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Volumn 5, Issue 3, 2007, Pages 599-618

Finding a proper role for command responsibility

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EID: 34547910700     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm030     Document Type: Article
Times cited : (32)

References (91)
  • 1
    • 34547909575 scopus 로고    scopus 로고
    • Cambridge: Cambridge University Press, at
    • L. May, Crimes Against Humanity (Cambridge: Cambridge University Press, 2005), at 140-145.
    • (2005) Crimes Against Humanity , pp. 140-145
    • May, L.1
  • 2
    • 34547878313 scopus 로고    scopus 로고
    • See note 14
    • See infra note 14.
    • infra
  • 4
    • 76649126850 scopus 로고
    • Punishment of Offenders against the Laws and Customs of War
    • For pre-WWII practice, see
    • For pre-WWII practice, see JW. Garner, 'Punishment of Offenders against the Laws and Customs of War', 14 American Journal of International Law (AJIL) (1920) 87-88.
    • (1920) American Journal of International Law (AJIL) , vol.14 , pp. 87-88
    • Garner, J.W.1
  • 5
    • 34547922354 scopus 로고    scopus 로고
    • With respect to post-WWII practice, see W.H. Parks, Command Responsibility for War Crimes: 62 Military Law Review (1973) 1-104;
    • With respect to post-WWII practice, see W.H. Parks, 'Command Responsibility for War Crimes: 62 Military Law Review (1973) 1-104;
  • 6
    • 84928220310 scopus 로고
    • Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107
    • W.D. Burnett, 'Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107 Military Law Review (1985) 71-189;
    • (1985) Military Law Review , pp. 71-189
    • Burnett, W.D.1
  • 7
    • 0041034274 scopus 로고
    • Command Responsibility in the Former Yugoslavia: The Chances for Successful Prosecution: 29
    • C.N. Crowe, 'Command Responsibility in the Former Yugoslavia: The Chances for Successful Prosecution: 29 University of Richmond Law Review (1994-1995) 191-233;
    • (1994) University of Richmond Law Review , pp. 191-233
    • Crowe, C.N.1
  • 8
    • 0039742628 scopus 로고
    • Command Responsibility in International Humanitarian Law', 5
    • L.C. Green, 'Command Responsibility in International Humanitarian Law', 5 Transnational Law and Contemporary Problems (1995) 319-371;
    • (1995) Transnational Law and Contemporary Problems , pp. 319-371
    • Green, L.C.1
  • 9
    • 0029441498 scopus 로고
    • The Yamashita War Crimes Trial: Command Responsibility Then and Now; 149
    • B.D. Landrum, 'The Yamashita War Crimes Trial: Command Responsibility Then and Now; 149 Military Law Review (1995) 293-301;
    • (1995) Military Law Review , pp. 293-301
    • Landrum, B.D.1
  • 10
    • 0029444333 scopus 로고
    • The Nuremberg Principles, Command Responsibility, and the Defence of Captain Rockwood, 149
    • E.J. O'Brien,'The Nuremberg Principles, Command Responsibility, and the Defence of Captain Rockwood, 149 Military Law Review (1995) 275-291;
    • (1995) Military Law Review , pp. 275-291
    • O'Brien, E.J.1
  • 11
    • 0040013147 scopus 로고
    • Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia, 6
    • W.J. Fenrick,'Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia, 6 Duke Journal of Comparative and International Law (1995-1996) 103-125;
    • (1995) Duke Journal of Comparative and International Law , pp. 103-125
    • Fenrick, W.J.1
  • 13
    • 84928942714 scopus 로고    scopus 로고
    • The Doctrine of Command Responsibility in International Law, 45
    • B.B. Jia, 'The Doctrine of Command Responsibility in International Law, 45 NILR (1998) 325-347;
    • (1998) NILR , pp. 325-347
    • Jia, B.B.1
  • 14
    • 0033267505 scopus 로고    scopus 로고
    • The Contemporary Law of Superior Responsibility, 93
    • I. Bantekas, 'The Contemporary Law of Superior Responsibility, 93 AJIL (1999) 573-595;
    • (1999) AJIL , pp. 573-595
    • Bantekas, I.1
  • 15
    • 34547873486 scopus 로고    scopus 로고
    • W.J. Fenrick, Art. 28', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 515-521;
    • W.J. Fenrick, Art. 28', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999) 515-521;
  • 16
    • 34547914791 scopus 로고    scopus 로고
    • Les supérieurs hiérarchiques
    • H. Ascensio, E. Decaux, A. Pellet eds, Paris: Pedone
    • A. De Andrade, 'Les supérieurs hiérarchiques', in H. Ascensio, E. Decaux, A. Pellet (eds), Droit International pénal (Paris: Pedone, 2000) 201-210;
    • (2000) Droit International pénal , pp. 201-210
    • De Andrade, A.1
  • 17
    • 34547874959 scopus 로고    scopus 로고
    • The Evolution and Scope of Command Responsibility, 13
    • M. Lippman, 'The Evolution and Scope of Command Responsibility, 13 Leiden Journal of International Law (2000) 139-170;
    • (2000) Leiden Journal of International Law , pp. 139-170
    • Lippman, M.1
  • 18
    • 17344380380 scopus 로고    scopus 로고
    • The Shadow Side of Command Responsibility', 49
    • M. Damaška, 'The Shadow Side of Command Responsibility', 49 American Journal of Comparative Law (2001) 455-496;
    • (2001) American Journal of Comparative Law , pp. 455-496
    • Damaška, M.1
  • 19
    • 33751520409 scopus 로고    scopus 로고
    • Superior Responsibility
    • A. Cassese, P. Gaeta, J.R.W.D. Jones eds, Oxford: Oxford University Press
    • K. Ambos, 'Superior Responsibility, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 823-872;
    • (2002) The Rome Statute of the International Criminal Court: A Commentary , vol.1 , pp. 823-872
    • Ambos, K.1
  • 20
    • 4344658597 scopus 로고    scopus 로고
    • Oxford: Oxford University Press, at
    • A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), at 200-211.
    • (2003) International Criminal Law , pp. 200-211
    • Cassese, A.1
  • 22
    • 34547913395 scopus 로고    scopus 로고
    • These do not include accused persons who have pleaded guilty under either Art. 7(3) of the ICTY Statute (Todorović, and Obrenović) or Art. 6(3) of the ICTR Statute (Kambanda, and Serushago). As will be discussed subsequently, these also do not include problematic cases of defendants convicted under both the direct and the command responsibility modes of liability (Kayishema, Musema, Barayagwiza and Nahimana).
    • These do not include accused persons who have pleaded guilty under either Art. 7(3) of the ICTY Statute (Todorović, and Obrenović) or Art. 6(3) of the ICTR Statute (Kambanda, and Serushago). As will be discussed subsequently, these also do not include problematic cases of defendants convicted under both the direct and the command responsibility modes of liability (Kayishema, Musema, Barayagwiza and Nahimana).
  • 23
    • 34547872688 scopus 로고    scopus 로고
    • See for example, Art. 87 of Additional Protocol I, Art. 6 of the ILC Draft Code of Crimes against the Peace and Security of Mankind (YILC 1996, II (2), at 25), Art. 28 of the ICC Statute, and Art. 6(3) of the SCSL Statute.
    • See for example, Art. 87 of Additional Protocol I, Art. 6 of the ILC Draft Code of Crimes against the Peace and Security of Mankind (YILC 1996, Vol. II (2), at 25), Art. 28 of the ICC Statute, and Art. 6(3) of the SCSL Statute.
  • 24
    • 34547862738 scopus 로고    scopus 로고
    • On this point see the article by Chantal Meloni in this issue of the Journal.
    • On this point see the article by Chantal Meloni in this issue of the Journal.
  • 25
    • 34547882706 scopus 로고    scopus 로고
    • Judgment, Halilović (IT-01-48-T), Trial Chamber, 16 November 2005, §54 ('Halilović trial').
    • Judgment, Halilović (IT-01-48-T), Trial Chamber, 16 November 2005, §54 ('Halilović trial').
  • 26
    • 34547902421 scopus 로고    scopus 로고
    • See also Judgment, Hudžhasanović and Kubura (IT-01-47-T), Trial Chamber, 15 March 2006, §§ 69-75 ('Hadžihasanović trial').
    • See also Judgment, Hudžhasanović and Kubura (IT-01-47-T), Trial Chamber, 15 March 2006, §§ 69-75 ('Hadžihasanović trial').
  • 28
    • 34547908833 scopus 로고    scopus 로고
    • This has been repeatedly stressed in the ad hoc tribunals'case law, from the Delalić trial, infra note 12, §239
    • This has been repeatedly stressed in the ad hoc tribunals'case law, from the Delalić trial, infra note 12, §239,
  • 29
    • 34547859994 scopus 로고    scopus 로고
    • to the Hadžihasanovic trial, ibid., §92.
    • to the Hadžihasanovic trial, ibid., §92.
  • 30
    • 34547888291 scopus 로고    scopus 로고
    • Cassese, supra note 4, at 200-211
    • Cassese, supra note 4, at 200-211.
  • 31
    • 34547895837 scopus 로고    scopus 로고
    • Judgment, Delalić and others (IT-96-21-T), Trial Chamber, 16 November 1998, §346 ('Delalić trial').
    • Judgment, Delalić and others (IT-96-21-T), Trial Chamber, 16 November 1998, §346 ('Delalić trial').
  • 32
    • 34547915912 scopus 로고    scopus 로고
    • The ICTY has consistently held this view, from the Delalić trial, ibid., §§ 394-395, to the Hadžihasanović trial, supra note 9, §123.
    • The ICTY has consistently held this view, from the Delalić trial, ibid., §§ 394-395, to the Hadžihasanović trial, supra note 9, §123.
  • 33
    • 34547898356 scopus 로고    scopus 로고
    • In particular, the Yamashita case (US Military Commission, Manila, In re Yamashita, judgment of 7 December 1945, International Law Review (ILR, 13, at 255; and US Supreme Court, judgment of 4 February 1946, in ILR, 13, at 269) has been the object of much criticism with respect to the way in which the Military Commission established, or rather, presumed the existence of the requisite knowledge on the part of the accused. In his dissenting opinion, Justice Murphy pointed out that nowhere had Yamashita been charged with direct responsibility for having personally committed or ordered the crimes in question, nor had it been alleged that he had any knowledge of their commission. Yamashita was simply accused of failure to provide the effective control of his troops as required by the circumstances. Justice Murphy's main point was that the laws of war simply did not attach criminal liability to such a failure: 'No one denies that inaction or negligence m
    • In particular, the Yamashita case (US Military Commission, Manila, In re Yamashita, judgment of 7 December 1945, International Law Review (ILR), Vol. 13, at 255; and US Supreme Court, judgment of 4 February 1946, in ILR, Vol. 13, at 269) has been the object of much criticism with respect to the way in which the Military Commission established, or rather, presumed the existence of the requisite knowledge on the part of the accused. In his dissenting opinion, Justice Murphy pointed out that nowhere had Yamashita been charged with direct responsibility for having personally committed or ordered the crimes in question, nor had it been alleged that he had any knowledge of their commission. Yamashita was simply accused of failure to provide the effective control of his troops as required by the circumstances. Justice Murphy's main point was that the laws of war simply did not attach criminal liability to such a failure: 'No one denies that inaction or negligence may give rise to liability, civil or criminal. But it is quite another thing to say that the inability to control troops under highly competitive and disastrous battle conditions renders one guilty of a war crime in the absence of personal culp-ability. Had there been some element of knowledge of direct connection with the atrocities the problem would be completely different' (at 278).
  • 34
    • 0042413145 scopus 로고
    • See also, Chicago: The University of Chicago Press
    • See also A.F. Reel, The Case of General Yamashita (Chicago: The University of Chicago Press, 1949).
    • (1949) The Case of General Yamashita
    • Reel, A.F.1
  • 35
    • 34547863466 scopus 로고    scopus 로고
    • In addition to the Yamashita case see, in particular, US Military Tribunal, Nuremberg, In re List and others, judgment of 19 February 1948, in ILR, 15, at 632, Hostages case
    • In addition to the Yamashita case see, in particular, US Military Tribunal, Nuremberg, In re List and others, judgment of 19 February 1948, in ILR, Vol. 15, at 632 ('Hostages case');
  • 36
    • 34547904984 scopus 로고    scopus 로고
    • US Military Tribunal, Nuremberg, In re Von Leeb and others, judgment of 28 October 1948, in ILR, 15, at 376 ('High Command case');
    • US Military Tribunal, Nuremberg, In re Von Leeb and others, judgment of 28 October 1948, in ILR, Vol. 15, at 376 ('High Command case');
  • 37
    • 34547919560 scopus 로고    scopus 로고
    • and IMTFE, Tokyo, In re Hirota and others, judgment of 12 November 1948, in ILR, 15, at 356 ('Tokyo trial'). These are all cases in which high-ranking officials were charged with international crimes. In all these cases, it was beyond question that the offences had been committed by subordinates on a large scale. The only question concerned the standard of responsibility of commanders for such offences.
    • and IMTFE, Tokyo, In re Hirota and others, judgment of 12 November 1948, in ILR, Vol. 15, at 356 ('Tokyo trial'). These are all cases in which high-ranking officials were charged with international crimes. In all these cases, it was beyond question that the offences had been committed by subordinates on a large scale. The only question concerned the standard of responsibility of commanders for such offences.
  • 38
    • 34547865327 scopus 로고    scopus 로고
    • The importance of the position of the accused in the state hierarchy in these cases can certainly be understood in light of the fact that they were all high-ranking officers. Yamashita was the highest commander of the Japanese Army in the Philippines. In the Hostages case, the accused were all high-ranking officers of the German Army in Greece, Yugoslavia, Norway and Albania. In the High Command case, the accused were among the highest ranking officers in American custody and all held important staff or command positions in the German military. Finally, the accused persons in the Tokyo trial were notably 28 of the former leaders of Japan: Prime ministers, foreign ministers, war ministers, navy ministers, finance ministers, education ministers, home affairs ministers, overseas ministers, presidents of the planning board, chiefs of army general staff, ambassadors and military leaders
    • The importance of the position of the accused in the state hierarchy in these cases can certainly be understood in light of the fact that they were all high-ranking officers. Yamashita was the highest commander of the Japanese Army in the Philippines. In the Hostages case, the accused were all high-ranking officers of the German Army in Greece, Yugoslavia, Norway and Albania. In the High Command case, the accused were among the highest ranking officers in American custody and all held important staff or command positions in the German military. Finally, the accused persons in the Tokyo trial were notably 28 of the former leaders of Japan: Prime ministers, foreign ministers, war ministers, navy ministers, finance ministers, education ministers, home affairs ministers, overseas ministers, presidents of the planning board, chiefs of army general staff, ambassadors and military leaders.
  • 39
    • 34547896224 scopus 로고    scopus 로고
    • Delalić trial, supra note 12, §383.
    • Delalić trial, supra note 12, §383.
  • 40
    • 34547870866 scopus 로고    scopus 로고
    • Ibid., §386.
    • Ibid., §386.
  • 41
    • 34547885371 scopus 로고    scopus 로고
    • Judgment, Strugar (IT-01-42), Trial Chamber, 31 January 2005, § 369 ('Strugar trial').
    • Judgment, Strugar (IT-01-42), Trial Chamber, 31 January 2005, § 369 ('Strugar trial').
  • 42
    • 34547884986 scopus 로고    scopus 로고
    • For the first time, the Appeals Chamber of the ad hoc tribunals took this view in Delalić and others (IT-96-21-A), 20 February 2001, §§ 226-230 ('Delalić appeal').
    • For the first time, the Appeals Chamber of the ad hoc tribunals took this view in Delalić and others (IT-96-21-A), 20 February 2001, §§ 226-230 ('Delalić appeal').
  • 43
    • 34547876087 scopus 로고    scopus 로고
    • Ibid., §238.
    • Ibid., §238.
  • 44
    • 34547860375 scopus 로고    scopus 로고
    • Ibid., §232.
    • Ibid., §232.
  • 45
    • 34547870123 scopus 로고    scopus 로고
    • The question is extensively dealt with in Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, §§ 155-171 ('Krnojelac appeal').
    • The question is extensively dealt with in Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, §§ 155-171 ('Krnojelac appeal').
  • 46
    • 34547858098 scopus 로고    scopus 로고
    • See Judgment, Kajelijeli (ICTR-98-44A), Trial Chamber, I December 2003, §776 (While an individual's hierarchical position may be a significant indicium that he or she knew or had reason to know about subordinates' criminal acts, knowledge will not be presumed from status alone').
    • See Judgment, Kajelijeli (ICTR-98-44A), Trial Chamber, I December 2003, §776 (While an individual's hierarchical position may be a significant indicium that he or she knew or had reason to know about subordinates' criminal acts, knowledge will not be presumed from status alone').
  • 47
    • 34547895058 scopus 로고    scopus 로고
    • See also Judgment, Kamuhanda (ICTR-99-54), Trial Chamber, 22 January 2004, §607 (Kamuhanda trial').
    • See also Judgment, Kamuhanda (ICTR-99-54), Trial Chamber, 22 January 2004, §607 (Kamuhanda trial').
  • 48
    • 34547911730 scopus 로고    scopus 로고
    • In Bagilishema, the Appeals Chamber deemed it necessary 'to make a distinction between the fact that the Accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes, Thus, in the absence of information concerning the likely criminal conduct of his subordinates, the Appeals Chamber upheld the Trial Chamber's finding of the lack of the required mens rea under command responsibility (Judgment, Bagilishema, ICTR-95-1, Appeals Chamber, 3 July 2002, §42, A similar approach can be identified in other cases as well. In Delalić and others, only Mucić was found guilty under command responsibility. In establishing his mens rea, the fact that the crimes were 'frequent and notorious'was certainly significant Delalić trial, supra note 12, §770, However, the I
    • In Bagilishema, the Appeals Chamber deemed it necessary 'to make a distinction between the fact that the Accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes'. Thus, in the absence of information concerning the likely criminal conduct of his subordinates, the Appeals Chamber upheld the Trial Chamber's finding of the lack of the required mens rea under command responsibility (Judgment, Bagilishema, (ICTR-95-1), Appeals Chamber, 3 July 2002, §42). A similar approach can be identified in other cases as well. In Delalić and others, only Mucić was found guilty under command responsibility. In establishing his mens rea, the fact that the crimes were 'frequent and notorious'was certainly significant (Delalić trial, supra note 12, §770). However, the ICTY did not rely on the general context alone. Among other examples of direct knowledge, Mucić personally 'admitted in his interview with the Prosecution that he was aware that crimes were being committed in the prison-camp at Celebici' (§769). Similarly, in Krnojelac, the ICTY found the accused liable for torture under command responsibility, since he was not only aware of the general criminal context but also personally witnessed the beating of one detainee (Judgment, Krnojelac (IT-97-25), Trial Chamber, 15 March 2002, §§ 312-313, 'Krnojelac trial'). Thus, the Appeals Chamber concluded that the accused possessed sufficiently alarming information about the criminal conduct of his subordinates: 'The Appeals Chamber holds that the external context (i.e. the circumstances in which the detention centre was set up) and the internal context (i.e. the operation of the centre, in particular, the widespread nature of the beatings and the frequency of the interrogations), taken together with the facts that Krnojelac witnessed the beating inflicted on Zekovic ostensibly for the prohibited purpose of punishing him for his failed escape, that after this event at least one other detainee, witness FWS-73, was the victim of acts of torture and that the Trial Chamber dismissed Krnojelac's claim that he was unaware of any punishment inflicted as a result of Zekovic's escape, mean that no reasonable trier of fact could fail to conclude that Krnojelac had reason to know that some of the acts had been or could have been committed for one of the purposes prohibited by the law on torture. Krnojelac had a certain amount of general information putting him on notice that his subordinates might be committing abuses constituting acts of torture. Accordingly, he must incur responsibility pursuant to Art. 7(3) of the Statute' (Krnojelac appeal, supra note 21, §§ 165-171). A similar approach was taken in the Hadžihasanoví trial (supra note 9). More explicitly, in Gacumbitsi, the ICTR could not'find that the Accused knew or had reason to know that such acts [of rape] were being perpetrated because of their widespread character' (Judgment, Gacumbitsi (ICTR-01-64), Trial Chamber, 17 June 2004, §225,'Gacumbitsi trial'). However, the Trial Chamber was able to infer the mens rea of the accused under command responsibility from his responsibility for instigating the said crimes and, particularly, from the fact that the Chamber had already established his intent (§228).
  • 49
    • 34547870124 scopus 로고    scopus 로고
    • See supra note 14
    • See supra note 14.
  • 50
    • 34547905356 scopus 로고    scopus 로고
    • Tokyo trial, supra note 14, at 367-368 emphasis added
    • Tokyo trial, supra note 14, at 367-368 (emphasis added).
  • 51
    • 34547900640 scopus 로고    scopus 로고
    • Delalić trial, supra note 12, §370 (emphasis added).
    • Delalić trial, supra note 12, §370 (emphasis added).
  • 52
    • 34547879600 scopus 로고    scopus 로고
    • Ibid., §378.
    • Ibid., §378.
  • 53
    • 34547916411 scopus 로고    scopus 로고
    • The Appeals Chamber in the Delalić appeal, supra note 19, §266, concluded that '[n]othing relied on by the Prosecution indicates that there is sufficient evidence of State practice or judicial authority to support a theory that substantial influence as a means of exercising command responsibility has the standing of a rule of customary law, particularly a rule by which criminal liability would be imposed'.
    • The Appeals Chamber in the Delalić appeal, supra note 19, §266, concluded that '[n]othing relied on by the Prosecution indicates that there is sufficient evidence of State practice or judicial authority to support a theory that substantial influence as a means of exercising command responsibility has the standing of a rule of customary law, particularly a rule by which criminal liability would be imposed'.
  • 54
    • 34547914438 scopus 로고    scopus 로고
    • Delalić appeal, supra note 19, §197.
    • Delalić appeal, supra note 19, §197.
  • 55
    • 34547870506 scopus 로고    scopus 로고
    • See Judgment, Kunarac (IT-96-23&23/1-T), Trial Chamber, 22 February 2001;
    • See Judgment, Kunarac (IT-96-23&23/1-T), Trial Chamber, 22 February 2001;
  • 56
    • 34547919559 scopus 로고    scopus 로고
    • Judgment, Kvočka and others (IT-98-30/1-T), Trial Chamber, 21 November 2001 ('Kvočka trial');
    • Judgment, Kvočka and others (IT-98-30/1-T), Trial Chamber, 21 November 2001 ('Kvočka trial');
  • 57
    • 34547894667 scopus 로고    scopus 로고
    • Judgment, Blaškić (IT-95-14), Appeals Chamber, 29 July 2004 ('Blaškić appeal');
    • Judgment, Blaškić (IT-95-14), Appeals Chamber, 29 July 2004 ('Blaškić appeal');
  • 58
    • 34547902816 scopus 로고    scopus 로고
    • Judgment, Kordić and Čerkez (IT-95-14/2), Appeals Chamber, 17 December 2004 ('Kordić appeal');
    • Judgment, Kordić and Čerkez (IT-95-14/2), Appeals Chamber, 17 December 2004 ('Kordić appeal');
  • 59
    • 34547895057 scopus 로고    scopus 로고
    • Judgment, Blagojević and Jokić (IT-02-60-T) Trial Chamber, 17 January 2005;
    • Judgment, Blagojević and Jokić (IT-02-60-T) Trial Chamber, 17 January 2005;
  • 60
    • 34547908458 scopus 로고    scopus 로고
    • Halilović trial, supra note 9
    • Halilović trial, supra note 9:
  • 61
    • 34547892582 scopus 로고    scopus 로고
    • Judgment, Limaj (IT-03-66-T), Trial Chamber, 30 November 2005;
    • Judgment, Limaj (IT-03-66-T), Trial Chamber, 30 November 2005;
  • 62
    • 34547924818 scopus 로고    scopus 로고
    • Hadžihasanović trial, supra note 9
    • Hadžihasanović trial, supra note 9.
  • 63
    • 34547862372 scopus 로고    scopus 로고
    • Thus, in Musema, the ICTR found that the accused, the director of a public tea factory, had exercised effective control over his employees, but not over the 'villageois' plantation workers: Judgment, Musema (ICTR-96-13), Trial Chamber, 27 January 2000, §§ 880-881 ('Musema trial').
    • Thus, in Musema, the ICTR found that the accused, the director of a public tea factory, had exercised effective control over his employees, but not over the 'villageois' plantation workers: Judgment, Musema (ICTR-96-13), Trial Chamber, 27 January 2000, §§ 880-881 ('Musema trial').
  • 64
    • 34547897995 scopus 로고    scopus 로고
    • See Judgment, Akayesu (ICTR-96-4), Trial Chamber, 2 September 1998;
    • See Judgment, Akayesu (ICTR-96-4), Trial Chamber, 2 September 1998;
  • 65
    • 34547911729 scopus 로고    scopus 로고
    • Judgment, Ntakirutimana (ICTR-96-10, ICTR-96-17), Trial Chamber, 21 February 2003;
    • Judgment, Ntakirutimana (ICTR-96-10, ICTR-96-17), Trial Chamber, 21 February 2003;
  • 66
    • 34547891827 scopus 로고    scopus 로고
    • Judgment, Semanza (ICTR-97-20), Trial Chamber, 15 May 2003 (' Semanza trial');
    • Judgment, Semanza (ICTR-97-20), Trial Chamber, 15 May 2003 (' Semanza trial');
  • 67
    • 34547865328 scopus 로고    scopus 로고
    • Judgment, Niyitegeka (ICTR-96-14), Trial Chamber, 16 May 2003;
    • Judgment, Niyitegeka (ICTR-96-14), Trial Chamber, 16 May 2003;
  • 68
    • 34547891473 scopus 로고    scopus 로고
    • Kamuhanda trial, supra note 22;
    • Kamuhanda trial, supra note 22;
  • 69
    • 34547920673 scopus 로고    scopus 로고
    • Judgment, Ntagerura and others (ICTR-96-10A), Trial Chamber, 25 February 2004 ('Cyangugu trial');
    • Judgment, Ntagerura and others (ICTR-96-10A), Trial Chamber, 25 February 2004 ('Cyangugu trial');
  • 70
    • 34547871969 scopus 로고    scopus 로고
    • Gacumbitsi trial, supra note 23
    • Gacumbitsi trial, supra note 23.
  • 71
    • 34547875713 scopus 로고    scopus 로고
    • Decision on Joint Challenge to Jurisdiction, Hadžihasanovićc and others (IT-01-47-T), Trial Chamber, 12 November 2002.
    • Decision on Joint Challenge to Jurisdiction, Hadžihasanovićc and others (IT-01-47-T), Trial Chamber, 12 November 2002.
  • 72
    • 34547919920 scopus 로고    scopus 로고
    • Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Hadžihasanović and others (IT-01-47-A), Appeals Chamber, 16 July 2003.
    • Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Hadžihasanović and others (IT-01-47-A), Appeals Chamber, 16 July 2003.
  • 73
    • 34547873487 scopus 로고    scopus 로고
    • Command Responsibility and the Hadžihasanović Decision', 2
    • C. Greenwood, 'Command Responsibility and the Hadžihasanović Decision', 2 JICJ (2004) 598-605.
    • (2004) JICJ , pp. 598-605
    • Greenwood, C.1
  • 74
    • 34547864185 scopus 로고    scopus 로고
    • The question was very controversial, and it is interesting to note that the Hadžihasanović judge (supra note 9) felt the need to comment upon the Appeals Chamber's decision: 'Bien que les motifs avancés par les deux Juges dissidents méritent d'être développés, la Chambre se limitera à faire sienne une considération d'ordre pragmatique avancée par le Juge Shahabuddeen. Étant donné qu'en temps de guerre, le commandement des troupes change régulièrement, il existe un risque sérieux de voir la chaîne de responsabilité interrompue au fur et à mesure de ces changements de fonction. En effet, pour reprendre le cas d'espèce présenté ci-avant, si le supérieur en fonction de commandement au moment de la commission d'un crime est remplacé très peu de temps après so commission, il est très probable que les aute
    • The question was very controversial, and it is interesting to note that the Hadžihasanović judge (supra note 9) felt the need to comment upon the Appeals Chamber's decision: 'Bien que les motifs avancés par les deux Juges dissidents méritent d'être développés, la Chambre se limitera à faire sienne une considération d'ordre pragmatique avancée par le Juge Shahabuddeen. Étant donné qu'en temps de guerre, le commandement des troupes change régulièrement, il existe un risque sérieux de voir la chaîne de responsabilité interrompue au fur et à mesure de ces changements de fonction. En effet, pour reprendre le cas d'espèce présenté ci-avant, si le supérieur en fonction de commandement au moment de la commission d'un crime est remplacé très peu de temps après so commission, il est très probable que les auteurs de ce crime demeurent impunis et qu'aucun commandant ne soit tenu pénalement responsable au regard des principes de la responsabilité du supérieur hiérarchique. Force est de constater qu'en ce cas, la logique militaire, laquelle a pour but de faire régner l'ordre interne et la discipline necessaires au fonctionnement des forces armées, et dont le devoir de punir est le corollaire, reste en défaut de pouvoir atteindre ses objectifs' (§199). Moreover, the Trial Chamber affirmed a 'devoir rétroactif de punir fondé sur une connaissance préalable' (§§ 180-185), which is difficult to reconcile with the aforementioned position. Thus, is the commander, who discovers that his new subordinates have committed certain crimes, and who, therefore, had sufficient alarming information to put him on notice about the commission of similar crimes before he took office, responsible for not having inquired further and punished his subordinates? Apparently, not. But this may entail an unequal treatment of newly appointed commanders with respect to incumbent commanders.
  • 75
    • 34547899117 scopus 로고    scopus 로고
    • See supra note 14, at 256
    • See supra note 14, at 256.
  • 76
    • 34547918803 scopus 로고    scopus 로고
    • Judgment, Kayishema and Ruzindana (ICTR-01-67), Trial Chamber, 21 May 1999, §223 (emphasis added).
    • Judgment, Kayishema and Ruzindana (ICTR-01-67), Trial Chamber, 21 May 1999, §223 (emphasis added).
  • 77
    • 34547903188 scopus 로고    scopus 로고
    • Ibid., §505.
    • Ibid., §505.
  • 78
    • 34547922741 scopus 로고    scopus 로고
    • See Semanza trial, supra note 32;
    • See Semanza trial, supra note 32;
  • 79
    • 34547901715 scopus 로고    scopus 로고
    • Cyangugu trial, supra note 32;
    • Cyangugu trial, supra note 32;
  • 80
    • 34547892982 scopus 로고    scopus 로고
    • Gacumbtsi trial, supra note 23
    • Gacumbtsi trial, supra note 23.
  • 81
    • 34547906077 scopus 로고    scopus 로고
    • Kamuhanda trial, supra note 22, §612 ('The finding of a position of authority for purposes of ordering under Art. 6(1) is not synonymous with the presence of effective control for purposes of responsibility under Art. 6(3). It is settled that the two provisions are distinct: And, in our view, so are the considerations for responsibility under them.').
    • Kamuhanda trial, supra note 22, §612 ('The finding of a position of authority for purposes of "ordering" under Art. 6(1) is not synonymous with the presence of "effective control" for purposes of responsibility under Art. 6(3). It is settled that the two provisions are distinct: And, in our view, so are the considerations for responsibility under them.').
  • 82
    • 34547863824 scopus 로고    scopus 로고
    • Strugar trial, supra note 18, §331.
    • Strugar trial, supra note 18, §331.
  • 83
    • 34547855831 scopus 로고    scopus 로고
    • Thus, in the Delalić trial, supra note 12, the ICTY did not consider direct and command responsibility to be mutually exclusive forms of liability (§1223, Then the Appeals Chamber clarified that, w]here criminal responsibility for an offence is alleged under one count pursuant to both Art. 7(1) and Art. 7(3, and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count. Alternatively, it may be considered in terms of the direct participation aggravating the Art. 7(3) responsibility (as discussed above) or the accused's seniority or position of authority aggravating his direct responsibility under
    • Thus, in the Delalić trial, supra note 12, the ICTY did not consider direct and command responsibility to be mutually exclusive forms of liability (§1223). Then the Appeals Chamber clarified that,' [w]here criminal responsibility for an offence is alleged under one count pursuant to both Art. 7(1) and Art. 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count. Alternatively, it may be considered in terms of the direct participation aggravating the Art. 7(3) responsibility (as discussed above) or the accused's seniority or position of authority aggravating his direct responsibility under Art. 7(1)' (Delalić appeal, supra note 19, §745).
  • 84
    • 34547859993 scopus 로고    scopus 로고
    • In Karadžić and Mladić, the ICTY had already held that, while the conditions for command responsibility under Art. 7(3) were 'unquestionably' fulfilled, 'the type of responsibility incurred is better characterized by Art. 7(1) of the Statute, and in particular by 'ordering' the crimes allegedly committed under the authority of the accused (Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Karadžić and Mladić (IT-95-5/18), Trial Chamber, 11 July 1996, §§ 82-83).
    • In Karadžić and Mladić, the ICTY had already held that, while the conditions for command responsibility under Art. 7(3) were 'unquestionably' fulfilled, 'the type of responsibility incurred is better characterized by Art. 7(1) of the Statute, and in particular by 'ordering' the crimes allegedly committed under the authority of the accused (Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Karadžić and Mladić (IT-95-5/18), Trial Chamber, 11 July 1996, §§ 82-83).
  • 85
    • 34547866059 scopus 로고    scopus 로고
    • For early cases in which the Tribunal entered only the conviction under Art. 7(1), see Judgment, Aleksovski (IT-95-14/1), Appeals Chamber, 24 March 2000, §183, and Kvočka trial, supra note 30, §570.
    • For early cases in which the Tribunal entered only the conviction under Art. 7(1), see Judgment, Aleksovski (IT-95-14/1), Appeals Chamber, 24 March 2000, §183, and Kvočka trial, supra note 30, §570.
  • 86
    • 34547917162 scopus 로고    scopus 로고
    • See Krnojelac trial, supra note 23, §173, The Trial Chamber has established the criminal responsibility of the Accused pursuant to both Art. 7(1) and Art. 7(3, However, the Trial Chamber is of the view that it is inappropriate to convict under both heads of responsibility for the same count based on the same acts. Where the Prosecutor alleges both heads of responsibility within the one count, and the facts support a finding of responsibility under both heads of responsibility, the Trial Chamber has a discretion to choose which is the most appropriate head of responsibility under which to attach criminal responsibility to the Accused, A similar approach was taken in Judgment, Naletilić and Martinović (IT-98-34-T, Trial Chamber, 31 March 2003, §§ 78-81, and Judgment, Galić IT-98-29, Trial Chamber, 5 December 2003, §177, Galić trial
    • See Krnojelac trial, supra note 23, §173 ('The Trial Chamber has established the criminal responsibility of the Accused pursuant to both Art. 7(1) and Art. 7(3). However, the Trial Chamber is of the view that it is inappropriate to convict under both heads of responsibility for the same count based on the same acts. Where the Prosecutor alleges both heads of responsibility within the one count, and the facts support a finding of responsibility under both heads of responsibility, the Trial Chamber has a discretion to choose which is the most appropriate head of responsibility under which to attach criminal responsibility to the Accused'). A similar approach was taken in Judgment, Naletilić and Martinović (IT-98-34-T), Trial Chamber, 31 March 2003, §§ 78-81, and Judgment, Galić (IT-98-29), Trial Chamber, 5 December 2003, §177 ('Galić trial').
  • 87
    • 34547868836 scopus 로고    scopus 로고
    • Judgment, Krstić (IT-98-33-T), Trial Chamber, 2 August 2001, §605 ('Krstić trial');
    • Judgment, Krstić (IT-98-33-T), Trial Chamber, 2 August 2001, §605 ('Krstić trial');
  • 88
    • 34547917163 scopus 로고    scopus 로고
    • Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003, §§ 463-467 ('Stakić trial').
    • Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003, §§ 463-467 ('Stakić trial').
  • 89
    • 34547906420 scopus 로고    scopus 로고
    • Blaškić appeal, supra note 30, §91.
    • Blaškić appeal, supra note 30, §91.
  • 90
    • 34547855832 scopus 로고    scopus 로고
    • Judgment, Brdjanin (IT-99-36-T), Trial Chamber, 1 September 2004, §§ 284-285
    • Judgment, Brdjanin (IT-99-36-T), Trial Chamber, 1 September 2004, §§ 284-285
  • 91
    • 34547899491 scopus 로고    scopus 로고
    • Kordić appeal, supra note 36, §34;
    • Kordić appeal, supra note 36, §34;


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