Journal of International Criminal Justice Advance Access originally published online on June 22, 2007
Journal of International Criminal Justice 2007 5(3):599-618; doi:10.1093/jicj/mqm030
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Finding a Proper Role for Command Responsibility
* Lecturer in International Law, University of Macerata. [ beatricebonafe{at}unimc.it]
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Abstract |
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 Top Abstract 1. Introduction2. The Nature of...3. The Elements of...4. 'Direct' v. Command...5. Cases of 'Pure'...6. Concluding RemarksNotes |
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This article examines the role that command responsibility currently plays in the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The ad hoc tribunals rely in principle on a broad concept of command responsibility – which can be applied to all superiors, including political and civilian ones. However, in practice, accused persons have only rarely been successfully charged under this form of liability. Indeed, recent case law has gradually adopted a rigorous approach with respect to the legal requirements of command responsibility. This has made it more difficult to establish criminal liability of superiors who have not directly participated in the commission of international offences. The ad hoc tribunals have expressed an explicit preference for forms of ‘direct’ liability where the accused can be convicted both under ‘direct’ and command responsibility. While the ICTY and ICTR have progressively interpreted other international legal concepts to deal effectively with collective crimes committed by leaders of organized groups, they seem to have confined command responsibility to international crimes perpetrated in typical military-like contexts.
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1. Introduction |
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TopAbstract1. Introduction2. The Nature of...3. The Elements of...4. 'Direct' v. Command...5. Cases of 'Pure'...6. Concluding RemarksNotes |
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International criminal law provides for the criminal liability of individual persons who commit international crimes. On one hand, it necessarily focuses on the individual conduct of specific perpetrators. On the other, international crimes are seldom isolated acts of individual offenders. Most of the time, they are committed as a part of large scale atrocities that can only be carried out by a plurality of organized perpetrators. In such cases, it can be very difficult to ascribe individual criminal liability to the members of the criminal group, who have contributed to the commission of international crimes in varying degrees. International criminal law is characterized by the dilemma of being an individual-oriented body of law, which, however, must generally deal with collective — if not state — criminal phenomena. Command responsibility, together with other forms of liability (e.g. the theory of ‘joint criminal enterprise’), are legal notions that were developed by international criminal law to specifically address these phenomena.
As is well known, international crimes are often carried out by hierarchically organized groups. Generally, certain members of the group, say subordinates, have physically perpetrated the crimes, whereas other members, say commanders, have not physically committed any crimes. Nonetheless, due to the structural organization of the group it is possible to conclude that commanders have in some way contributed to the commission of the relevant crimes. Commanders may have conceived of, planned, ordered, instigated, encouraged or tolerated the commission of these crimes. At first sight, it may seem obvious that such a contribution of commanders to the commission of international crimes should attract individual criminal responsibility. However, it can be very difficult to fit the contribution of commanders into the categories of international criminal law, and to demonstrate their criminal liability.
A typical task of commanders is to make decisions on behalf of the entire ‘unity’, that is, the commander and his subordinates taken together. Yet, subordinates are essentially required to obey and execute superior orders. Thus, as commanders are supposed to give orders, they are consequently responsible for the proper execution of such orders. When international crimes are committed by subordinates, this situation is difficult to appraise from the viewpoint of international criminal law. The entire ‘unity’ may be said to be responsible both for committing the actus reus and for possessing the requisite mens rea, but it is much more problematic to identify the precise individual criminal responsibility of each member of such unity. Indeed, in such cases the actus reus and mens rea are separated among the members of the group. Executioners have physically perpetrated the crimes ‘but do not clearly manifest a guilty mind for doing so’. On the contrary, superiors ‘often have a clearer guilty mind since they are often the ones that designed or set in motion a given’ criminal plan, but these superiors ‘do not often manifest guilty acts since they do not normally engage in murder, rape, or torture, and they rarely give orders that direct specific acts of murder, rape or torture’. Therefore, it may turn out that no individual person is fully accountable.1
Thus, when the superior has not physically committed any crime and it is not possible to demonstrate his or her ‘direct’ criminal liability — for example, for having ordered the commission of the relevant crimes — recourse can be had to the concept of command responsibility. Accordingly, a commander can be held criminally liable for not having prevented or punished international crimes committed by his or her subordinates despite having knowledge of such crimes.
Command responsibility was originally elaborated to deal with widespread international crimes committed in hierarchical military contexts in order to ascribe criminal responsibility to senior commanders. In cases like Yamashita or the Tokyo trial,2 command responsibility was clearly viewed as a tool to facilitate the attribution of international criminal responsibility to commanders, and in particular to high-ranking officers.
When the ad hoc tribunals were established, almost 40 years had elapsed since Nuremberg and Tokyo, and many aspects were still controversial with respect to command responsibility. The post-WWII trials which had relied on this form of liability faced strong criticism. Thus, from the very beginning, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have been confronted with the task of delineating the elements of command responsibility, and of applying a notion which could be regarded as generally acceptable.
Indeed, this form of liability can play a significant role under international criminal law. Command responsibility is regarded as one of the most important tools at the disposal of international tribunals to ‘establish the criminal responsibility of local or central leaders of countries whose military, political or administrative structures have been involved in the commission of serious international crimes’.3
A considerable body of case law has by now addressed the issue, and arguably the nature as well as the elements of command responsibility can be regarded as well established under customary international law.4 The ad hoc tribunals have successfully fulfilled their task of clarifying the definition of command responsibility. This is not without consequences for the notion of command responsibility and the role it can play in bringing the perpetrators of international crimes to justice.
On one hand, command responsibility has a much broader scope than it had 60 years ago when it received its first fully-fledged judicial recognition in Yamashita. Today, it can also be relied upon to convict civilian or political leaders. Nowadays, in principle, command responsibility is applicable to all (military and civilian) superiors. That is why the concept is increasingly referred to as ‘superior responsibility’. On the other hand, in practice, command responsibility is one of the forms of liability that is least likely to lead to successful convictions under international criminal law. Perhaps surprisingly, command responsibility is successfully applied only in a very limited number of cases. Of the 99 accused persons who have faced trial before the ICTY and the ICTR,5 only 54 were prosecuted on a theory of command responsibility and only 10 have properly been convicted.6 Many other accused persons holding authority positions could have been charged under command responsibility but were not.
The present article will examine the case law of the ICTY and ICTR in order to see how and why command responsibility has such a narrow application. It will be maintained that, first, international tribunals have applied command responsibility in a very rigorous manner. With respect to early cases, which had applied command responsibility in very broad terms, modern case law has relied on a more rigorous definition of command responsibility to make it conform more closely with the principle of individual criminal responsibility and its corollaries, and in order to draw a clear distinction between ‘direct’ and command responsibility. Secondly, ad hoc tribunals have gradually displayed an explicit preference for ‘direct’ criminal liability, where the accused can be convicted under both ‘direct’ and command responsibility. Thus, despite its very broad scope, command responsibility is successfully applied only in more traditional military-like contexts, where, it is easier to demonstrate command responsibility and guarantee a strict adherence to the principle of individual criminal responsibility at the same time.
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2. The Nature of Command Responsibility |
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TopAbstract1. Introduction2. The Nature of...3. The Elements of...4. 'Direct' v. Command...5. Cases of 'Pure'...6. Concluding RemarksNotes |
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Command responsibility is provided under Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute. The wording of these provisions is almost identical. The fact that a crime under the jurisdiction of the Tribunal
was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she 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.Today, this can be regarded as the customary definition of command responsibility. Similar definitions are reflected in various international instruments.7 However, there is one aspect that this definition does not clarify: is command responsibility a means of indirectly holding a superior responsible for the criminal acts carried out by his or her subordinates? Or rather, is the superior criminally liable for his or her personal misconduct, that is, for not having prevented such crimes or for not having punished those responsible?8
It is only very recently that the ICTY has taken a clear stand on the nature of command responsibility. In Halilovi
, the Tribunal endorsed the following notion of command responsibility:
The Trial Chamber finds that under Article 7(3) command responsibility is responsibility for an omission. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus ‘for the acts of his subordinates’ as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act. The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed. The Trial Chamber considers that this is still in keeping with the logic of the weight which international humanitarian law places on protection values.9Thus, under the doctrine of command responsibility, superiors are not indirectly liable for the crimes of their subordinates. Command responsibility is not a form of vicarious liability.10 Superiors are held accountable, on their own account, for the breach of a precise duty of supervision arising from their position of authority and control over their subordinates. It is due to the existence of such a legal duty that the omission of superiors — who have failed to prevent or punish the crimes of their subordinates — entails their criminal responsibility under international law. The rationale of command responsibility is that, if the commander had exercised his duty of supervision properly, the crimes would not have been carried out, or at least the responsible subordinates would have been punished, thus deterring future offences.11 This construction of command responsibility, therefore, presupposes the existence of a particular superior–subordinate relationship and the effective power of the superior to prevent, stop or punish the relevant crimes.
As mentioned earlier, this form of liability is not limited to military commanders, who institutionally exercise a high degree of control over their subordinates, and who have specific powers to impose their will on the troops under their command: civilian superiors can also incur command responsibility when they have effective control over their subordinates and possess the power necessary to prevent or punish the crimes committed by subordinates but fail to do so.
Thus, ratione personae, the ad hoc tribunals have upheld a broad notion of command responsibility to include non-military as well as military superiors. However, ratione materiae, command responsibility has a narrow scope, as it focuses on the actual duties and powers of the superior over his or her subordinates.
The notion at issue is very important, since identifying the precise object and purpose of command responsibility is necessary to interpret and delineate its elements under international law, such as the superior–subordinate relationship and the required mens rea. Moreover, a clear definition of the nature of command responsibility has allowed international tribunals to distinguish it from other forms of ‘direct’ liability, in particular from ‘ordering’ the commission of international crimes. Finally, this particular conception of command responsibility has allowed ad hoc tribunals to distance themselves from the vague, sometimes dubious, and much criticized notion of command responsibility applied in the post-WWII cases.
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3. The Elements of Command Responsibility: A Rigorous Approach |
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The ad hoc tribunals have made a significant contribution to the definition of command responsibility. Early cases still show some uncertainty, and it took some time to address the various problematic aspects of command responsibility. But now the elements of this form of liability are settled and result from a consistent case law.
The Trial Chamber Judgment in Delali is undoubtedly the landmark decision concerning this form of liability. Subsequent case law has repeatedly referred to and applied the elements of command responsibility identified in Delali. While the ICTY regarded as evident that the commission of international crimes by subordinates is a necessary prerequisite of command responsibility, it listed three essential elements of command responsibility for the failure to act:
- the existence of a superior–subordinate relationship;
- the superior knew or had reason to know that the criminal act was about to be or had been committed; and
- the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.12
A. The Mens Rea Requirement
The mens rea of command responsibility was the most controversial aspect of the post-WWII trials. Notably, some judgments in those trials were criticized for having adopted an excessively broad interpretation of the mens rea required to hold commanders criminally liable under international law.14 In particular, the commander's knowledge of the crimes was presumed: (i) from the official position of the accused in the state hierarchy; and (ii) from the notorious and widespread character of the international crimes committed by subordinates. On one hand, the underlying idea was that high-ranking superiors could not have been unaware of crimes committed by their subordinates due the fact that a duty of effective control is inherent in the functions of commanders, who must not only establish appropriate mechanisms to be informed of the proper execution of their orders by subordinates but who are also obliged to acquire supplementary knowledge where ordinary information appears inadequate.15 On the other hand, when international crimes were so notorious, widespread and carried out according to the same pattern, it seemed possible to infer that such crimes could only have been perpetrated with at least the commander's tacit approval. Thus, in most cases, it was possible to presume the requisite mens rea on the part of the commander.
The ICTY first, and then also the ICTR, opted for a more careful approach to this element of command responsibility. In Delali, the ICTY concluded that the ‘knew or had reason to know’ standard set in Article 7(3) of the Statute must be interpreted as requiring the commander: (i) to have ‘actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Articles 2 to 5 of the Statute’; or (ii) to have ‘in his possession information of a nature, which at 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’.16
This definition makes clear that command responsibility is not a form of strict liability. The mens rea of the commander must always be established beyond reasonable doubt, even if by way of circumstantial evidence. It cannot be presumed.17
In addition, this definition makes it impossible to rely on the ‘should have known’ test in the sense of a ‘duty to know’. Since the psychological element is ‘determined only by reference to the information in fact available to the superior’,18 the latter is not liable for failing to acquire such information. In other words, the Tribunal explicitly rejected the existence of a ‘duty to know’ on the part of the commander. Such a ‘duty to know’ had been asserted on various occasions by the Prosecution on the basis of the post-WWII case law, but the ICTY and ICTR have consistently denied its existence under customary international law.19 However, this does not mean that the Prosecution has to prove that the commander possessed specific information about the crimes committed or about to be committed by his subordinates, as even general information in the possession of the commander would be sufficient.20 In other words, a showing that the superior had ‘alarming information’ in his possession would be enough to prove that he ‘had reason to know’.21
It is clear that, when compared to previous case law, the ad hoc tribunals have adopted a rigorous approach. The psychological requirement under command responsibility is now precisely defined and cannot be presumed. It can certainly be established, as noted earlier, by way of circumstantial evidence. However, the mens rea of superiors cannot be inferred from their status alone.22 It is also excluded that the mens rea of commanders can be inferred merely from the general context surrounding the commission of international crimes.23
B. The Superior–Subordinate Relationship
An analysis of the case law of the ad hoc tribunals shows that the major obstacle to the application of command responsibility is the establishment of the superior–subordinate relationship.
Most post-WWII cases attached great importance to the de jure position of the accused. When the accused was a supreme military commander or a top political leader, the existence of a superior–subordinate relationship was almost taken for granted. Thus, the official position in the state hierarchy was sufficient to infer that the superior had authority over the subordinates who committed international crimes. For example, while Yamashita pleaded that the widespread guerrilla activities in the region made it almost impossible to exercise control over his troops and that he did not know that such crimes had been committed, the US Military Commission held that, due to his position, Yamashita should nonetheless have detected and prevented the crimes committed by his subordinates.24 The International Military Tribunal for the Far East (IMTFE) took a similar approach when it held that:
A Cabinet member may resign. If he has knowledge of ill-treatment of prisoners, is powerless to prevent future ill-treatment, but elects to remain in the Cabinet thereby continuing to participate in its collective responsibility for protection of prisoners, he willingly assumes responsibility for any ill-treatment in the future.25The ICTY and ICTR adopted a very different approach. They abandoned a formal criterion — the de jure position of the accused — for a more fact-sensitive criterion, namely, the effective control of the superior over his or her subordinates. It must be stressed that such a particularly stringent requirement directly derives from the conception of command responsibility adopted by the ad hoc tribunals. It is the effective control over the subordinates, and therefore, the ability and duty to prevent or stop the commission of crimes by the subordinates, which entails — when such a duty is breached — the criminal responsibility of the superior. Since the Delali
case, the ICTY expressed the opinion that a position of command is indeed a necessary precondition for the imposition of command responsibility. However, this statement must be qualified by the recognition that the existence of such a position cannot be determined by reference to formal status alone. Instead, the factor that determines liability for this type of criminal responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates.26Thus, to say that a superior–subordinate relationship existed between the accused and the perpetrators of international crimes, it must be established that the (military or civilian) superior exercised effective control over the perpetrators, ‘in the sense of having the material ability to prevent and punish the commission of these offences’.27 Accordingly, the ICTY has rejected the ‘substantial influence’ theory. In other words, the adoption of the effective control criterion excludes that the mere influence of the superior over the subordinates suffices for finding a superior–subordinate relationship.28
With respect to military commanders, the possession of de jure powers is not regarded by the ad hoc tribunals as sufficient for the finding of command responsibility if it does not take the shape of effective control.29 Thus, in many cases, military commanders were found not guilty under command responsibility because their effective control over the subordinates could not be established beyond reasonable doubt.30
With respect to civilian superiors, the existence of a superior–subordinate relationship may be even more difficult to prove. Indeed, political leaders and civilian superiors rarely posses formal powers of control similar to those of military commanders. This does not mean that they cannot exercise de facto control over subordinates,31 but this can be very difficult to demonstrate. Thus, except for some dubious convictions under both ‘direct’ and command responsibility that will be examined below, the ICTR — which mainly deals with political and civilian offenders — has generally rejected charges made under command responsibility, precisely due to the fact that the superior–subordinate relationship could not be established beyond reasonable doubt.32
The rigorous approach of the ad hoc tribunals to command responsibility was confirmed in a recent case which raised the particular question of commanders’ liability for crimes committed by subordinates before the commander took office.
Reversing the decision of the Trial Chamber,33 the Appeals Chamber held that an accused cannot be charged under command responsibility for crimes committed by a subordinate before he assumed command over that subordinate.34 At first sight, this may appear to be a clarification of minor importance. However, this decision deals with the very concept of command responsibility under international law.35 In rejecting the position strongly supported by the dissenting judges, the Appeals Chamber took the view that, in order to establish command responsibility, the relationship between the commander and his or her subordinates must be carefully taken into account. Indeed, if this form of liability is firmly grounded on the duty of supervision of the commander and if it applies only to cases in which there is a failure to exercise such a duty, it seems very difficult to conclude that liability could be found with respect to international crimes committed before the establishment of the commander–subordinates relationship.36
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4. ‘Direct’ v. Command Responsibility |
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The case law of the ad hoc tribunals is particularly interesting, not only because it has made a clear distinction between ‘direct’ and command responsibility but also because it has displayed a clear preference for the former, when an accused can be convicted under both modes of liability. This partially explains the very limited number of convictions under command responsibility.
Post-WWII cases exhibited a certain blurring between ‘direct’ and command responsibility. It is not always clear where the dividing line between direct participation and failure to exercise the duty of supervision lies. In particular, on a number of occasions, command responsibility seemed to imply the approval or acquiescence of the commander. For example, in Yamashita, the US Military Commission held that ‘the crimes were so extensive and widespread, both as to time and area, that they must either have been wilfully permitted by the accused, or secretly ordered by him’.37 In the Tokyo trial, the policy of the entire government and military leaders was characterized as being criminal in nature, as if the Tribunal were relying on a sort of joint criminal enterprise ante litteram. This confusion is probably due to the method adopted in these cases to infer individual responsibility from the features of the general criminal context. But from the viewpoint of a rigorous application of international criminal law standards, it is far less acceptable.
Thus, 40 years later, the ad hoc tribunals were still left with the task of clarifying the distinction between ‘direct’ and command responsibility. Early cases, in particular, of the ICTR, relied on a definition of command responsibility that was ambiguous in certain respects. For example, in Kayishema and Ruzindana, the Tribunal held:
Where it can be shown that the accused was the de jure or de facto superior and that pursuant to his orders the atrocities were committed, then the Chamber considers that this must suffice to [find] command responsibility.38Accordingly, in establishing Kayishema's command responsibility, the Tribunal only demonstrated the existence of a superior–subordinate relationship. The Tribunal considered it to be self-evident that the accused knew or had reason to know about the crimes, as they had been carried out pursuant to his orders. An analysis of the failure to punish the perpetrators was considered superfluous.39 In other words, command responsibility was largely inferred from ‘direct’ criminal liability. To require the crimes to be ordered by the superior as a condition for holding him accountable under command responsibility is clearly at odds with the nature of command responsibility. However, subsequent cases do not reflect the hesitation that characterized the earlier decisions.
Similarly, the ad hoc tribunals’ case law is not a paragon of clarity when we turn to the distinction between the elements of command responsibility and the requirement of ‘ordering’ international crimes, which is undoubtedly one of the most appropriate forms of ‘direct’ liability for commanders. Thus, on one hand, in order to establish the ‘direct’ criminal responsibility of the accused for having ordered international crimes, the ICTR has required the superior–subordinate relationship to be demonstrated.40 However, in Kamuhanda, it explicitly rejected such a position.41 On the other hand, the ICTY has constantly held that ‘ordering’ is a form of liability which requires that,
at the time of the offence, an accused possessed the authority to issue binding orders to the alleged perpetrators. A formal superior–subordinate relationship between the person giving the order and the one executing it is not a requirement in itself.42In the end, the ICTY approach seems more appropriate. ‘Direct’ criminal responsibility focuses on the personal conduct of the accused, not on the relationship between the accused and other perpetrators. While command responsibility is firmly grounded on effective control over the subordinates and on the actual power of the superior to prevent or punish crimes committed by the subordinates, ‘direct’ criminal responsibility implies no such requirement. To hold a superior accountable for having ordered international crimes, a position of authority seems sufficient.
However, the particular nature of command responsibility does not exclude any overlap with ‘direct’ liability. What if the accused is found criminally liable under both ‘direct’ and command responsibility?
As already noted, and despite some initial uncertainties, the ad hoc tribunals have gradually displayed a clear preference for ‘direct’ criminal responsibility. According to a now well-established jurisprudence, commanders are preferably held accountable for their direct participation in the commission of international crimes. But it took a certain period of time to reach an explicit affirmation in that regard.
In the beginning, the ICTY deemed it possible to convict the accused under both ‘direct’ and command responsibility. If a choice had to be made, then either the command position or the direct participation in the offence was taken into account at the sentencing stage as aggravating factors.43 However, the ICTY soon clarified its approach and considered it inappropriate to convict an accused under both ‘direct’ and command responsibility.44 The tribunal, therefore, had to choose the more appropriate form of liability.45
Today, the consistent case law of the ICTY has further advanced in this direction, and the Tribunal now asserts a clear preference for ‘direct’ criminal responsibility. Initially, some trial judgments held that it is not only impossible to convict the accused for the same facts under both ‘direct’ and command responsibility, but also that forms of ‘direct’ liability should certainly be preferred.46 Then, the Appeals Chamber in Bla
ki definitely settled the matter:
The Appeals Chamber considers that the provisions of Article 7(1) and Article 7(3) of the Statute connote distinct categories of criminal responsibility. However, the Appeals Chamber considers that, in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute. Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused's superior position as an aggravating factor in sentencing.47The subsequent ICTY case law has, thus, convicted those accused, who could have been found guilty under both ‘direct’ and command responsibility under Article 7(1) only taking the command position into account as an aggravating factor.48
As far as the ICTR is concerned, a more ambiguous approach has been followed. As noted earlier, this tribunal has mainly tried civilians and, in various cases, political leaders. When it has been possible to establish the requirements of command responsibility, this always concerned offenders already found guilty under some form of ‘direct’ liability. Thus, except for one individual case concerning a military commander,49 findings of command responsibility by the ICTR have always led to findings of ‘direct’ criminal responsibility. It is true that this happened only in a very limited number of cases.50 However, this approach seems highly questionable in light of the clear and consistent position taken by the ICTY. Only very recently has the Appeals Chamber endorsed such an approach.51
Indeed, the appropriateness of the solution in question lies in the fact that ‘direct’ criminal liability in large part absorbs, or merges with, command responsibility. For example, if it is established beyond doubt that a commander has physically participated in the commission of international crimes and that he possessed the requisite mens rea, then to convict him under command responsibility (on top of directly committing the crime), it would only be additionally necessary to establish the existence of a superior–subordinate relationship. His knowledge has already been established and it is unlikely that the commander had previously adopted measures to prevent the commission of the crime. Arguably, this reasoning can explain the concise statement of the ICTY in Krsti according to which ‘any responsibility under Article 7(3) is subsumed under Article 7(1)’.52 It is to be hoped that the ICTR case law will be brought in line with that of the ICTY, for example, by reversing the double convictions entered in the Media trial currently under appeal.53
From a more general perspective, the preference for ‘direct’ criminal responsibility helps to explain the very limited number of superiors convicted by the ad hoc tribunals under command responsibility. Thus, a number of superiors have preferably been convicted under forms of ‘direct’ liability, like ‘ordering’54 ‘aiding and abetting’,55 and ‘joint criminal enterprise’.56 In the end, this approach in a certain sense turns command responsibility into a particular sub-category of ‘direct’ criminal responsibility. The command position of the accused is then only treated as relevant, as an aggravating circumstance, at the sentencing stage.57
Finally, these developments in the international case law show that command responsibility does not have a primary role in attributing international criminal responsibility in contexts of collective and organized criminality. On one hand, there are cases of accused persons in leadership positions who are not even charged under command responsibility. More interestingly, recent case law has developed a new form of ‘direct’ liability that is ever-increasingly relied upon to deal with international crimes perpetrated by organized groups, and that can considerably facilitate the establishment of the individual criminal responsibility of members of a criminal group. This development concerns the theory of joint criminal enterprise.58 On the other hand, when it is not possible to rely on either command responsibility or joint criminal enterprise, the criminal liability of commanders is more often appraised by recourse to ‘aiding and abetting’. Instead of bearing the greater responsibility, in the end, the role of commanders is reduced to that of simple accomplices. While this development can be understandable, since it is much easier to prove ‘aiding and abetting’ than command responsibility, it completely subverts the purpose for which the latter was elaborated.
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5. Cases of ‘Pure’ Command Responsibility |
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TopAbstract1. Introduction2. The Nature of...3. The Elements of...4. 'Direct' v. Command...5. Cases of 'Pure'...6. Concluding RemarksNotes |
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As noted earlier, only in a very few cases have persons accused in cases before the ad hoc tribunals been convicted under command responsibility.
On the one hand, the ICTR has struggled in applying command responsibility to local or central political leaders, such as bourgmestres, prefects, ministers and leaders of political parties.59 Findings of command responsibility have only been possible with respect to defendants also found guilty for the same offences under forms of ‘direct’ liability. In one single case, the ICTR convicted an accused under Article 6(3) alone.60 The accused, Imanishimwe, was the commander of the Cyangugu military camp. Although the Trial Chamber established his ‘direct’ criminal liability for crimes against humanity and war crimes (murder, imprisonment and torture), it also found Imanishimwe guilty of extermination and genocide under command responsibility alone.
Similarly, before the ICTY, the defendants finally found guilty under Article 7(3) were all military commanders. Muci was the commander of a prison camp at 
elebii, and was found guilty under Article 7(3) of the Statute for war crimes committed at the prison camp. Krnojelac was the commander of the PK Don camp, and was held accountable for failure to prevent or punish war crimes and crimes against humanity committed by his subordinates at the detention camp. Naletili was the commander of a Bosnian Croat military unit, and Martinovi was the commander of one of its sub-units. The ICTY established their command responsibility essentially for war crimes. Strugar was a General of the JNA Army and he was found to have command responsibility in connection with certain war crimes. Finally, two military commanders of the Bosnian Army, Had
ihasanovi and Kubura, have been found guilty under Article 7(3) for war crimes.
This case law shows three interesting aspects. First, accused persons are seldom convicted under command responsibility alone. With the exception of Strugar, Hadihasanovi and Kubura, all the defendants convicted under command responsibility were also found guilty of having directly committed international crimes, under different counts. This has undoubtedly facilitated the task of establishing command responsibility. Secondly, the ad hoc tribunals have only employed a theory of command responsibility when convicting military commanders, particularly mid- or low-level commanders. This confirms the difficulty of relying on command responsibility — and the difficulty of establishing the requisite superior–subordinate relationship — with respect not only to civilian superiors but also to military leaders. Thirdly, command responsibility has generally been established with respect to war crimes, that is, the most traditional breaches of the military commander's duty of supervision under international humanitarian law.
Thus, command responsibility has essentially been successful with respect to international crimes — most of the time, war crimes — committed in the typical hierarchical military context of the conduct of hostilities. That is why it seems more appropriate to maintain the traditional label of ‘command responsibility’, instead of ‘superior responsibility’.
Indeed, it seems that the common tools of international criminal law, in particular ‘direct liability’, remain ill-equipped to deal with certain criminal phenomena. Take, for example, attacks against towns and civilian populations. In Strugar, the Prosecution was not able to demonstrate the ‘direct’ criminal responsibility of Strugar, a General of the JNA Army, for the attack on Dubrovnik: it was not shown that the accused had either ordered the commission of war crimes against the civilian population or that he had aided and abetted the commission of these crimes. Thus, instead of relying on ‘direct’ liability, the Prosecution had to turn to the more appropriate theory of command responsibility.61 In these typical ‘military criminality’ situations, command responsibility arguably still has a certain role to play. In such circumstances, it is much more difficult for the commander in chief of troops that perpetrate war crimes in a planned or organized manner (as during a military attack) to avoid criminal responsibility even if his ‘direct’ liability cannot be demonstrated. The requirements of command responsibility can be more easily inferred from his formal powers and the general criminal context.
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6. Concluding Remarks |
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TopAbstract1. Introduction2. The Nature of...3. The Elements of...4. 'Direct' v. Command...5. Cases of 'Pure'...6. Concluding RemarksNotes |
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Command responsibility has been the object of both great expectations and much criticism. On one hand, command responsibility is perceived as an indispensable tool to ascribe criminal responsibility to military and political leaders for international crimes committed at the collective and state level. On the other hand, the doctrine of command responsibility has raised much concern, in particular in the past.62 In particular, command responsibility has sometimes been perceived as a fallback position for prosecutors, and a way to improperly expand the scope of individual criminal responsibility.
An analysis of the ad hoc tribunals’ case law does not support either of these two extreme perceptions. Despite its broad scope, the ad hoc tribunals have clearly adopted a rigorous approach towards ‘superior’ responsibility from the viewpoint of the principle of individual criminal responsibility for international crimes. The elements of command responsibility have now been clearly defined and applied in a significant number of cases.
This makes reliance on command responsibility much more difficult when compared to the post-WWII cases. The establishment of the superior–subordinate relationship, in particular through the effective control test, has been the real obstacle to demonstrating the responsibility of superiors for failure to prevent or punish international crimes carried out by subordinates.63 And even when such a requirement was met (most of the time with respect to military commanders), a rigorous standard of mens rea had to be established.64 However, this is not enough to establish liability under command responsibility. Due to the preference accorded to ‘direct’ criminal responsibility, various defendants who could have been found guilty under command responsibility were instead convicted under Article 7(1) or 6(1) alone.
The very small number of ‘pure’ command responsibility cases can be explained in the light of both the difficulty of proving its constitutive elements, and the preference given to ‘direct’ liability. While the ad hoc tribunals rely ever more frequently on particular forms of direct participation, such as joint criminal enterprise, the application of the doctrine of command responsibility is confined to a very limited number of military commanders.
Thus, early efforts to develop a workable tool to deal with the criminal responsibility of political and military leaders when international atrocities have been committed in the framework of organized command structures seem to have been largely unsuccessful. Other forms of liability are better suited to address collective criminality. In the case law of the ad hoc tribunals, command responsibility has gradually seen its role confined to more traditional cases of crimes committed in military hierarchical contexts, a role undoubtedly appropriate for a form of liability ‘ultimately predicated upon the power of the superior to control the acts of his subordinates’.65
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TopAbstract1. Introduction2. The Nature of...3. The Elements of...4. 'Direct' v. Command...5. Cases of 'Pure'...6. Concluding RemarksNotes |
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1 L. May, Crimes Against Humanity (Cambridge: Cambridge University Press, 2005), at 140–145.
3 C. Del Ponte, ‘Prosecuting the Individuals Bearing the Highest Level of Responsibility’, 2 Journal of International Criminal Justice (JICJ) (2004) 516, at 517.
4 For pre-WWII practice, see J.W. Garner, ‘Punishment of Offenders against the Laws and Customs of War’, 14 American Journal of International Law (AJIL) (1920) 87–88. With respect to post-WWII practice, see W.H. Parks, ‘Command Responsibility for War Crimes’, 62 Military Law Review (1973) 1–104; W.D. Burnett, ‘Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra’, 107 Military Law Review (1985) 71–189; C.N. Crowe, ‘Command Responsibility in the Former Yugoslavia: The Chances for Successful Prosecution’, 29 University of Richmond Law Review (1994–1995) 191–233; L.C. Green, ‘Command Responsibility in International Humanitarian Law’, 5 Transnational Law and Contemporary Problems (1995) 319–371; B.D. Landrum, ‘The Yamashita War Crimes Trial: Command Responsibility Then and Now’, 149 Military Law Review (1995) 293–301; E.J. O’Brien, ‘The Nuremberg Principles, Command Responsibility, and the Defence of Captain Rockwood’, 149 Military Law Review (1995) 275–291; W.J. Fenrick, ‘Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia’, 6 Duke Journal of Comparative and International Law (1995–1996) 103–125; H.S. Levie, ‘Command Responsibility’, 8 Journal of Legal Studies (1997–1998) 1–18; B.B. Jia, ‘The Doctrine of Command Responsibility in International Law’, 45 NILR (1998) 325–347; I. Bantekas, ‘The Contemporary Law of Superior Responsibility’, 93 AJIL (1999) 573–595; W.J. Fenrick, ‘Art. 28’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 515–521; A. De Andrade, ‘Les supérieurs hiérarchiques’, in H. Ascensio, E. Decaux, A. Pellet (eds), Droit international pénal (Paris: Pedone, 2000) 201–210; M. Lippman, ‘The Evolution and Scope of Command Responsibility’, 13 Leiden Journal of International Law (2000) 139–170; M. Damaka, ‘The Shadow Side of Command Responsibility’, 49 American Journal of Comparative Law (2001) 455–496; K. Ambos, ‘Superior Responsibility’, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 823–872; A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), at 200–211.
5 To date (April 2007), 33 persons have faced trial before the ICTR and 66 before the ICTY.
6 These do not include accused persons who have pleaded guilty under either Art. 7(3) of the ICTY Statute (Todorovi, and Obrenovi) or Art. 6(3) of the ICTR Statute (Kambanda, and Serushago). As will be discussed subsequently, these also do not include problematic cases of defendants convicted under both the direct and the command responsibility modes of liability (Kayishema, Musema, Barayagwiza and Nahimana).
7 See for example, Art. 87 of Additional Protocol I, Art. 6 of the ILC Draft Code of Crimes against the Peace and Security of Mankind (YILC, 1996, Vol. II (2), at 25), Art. 28 of the ICC Statute, and Art. 6(3) of the SCSL Statute.
8 On this point see the article by Chantal Meloni in this issue of the Journal.
9 Judgment, Halilovi (IT-01-48-T), Trial Chamber, 16 November 2005, 
54 (‘Halilovi trial’). See also Judgment, Hadihasanovi and Kubura (IT-01-47-T), Trial Chamber, 15 March 2006, 69–75 (‘Hadihasanovi trial’). See L. Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002), at 111.
10 This has been repeatedly stressed in the ad hoc tribunals’ case law, from the Delali trial, infra note 12, 239, to the Hadihasanovi trial, ibid., 92.
11 Cassese, supra note 4, at 200–211.
12 Judgment, Delali and others (IT-96-21-T), Trial Chamber, 16 November 1998, 346 (‘Delali trial’).
13 The ICTY has consistently held this view, from the Delali trial, ibid., 394–395, to the Hadihasanovi trial, supra note 9, 123.
14 In particular, the Yamashita case (US Military Commission, Manila, In re Yamashita, judgment of 7 December 1945, International Law Review (ILR), Vol. 13, at 255; and US Supreme Court, judgment of 4 February 1946, in ILR, Vol. 13, at 269) has been the object of much criticism with respect to the way in which the Military Commission established, or rather, presumed the existence of the requisite knowledge on the part of the accused. In his dissenting opinion, Justice Murphy pointed out that nowhere had Yamashita been charged with direct responsibility for having personally committed or ordered the crimes in question, nor had it been alleged that he had any knowledge of their commission. Yamashita was simply accused of failure to provide the effective control of his troops as required by the circumstances. Justice Murphy's main point was that the laws of war simply did not attach criminal liability to such a failure: ‘No one denies that inaction or negligence may give rise to liability, civil or criminal. But it is quite another thing to say that the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the absence of personal culpability. Had there been some element of knowledge of direct connection with the atrocities the problem would be completely different’ (at 278). See also A.F. Reel, The Case of General Yamashita (Chicago: The University of Chicago Press, 1949). In addition to the Yamashita case see, in particular, US Military Tribunal, Nuremberg, In re List and others, judgment of 19 February 1948, in ILR, Vol. 15, at 632 (‘Hostages case’); US Military Tribunal, Nuremberg, In re Von Leeb and others, judgment of 28 October 1948, in ILR, Vol. 15, at 376 (‘High Command case’); and IMTFE, Tokyo, In re Hirota and others, judgment of 12 November 1948, in ILR, Vol. 15, at 356 (‘Tokyo trial’). These are all cases in which high-ranking officials were charged with international crimes. In all these cases, it was beyond question that the offences had been committed by subordinates on a large scale. The only question concerned the standard of responsibility of commanders for such offences.
15 The importance of the position of the accused in the state hierarchy in these cases can certainly be understood in light of the fact that they were all high-ranking officers. Yamashita was the highest commander of the Japanese Army in the Philippines. In the Hostages case, the accused were all high-ranking officers of the German Army in Greece, Yugoslavia, Norway and Albania. In the High Command case, the accused were among the highest ranking officers in American custody and all held important staff or command positions in the German military. Finally, the accused persons in the Tokyo trial were notably 28 of the former leaders of Japan: prime ministers, foreign ministers, war ministers, navy ministers, finance ministers, education ministers, home affairs ministers, overseas ministers, presidents of the planning board, chiefs of army general staff, ambassadors and military leaders.
16 Delali trial, supra note 12, 383.
18 Judgment, Strugar (IT-01-42), Trial Chamber, 31 January 2005, 369 (‘Strugar trial’).
19 For the first time, the Appeals Chamber of the ad hoc tribunals took this view in Delali and others (IT-96-21-A), 20 February 2001, 226–230 (‘Delali appeal’).
21 Ibid., 232. The question is extensively dealt with in Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, 155–171 (‘Krnojelac appeal’).
22 See Judgment, Kajelijeli (ICTR-98-44A), Trial Chamber, 1 December 2003, 776 (‘While an individual's hierarchical position may be a significant indicium that he or she knew or had reason to know about subordinates’ criminal acts, knowledge will not be presumed from status alone’). See also Judgment, Kamuhanda (ICTR-99-54), Trial Chamber, 22 January 2004, 607 (‘Kamuhanda trial’).
23 In Bagilishema, the Appeals Chamber deemed it necessary ‘to make a distinction between the fact that the Accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes’. Thus, in the absence of information concerning the likely criminal conduct of his subordinates, the Appeals Chamber upheld the Trial Chamber's finding of the lack of the required mens rea under command responsibility (Judgment, Bagilishema, (ICTR-95-1), Appeals Chamber, 3 July 2002, 42). A similar approach can be identified in other cases as well. In Delali and others, only Muci was found guilty under command responsibility. In establishing his mens rea, the fact that the crimes were ‘frequent and notorious’ was certainly significant (Delali trial, supra note 12, 770). However, the ICTY did not rely on the general context alone. Among other examples of direct knowledge, Muci personally ‘admitted in his interview with the Prosecution that he was aware that crimes were being committed in the prison-camp at Celebici’ ( 769). Similarly, in Krnojelac, the ICTY found the accused liable for torture under command responsibility, since he was not only aware of the general criminal context but also personally witnessed the beating of one detainee (Judgment, Krnojelac (IT-97-25), Trial Chamber, 15 March 2002, 312–313, ‘Krnojelac trial’). Thus, the Appeals Chamber concluded that the accused possessed sufficiently alarming information about the criminal conduct of his subordinates: ‘The Appeals Chamber holds that the external context (i.e. the circumstances in which the detention centre was set up) and the internal context (i.e. the operation of the centre, in particular, the widespread nature of the beatings and the frequency of the interrogations), taken together with the facts that Krnojelac witnessed the beating inflicted on Zekovic ostensibly for the prohibited purpose of punishing him for his failed escape, that after this event at least one other detainee, witness FWS-73, was the victim of acts of torture and that the Trial Chamber dismissed Krnojelac's claim that he was unaware of any punishment inflicted as a result of Zekovic's escape, mean that no reasonable trier of fact could fail to conclude that Krnojelac had reason to know that some of the acts had been or could have been committed for one of the purposes prohibited by the law on torture. Krnojelac had a certain amount of general information putting him on notice that his subordinates might be committing abuses constituting acts of torture. Accordingly, he must incur responsibility pursuant to Art. 7(3) of the Statute’ (Krnojelac appeal, supra note 21, 165–171). A similar approach was taken in the Hadihasanovi trial (supra note 9). More explicitly, in Gacumbitsi, the ICTR could not ‘find that the Accused knew or had reason to know that such acts [of rape] were being perpetrated because of their widespread character’ (Judgment, Gacumbitsi (ICTR-01-64), Trial Chamber, 17 June 2004, 225, ‘Gacumbitsi trial’). However, the Trial Chamber was able to infer the mens rea of the accused under command responsibility from his responsibility for instigating the said crimes and, particularly, from the fact that the Chamber had already established his intent ( 228).
25 Tokyo trial, supra note 14, at 367–368 (emphasis added).
26 Delali trial, supra note 12, 370 (emphasis added).
28 The Appeals Chamber in the Delali appeal, supra note 19, 266, concluded that ‘[n]othing relied on by the Prosecution indicates that there is sufficient evidence of State practice or judicial authority to support a theory that substantial influence as a means of exercising command responsibility has the standing of a rule of customary law, particularly a rule by which criminal liability would be imposed’.
29 Delali appeal, supra note 19, 197.
30 See Judgment, Kunarac (IT-96-23&23/1-T), Trial Chamber, 22 February 2001; Judgment, Kvo
ka and others (IT-98-30/1-T), Trial Chamber, 21 November 2001 (‘Kvoka trial’); Judgment, Blaki (IT-95-14), Appeals Chamber, 29 July 2004 (‘Blaki appeal’); Judgment, Kordi and erkez (IT-95-14/2), Appeals Chamber, 17 December 2004 (‘Kordi appeal’); Judgment, Blagojevi and Joki (IT-02-60-T) Trial Chamber, 17 January 2005; Halilovi trial, supra note 9; Judgment, Limaj (IT-03-66-T), Trial Chamber, 30 November 2005; Hadihasanovi trial, supra note 9.
31 Thus, in Musema, the ICTR found that the accused, the director of a public tea factory, had exercised effective control over his employees, but not over the ‘villageois’ plantation workers: Judgment, Musema (ICTR-96-13), Trial Chamber, 27 January 2000, 880–881 (‘Musema trial’).
32 See Judgment, Akayesu (ICTR-96-4), Trial Chamber, 2 September 1998; Judgment, Ntakirutimana (ICTR-96-10, ICTR-96-17), Trial Chamber, 21 February 2003; Judgment, Semanza (ICTR-97-20), Trial Chamber, 15 May 2003 (‘Semanza trial’); Judgment, Niyitegeka (ICTR-96-14), Trial Chamber, 16 May 2003; Kamuhanda trial, supra note 22; Judgment, Ntagerura and others (ICTR-96-10A), Trial Chamber, 25 February 2004 (‘Cyangugu trial’); Gacumbitsi trial, supra note 23.
33 Decision on Joint Challenge to Jurisdiction, Hadihasanovi and others (IT-01-47-T), Trial Chamber, 12 November 2002.
34 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Hadihasanovi and others (IT-01-47-A), Appeals Chamber, 16 July 2003.
35 C. Greenwood, ‘Command Responsibility and the Hadihasanovi Decision’, 2 JICJ (2004) 598–605.
36 The question was very controversial, and it is interesting to note that the Hadihasanovi judge (supra note 9) felt the need to comment upon the Appeals Chamber's decision: ‘Bien que les motifs avancés par les deux Juges dissidents méritent d’être développés, la Chambre se limitera à faire sienne une considération d’ordre pragmatique avancée par le Juge Shahabuddeen. Étant donné qu’en temps de guerre, le commandement des troupes change régulièrement, il existe un risque sérieux de voir la chaîne de responsabilité interrompue au fur et à mesure de ces changements de fonction. En effet, pour reprendre le cas d’espèce présenté ci-avant, si le supérieur en fonction de commandement au moment de la commission d’un crime est remplacé très peu de temps après sa commission, il est très probable que les auteurs de ce crime demeurent impunis et qu’aucun commandant ne soit tenu pénalement responsable au regard des principes de la responsabilité du supérieur hiérarchique. Force est de constater qu’en ce cas, la logique militaire, laquelle a pour but de faire régner l’ordre interne et la discipline nécessaires au fonctionnement des forces armées, et dont le devoir de punir est le corollaire, reste en défaut de pouvoir atteindre ses objectifs’ ( 199). Moreover, the Trial Chamber affirmed a ‘devoir rétroactif de punir fondé sur une connaissance préalable’ ( 180–185), which is difficult to reconcile with the aforementioned position. Thus, is the commander, who discovers that his new subordinates have committed certain crimes, and who, therefore, had sufficient alarming information to put him on notice about the commission of similar crimes before he took office, responsible for not having inquired further and punished his subordinates? Apparently, not. But this may entail an unequal treatment of newly appointed commanders with respect to incumbent commanders.
38 Judgment, Kayishema and Ruzindana (ICTR-01-67), Trial Chamber, 21 May 1999, 223 (emphasis added).
40 See Semanza trial, supra note 32; Cyangugu trial, supra note 32; Gacumbtsi trial, supra note 23.
41 Kamuhanda trial, supra note 22, 612 (‘The finding of a position of authority for purposes of "ordering" under Art. 6(1) is not synonymous with the presence of "effective control" for purposes of responsibility under Art. 6(3). It is settled that the two provisions are distinct: and, in our view, so are the considerations for responsibility under them.’).
42 Strugar trial, supra note 18, 331.
43 Thus, in the Delali trial, supra note 12, the ICTY did not consider direct and command responsibility to be mutually exclusive forms of liability ( 1223). Then the Appeals Chamber clarified that, ‘[w]here criminal responsibility for an offence is alleged under one count pursuant to both Art. 7(1) and Art. 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count. Alternatively, it may be considered in terms of the direct participation aggravating the Art. 7(3) responsibility (as discussed above) or the accused's seniority or position of authority aggravating his direct responsibility under Art. 7(1)’ (Delali appeal, supra note 19, 745).
44 In Karadi and Mladi, the ICTY had already held that, while the conditions for command responsibility under Art. 7(3) were ‘unquestionably’ fulfilled, ‘the type of responsibility incurred is better characterized by Art. 7(1) of the Statute’, and in particular by ‘ordering’ the crimes allegedly committed under the authority of the accused (Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Karadi and Mladi (IT-95-5/18), Trial Chamber, 11 July 1996, 82–83). For early cases in which the Tribunal entered only the conviction under Art. 7(1), see Judgment, Aleksovski (IT-95-14/1), Appeals Chamber, 24 March 2000, 183, and Kvoka trial, supra note 30, 570.
45 See Krnojelac trial, supra note 23, 173 (‘The Trial Chamber has established the criminal responsibility of the Accused pursuant to both Art. 7(1) and Art. 7(3). However, the Trial Chamber is of the view that it is inappropriate to convict under both heads of responsibility for the same count based on the same acts. Where the Prosecutor alleges both heads of responsibility within the one count, and the facts support a finding of responsibility under both heads of responsibility, the Trial Chamber has a discretion to choose which is the most appropriate head of responsibility under which to attach criminal responsibility to the Accused’). A similar approach was taken in Judgment, Naletili and Martinovi (IT-98-34-T), Trial Chamber, 31 March 2003, 78–81, and Judgment, Gali (IT-98-29), Trial Chamber, 5 December 2003, 177 (‘Gali trial’).
46 Judgment, Krsti (IT-98-33-T), Trial Chamber, 2 August 2001, 605 (‘Krsti trial’); Judgment, Staki (IT-97-24-T), Trial Chamber, 31 July 2003, 463–467 (‘Staki trial’).
47 Blaki appeal, supra note 30, 91.
48 Judgment, Brdjanin (IT-99-36-T), Trial Chamber, 1 September 2004, 284–285; Kordi appeal, supra note 36,