CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BY PRIVATE MILITARY… Tribunal for the former Yugoslavia (ICTY) 42 , which have considerably influenced the notion of command responsibility. 43

3. The Notion of Command Responsibility and the Jurisprudence of the Ad hoc International Criminal Tribunals

Both tribunals, the ICTR as well as ICTY, played an important role during the course of their time in clarifying the legal nature of the doctrine of command responsibility. 44 This had influence not just on the ‘general scope’ of the doctrine, but also on the judicial interpretation of the elements of the doctrine itself. This especially concerns the previously mentioned elements, namely the superior-subordinate relationship, mental element, and failure to act and therefore to prevent the commission of the crimes. 3.1 Superior-subordinate relationship As stated previously, the superior-subordinate relationship forms a substantial part of the doctrine of command responsibility. It is even considered as ‘central’ to the doctrine of command responsibility. 45 Both ICTY and ICTR have dealt with the superior-subordinate relationship and chain of command. Both tribunals have confirmed that not only the de iure position of the accused commander is to be taken into account, but also their de facto authority. The exercise of de facto authority is, however, crucial only as long as the superior exercises effective control over their subordinates. 46 In fact, civilian officials can also be regarded as superiors exercising de facto authority, since there is usually no de iure superior position within such hierarchical structure (as for instance in PMSCs), that is typical for the armed forces. On the other hand, as de iure superiors are to be understood as commanders within the armed forces. For the determination of the superior – subordinate relationship, the question whether the commander or superior possessed effective control over the subordinates is crucial. The ICTY dealt with this question several times. In a groundbreaking decision by ICTY in the Delalić 47 case, the ICTY established three constitutive elements of the command responsibility, namely (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, (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrators thereof. 48 In Delalić , the ICTY Trial Chamber highlighted the importance 42 ICTY, full name as: International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 was established by the United Nations in response to mass atrocities then taking place in Croatia and Bosnia and Herzegovina. International Criminal Tribunal for the former Yugoslavia. Available at: https://www.icty.org/. 43 For an information about the case law of ICTR and the notion of command responsibility, check for instance: WILLIAMSON, J., A. Command Responsibility in the Case Law of the International Criminal Tribunal for Rwanda. Criminal Law Forum . 2002, Kluwer Law International, pp. 365–384, Available at: https://www.legal tools.org/doc/8e32fb/pdf/. 44 FRULLI, p. 446. 45 WILLIAMSON, note 41, p. 368. 46 FRULLI, p. 446. 47 Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo & Zejnil Delalić . ČELEBIĆI CAMP, (IT-96-21), ICTY Trials Chamber. 1998. Check for instance: https://www.icty.org/x/cases/mucic/cis/en/cis_mucic_al_en.pdf. 48 Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo & Zejnil Delalić , note 46.

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