Command responsibility in the case law of the International Criminal Tribunal for Rwanda

Criminal Law Forum

Volumn 13, Issue 3, 2002, Pages 365-384

  Williamson, Jamie A ^a  

^a NONE   (Netherlands)

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EID: 36549054269     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/A:1023353027752     Document Type: Article

References (94)

1. First Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between i January and 31 December 1994, U.N. Doc. A/51/399-S/1996/778, 24 September 1996, para. 42.
2. Article 6(1) of the ICTR Statute reads: "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 4 of the present Statute, shall be individually responsible for the crime."
3. In effect, article 6(3) introduces a form of liability by way of omission.
4. The terms command responsibility and superior responsibility are used interchangeably throughout.
5. See V. Morris M.P. Scharf, I THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 249-262 (1998).
6. Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998, para. 491.
7. Prosecutor v. Musema (Case No. ICTR-96-13-T), Judgment and Sentence, 27 January 2000, para. 135.
8. Ibid.
9. Prosecutor v. Kayishema Ruzindana (Case No. ICTR-95-1-T), Judgment, 21 May 1999, para. 213.
10. Prosecutor v. Bagilishema (Case No. ICTR-95-1A-T), Judgment, 7 June 2001, para. 42.
11. See for instance Prosecutor v. Delalic et al. (Case No. IT-96-21-T), Judgment, 16 November 1998, para. 363:: 339-364, 2 "[I]t must be concluded that the applicability of the principle of superior responsibility extends not only to military commanders but also to individuals in non military positions of superior responsibility." Germany v. Roechling et al., Indictment and Judgment of the General Tribunal of the Military Government of the French Zone of Occupation in Germany, 14 T.W.C, Appendix B;
12. United States v. Flick et al., 6 T.W.C 1. Likewise, article 28 of the Rome Statute makes provision for civilians to be held responsible as superiors.
13. Prosecutor v. Kayishema Ruzindana, supra note 9, para. 216. See also Prosecutor v. Aleksovski (Case No. IT-95-14/1), Judgment, 25 June 1999, para. 76: "Any person acting de facto as a superior may be held responsible under article 7(3). The decisive criterion in determining who is a superior according to customary international law is not only the accused's formal legal status but also his ability, as demonstrated by his duties and competence, to exercise control."
14. Prosecutor v. Musema, supra note 7, para. 135. See also Prosecutor v. Kayishema Ruzindana (Case No. ICTR-95-1-A), Judgment, 1 June 2001, para. 294: "Il s'agit de rechercher si le supérieur hiérarchique exerçait un contrôle effectif sur les auteurs des crimes allégués. L'existence d'un contrôle effectif peut être liée à la question de savoir si l'accuśe avait une autorité de jure mais sans nécessairement en dépendre. Un tel contrôle ou une telle autorité peut revêtir un caractère de facto ou dejure."
15. Prosecutor v. Delalic, supra note 11, para. 370.
16. To date all the accused judged by the Rwanda Tribunal under article 6(3) of the Statute have been civilians: Ignace Bagilishema held the post of mayor (bourgmestre) of Mabanza commune in Kibuye prefecture of which Clement Kayishema was the prefect. Alfred Musema was the director of Gisovu tea factory also in Kibuye prefecture.
17. Prosecutor v. Delalic, supra note 11, para. 376.
18. See also M. CHERIF BASSIOUNI PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 368-369 (1996): "… thus, a commander in chief despite the title, may fail to exercise the full powers of the office. Conversely, a civilian who occupies a position of military command and control actually may make decision on strategic or tactical matters or both."
19. Prosecutor v. Kayishema Ruzindana, supra note 9, para. 217.
20. Prosecutor v. Musema, supra note 7, para. 866.
21. This approach was expounded in Prosecutor v. Delalic, supra note 11, para. 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."
22. Prosecutor v. Kayishema Ruzindana, supra note 9, para. 218. "Therefore, in view of the chaotic situation that which prevailed in Rwanda in these pivotal months of 1994, the Chamber must be free to consider whether Kayishema had the requisite control over those committing the atrocities to establish individual criminal liability under article 6(3), whether by de jure or de facto command."
23. See also Prosecutor v. Delalic, supra note 11, para 377, where the Chamber explained: "[We] 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."
24. Prosecutor v. Bagilishema, supra note 10, para. 39. See also Rome Statute of the International Criminal Court, article 28(b): "With respect to superior and subordinate relationship not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates […]"
25. Prosecutor v. Kayishema Ruzindana, supra note 9, paras. 221-222. Confirmed on appeal, supra note 13, para. 294.
26. Prosecutor v. Kayishema Ruzindana, supra note 9, para. 491.
27. Ibid. para. 492
28. Ibid. para. 501: "The facts of the case also reflect the de facto control that Kayishema exercised over all of the assailants participating in the massacres. Kayishema was often identified transporting or leading many of the assailants to the massacre sites. He was regularly identified, for example, in the company of members of the Interahamwe - transporting them, instructing them, rewarding them, as well as directing and leading their attacks. The Trial Chamber, therefore, is satisfied that Kayishema had strong affiliations with these assailants, and his command over them at each massacre site, as with the other assailants, was clearly established by witness testimony."
29. Prosecutor v. Musema, supra note 7, para. 141. See also para. 864: "…the authority, whether de facto or de jure, or the effective control, exercised by Alfred Musema in the context of the events alleged, may provide the basis for such individual criminal responsibility".
30. Ibid., para. 144. Superior responsibility in these circumstances would be through indirect subordination.
31. Ibid., para. 140.
32. Ibid., para. 880.
33. Ibid.
34. Ibid., para. 882.
35. Ibid., para. 881.
36. Ibid., para. 868.
37. See also Prosecutor v. Delalic et al. (Case No. IT-96-21-A), Judgment, 20 February 2001, para. 266 where it was held that "customary law has specified a standard of effective control, although it does not define precisely the means by which the control must be exercised. It is clear, however, that substantial influence as a means of control in any sense which falls short of the possession of effective control over subordinates, which requires the possession of material abilities to prevent subordinate offences or to punish subordinate offenders, lacks sufficient support in State practice and judicial decisions."
38. Prosecutor v. Bagilishema, supra note 10, para. 42.
39. Ibid., para. 43.
40. Ibid. The Chamber added: "It is by these trappings that the law distinguishes civilian superiors from mere rabble-rousers or other persons of influence."
41. Ibid., para. 152.
42. That being said, the Chamber did recognise elsewhere in the judgment, at para. 39, that "ultimately it is the actual relationship of command (whether de jure or de facto) that is required for command responsibiity".
43. Ibid., para. 163.
44. Prosecutor v. Bagilishema (Case No. ICTR-95-1A-A), Appeal Judgement, 13 December 2002, paras 55 and 62.
45. Prosecutor v. Delalic, supra note 11, para. 377.
46. Prosecutor v. Bagilishema, supra note 10, para. 46.
47. Prosecutor v. Musema, supra note 7, para. 146.
48. Ibid.
49. Ibid., para. 147.
50. "Responsibility of commanders and other superiors. In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: 1. A military commander or person effectively acting as a military commander shall be criminally responsible for control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (a) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (b) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 2. With respect to superior and subordinate relationships not described in paragraph 1, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (a) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (b) The crimes concerned activities that were within the effective responsibility and control of the superior; and (c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution."
51. Prosecutor v. Kayishema Ruzindana, supra note 9, para. 227.
52. Ibid., para. 228.
53. Prosecutor v. Delalic et al., supra note 35, para. 240. The Chamber declined to rule on the question of law given that the Trial Chamber had made a factual determination that the accused was not in a position of superior authority in any capacity.
54. Prosecutor v. Krnojelac (Case No. IT-97-25), Judgment, 15 March 2002, para. 94.
55. Prosecutor v. Kayishema Ruzindana, supra note 9, paras. 226-228. The Chamber noted that Delalic did not follow an expansive reasoning and that "it preferred it be proven that some information be available that would put the accused on notice of an offence and require further investigation by him". Then, regarding article 28 of the Rome Statute, the Trial Chamber agreed with the distinction made between military and on-military superiors inasmuch as there is no "prima facie duty upon a non-military commander to be seized of every activity of all persons under his or her control".
56. Ibid., para. 228.
57. Ibid., para. 509.
58. Ibid., para. 404.
59. Kayishema had not been accused of being present during the attacks, which thereby justifies the charge of command responsibility.
60. For instance, at para. 400: "Each one of these eyewitnesses, with the exception of PP, placed Kayishema at the site on at least one day either shortly before or during the attacks of 15 and 16 April." The Chamber also concluded, in para. 400: "It is clear from the evidence presented to the Trial Chamber that of the thousands of Tutsis gathered at Mubuga Church, only a few survived this weekend massacre. The Trial Chamber is satisfied, beyond a reasonable doubt, that Kayishema and his subordinates, including local authorities, the gendarmes, the communal police and the members of the Interahamwe were present and participated at the attacks at Mubuga Church between 14 and 16 April. As aforementioned, Kayishema, is not charged with having been present during the attacks under paragraph 41 of the Indictment. In light of the testimony of the five witnesses the Chamber nevertheless finds that Kayishema was present during the actual attacks. We further find that his presence and the presence and the participation of other local authorities, encouraged the killings of the Tutsis who had assembled to seek refuge there."
61. Prosecutor v. Musema, supra note 7, para. 146.
62. Ibid., paras. 894, 899, 905, 914, 919, 924, 945 and 950.
63. If presence and active participation is established, a charge based on superior responsibility may seem unnecessary. See for instance Prosecutor v. Kordic Cerkez (Case No. IT-95-14/2), Judgment, 26 February 2001, para. 371: "… in cases where the evidence presented demonstrates that a superior would not only have been informed of subordinates' crimes committed under his authority, but also exercised his powers to plan, instigate or otherwise aid and abet in the planning, preparation or execution of these crimes, the type of criminal responsibility incurred may be better characterised by article 7(1)."
64. Prosecutor v. Bagilishema, supra note 10, para. 45.
65. Ibid., para. 46.
66. Prosecutor v. Aleksovski, supra note 12, para. 80: "Admittedly, as regards 'indirect' responsibility, the Trial Chamber is reluctant to consider that a 'presumption' of knowledge about a superior exists which would somehow automatically entail his guilt whenever a crime was allegedly committed. The Trial Chamber deems however that an individual's superior position per se is a significant indicium that he had knowledge of the crimes committed by his subordinates. The weight to be given to that indicium however depends inter alia on the geographical and temporal circumstances." Zlatko Aleksovski was a superior of prison guards for all matters relating to their duties in connection with the organisation and functioning of Kaonik prison
67. Prosecutor v. Blaskic (Case No. IT-95-14), Judgment, 3 March 2000, para. 332: "In conclusion, the Trial Chamber finds that if a commander has exercised due diligence in the fulfilment of his duties yet lacks knowledge that crimes are about to be or have been committed, such lack of knowledge cannot be held against him. However, taking into account his particular position of command and the circumstances prevailing at the time, such ignorance cannot be a defence where the absence of knowledge is the result of negligence in the discharge of his duties: this commander had reason to know within the meaning of the Statute." Tihomir Blaskic was the commander of the Croatian Defence Council armed forces (HVO) in central Bosnia.
68. Prosecutor v. Delalic et al., supra note 35, para. 241. In other words the superior is not permitted to remain wilfully blind to the acts of subordinates. Although the Appeals Chamber limited its pronouncement to the customary law standard of mens rea as existing at the time of the offences charged in the indictment, it is submitted that this finding is still relevant to date.
69. Prosecutor v. Krnojelac, supra note 51, para. 94.
70. The Chamber subsequently reviewed the responsibility of the accused on the basis of negligence for having established or permitted the establishment of a system of roadblocks without adequately supervising its operations. In this section of the judgment, the Chamber dealt not only with the issue of establishing a dangerous system, but also with questions of whether it was foreseeable that an inadequately supervised roadblock might result in deaths (para. 1020) and of whether the accused showed "wanton disregard for high-risk activities at roadblocks" (para. 1021). Findings on these questions are relevant to establishing knowledge on a "should have known" basis. Arguably, given that killings were committed at the roadblocks by at least one true subordinate of the accused (para. 973), this section may be perceived as also relating to the superior responsibility of the accused.
71. Prosecutor v. Delalic et al., supra note 35, para. 241.
72. Ibid., para. 226.
73. Prosecutor v. Bagilishema, supra note 10, para. 967.
74. Ibid., para. 968.
75. Citing Prosecutor v. Delalic et al., supra note 11, para. 386.
76. Ibid., para. 988.
77. Prosecutor c. Kayishema Ruzindana, supra note 9, paras. 229 230.
78. Ibid., para. 501. The assailants included armed civilians and militia, gendarmes, and soldiers.
79. Ibid., paras. 504 505.
80. Ibid., para. 513.
81. Prosecutor v. Bagilishema, supra note 10, para. 48. Regarding the meaning of "necessary" and "reasonable", the Chamber stated, at para. 47, that it "understands 'necessary' to be those measures required to discharge the obligation to prevent or punish in the circumstances prevailing at the time; and, 'reasonable' to be those measures which the commander was in a position to take in the circumstances".
82. Ibid., para. 48
83. and Prosecutor v. Kayishema Ruzindana, supra note 9, para. 231.
84. Prosecutor v. Kayishema Ruzindana, supra note 9, para. 511.
85. See also INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON THE PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS OF ARMED CONFLICTS PARA. 3548 (1987), where it is explained that it is matter of common sense that the measures described in relation as feasible measures which the superiors are expected to take under article 86 of Protocol I those "within the powers and only those".
86. Prosecutor v. Musema, supra note 7, para. 880. It should be noted that it is unclear from the findings whether the accused would also have been found responsible under article 6(3) had he not been present at the scene of the attacks whilst his subordinates committed crimes. For instance, had the accused come to know of his or her subordinates being involved in massacres, would dismissal or suspension from office be considered as a measure sufficient to exonerate him or her under article 6(3)? It could be contended that the accused had the duty as de jure superior to take the matter further by, for instance, reporting the offender to the police and judicial authorities.
87. Prosecutor v. Bagilishema, supra note 10, paras. 226-303.
88. As noted elsewhere in the article, article 6(1) charges may be more appropriate than superior responsibility in situations of active participation and presence of the accused during the events.
89. Prosecutor v. Kayishema Ruzindana, supra note 9, para. 505.
90. Prosecutor v. Musema, supra note 7, para. 894: "The Chamber finds that it has also been established that Musema was the superior of said employees and that he held not only de jure power over them, but also de facto power. Considering that Musema was personally present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused nevertheless failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation." See also paras. 905, 914, 919, and 924.
91. Prosecutor v. Bagilishema, supra note 10, para. 49, with reference to Prosecutor v. Blaskic, supra note 64, para. 336.
92. Prosecutor v. Bagilishema, supra note 10, para. 50.
93. See in this regard Prosecutor v. Blaskic, supra note 64, para 335 where it was held that "it is a commander's degree of effective control, his material ability, which will guide the Trial Chamber in determining whether he reasonably took the measures required either to prevent the crime or to punish the perpetrator. As stated above in the discussion of the definition of 'superior', this implies that, under some circumstances, a commander may discharge his obligation to prevent or punish by reporting the matter to the competent authorities." There is of course the risk that such an assessment as to whether a superior could have done more may err into the domain of speculation.
94. The joint "military" trial of of Theoneste Bagasora (Director of Cabinet, Ministry of Defence), Anatole Nsengiyumva (Lieutenant-Colonel), Gratien Kabiligi (Brigadier-General in FAR) and Aloys Ntabakuze (Commander of Battalion in FAR) commenced on 2 April 2002. The second "military trial", which is yet to open, involves Innocent Sagahutu (second-in-command of the Renaissance Battalion), François-Xavier Nzuwonemeye (Commander of the 42nd Battalion) and Augustin Ndindiliyimana (Chief of Staff of Gendarmerie Nationale).