Judgment of the International Criminal Tribunal for the Former Yugoslavia
in the case of

Delalic et al. (I.T-96-21) "Celebici" 16 November 1998

Part III C

Applicable law

319. The principles of individual criminal responsibility enshrined in Article 7, paragraph 1, of the Statute reflect the basic understanding that individual criminal responsibility for the offences under the jurisdiction of the International Tribunal is not limited to persons who directly commit the crimes in question. Instead, as stated in the Report of the Secretary-General: "all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible". ³³¹

320. Article 7(1) accordingly provides as follows:

     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.

321. This recognition that individuals may be held criminally responsible for their participation in the commission of offences in any of several capacities is in clear conformity with general principles of criminal law. As concluded by Trial Chamber II in the Tadic Judgment, there can further be no doubt that this corresponds to the position under international customary law³³². However, it is incumbent upon the Trial Chamber to set out more specifically the degree of participation which is necessary for an individual to be considered sufficiently connected with an offence under the Tribunal’s jurisdiction so as to be held criminally responsible under the present provision.

322. Citing the Tadic Judgment, the Prosecution submits that to demonstrate liability under Article 7(1) it is necessary to establish two factors: (i) intent, in the form of awareness of the act of participation and a conscious decision to participate in the commission of a crime; and (ii) participation, in the form of conduct which contributes to the illegal act. The Prosecution further relies on the "common purpose" doctrine, the gist of which is said to be that a person who knowingly participates in a criminal venture with others may be held criminally liable for illegal acts that are the natural and probable consequences of their common purpose.³³³

323. The Prosecution accordingly concludes that in order to incur criminal responsibility for unlawful killing, it is not necessary for the accused to have physically caused the death of the victim, or, in other words, to have "delivered the fatal blow"³³⁴. It is submitted that for criminal liability to attach, the accused’s act(s) of participation need not have been committed in the same place or at the same time as the acts that caused the victim’s death, nor that he be present when those same acts are perpetrated. Instead, the Prosecution argues, it must be shown that the accused through his act(s) either aided and abetted in the commission of the unlawful act, or that he participated in a common enterprise or transaction which resulted in the death of the victim. ³³⁵

324. The Defence, similarly relying on the Tadic Judgment, adopts the view that, for an accused to be criminally liable for the direct acts of another pursuant to Article 7(1), four criteria must be met. It is thus submitted that the accused must: (i) have intended to participate in an act; (ii) in violation of international humanitarian law; (iii) knowing that the act was unlawful; and (iv) that this participation directly and substantially aided the commission of the illegal act. It is noted that a direct contribution to the commission of the offence does not require the accused’s presence at the scene of the crime or his direct physical assistance in its commission and, conversely, that physical presence at the scene of the crime in itself is insufficient to prove that an accused is an aider and abetter. ³³⁶

325. As noted above, the applicable standard for the imposition of individual criminal responsibility under Article 7(1) has previously been considered by Trial Chamber II in the Tadic Judgment. In reaching its findings, the Trial Chamber there carried out a detailed investigation of the parameters of individual responsibility under customary international law, considering at some length the existing body of precedents arising out of the war crimes trials conducted after the Second World War. The Trial Chamber, having considered the relevant material, adopts as sound the reasoning thus expressed, and concludes that the standard there adopted is applicable to the present case.

326. It is, accordingly, the view of the Trial Chamber that, in order for there to be individual criminal responsibility for degrees of involvement in a crime under the Tribunal’s jurisdiction which do not constitute a direct performance of the acts which make up the offence, a showing must be made of both a physical and a mental element. The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have "a direct and substantial effect on the commission of the illegal act"³³⁷. The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act. Thus, there must be "awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime". ³³⁸

327. More specifically, the Trial Chamber accepts as a correct statement of the law the determination that aiding and abetting includes all acts of assistance that lend encouragement or support to the perpetration of an offence and which are accompanied by the requisite mens rea. Subject to the caveat that it be found to have contributed to, or have had an effect on, the commission of the crime, the relevant act of assistance may be removed both in time and place from the actual commission of the offence. Furthermore, such assistance may consist not only of physical acts, but may also manifest itself in the form of psychological support given to the commission of an illegal act through words or again by physical presence at the scene of the perpetration of the offence.³³⁹

328. As regards the mental element of such participation, it is the Trial Chamber’s view that it is necessary that the act of participation be undertaken with knowledge that it will contribute to the criminal act of the principal. The Trial Chamber agrees that the existence of this mens rea need not have been explicitly expressed, but that it may be inferred from all relevant circumstances³⁴⁰. Nor is it required that the Trial Chamber find that there was a pre-existing plan to engage in the criminal conduct in question³⁴¹. However, where such a plan exists, or where there otherwise is evidence that members of a group are acting with a common criminal purpose, all those who knowingly participate in, and directly and substantially contribute to, the realisation of this purpose may be held criminally responsible under Article 7(1) for the resulting criminal conduct. Depending upon the facts of any given situation, the culpable individual may, under such circumstances, be held criminally responsible either as a direct perpetrator of, or as an aider and abetter to, the crime in question.

329. In conclusion, the following concise statement from the Tadic Judgment accurately reflects the view of the Trial Chamber on the scope of individual criminal responsibility under Article 7(1):

     the accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question.³⁴²

     G. Individual Criminal Responsibility Under Article 7(3)

     1. Introduction

330. Alongside the charges of individual criminal responsibility based on personal participation in criminal conduct, the Indictment charges three of the accused - Zejnil Delalic, Zdravko Mucic and Hazim Delic – with criminal responsibility on the basis of their alleged positions as superiors to the perpetrators of the crimes alleged in the Indictment. Through the operation of counts 13, 14, 33 to 35, 38, 39 and 44 to 49 of the Indictment, these three accused are thus charged with responsibility as superiors for all the criminal acts alleged in the Indictment, with the exception of count 49 (plunder of private property) where the charge of such responsibility is limited to the accused Zdravko Mucic and Hazim Delic.

331. The type of individual criminal responsibility for the illegal acts of subordinates which is alleged in this way against the three accused is commonly referred to as "command responsibility"³⁴³. Although no explicit reference is made to this concept in the Statute of the International Tribunal, its governing principles have been incorporated into Article 7(3), which, to reiterate, provides that:

     [t]he 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.

332. It is, accordingly, to the construction of this provision, properly understood as a formulation of the principle of command responsibility, that the Trial Chamber now must direct its attention. However, it is first necessary to briefly consider the legal character of this species of criminal responsibility and its status under customary international law more generally.

333. That military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary and conventional international law. This criminal liability may arise either out of the positive acts of the superior (sometimes referred to as "direct" command responsibility) or from his culpable omissions ("indirect" command responsibility or command responsibility strictu sensu). Thus, a superior may be held criminally responsible not only for ordering, instigating or planning criminal acts carried out by his subordinates, but also for failing to take measures to prevent or repress the unlawful conduct of his subordinates. As noted in the Report of the Secretary-General on the establishment of the International Tribunal:

     A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute. But he should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates. This imputed responsibility or criminal negligence is engaged if the person in superior authority knew, or had reason to know, that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them.³⁴⁴

334. The distinct legal character of the two types of superior responsibility must be noted. While the criminal liability of a superior for positive acts follows from general principles of accomplice liability, as set out in the discussion of Article 7(1) above, the criminal responsibility of superiors for failing to take measures to prevent or repress the unlawful conduct of their subordinates is best understood when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act³⁴⁵. As is most clearly evidenced in the case of military commanders by article 87 of Additional Protocol I, international law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility under Article 7(3) of the Statute.

335. Although historically not without recognition in domestic military law, it is often suggested that the roots of the modern doctrine of command responsibility may be found in the Hague Conventions of 1907. It was not until the end of the First World War, however, that the notion of individual criminal responsibility for failure to take the necessary measures to prevent or to repress breaches of the laws of armed conflict was given explicit expression in an international context³⁴⁶. In its report presented to the Preliminary Peace Conference in 1919, the International Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties recommended that a tribunal be established for the prosecution of, inter alia, all those who,

     ordered, or with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing violations of the laws or customs of war.³⁴⁷

336. Such a tribunal was never realised, however, and it was only in the aftermath of the Second World War that the doctrine of command responsibility for failure to act received its first judicial recognition in an international context. Whilst not provided for in the Charters of the Nürnberg or Tokyo Tribunals, nor expressly addressed in Control Council Law No. 10, a number of States at this time enacted legislation recognising the principle. For example, article 4 of the French Ordinance of 28 August 1944, Concerning the Suppression of War Crimes, provided:

     Where a subordinate is prosecuted as the actual perpetrator of a war crime, and his superiors cannot be indicted as being equally responsible, they shall be considered as accomplices in so far as they have organised or tolerated the criminal acts of their subordinates.³⁴⁸

337. Similarly, article IX of the Chinese Law of 24 October 1946, Governing the Trial of War Criminals, stated:

     Persons who occupy a supervisory or commanding position in relation to war criminals and in their capacity as such have not fulfilled their duty to prevent crimes from being committed by their subordinates shall be treated as the accomplices of such war criminals.³⁴⁹

338. In a number of cases against German and Japanese war criminals following the Second World War, beginning with the trial of the Japanese General Tomoyuki Yamashita before a United States Military Commission in Manila³⁵⁰, the principle of command responsibility for failure to act was relied upon by military courts and tribunals as a valid basis for placing individual criminal responsibility on superiors for the criminal acts of their subordinates. Thus, the United States Supreme Court, in its well-known holding in In Re Yamashita, answered in the affirmative the question of whether the law of war imposed on an army commander a duty to take the appropriate measures within his power to control the troops under his command for the prevention of acts in violation of the laws of war, and whether he may be charged with personal responsibility for failure to take such measures when violations result³⁵¹. Similarly, the United States Military Tribunal at Nürnberg, in United States v. Karl Brandt and others (hereafter "Medical Case"), declared that "the law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war³⁵²." Likewise, in United States v Wilhelm List et al. (hereafter "Hostage Case") it was held that "a corps commander must be held responsible for the acts of his subordinate commanders in carrying out his orders and for acts which the corps commander knew or ought to have known about³⁵³. Again, in United States v Wilhelm von Leeb et al. (hereafter "High Command Case") the tribunal declared that:

     [u]nder basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal violates a moral obligation under international law. By doing nothing he cannot wash his hands of international responsibility.³⁵⁴

339. While different aspects of this body of case law arising out of the Second World War will be considered in greater detail below as the Trial Chamber addresses the more specific content of the requisite elements of superior responsibility under Article 7(3), it is helpful here to further recall the finding made in the trial of the Japanese Admiral Soemu Toyoda before a military tribunal in Tokyo. Declaring that it had carefully studied, and followed, the precedents of other tribunals on the question of command responsibility, the tribunal, after setting out at some length what it considered to be the essential elements of this principle, concluded:

     In the simplest language it may be said that this Tribunal believes that the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.³⁵⁵

340. In the period following the Second World War until the present time, the doctrine of command responsibility has not been applied by any international judicial organ. Nonetheless, there can be no doubt that the concept of the individual criminal responsibility of superiors for failure to act is today firmly placed within the corpus of international humanitarian law. Through the adoption of Additional Protocol I, the principle has now been codified and given a clear expression in international conventional law. Thus, article 87 of the Protocol gives expression to the duty of commanders to control the acts of their subordinates and to prevent or, where necessary, to repress violations of the Geneva Conventions or the Protocol. The concomitant principle under which a superior may be held criminally responsible for the crimes committed by his subordinates where the superior has failed to properly exercise this duty is formulated in article 86 of the Protocol. A survey of the travaux préparatoires of these provisions reveals that, while their inclusion was not uncontested during the drafting of the Protocol, a number of delegations clearly expressed the view that the principles expressed therein were in conformity with pre-existing law. Thus, the Swedish delegate declared that these articles reaffirmed the principles of international penal responsibility that were developed after the Second World War³⁵⁶. Similarly, the Yugoslav delegate expressed the view that the article on the duty of commanders contained provisions which had already been accepted in "military codes of all countries". ³⁵⁷

341. The Trial Chamber, while not determining the accuracy of this latter statement, notes the inclusion of provisions recognising the principle of command responsibility in two highly influential domestic military manuals: the United States Army Field Manual on the law of war, and the British Manual of Military Law³⁵⁸. Certainly, such a provision existed in the regulations concerning the application of the international law of war to the armed forces of the SFRY, which, under the heading "Responsibility for the acts of subordinates", provided as follows:

     The commander is personally responsible for violations of the law of war if he knew or could have known that his subordinate units or individuals are preparing to violate the law, and he does not take measures to prevent violations of the law of war. The commander who knows that the violations of the law of war took place and did not charge those responsible for the violations is personally responsible. In case he is not authorized to charge them, and he did not report them to the authorized military commander, he would also be personally responsible.

     A military commander is responsible as a participant or an instigator if, by not taking measures against subordinates who violate the law of war, he allows his subordinate units to continue to commit the acts.³⁵⁹

342. The validity of the principle of superior responsibility for failure to act was further reaffirmed in the ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind, which contains a formulation of the doctrine very similar to that found in Article 7(3)³⁶⁰. Most recently, a provision recognising a superior’s failure to take all necessary and reasonable measures to prevent or repress the crimes of subordinates under the superior’s effective authority and control, where the superior either knew or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes, as a ground for individual criminal responsibility was made part of the Rome Statute of the International Criminal Court. ³⁶¹

343. On the basis of the foregoing, the Trial Chamber concludes that the principle of individual criminal responsibility of superiors for failure to prevent or repress the crimes committed by subordinates forms part of customary international law.

344. In brief, the Prosecution avers that the recognised legal requirements of the doctrine of superior responsibility, as contained in Article 7(3) of the Statute, are the following:

     (1) The superior must exercise direct and/or indirect command or control whether de jure and/or de facto, over the subordinates who commit serious violations of international humanitarian law, and/or their superiors.

     (2) The superior must know or have reason to know, which includes ignorance resulting from the superior’s failure to properly supervise his subordinates, that these acts were about to be committed, or had been committed, even before he assumed command and control.

     (3) The superior must fail to take the reasonable and necessary measures, that are within his power, or at his disposal in the circumstances, to prevent or punish these subordinates for these offences.³⁶²

345. In contrast, the Defence for the accused Zejnil Delalic and Hazim Delic³⁶³ assert that the Prosecution, in order to establish guilt under a command responsibility theory pursuant to Article 7(3), must prove the following five elements:

     (1) The status of the accused as a commander or a civilian exercising the equivalent of military command authority over a person who committed a violation of the law of war.

     (2) That a violation of the law of war actually occurred or was about to occur.

     (3) That the commander had either actual knowledge of the commission of the violation of the law of war or that the commander had knowledge enabling him to conclude that the laws of war had been violated.

     (4) That the commander failed to act reasonably in suppressing violations by investigating allegations and punishing perpetrators or by taking action to prevent future violations.

     (5) And that the commander’s failure to act was the cause of the war crime which actually was committed.³⁶⁴

346. While it is evident that the commission of one or more of the crimes under Articles 2 to 5 of the Statute is a necessary prerequisite for the application of Article 7(3), the Trial Chamber agrees with the Prosecution’s proposition that the principle of superior responsibility properly is analysed as containing three constitutive parts. From the text of Article 7(3) it is thus possible to identify the essential elements of command responsibility for failure to act as follows:

     (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.

347. The alleged separate requirement of causation, listed by the Defence under (5) above, is discussed by the Trial Chamber below, in connection with its consideration of the requirement that the superior take the necessary and reasonable measures to prevent or repress the illegal acts committed by his subordinate.

(b) The Superior–Subordinate Relationship

348. The Prosecution asserts that the essential requirement of the doctrine of command responsibility is proof of the superior’s control over his subordinates and his ability to prevent them from committing violations or punish them for such violations. More specifically, it contends that although the more common situation in which the doctrine is applied is in relation to regular armed forces under the direct subordination of an officially designated military commander, the legal duties of a superior (and therefore the application of the doctrine of command responsibility) do not depend only on de jure (formal) authority, but can arise also as a result of de facto (informal) command and control, or a combination of both.

349. The Prosecution asserts that the degree of control necessary for the application of the doctrine can take different forms. Thus, it is maintained that command and control over subordinates can be exercised in a number of ways: operationally, tactically, administratively, executively in territories under the control of the superiors, and even through influence. It is submitted that the criminal responsibility of the superior will depend upon the degree and form of the control which he exercises and the means at his disposal to control his subordinates.³⁶⁵

350. The Defence for Zejnil Delalic and Hazim Delic contend that, in order to be found guilty on the basis of command responsibility, the accused must be either the commander of the person committing the violation of the law of war or in some other position allowing him to exercise the same type of authority as a military commander over the person who committed the violation.³⁶⁶

351. Although not absolutely unambiguous, it appears that the Defence for Mr. Delalic rejects the Prosecution’s assertion that command responsibility can be imposed on the basis of de facto authority. Thus, while it contends that the touchstone for such responsibility is the accused’s "actual ability to control" the person committing the offence³⁶⁷, it also asserts that a person charged under Article 7(3) with having superior authority must be shown to exercise authority over his subordinates which is "commensurate with" the authority to issue "binding orders" and to punish violations of those orders³⁶⁸. It is further submitted that the "lawful" authority of the accused is the key factor in determining liability under Article 7(3).³⁶⁹

352. The Defence emphasises that the crucial distinction in this context is that between military commanders and those with similar authority over subordinates on the one hand, and other types of superiors not exercising that type of authority on the other. Relying on this distinction, the Defence submits that the concept of "superior" in article 86 of Protocol I and Article 7(3) of the Statute does not extend criminal liability to non-commanders simply because they hold higher rank than the perpetrator of a war crime³⁷⁰. Instead, the Defence for Hazim Delic forcefully contends that customary international law places this type of liability only on individuals with authority to issue binding orders in their own name and the power to punish violations of those orders. It is submitted that in the military only a commander possesses such authority, and asserted that an application of vicarious criminal liability to persons other than commanders would have an ex post facto effect and would violate the principle of nullum crimen sine lege.³⁷¹

353. In response, the Prosecution explains that it does not in any way argue that the doctrine of command responsibility could apply to those who do not exercise command. Accordingly, it states that a position of strict liability, in the sense that any person of higher rank than the perpetrator is automatically responsible for the perpetrator’s crimes, is not being advocated. In contrast, it emphasises that, in order for command responsibility to attach, the perpetrator is required to be a subordinate of the person of higher rank, in that he must be under the direct or indirect control of the superior. However, it is the Prosecution’s position that those who are, in this sense, in command may occupy a variety of positions and that this category of persons is not limited to those formally designated as "commanders". ³⁷²

(ii) Discussion and Findings

354. The requirement of the existence of a "superior-subordinate" relationship which, in the words of the Commentary to Additional Protocol I, should be seen "in terms of a hierarchy encompassing the concept of control"³⁷³, is particularly problematic in situations such as that of the former Yugoslavia during the period relevant to the present case - situations where previously existing formal structures have broken down and where, during an interim period, the new, possibly improvised, control and command structures, may be ambiguous and ill-defined. It is the Trial Chamber’s conclusion, the reasons for which are set out below, that persons effectively in command of such more informal structures, with power to prevent and punish the crimes of persons who are in fact under their control, may under certain circumstances be held responsible for their failure to do so. Thus the Trial Chamber accepts the Prosecution’s proposition 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 mere absence of formal legal authority to control the actions of subordinates should therefore not be understood to preclude the imposition of such responsibility.

355. Before turning to the substance of the requisite superior-subordinate relationship, the Trial Chamber deems it appropriate first to set out its reasoning in relation to the question of the application of the principle enshrined in Article 7(3) to persons in non-military positions of authority.

356. It is apparent from the text of this provision that no express limitation is made restricting the scope of this type of responsibility to military commanders or situations arising under a military command. In contrast, the use of the generic term "superior" in this provision, together with its juxtaposition to the affirmation of the individual criminal responsibility of "Head[s] of State or Government" or "responsible Government official[s]" in Article 7(2), clearly indicates that its applicability extends beyond the responsibility of military commanders to also encompass political leaders and other civilian superiors in positions of authority. This interpretation is supported by the explanation of the vote made by the representative of the United States following the adoption of Security Council resolution 827 on the establishment of the International Tribunal. The understanding of the United States was expressed to be that individual criminal responsibility arises in the case of "the failure of a superior – whether political or military – to take reasonable steps to prevent or punish such crimes by persons under his or her authority"³⁷⁴. This statement was not contested. The same position was adopted by Trial Chamber I in its review of the Indictment pursuant to Rule 61 in Prosecutor v. Milan Martic, where it held that:

     [t]he Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence ratione materiae or who knowingly refrain from preventing or punishing the perpetrators of such crimes. ³⁷⁵

357. This interpretation of the scope of Article 7(3) is in accordance with the customary law doctrine of command responsibility. As observed by the Commission of Experts in its Final Report, while "[m]ost legal cases in which the doctrine of command responsibility has been considered have involved military or paramilitary accused, [p]olitical leaders and public officials have also been held liable under this doctrine in certain circumstances"³⁷⁶. Thus, the International Military Tribunal for the Far East (hereafter "Tokyo Tribunal") relied on this principle in making findings of guilt against a number of civilian political leaders charged with having deliberately and recklessly disregarded their legal duty to take adequate steps to secure the observance of the laws and customs of war and to prevent their breach. For example, while holding General Iwane Matsui criminally liable for the infamous "Rape of Nanking" by declaring that "[h]e had the power, as he had the duty, to control his troops and to protect the unfortunate citizens of Nanking. He must be held criminally responsible for his failure to discharge this duty"³⁷⁷, the tribunal was also prepared to place such responsibility upon the Japanese Foreign Minister at the time, Koki Hirota. In finding the latter guilty of having disregarded his legal duty to take adequate steps to secure the observance and prevent breaches of the laws of war, the tribunal thus declared:

     As Foreign Minister he received reports of these atrocities immediately after the entry of the Japanese forces into Nanking. According to the Defence evidence credence was given to these reports and the matter was taken up with the War Ministry. Assurances were accepted from the War Ministry that the atrocities would be stopped. After these assurances had been given reports of atrocities continued to come in for at least a month. The Tribunal is of the opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence.³⁷⁸

358. Similarly, the tribunal found Prime Minister Hideki Tojo and Foreign Minister Mamoru Shigemitsu criminally liable for their omissions to prevent or punish the criminal acts of the Japanese troops. In respect of the latter the tribunal declared:

     We do no injustice to SHIGEMITSU when we hold that the circumstances, as he knew them, made him suspicious that the treatment of the prisoners was not as it should have been. Indeed a witness gave evidence for him to that effect. Thereupon he took no adequate steps to have the matter investigated, although he, as a member of the government, bore overhead responsibility for the welfare of the prisoners. He should have pressed the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which he suspected was not being discharged.³⁷⁹

359. In United States v, Friedrich Flick and others³⁸⁰, the six accused, all leading civilian industrialists, were charged with the commission of war crimes and crimes against humanity in that they were said to have been principals in, accessories to, to have ordered, abetted, taken a consenting part in, or to have been connected with plans and enterprises involving the enslavement and deportation to slave labour of civilians from occupied territory, enslavement of concentration camp inmates and the use of prisoners of war in work having a direct relation to war operations. More specifically, it was alleged that the defendants sought and utilised such slave labour programmes by using tens of thousands of slave labourers in the industrial enterprises owned, controlled or influenced by them.³⁸¹

360. While acquitting four of the accused, the tribunal found the defendants Flick and Weiss guilty, as instances had been proved of Weiss’ voluntary participation in the slave labour programme. Concerning Flick, the person controlling the industrial enterprise in question, and Weiss’ superior, the judgement makes mention of no more than his "knowledge and approval" of Weiss’ acts³⁸². Noting this absence of explicit reasoning, the United Nations War Crimes Commission has commented that it "seems clear" that the tribunal’s finding of guilt was based on an application of the responsibility of a superior for the acts of his inferiors which he has a duty to prevent. ³⁸³

361. Similarly, civilian superiors were found criminally liable for the ill-treatment of forced labourers employed in the German industry in an appellate decision by the Superior Military Government Court of the French Occupation Zone in Germany, in the Roechling³⁸⁴ case. This case involved five accused, all holders of senior positions within the Roechling Iron and Steel Works in Voelklingen, four of whom were charged, inter alia, with having "employed under compulsion nationals of countries at that time occupied, prisoners of war, and deported persons, who were subjected to ill- treatment by [their] orders or with [their] consent"³⁸⁵. In its appeal judgement, the court clarified this charge by declaring that

     Herman Roechling and the other accused members of the Directorate of the Voelklingen works are not accused of having ordered this horrible treatment, but of having permitted it; and indeed supported it, and in addition, of not having done their utmost to put an end to these abuses. ³⁸⁶

362. Finding that three of the defendants had possessed sufficient authority to intervene in order to ensure an improvement in the treatment accorded to the deportees, the court proceeded to register findings of guilt on the basis of the accused’s failure to act.

363. Thus, it must be concluded that the applicability of the principle of superior responsibility in Article 7(3) extends not only to military commanders but also to individuals in non-military positions of superior authority.

b. The Concept of Superior

364. The Trial Chamber now turns to the issue which lies at the very heart of the concept of command responsibility for failure to act, the requisite character of the superior–subordinate relationship.

365. As noted above, the Defence contends that the fundamental distinction to be drawn in this connection is that between commanders on the one hand, and other types of superiors (including non-commanders with higher rank than individuals committing the underlying offences) on the other. It explains this distinction by way of the following quotation:

     "Commanders" are those who can issue orders on their own authority and over their own names to troops in the units they command, whether large (division, corps) or small (platoon, company). But except in very small units, a commander cannot function effectively without helpers, who bring him information about the condition of his troops, the whereabouts and intentions of the enemy, and other circumstances which together form the basis for his decisions and orders. These helping officers are a "staff", and if the unit is a large one and the staff correspondingly numerous, it is headed by a "Chief of Staff". This officer may be of high rank and his function very important, but he cannot issue orders (other than to his own staff subordinates) except by the authority and in the name of the unit commander.³⁸⁷

366. This may be compared with the definition of the position and duties of a chief of staff which was given in the High Command case:

     Staff officers, except in limited fields, are not endowed with command authority. Subordinate staff officers normally function through the chiefs of staff. The chief of staff in any command is the closest officer, officially at least, to the commanding officer. It is his function to see that the wishes of his commanding officer are carried out. It is his duty to keep his commanding officer informed of the activities which take place within the field of his command. It is his function to see that the commanding officer is relieved of certain details and routine matters, that a policy having been announced, the methods and procedures for carrying out such policy are properly executed. His sphere and personal activities vary according to the nature and interests of his commanding officer and increase in scope dependent upon the position and responsibilities of such commander.³⁸⁸

367. Consistent with these views, the United States Military Tribunals in the Hostage and High Command cases adopted the position that, while chiefs of staff may be held criminally responsible for their own positive acts, they cannot be held criminally responsible on the basis of command responsibility³⁸⁹. Thus it was held in the High Command case that:

     [s]taff officers are an indispensable link in the chain of their final execution. If the basic idea is criminal under international law, the staff officer who puts that idea into the form of a military order, either himself or through subordinates under him, or takes personal action to see that it is properly distributed to those units where it becomes effective, commits a criminal act under international law . . .

     Since a Chief of Staff does not have command authority in the chain of command, an order over his signature does not have authority for subordinates in the chain of command […] A failure to properly exercise command authority is not the responsibility of a Chief of Staff. In the absence of participation in criminal orders or their execution within a command, a Chief of Staff does not become criminally responsible for criminal acts occurring therein. He has no command authority over subordinate units. All he can do in such cases is call those matters to the attention of his commanding general. Command authority and responsibility for its exercise rest definitively upon his commander.³⁹⁰

368. While these two cases offer support for the view that the possession of powers of command is a necessary prerequisite for the imposition of command responsibility, it may be thought that the legal position is rendered less clear when the Tokyo Tribunal’s conviction of Lieutenant General Akira Muto is taken into account. Muto had been a staff officer under General Iwane Matsui at the time of the "Rape of Nanking", and later served as Chief of Staff to General Yamashita in the Philippines. In discussing his responsibility in the former position, the tribunal held that, while there was no doubt that Muto knew of the atrocities, he could in his subordinate position take no steps to stop them, and could therefore not be held criminally liable for their commission. However, the tribunal took a different view of his responsibility in his position as Chief of Staff to Yamashita:

     His position was now very different from that which he held during the so-called "Rape of Nanking". He was now in a position to influence policy. During his tenure of office as such Chief of Staff a campaign of massacre, torture and other atrocities was waged by the Japanese troops on the civilian population, and prisoners of war and civilian internees were starved, tortured and murdered. MUTO shares responsibility for these gross breaches of the Laws of War. We reject his defence that he knew nothing of these occurrences. It is wholly incredible.³⁹¹

369. In this case, then, a chief of staff, with no formal powers of command, was apparently held responsible on the basis of the doctrine of command responsibility. At least one prominent commentator on the subject relies on this case as support for the proposition that persons in non-command positions, such as advisers to a military unit, may be held criminally responsible on the basis of command responsibility. In this view, such a person, while lacking the authority to control the conduct of the forces in question, is still obliged to utilise all means available to prevent the perpetration of war crimes (such means may include protesting to the unit commander, notifying the next higher level of command, or, finally, seeking release from his position in the unit). ³⁹²

370. While the matter is, thus, not undisputed, it is the Trial Chamber’s 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. Accordingly, formal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach, as such responsibility may be imposed by virtue of a person’s de facto, as well as de jure, position as a commander.

371. While the terms of the Statute offer little guidance in relation to this issue, it is clear that the term "superior" is sufficiently broad to encompass a position of authority based on the existence of de facto powers of control. The same term is employed in article 86 of Additional Protocol I, which, in article 87, further establishes that the duty of a military commander to prevent violations of the Geneva Conventions extends not only to his subordinates but also to "other persons under his control". This type of superior–subordinate relationship is described in the Commentary to the Additional Protocols by reference to the concept of "indirect subordination", in contrast to the link of "direct subordination" which is said to relate the tactical commander to his troops³⁹³. Among the examples offered of such indirect subordination, this Commentary notes that:

     [i]f the civilian population in its own territory is hostile to prisoners of war and threatens them with ill-treatment, the military commander who is responsible for these prisoners has an obligation to intervene and to take the necessary measures, even though this population is not officially under his authority. ³⁹⁴

372. A survey of the existing judicial precedents demonstrates that commanders in regular armed forces have, on occasion, been held criminally responsible for their failure to prevent or punish criminal acts committed by persons not formally under their authority in the chain of command. Thus, in the Hostage and High Command trials it was accepted that commanders in charge of occupied territory may be held responsible for war crimes committed against civilians and prisoners of war in that area by troops not under their command³⁹⁵. As the tribunal in the Hostage case declared:

     [t]he matter of subordination of units as a basis of fixing criminal responsibility becomes important in the case of a military commander having solely a tactical command. But as to the commanding general of occupied territory who is charged with maintaining peace and order, punishing crime and protecting lives and property, subordination are [sic] relatively unimportant. His responsibility is general and not limited to a control of units directly under his command.³⁹⁶

373. Likewise, the finding in the High Command case that a commander may be held criminally liable for failing to prevent the execution of an illegal order issued by his superiors, which has been passed down to his subordinates independent of him³⁹⁷, indicates that legal authority to direct the actions of subordinates is not seen as an absolute requirement for the imposition of command responsibility. Similarly, the finding in the Toyoda case, whereby the tribunal rejected the alleged importance of what it called the "theoretical" division between operational and administrative authority, may be seen as supporting the view that commanders are under an obligation to take action to prevent the commission of war crimes by troops under their control despite a lack of formal authority to do so. An officer with only operational and not administrative authority does not have formal authority to take administrative action to uphold discipline, yet in the view of the tribunal in the Toyoda case; "[t]he responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own".³⁹⁸

374. Again, in the Pohl trial³⁹⁹, the finding of guilt against the accused Karl Mummenthey, an officer of the Waffen SS and business manager of a large establishment of industries employing concentration camp labour, is best read as predicated upon his possession of de facto powers of control. Charged with responsibility for the conditions to which labourers were exposed, Mummenthey based his defence in part on the contention that any mistreatment of prisoners was caused by concentration camp guards over whom he had no control (and, by implication, for which he therefore could not be held responsible). In rejecting this assertion the tribunal held:

     It has been Mummenthey’s plan to picture himself as a private businessman in no way associated with the sternness and rigour of SS discipline, and entirely detached from concentration camp routine. The picture fails to convince. Mummenthey was a definite integral and important figure in the whole concentration camp set-up, and, as an SS officer, wielded military power of command. If excesses occurred in the industries under his control he was in a position not only to know about them, but to do something. From time to time he attended meetings of the concentration camp commanders where all items pertaining to concentration camp routine such as labour assignment, rations, clothing, quarters, treatment of prisoners, punishment, etc., were discussed.⁴⁰⁰

375. Similarly, as noted above, the Tokyo Tribunal’s conviction of General Akiro Muto for acts occurring during his tenure as Chief of Staff to General Yamashita demonstrates that it considered powers of influence not amounting to formal powers of command to provide a sufficient basis for the imposition of command responsibility.⁴⁰¹

376. The cases imposing responsibility for failure to act on civilians occupying positions of authority, also indicate that such persons may be held liable for crimes committed by persons over whom their formal authority under national law is limited or non-existent. Thus, it has been noted that the Tokyo Tribunal convicted Foreign Minister Koki Hirota on the basis of command responsibility for war crimes although he lacked the domestic legal authority to repress the crimes in question⁴⁰². The tribunal found Hirota derelict in his duty in not "insisting" before the cabinet that immediate action be taken to put an end to the crimes, language indicating powers of persuasion rather than formal authority to order action to be taken⁴⁰³. Moreover, the Roechling case is best construed as an example of the imposition of superior responsibility on the basis of de facto powers of control possessed by civilian industrial leaders. While the accused in this case were found guilty, inter alia, of failing to take action against the abuse of forced labourers committed by the members of the Gestapo, it is nowhere suggested that the accused had any formal authority to issue orders to personnel under Gestapo command. Instead, the judgement employs the wording "sufficient" authority, a term not normally used in relation to formal powers of command, but rather one used to describe a degree of (informal) influence. This view is further supported by the reasoning employed in the judgement of the court of first instance in this case, which, in response to the claim of one of the accused that he could not give orders to the plant police and the personnel of a punishment camp, as these were under the orders of the Gestapo, makes reference to his status as Herman Roechling’s son-in-law - clearly a source of no more than de facto influence - as a factor affecting his authority to obtain an alleviation in the treatment of workers by the plant police.⁴⁰⁴

377. While it is, therefore, the Trial Chamber’s conclusion that a superior, whether military or civilian, may be held liable under the principle of superior responsibility on the basis of his de facto position of authority, the fundamental considerations underlying the imposition of such responsibility must be borne in mind. The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates. A duty is placed upon the superior to exercise this power so as to prevent and repress the crimes committed by his subordinates, and a failure by him to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine. It follows that there is a threshold at which persons cease to possess the necessary powers of control over the actual perpetrators of offences and, accordingly, cannot properly be considered their "superiors" within the meaning of Article 7(3) of the Statute. While the Trial Chamber must at all times be alive to the realities of any given situation and be prepared to pierce such veils of formalism that may shield those individuals carrying the greatest responsibility for heinous acts, great care must be taken lest an injustice be committed in holding individuals responsible for the acts of others in situations where the link of control is absent or too remote.

378. Accordingly, it is the Trial Chamber’s view that, in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior 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.⁴⁰⁵

379. The Prosecution asserts that the requisite mens rea under Article 7(3) may be established as follows:

     (1) actual knowledge established through direct evidence; or

     (2) actual knowledge established through circumstantial evidence, with a presumption of knowledge where the crimes of subordinates are a matter of public notoriety, are numerous, occur over a prolonged period, or in a wide geographical area; or

     (3) wanton disregard of, or failure to obtain, information of a general nature within the reasonable access of a commander indicating the likelihood of actual or prospective criminal conduct on the part of his subordinates.

380. The Defence notes that Article 7(3) sets out a rather unclear "knew or had reason to know" mens rea standard, which it submits is substantially lower than that set out in article 86 of Additional Protocol I, and concludes that the latter standard should be used in construing the Statute. It is asserted that the French text of Additional Protocol I (which, it is claimed, should be considered to be governing rather than the English version) requires that a commander actually possessed information which allowed him to conclude that subordinates had committed violations of the law of war. It is contended that if the Trial Chamber was to use the lower burden of "knew or had reason to know", substantial issues of nullum crimen sine lege would be raised, in that criminal liability would be based on a knowledge component which is less demanding than what was required by the law at the time when the events alleged in the Indictment are said to have occurred. Thus, it is proposed that the two standards be harmonised by construing Article 7(3) to mean that a commander has "reason to know" only when he actually possesses knowledge allowing him to conclude that a violation has occurred.

381. The Defence further asserts that the type and extent of knowledge available to a commander must be weighed to determine whether the commander had information allowing him to conclude that war crimes had been committed. The Defence agrees that this may be proved by circumstantial evidence such as the fact that the commander had executive authority over an area where war crimes were frequent and widespread, or where reliable reports of the crimes were made to the commander’s headquarters. It is submitted that, in the absence of actual knowledge, there must be evidence that the commander encouraged the criminal misconduct of his subordinates through his failure to discover and intervene, and that for this to occur there must be a serious personal dereliction of duty on the part of the commander, sufficient to constitute wilful and wanton disregard of the crimes.⁴⁰⁷

382. In response to these assertions, the Prosecution rejects the contention that the application of the doctrine of superior responsibility, as it is enshrined in Article 7(3), compromises the principle of nullum crimen sine lege. It asserts that the Statute’s language of "knew or had reason to know" must be construed as having the same meaning as the applicable standard under existing humanitarian law, including Protocol I. It states, however, that, according to this standard, it is not necessary for the accused to have information in his actual possession which enables him to conclude that violations are about to be, or have been, committed. A superior is required to discover and obtain all information within his powers, which includes properly supervising his subordinates, and he cannot wantonly disregard information within his reasonable access. The Prosecution states that "[t]he information itself need not conclude, or the superior need not actually have concluded that violations will or have been committed. It is sufficient that the superior should have concluded in the circumstances, and the information need only disclose, a likelihood of prospective or past offences."⁴⁰⁸

(ii) Discussion and Findings

383. The doctrine of superior responsibility does not establish a standard of strict liability for superiors for failing to prevent or punish the crimes committed by their subordinates. Instead, Article 7(3) provides that a superior may be held responsible only where he knew or had reason to know that his subordinates were about to or had committed the acts referred to under Articles 2 to 5 of the Statute. A construction of this provision in light of the content of the doctrine under customary law leads the Trial Chamber to conclude that a superior may possess the mens rea required to incur criminal liability where: (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.

a. Actual Knowledge

384. Regarding the standard of actual knowledge, the Prosecution asserts the existence of a rule of presumption where the crimes of subordinates are a matter of public notoriety, are numerous, occur over a prolonged period, or over a wide geographical area. However, the legal authorities cited by the Prosecution in this regard are insufficient to support the operation of such a rule. Among the cases relied upon by the Prosecution in this respect is that of General Yamashita. An examination of the findings of the Military Commission however, does not bear out this claim. In fact, the nature of the mens rea ascribed to General Yamashita in that case is not immediately apparent from the Commission’s decision. It has thus been commented by the United Nations War Crimes Commission that:

     the crimes which were shown to have been committed by Yamashita’s troops were so widespread, both in space and in time, that they could be regarded as providing either prima facie evidence that the accused knew of their perpetration, or evidence that he must have failed to fulfil a duty to discover the standard of conduct of his troops.⁴⁰⁹

385. The Commentary to the Additional Protocols, on which the Prosecution relies, also cites the High Command case and the judgement of the Tokyo Tribunal⁴¹⁰, neither of which, however, make a clear ruling on the existence of any such general rule of presumption. While, in the High Command case, the tribunal held in relation to the accused von Kuechler that the numerous reports of illegal executions which were made to his headquarters "must be presumed" to have been brought to his attention⁴¹¹, this case offers no support for the existence of a more general rule of presumption such as that proposed by the Prosecution. In contrast, the tribunal in that case explicitly rejected the argument that, in view of the extent of the atrocities and the communications available to them, it could be held that all the accused must have had knowledge of the illegal activities carried out in their areas of command. The tribunal declared that no such general presumption could be made and held that the question of the knowledge of the commanders had to be determined on the basis of the evidence pertaining to each individual defendant.⁴¹²

386. It is, accordingly, the Trial Chamber’s view that, in the absence of direct evidence of the superior’s knowledge of the offences committed by his subordinates, such knowledge cannot be presumed, but must be established by way of circumstantial evidence. In determining whether a superior, despite pleas to the contrary, in fact must have possessed the requisite knowledge, the Trial Chamber may consider, inter alia, the following indicia, listed by the Commission of Experts in its Final Report:

(a) The number of illegal acts;

(b) The type of illegal acts;

(c) The scope of illegal acts;

(d) The time during which the illegal acts occurred;

(e) The number and type of troops involved;

(f) The logistics involved, if any;

(g) The geographical location of the acts;

(h) The widespread occurrence of the acts;

(i) The tactical tempo of operations;

(j) The modus operandi of similar illegal acts;

(k) The officers and staff involved;

(l) The location of the commander at the time. ⁴¹³

b. "Had reason to know"

387. Regarding the mental standard of "had reason to know", the Trial Chamber takes as its point of departure the principle that a superior is not permitted to remain wilfully blind to the acts of his subordinates. There can be no doubt that a superior who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates commits a most serious dereliction of duty for which he may be held criminally responsible under the doctrine of superior responsibility. Instead, uncertainty arises in relation to situations where the superior lacks such information by virtue of his failure to properly supervise his subordinates.

388. In this respect, it is to be noted that the jurisprudence from the period immediately following the Second World War affirmed the existence of a duty of commanders to remain informed about the activities of their subordinates. Indeed, from a study of these decisions, the principle can be obtained that the absence of knowledge should not be considered a defence if, in the words of the Tokyo judgement, the superior was "at fault in having failed to acquire such knowledge".⁴¹⁴

389. For example, in the Hostage case the tribunal held that a commander of occupied territory is

     charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence.⁴¹⁵

     Likewise, in the trial against Admiral Toyoda, the tribunal declared that the principle of command responsibility applies to the commander who "knew, or should have known, by use of reasonable diligence" of the commission of atrocities by his subordinates⁴¹⁶. Similarly, the tribunal in the Pohl case, describing Mummenthey’s position as one of an "assumed or criminal naivete"⁴¹⁷, held that the latter’s assertions that he did not know what was happening in the labour camps and enterprises under his jurisdiction did not exonerate him, adding that "it was his duty to know"⁴¹⁸. Again, in the Roechling case, the court, under the heading of "The defence of lack of knowledge", declared that:

     [n]o superior may prefer this defence indefinitely; for it is his duty to know what occurs in his organization, and lack of knowledge, therefore, can only be the result of criminal negligence. ⁴¹⁹

390. While this body of precedent accordingly may be thought to support the position advocated by the Prosecution, the Trial Chamber is bound to apply customary law as it existed at the time of the commission of the alleged offences. Accordingly, the Trial Chamber must, in its construction of Article 7(3), give full consideration to the standard established by article 86 of Additional Protocol I, in addition to these precedents.

391. Article 86 underwent considerable change during the drafting of the Protocol, and the Trial Chamber notes that the drafters explicitly rejected the proposed inclusion of a mental standard according to which a superior would be criminally liable for the acts of his subordinates in situations where he should have had knowledge concerning their activities. Thus, not only was the proposed ICRC draft, according to which superiors would be held responsible for the illegal acts of a subordinate "if they knew or should have known that he was committing or would commit such a breach and if they did not take measures within their power to prevent or repress the breach"⁴²⁰, rejected, but an amended version put forward by the United States employing the formulation "if they knew or should reasonably have known in the circumstances at the time" was also not accepted. ⁴²¹

392. When considering the language of this provision as finally adopted, problems of interpretation arise if the English and French texts are compared. While the English text contains the wording "information which should have enabled them to conclude", the French version, rather than the literal translation "des information qui auraient dû leur permettre de concluire", is rendered "des information leur permettant de concluire" (literally: information enabling them to conclude). The proposition has been made that this discrepancy amounts to a distinction between the English text, which is said to embrace two requirements, one objective (that the superior had certain information) and one subjective (from this information available to the superior he should have drawn certain conclusions), and the French text containing only the objective element⁴²². The Trial Chamber notes, however, that this discrepancy in language was considered during the drafting of the Protocol, when it was expressly declared by delegates that the difference was not to be considered one of substance. ⁴²³

393. An interpretation of the terms of this provision in accordance with their ordinary meaning thus leads to the conclusion, confirmed by the travaux préparatoires, that a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates. This information need not be such that it by itself was sufficient to compel the conclusion of the existence of such crimes. It is sufficient that the superior was put on further inquiry by the information, or, in other words, that it indicated the need for additional investigation in order to ascertain whether offences were being committed or about to be committed by his subordinates. This standard, which must be considered to reflect the position of customary law at the time of the offences alleged in the Indictment, is accordingly controlling for the construction of the mens rea standard established in Article 7(3). The Trial Chamber thus makes no finding as to the present content of customary law on this point. It may be noted, however, that the provision on the responsibility of military commanders in the Rome Statute of the International Criminal Court provides that a commander may be held criminally responsible for failure to act in situations where he knew or should have known of offences committed, or about to be committed, by forces under his effective command and control, or effective authority and control.⁴²⁴

394. The legal duty which rests upon all individuals in positions of superior authority requires them to take all necessary and reasonable measures to prevent the commission of offences by their subordinates or, if such crimes have been committed, to punish the perpetrators thereof. It is the view of the Trial Chamber that any evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful.

395. It must, however, be recognised that international law cannot oblige a superior to perform the impossible. Hence, a superior may only be held criminally responsible for failing to take such measures that are within his powers. The question then arises of what actions are to be considered to be within the superior’s powers in this sense. As the corollary to the standard adopted by the Trial Chamber with respect to the concept of superior, we conclude that a superior should be held responsible for failing to take such measures that are within his material possibility. The Trial Chamber accordingly does not adopt the position taken by the ILC on this point, and finds that the lack of formal legal competence to take the necessary measures to prevent or repress the crime in question does not necessarily preclude the criminal responsibility of the superior.⁴²⁵

396. As noted above in sub-section (a), the Defence asserts the existence of a separate requirement of causation. It is contended that, if the superior’s failure to act did not cause the commission of the offence, the commander cannot be held criminally liable for the acts of his subordinates. The Defence submits that this applies also to a commander’s failure to punish an offence, as it may be argued that inaction in the form of failure to punish is the cause of future offences.⁴²⁶

397. In response, the Prosecution rejects the contention that causation is an element of the doctrine of superior responsibility. It submits that superiors may be held responsible if they fail to adequately take the steps within their powers to prevent or punish violations, and explains that this requirement does not entail proving that the superior’s failure directly caused each violation. It argues that this point is reinforced by the fact that many superiors at different levels can be held responsible, within their spheres of competence, for the illegal acts of the same subordinates, irrespective of which superior’s omission may have resulted in the commission of the violations. It is further claimed that a causation requirement would undermine the "failure to punish" component of superior responsibility, which, it is pointed out, can only arise after the commission of the offence. It is noted that as a matter of logic a superior could not be held responsible for prior violations committed by subordinates if a causal nexus was required between such violations and the superior’s failure to punish those who committed them. ⁴²⁷

398. Notwithstanding the central place assumed by the principle of causation in criminal law, causation has not traditionally been postulated as a conditio sine qua non for the imposition of criminal liability on superiors for their failure to prevent or punish offences committed by their subordinates. Accordingly, the Trial Chamber has found no support for the existence of a requirement of proof of causation as a separate element of superior responsibility, either in the existing body of case law, the formulation of the principle in existing treaty law, or, with one exception, in the abundant literature on this subject. ⁴²⁸

399. This is not to say that, conceptually, the principle of causality is without application to the doctrine of command responsibility insofar as it relates to the responsibility of superiors for their failure to prevent the crimes of their subordinates. In fact, a recognition of a necessary causal nexus may be considered to be inherent in the requirement of crimes committed by subordinates and the superior’s failure to take the measures within his powers to prevent them. In this situation, the superior may be considered to be causally linked to the offences, in that, but for his failure to fulfil his duty to act, the acts of his subordinates would not have been committed.

400. In contrast, while a causal connection between the failure of a commander to punish past crimes committed by subordinates and the commission of any such future crimes is not only possible but likely, the Prosecution correctly notes that no such casual link can possibly exist between an offence committed by a subordinate and the subsequent failure of a superior to punish the perpetrator of that same offence. The very existence of the principle of superior responsibility for failure to punish, therefore, recognised under Article 7(3) and customary law, demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility.

401. Having thus examined the applicable provisions of the Tribunal’s Statute, the Trial Chamber must analyse the individual offences with which the accused are charged, in the context of these provisions. Before proceeding with this analysis, a brief note is made here of various aspects of the construction of criminal statutes.