THE RELATIONSHIP BETWEEN INDIVIDUAL CRIMINAL AND COMMAND RESPONSIBILITY
‘A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.’
While Articles 7(1)/6(1) includes provisions on several forms of participation in a criminal act, Articles 7(3)/6(3) refers to what usually is called the doctrine of command responsibility, and nowadays also goes under the term superior responsibility. Accordingly, Articles 7(3) states:
‘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.’
The question of how to establish individual criminal responsibility where a person did not participate in the commission of a crime, within the meaning of Articles 7(1)/6(1) has become one of the challenges of the ICTY and the ICTR. The difficulty relates to the investigation and prosecution of military, as well as political or other civilian, leaders. Leaders in an armed conflict seldom have the role of actually committing the crimes, such as wilful killing, torture, rape or other inhumane acts. They may, however, play a role in the commission of a crime by, as provided in Article 7(1), planning, instigating or ordering the commission of the crime.
It has been held that it is only where there is little or no evidence that the military or civilian superior participated in the planning, instigating or ordering a violation, and thus, where the ‘primary basis of responsibility cannot be applied’, the principle of superior responsibility comes into the picture. Three elements are usually mentioned when it comes to proving superior responsibility; command and control over those who committed the crime, knowledge of the commission of a crime and ability to prevent or punish the perpetrators. In the Čelebići case, the Trial Chamber agreed to the formulation of three constitutive parts for superior responsibility, namely:
‘(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.’
2. MILITARY AND CIVILIAN LEADERS
The Čelebići case was the first case in which the ICTY Trial Chamber held that not only military commanders but also non-military superiors may incur responsibility under the doctrine of superior responsibility. In that case, the accused were camp commanders, and as such not directly in the military chain of command. The decisive question was whether a superior-subordinate relationship could be established.
This is also where the difference between superior responsibility for military and non-military (hereinafter, civilian) leaders starts. When it comes to military commanders, there usually exists a formal command structure, in which the duties of the commander are laid down. Accordingly, the possibility to prove the existence of a superior-subordinate relationship can be based on the fact that the position of the superior obligated him to exercise command and control over his subordinates.
For civilian superiors the establishment of a superior-subordinate relationship usually cannot be drawn from the official position of the person. The Trial Chamber in Čelebići recognised that the Statute of the ICTY does not contain guidance as to how the Tribunal should establish responsibility in such cases. However, it found that the term ‘superior’ is broad enough to include other superiors than those in a de jure position of authority. The Chamber was of the view that ‘individuals in positions of authority, whether civilian or within military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as de jure positions as superiors’.
The Chamber explained what should be understood by a position as a de facto superior by mentioning ‘persons effectively in command of more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control’.
The ‘effective authority’ argument was upheld in the Aleksovski case. The Trial Chamber in Kordić also confirmed the view stated in the Čelebići case. Consequently, there seems to be an established view, articulated in the cases of the ICTY, that a leader can incur superior responsibility also where, as in the case of the conflicts in the former Yugoslavia, the formal command structures have ceased to exist or are no longer clearly discernible.
Importantly, the Čelebići Trial Chamber stressed that whether de facto or de jure authority is being considered, a superior is someone who has the power to prevent and repress the violations of his subordinates.
It is when he fails to fulfil this duty that he can be held individually responsible under the doctrine of superior responsible. On the other hand, where a person does not have this power, the doctrine cannot be applied. In the reasoning of the Chamber, this was of great importance, as the basic idea is that persons are held responsible for their own acts, and as there is a danger of injustice being done if the responsibility of superiors is not considered with care.
Compared to the Statutes of the ad hoc Tribunals, the ICC Statute, which entered into force on 1 July 2002, contains more elaborate provisions on what in its Article 28 is called ‘Responsibility of commanders and other superiors’. Contrary to the Statutes of the ad hoc International Criminal Tribunals, the ICC Statute makes an explicit differentiation between the responsibility of military commanders and that of ‘other superiors’. While responsibility arises for both military commanders and other superiors ‘as a result of his or her failure to exercise proper control’, a significant difference in the formulation of the responsibility for the two categories of superiors is the explicit mention that responsibility for ‘other superiors’ only arises where ‘[t]he crimes concerned activities that were within the effective responsibility and control of the superior’, in Article 28 (b)(2).
3. THE KNOWLEDGE REQUIREMENT
Article 7(3) of the ICTY Statute provides that a superior should be held responsible where he ‘knew or had reason to know’ that his subordinates had committed, or were about to commit such violations as are referred to in Articles 2 to 5 of the Statute. The equivalent knowledge requirement is included in Article 28 of the ICC Statute. As the article includes two separate provisions, one applicable to military commanders and another to ‘other superiors’, this applies also for the knowledge requirement, or the mental element. The provision in paragraph (a) reads as follows: ‘[The] 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?.’ Paragraph (b) contains the following provision, namely: ‘The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes.’
It is generally accepted, and pointed out also in the Čelebići case that the doctrine of superior responsibility does not establish strict liability. Accordingly, by the ‘knew or had reason to know’ formulation, or a comparable wording, it should be understood that a superior cannot under all circumstances automatically be held responsible for the acts of his subordinates. The Chamber in Čelebići found that a superior may have the required mens rea if:
‘(1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Article 2 to 5 of the Statute, or (2) where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates.’
4. THE APPLICATION OF THE THEORY Having laid down the interpretation of the doctrine of superior responsibility, as it is understood at present, it is interesting to consider some of the challenges that the Tribunals have met with in actual cases of the ICTY and the ICTR.
While Čelebići was the first case of the ICTY in which the doctrine of superior responsibility was elaborated, the Kordić case included charges under Article 7(3) of an accused who clearly held a civilian position. The doctrine was also considered in cases before the ICTR, among others in the Kayishema case. Later, several cases in which the accused was charged under the superior responsibility principle have followed.
In the Kordić case, the Trial Chamber was of the view that Kordić did not fulfil the element which has become the most essential requirement of superior responsibility, that of ‘effective control’. The fact that the accused had had substantial influence over the events in Central Bosnia did not, of itself, indicate a degree of control which would be sufficient to hold a person responsible under the doctrine of superior responsibility. Accordingly, the Trial Chamber upheld the view expressed in the Čelebići case. The finding, as such, is not difficult to support. The challenge, if not a problem, of this judgement, is rather to establish which criteria the accused should have fulfilled in order to incur superior responsibility. Which position should the accused have been in, and how should control have been exercised, if he were to incur superior responsibility? These questions were not clearly set out in the judgement and, accordingly, for the application of superior responsibility to civilian superiors, remain unclarified, although some cases have been decided subsequently to the Kordić case.
In the cases against Kambanda and Serushago, both accused, a former Prime Minister of Rwanda, and a civilian in a locally prominent position and leader of the local militia, pleaded guilty to responsibility under Article 6(3) of the ICTR Statute. These cases differ from, for example, the Kordić case in that they were decided on the basis of a plea agreement. The accused admitted to their superior responsibility in relation to the crimes charged, thereby not requiring the prosecution to prove the crimes beyond a reasonable doubt. Accordingly, an unanswered question that remains is whether these cases, as opposed to the Kordić case, would have resulted in superior responsibility of the accused, had the case not been decided through a guilty plea. As the superior responsibility of a civilian seems to be difficult to establish, the intriguing aspect of cases where the accused plead guilty, is the fact that they actually recognize their own superior responsibility, while establishing this responsibility in court is still subjected to many hurdles.
A case which at the time of writing had not yet been decided, but which introduced a new feature in the prosecution of alleged war criminals under the superior responsibility principle, is the Hadzihasanović case before the ICTY. What made the indictment in this case different from other cases was the fact that the prosecution only brought charges under Article 7(3) of the ICTY Statute. As a consequence the prosecution will not need to show, nor will the Chamber have to consider any individual responsibility under Article 7(1). Accordingly, this approach seems to accept the function of Article 7(3) as a separate provision from Article 7(1), while the Trial Chamber has considered superior responsibility as something that complements individual criminal responsibility in general. In Stakić the Trial Chamber took the view that superior responsibility ‘Article 7(3) serves primarily as an omnibus clause in cases where the primary basis of responsibility can not be applied.’ However, such a decision was made by the Chamber in adjudicating the case, not by the prosecution at the indictment stage.
If the superior responsibility provision as included in the Statutes of the ICTY and the ICTR is to be applied as an independent basis for responsibility by the tribunals, the link can easily be made to the ICC Statute, which incorporated the issue of individual criminal responsibility and superior responsibility in two separate articles from the beginning.
Charges brought only under Article 7(3) also leads to considerations as to whether an acquittal on charges of superior responsibility leads to a complete acquittal of the accused or whether the Chamber, despite the charges, can find the accused guilty under Article 7(1)?
In the Kvočka case, the theory of a ‘joint criminal enterprise’ was introduced in the context of charges under Article 7(3). Except for Zigić, all the accused were charged under Article 7(3). However, it was found that because liability had already been found for their role in the joint criminal enterprise under 7(1), there was no need to consider the issue of superior responsibility. Alternatively, no superior?subordinate relationship had been established. The application of the ‘joint criminal enterprise’ theory in cases also involving alleged superior responsibility raised new questions regarding charges under the doctrine. The Trial Chamber admitted that this issue was not completely settled. Accordingly, can someone who has been held responsible because of his participation in a ‘joint criminal enterprise’ also be held responsible under the doctrine of superior responsibility? The Trial Chamber did not find it necessary to consider this issue, as liability was already found on the part of the accused.
One of the most important cases where the question of superior responsibility of civilian superiors has come up is the Milo?ević case. While this trial is ongoing, the Prosecution had already presented its view on the applicability of the doctrine, in its Pre-Trial Briefs of November 2001 and May 2002. 
The Pre-Trial Briefs set out the responsibility of the accused under both Article 7(1) and 7(3). In order to establish the responsibility of Milo?ević as a superior, the criteria would be the same as in the case against Kordić, namely that the accused exercised effective control. As submitted by the prosecution, it should already have been generally accepted that ‘[i]t is irrelevant whether the accused was a military leader, a civilian leader, or a civilian acting as a military leader by virtue of constitutional structure or self-proclaimed legitimacy.’ Consequently, if at least a de facto leadership could be proven, the prosecution would have to prove that the accused also fulfilled the knowledge requirement. As no effective control was shown beyond reasonable doubt in the Kordić case, the Chamber did not pay special attention to the mens rea of the accused in that case. Accordingly, the question is how the knowledge requirement could be sufficiently shown in the case against Milo?ević. Furthermore, as the indictment set out the responsibility of the accused both under Article 7(1) and 7(3), the question that would also have to be addressed is whether charges could be brought and that responsibility could be found under both provisions of Article 7. All counts of the Bosnia and Croatia indictments charged the accused with responsibility as a superior under Article 7(3). Charging the accused under both paragraph 1 and paragraph 3 of Article 7 seems to suggest that if the accused was acquitted under Article 7(3), then the accused may still be found criminally responsible under Article 7(1), and the superior position of the accused would only be considered an aggravating circumstance. This was the outcome in the Kordić case, but it raised interesting questions, considering that superior responsibility should be the result of failure to prevent or punish the acts of others, where the person has no part in the commission of the crime. If Article 7(1) can be used as a last resort, where superior responsibility has not been shown beyond reasonable doubt, it is curious to realise that the prosecution did not charge the accused Hadzihasanović in the same way. At least, that may have increased the chances of having the accused found guilty for the crimes included in the indictment.
 Prosecutor v. Milomir Stakić, Judgement, Case No. IT-97-24-T, 31 July 2003, para. 465.
 See Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Land?o, (Čelebići), Judgement, Case No. IT-96-21-T, 16 November 1998, para. 346.
 Ibid., para. 354.
 Ibid., para. 371.
 Ibid., para. 354.
 Ibid., para. 378.
 Prosecutor v. Zlatko Aleksovski, Judgement, Case No. IT-95-14/1-T, 25 June 1999, para. 76.
 Prosecutor v. Dario Kordić and Mario Čerkez, Judgement, Case No. IT-95-14/2-T, 26 February 2001, para. 405.
 See Čelebići, supra n. 2, para. 377.
 See Article 28 of the Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July 1998, at http://www.un.org/law/icc/statute/99_corr/cstatute.htm
 Ibid. [emphasis added].
 See Čelebići, supra n. 2, para. 383.
 See Prosecutor v. Jean Kambanda, Judgement, Case No. ICTR-97-23-T, 4 September 1998; Prosecutor v. Omar Serushago, Sentence, Case No. ICTR-98-39-T, 5 February 1999; and Prosecutor v. Clément Kayishema, Judgement, Case No. ICTR-95-1-T, 21 May 1999.
 Prosecutor v. Enver Hadzihasanović andAmir Kubura, Indictment, Case No. IT-01-47-PT, 26 September 2003.
 Prosecutor v. Milomir Stakić, Judgement, Case No. IT-97-24-T, 31 July 2003, para. 465.
 Prosecutor v. Miroslav Kvočka et al., Judgement, Case No. IT-98-30/1-T, 2 November 2001.
 Ibid., paras. 412, 466-467, 570 and 683.
 Ibid., para. 570.
 Prosecutor v. Slobodan Milosević, Case No. IT-02-54.
 Prosecutor v. Slobodan Milosević, Prosecution’s Pre-Trial Brief Pursuant to Rule 65ter(E)(i), Case No. IT-02-54, 26 November 2001; and Prosecutor v. Slobodan Milosević, Prosecution’s Second Pre-Trial Brief (Croatia and Bosnia Indictments), Case No. IT-02-54. 31 May 2002.
 Ibid., Prosecution’s Second Pre-Trial Brief, para. 1019.