
same criminal intent

2) JCE II: Concentration-Camp cases

banality of evil

3) JCE III: Foreseeable incidence

Subjectively reckless (dolus
eventualis)
ORIGINS OF COMMAND RESPONSIBILITY
ORIGINS OF COMMAND RESPONSIBILITY

Yamashita
failed to provide effective control . . . as was required
by the circumstances.

there was no serious attempt to charge or to prove

that he [Yamashita] committed a recognized violation
of the laws of war. He was not charged with personally
participating in the acts of atrocity or with ordering or
condoning their commission. Not even knowledge of
these crimes was attributed to him. It was simply
alleged that he unlawfully disregarded and failed to
discharge his duty as commander to control the
operations of the members of his command,
permitting them to commit the acts of atrocity. The
recorded annals of warfare and the established
principles of international law afford not the slightest
precedent for such a charge. (Supreme Court
Justice Frank Murphy in dissent)
ORIGINS OF COMMAND RESPONSIBILITY

Additional Protocol I:

Art. 86(2): Failure to Act

The fact that a breach of the Conventions or of this Protocol was committed by a
subordinate does not absolve his superiors from penal or disciplinary responsibility, as
the case may be, if they knew, or had information which should have enabled
them to conclude in the circumstances at the time, that he was committing or was
going to commit such a breach and if they did not take all feasible measures within
their power to prevent or repress the breach.

Art. 87(1): Duty of Commanders

The High Contracting Parties and the Parties to the conflict shall require military
commanders, with respect to members of the armed forces under their command
and other persons under their control, to prevent and, where necessary, to suppress
and report to competent authorities breaches of the Conventions and of this
Protocol
COMMAND RESPONSIBILITY AT THE ICTY /
ICTR
COMMAND RESPONSIBILITY AT THE ICTY/ICTR

ICTY Statute Art. 7(3)

The fact that any of the acts referred to in articles 2 to 5 of the
present Statute was committed by a subordinate does not relieve
his superior of criminal responsibility if he knew or had reason
to know that the subordinate was about to commit such acts or
had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the
perpetrators thereof.
COMMAND RESPONSIBILITY AT THE ICTY/ICTR

Celibici requirements:

Existence of a superior-subordinate
relationship

Superiors knowledge or superior having

reason to know that the act was about
to be or had been committed

Superiors failure to take the necessary

and reasonable measures to prevent
the criminal act or punish the
perpetrator thereof
COMMAND RESPONSIBILITY AT THE ICTY/ICTR

Civilian superior does not need to have the same power of sanction as a
military superior (Aleksovski)
Subjectively, the superior must:
Have actual knowledge that his subordinates were committing or
about to commit crimes; or
Possess information of a nature which would put him on notice
of the risk of such offences by indicating the need for additional
investigation in order to ascertain whether they were committed or
were about to be committed
Circumstantial evidence can establish actual knowledge
COMMAND RESPONSIBILITY IN THE ROME
STATUTE
ARTICLE 28
COMMAND RESPONSIBILITY IN THE ROME STATUTE: ARTICLE 28

Article 28: Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the
jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally
responsible for crimes within the jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control as the case may be, as a result
of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time,
should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.
COMMAND RESPONSIBILITY IN THE ROME STATUTE: ARTICLE 28

Article 28: Responsibility of commanders and other superiors

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior
shall be criminally responsible for crimes within the jurisdiction of the Court committed by
subordinates under his or her effective authority and control, as a result of his or her failure to
exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that
the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of
the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the competent authorities for
investigation and prosecution.
COMMAND RESPONSIBILITY IN THE ROME STATUTE: ARTICLE 28

(a) A military commander or person effectively (b) With respect to superior and subordinate relationships
acting as a military commander shall be criminally not described in paragraph (a), a superior shall be
responsible for crimes within the jurisdiction of the criminally responsible for crimes within the jurisdiction of
Court committed by forces under his or her the Court committed by subordinates under his or her
effective command and control, or effective effective authority and control, as a result of his or her
authority and control as the case may be, as a failure to exercise control properly over such
result of his or her failure to exercise control subordinates, where:
properly over such forces, where:
(i) The superior either knew, or consciously
(i) That military commander or person either disregarded information which clearly indicated, that the
knew or, owing to the circumstances at the subordinates were committing or about to commit
time, should have known that the forces were such crimes;
committing or about to commit such crimes;
and (ii) The crimes concerned activities that were within
the effective responsibility and control of the superior;
(ii) That military commander or person failed and
to take all necessary and reasonable measures
within his or her power to prevent or repress (iii) The superior failed to take all necessary and
their commission or to submit the matter to the reasonable measures within his or her power to prevent
competent authorities for investigation and or repress their commission or to submit the matter to
prosecution. the competent authorities for investigation and
COMMAND RESPONSIBILITY IN THE ROME STATUTE: ARTICLE 28

Article 28(a) Article 28(b)

Military commander Civilian superior

Effective command and Effective authority and

control control

Knew or should have known Knew or consciously

disregarded
COMMAND RESPONSIBILITY IN THE ROME STATUTE: ARTICLE 28

De facto or de jure control

Art.28(b): crimes must concern activities within effective

responsibility and control of the superior

Nahimana (ICTR)
Command means authority, especially over armed
forces
Authority means the power or right to give orders and
enforce obedience
COMMAND RESPONSIBILITY IN THE ROME STATUTE: ARTICLE 28

Factors for effective control (Bemba confirmation of charges

decision)
1) official position of the individual;
2) the power to issue or give orders;
3) the capacity to ensure compliance with orders;
4) the position within the military structure and actual tasks;
5) the capacity to order forces to engage in hostilities; and
6) the power to promote, replace, remove, or discipline.
COMMAND RESPONSIBILITY IN THE ROME STATUTE: ARTICLE 28

Causation requirement (Bemba trial

judgment)
A but for causation is not required given the particular
nature of superior responsibility and the hypothetical
assessment required in cases of omission (paras. 211-
212)

Satisfied if established that crimes would not have

been committed, in the circumstances in which they
were, had the commander exercised control properly,
or the commander exercising control properly would
 BEMBA APPEAL
CONTENTIOUS ISSUES
BEMBA APPEAL: CONTENTIOUS ISSUES

Actual knowledge was based on facts falling outside

confirmation of charges decision
TC: Prosecutor needs to provide not all but only sufficient evidence
which allows the Chamber to determine whether there are substantial
grounds to believe that the suspect committed each of the crimes
charged

Unity of command
TC: Bemba had operational control over the MLC and that the General
Staff, although not significantly involved in planning operations,
issuing orders, or intelligence, also had a role in coordinating
operation, monitoring the situation in the CAR and reporting to Mr.
Bemba, and had the ability to discuss with Mr. Bemba or make
comments or observations
BEMBA APPEAL: CONTENTIOUS ISSUES

Reliance on rumors and media reports

Reasonable and necessary measures

Alleged motivation for measures taken
Tailoring N&R measures to the particular circumstances, knowledge,
capabilities and responsibilities of Mr. Bemba

Causation

Had reason to know (ICTY) vs. Should have known (Art.

28(a))
THE FUTURE OF COMMAND RESPONSIBILITY
THE FUTURE OF COMMAND RESPONSIBILITY

Civilian superiors / political leaders

Cross-border conflicts / leaders outside

territorial jurisdiction

Internationalized vs. treaty-based courts

Imputational vs. non-imputational liability

 CASE STUDY
ISIS PERSECUTION OF YAZIDIS
CASE STUDY: ISIS PERSECUTION OF YAZIDIS
CASE STUDY: ISIS PERSECUTION OF YAZIDIS
CASE STUDY: ISIS PERSECUTION OF YAZIDIS
CASE STUDY: ISIS PERSECUTION OF YAZIDIS
CASE STUDY: ISIS PERSECUTION OF YAZIDIS

THE PROBLEM
Youre a renowned international human rights
lawyer and just married Hollywoods most eligible
bachelor. To top it off, you are now pregnant with
twins! Everything is going as planned until
CASE STUDY: ISIS PERSECUTION OF YAZIDIS

THE PROBLEM
Youre contacted by fellow humanitarian and
future Nobel Peace Prize winner, President Donald
Trump, who has realized military strikes in Iraq
and Syria arent enough to stop ISIS
CASE STUDY: ISIS PERSECUTION OF YAZIDIS

THE PROBLEM
President Trump wants to capture and prosecute
ISIS leader, Abu Bakr Al-Baghdadi, and have him
prosecuted before the International Criminal Court
CASE STUDY: ISIS PERSECUTION OF YAZIDIS

THE PROBLEM

Discuss the following issues:

1. Jurisdiction over ISIS / Mr. Baghdadi
temporal / territorial / nationality / subject matter

2. Individual criminal responsibility of Mr. Baghdadi

3. Command responsibility of Mr. Baghdadi
THANK YOU