V) COMMAND RESPONSIBILITY (Article 6(3))

a) Statute

Article 6:

“3. The fact that any of the acts referred to in articles 2 to 4 of the present Statute 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.”

“4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 210: “The finding of responsibility under Article 6(1) of the Statute does not prevent the Chamber from finding responsibility additionally, or in the alternative, under Article 6(3). The two forms of responsibility are not mutually exclusive. The Chamber must, therefore, consider both forms of responsibility charged in order to fully reflect the culpability of the accused in light of the facts.”

c) Elements

Bagilishema, (Trial Chamber), June 7, 2001, para. 38: The Chamber held that the “three essential elements of command responsibility” are: “(i) the existence of a superior-subordinate relationship of effective control between the accused and the perpetrator of the crime; and, (ii) the knowledge, or constructive knowledge, of the accused that the crime was about to be, was being, or had been committed; and, (iii) the failure of the accused to take the necessary and reasonable measures to prevent or stop the crime, or to punish the perpetrator.”

i) the existence of a superior-subordinate relationship of effective control (element 1)

(1) superior-subordinate relationship

Semanza, (Trial Chamber), May 15, 2003, para. 401: “A superior-subordinate relationship requires a formal or informal hierarchical relationship where a superior is senior to a subordinate. The relationship is not limited to a strict military command style structure.”

(2) effective control

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 229-231: “The principle of command responsibility must only apply to those superiors who exercise effective control over their subordinates. This material ability to control the actions of subordinates is the touchstone of individual responsibility under Article 6(3).” The Chamber agreed with the ICTY’s decision in Prosecutor v. Mucic et al., where it was held that “the superior have [sic] effective control over the persons committing the [crimes], in the sense of having the material ability to prevent and punish the commission of these offences.” “[T]he ability to prevent and punish a crime is a question that is inherently linked with the given factual situation.”

Bagilishema, (Trial Chamber), June 7, 2001, para. 45: “[T]he essential element is not whether a superior had authority over a certain geographical area, but whether he or she had effective control over the individuals who committed the crimes . . . . ”

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 819: “Article 6(3) provides that civilian leaders may incur criminal responsibility for acts committed by their subordinates or others under their ‘effective control.’”

(3) consider de facto as well as de jure control/formal status alone not determinative

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 217-223: The Chamber held that it is “under a duty . . . to consider the responsibility of all individuals who exercised effective control, whether that control be de jure or de facto.” “The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates.” The Chamber must “be prepared to pierce such veils of formalism that may shield those individuals carrying the greatest responsibility.” The Chamber noted that concentrating upon the de jure powers of the accused would improperly represent the situation at the time, and could prejudice either side by improperly representing the authority of the accused. “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.”

Bagilishema, (Trial Chamber), June 7, 2001, para. 39: “A position of command is a necessary condition for the imposition of command responsibility, but the existence of such a position cannot be determined by reference to formal status alone.” “The factor that determines liability is the actual possession, or non-possession, of a position of command over subordinates.” “[A]lthough a person’s de jure position as a commander in certain circumstances may be sufficient to invoke responsibility under Article 6(3), ultimately it is the actual relationship of command (whether de jure or de facto) that is required for command responsibility.” “[D]ecisive criterion in determining who is a superior is his or her ability, as demonstrated by duties and competence, to effectively control his or her subordinates.”

Musema, (Trial Chamber), January 27, 2000, para. 141: “[A] civilian superior may be charged with superior responsibility only where he has effective control, be it de jure or merely de facto, over the persons committing violations of international humanitarian law.” See also Niyitegeka, (Trial Chamber), May 16, 2003, para. 472.

(4) applies to civilian as well as military commanders

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 213-215: “[T]he application of criminal responsibility to those civilians who wield the requisite authority is not a contentious one.” The Statute “makes no limited reference to the responsibility to be incurred by military commanders alone; [r]ather the more generic term of ‘superior’ is used.” The use of “‘Head[s] of State or Government’ or ‘responsible Government officials’ in Article 6(2), clearly reflects the intention of the drafters to extend this provision of superior responsibility beyond military commanders.” The Chamber stated that “[t]he jurisprudence also supports this interpretation” and cited the Kambanda and Serushago cases at the ICTR which involved the former prime minister and a “prominent local civilian” and militia leader pleading guilty to charges under 6(3).

Musema, (Trial Chamber), January 27, 2000, para. 148: The Chamber held that the “definition of individual criminal responsibility . . . applies not only to the military but also to persons exercising civilian authority as superiors.”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 976: “The Chamber notes that in Musema, the Tribunal found that superior responsibility extended to non-military settings. . . .”

Compare Akayesu, (Trial Chamber), September 2, 1998, para. 491: “[I]n the case of civilians, the application of the principle of individual criminal responsibility, enshrined in Article 6(3), to civilians remains contentious . . . . [I]t is appropriate to assess on a case by case basis the power of authority actually devolved upon the Accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof.”

(5) whether civilians require control similar to military for culpability

Bagilishema, (Trial Chamber), June 7, 2001, para. 42-43: The Chamber held that while the “doctrine of command responsibility extends beyond the responsibility of military commanders to encompass civilian superiors in positions of authority,” it agreed with the approach articulated by the International Law Commission and the ICTY’s decision in Prosecutor v. Mucic et al., that “the doctrine of command responsibility ‘extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.’” “[F]or a civilian superior’s degree of control to be ‘similar to’ that of a military commander, the control over subordinates must be ‘effective,’ and the superior must, have the ‘material ability’ to prevent and punish any offences.” “[T]he exercise of de facto authority must be accompanied by ‘the trappings of the exercise of de jure authority.’” The Chamber also held that “these trappings of authority include, for example, awareness of a chain of command, the practice of issuing and obeying orders, and the expectation that insubordination may lead to disciplinary action,” and that “[i]t is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence.”

But see Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 819: “Article 6(3) provides that civilian leaders may incur criminal responsibility for acts committed by their subordinates or others under their ‘effective control,’ although the control exercised need not be of the same nature as that exercised by a military commander.”

ii) mental state (mens rea) (element 2)

(1) knowledge or constructive knowledge that the crime was about to be or was being, or had been committed

Akayesu, (Trial Chamber), September 2, 1998, para. 479, 489: It is not required “that the superior acted knowingly to render him criminally liable; it suffices that he had reason to know that his subordinates were about to commit or had committed a crime and failed to take the necessary or reasonable measures to prevent such acts or punish the perpetrators thereof. In a way, this is liability by omission or abstention.” “[I]t is certainly proper to ensure that there has been malicious intent, or, at least, ensure that negligence was so serious as to be tantamount to acquiescence or even malicious intent.”

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 225: “The mens rea . . . requires that for a superior to be held criminally responsible for the conduct of his subordinates he must have known, or had reason to know, of their criminal activities.”

Bagilishema, (Trial Chamber), June 7, 2001, para. 46: The Chamber held that “a superior possesses or will be imputed the mens rea required to incur criminal liability where: he or she had actual knowledge, established through direct or circumstantial evidence, that his or her subordinates were about to commit, were committing, or had committed, a crime under the Statutes; or, he or she had information which put him or her on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such offences were about to be committed, were being committed, or had been committed, by subordinates; or, the absence of knowledge is the result of negligence in the discharge of the superior’s duties; that is, where the superior failed to exercise the means available to him or her to learn of the offences, and under the circumstances he or she should have known.” See also Semanza, (Trial Chamber), May 15, 2003, para. 405.

(2) responsibility is not based on strict liability

Bagilishema, (Trial Chamber), June 7, 2001, para. 44: “As to the mens rea, the standard that the doctrine of command responsibility establishes for superiors who fail to prevent or punish crimes committed by their subordinates is not one of strict liability.”

Semanza, (Trial Chamber), May 15, 2003, para. 404: “Criminal liability based on superior responsibility will not attach on the basis of strict liability simply because an individual is in a chain of command with authority over a given geographic area. While the individual’s position in the command hierarchy is considered a significant indicator that the superior knew or had reason to know about the actions of his subordinates, knowledge will not be presumed from the status alone.”

Bagilishema, (Trial Chamber), June 7, 2001, para. 45: “Although an individual’s command position may be a significant indicator that he or she knew about the crimes, such knowledge may not be presumed on the basis of his or her position alone.”

(3) different test for mental state of civilian and military commanders

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 227-228: The Chamber differentiates between “military commanders and other superiors.” A military commander has a “more active duty . . . to inform himself of the activities of his subordinates when he ‘knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.’” For all other superiors, they must have “known, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes.” The Chamber stipulated that this does not “demand a prima facie duty upon a non-military commander to be seized of every activity of all persons under his or her control.”

iii) the failure to take necessary and reasonable measures to prevent or stop the crime, or to punish the perpetrator (element 3)

Bagilishema, (Trial Chamber), June 7, 2001, para. 38: The third element is “the failure of the accused to take the necessary and reasonable measures to prevent or stop the crime, or to punish the perpetrator.”

Bagilishema, (Trial Chamber), June 7, 2001, para. 47-50: Noting that Article 6(3) states that a superior is expected to take “necessary and reasonable measures” to prevent or punish crimes under the Statutes, the Chamber held “‘necessary’ to be those measures required to discharge the obligation to prevent or punish in the circumstances prevailing at the time; and, ‘reasonable’ to be those measures which the commander was in a position to take in the circumstances.”

The Chamber held that a “superior may be held responsible for failing to take only such measures that were within his or her powers,” and that “it is the commander’s degree of effective control – his or her material ability to control subordinates – which will guide the Chamber in determining whether he or she took reasonable measures to prevent, stop, or punish the subordinates’ crimes.” “Such a material ability must not be considered abstractly, but must be evaluated on a case-by-case basis, considering all the circumstances.”

The Chamber noted that “the obligation to prevent or punish does not provide the Accused with alternative options,” and that “[f]or example, where the Accused knew or had reason to know that his or her subordinates were about to commit crimes and failed to prevent them, the Accused cannot make up for the failure to act by punishing the subordinates afterwards.”

The Chamber held that “in the case of failure to punish, a superior’s responsibility may arise from his or her failure to create or sustain among the persons under his or her control, an environment of discipline and respect for the law,” and that “command responsibility for failure to punish may be triggered by a broadly based pattern of conduct by a superior, which in effect encourages the commission of atrocities by his or her subordinates.” See also Semanza, (Trial Chamber), May 15, 2003, para. 406-407.

(1) attempts to prevent or punish must be considered except where the accused ordered the crimes

Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 223-224: The Chamber held that it is only necessary to consider whether the accused “knew or had reason to know and failed to prevent or punish the commission of the crimes” when he did not in fact order them. When the accused ordered the crimes, “then it becomes unnecessary to consider whether he tried to prevent; and irrelevant whether he tried to punish.” “However, in all other circumstances, the Chamber must give full consideration to the elements of ‘knowledge’ and ‘failure to prevent and punish.’”

d) Application

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 970-973: “Nahimana and Barayagwiza were, respectively, ‘number one’ and ‘number two’ in the top management of the radio. They represented the radio at the highest level in meetings with the Ministry of Information; they controlled the finances of the company; and they were both members of the Steering Committee, which functioned in effect as a board of directors for RTLM [radio station].” “While the Chamber recognizes that Nahimana and Barayagwiza did not make decisions in the first instance with regard to each particular broadcast of RTLM, these decisions reflected an editorial policy for which they were responsible.” “After 6 April 1994, although the evidence does not establish the same level of active support, it is . . . clear that Nahimana and Barayagwiza knew what was happening at RTLM and failed to exercise the authority vested in them as office-holding members of the governing body of RTLM, to prevent the genocidal harm that was caused by RTLM programming.” “Nahimana and Barayagwiza had superior responsibility for the broadcasts of RTLM,” however “Nahimana has not been charged for genocide pursuant to Article 6(3)” and “[o]nly Barayagwiza is so charged.” “For his active engagement in the management of RTLM prior to 6 April, and his failure to take necessary and reasonable measures to prevent the killing of Tutsi civilians instigated by RTLM, the Chamber finds . . . Barayagwiza guilty of genocide pursuant to Article 6(3).”

Nahimana, Barayagwiza and Ngeze, (Trial Chamber), December 3, 2003, para. 976-977: “Barayagwiza had superior responsibility over members of the CDR [political party that depicted the Tutsi population as the enemy] and its militia, the Impuzamugambi, as President of CDR at Gisenyi Prefecture and from February 1994 as President of CDR at the national level. He promoted the policy of CDR for the extermination of the Tutsi population and supervised his subordinates, the CDR members and Impuzamugambi militia, in carrying out the killings and other violent acts. For his active engagement in CDR, and his failure to take necessary and reasonable measures to prevent the killing of Tutsi civilians by CDR members and Impuzamugambi, the Chamber finds Barayagwiza guilty of genocide pursuant to Article 6(3).”

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February 2004