CYIL vol. 13 (2022)

FRANTIŠEK TÓTH CYIL 13 ȍ2022Ȏ of effective control of superior over subordinates and held the opinion that “ 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. ” Subsequently, the purpose and the reason why superior should have this effective control is mainly to have “ the material ability to prevent and punish the commission of the offences (violations of international humanitarian law) ”. 49 As a result, according to the Trial Chamber, the doctrine of command responsibility is applied to (civilian) superiors only to the extent they exercised (effective) control over their subordinates. 50 This is quite important in regard to the possibility that civilian superiors – employees of PMSCs could be prosecuted for the crimes their subordinates have committed. The employees of PMSC do not usually possess official hierarchical subordination, 51 typical for the armed forces. 52 The status of civilian superiors therefore depends on the authority and effective control they possess over their subordinates. As a result, the actual powers and de facto authority is a decisive factor for determination, whether there is superior – subordinate relationship within PMSCs. As the Trial Chamber concluded ” (command) position cannot be determined by reference to formal status alone ” and command responsibility “ may be imposed by virtue of a person’s de facto, as well as de iure position… ” 53 Concerning the position of a superior itself, according to the Trial Chamber of the ICTY, it is “ sufficiently broad to encompass a position of authority based on the existence of de facto powers of control. ” 54 From the conclusion of the ICTY Trial Chamber, it indirectly follows that possibly employees of PMSCs do fall under criteria enumerated by the Trial Chamber. If a superior of PMSC would possess ‘de facto powers of control’, they would fulfill the criteria elaborated by the ICTY. Moreover, as the ICTY in the well known Blaskic’ case noted, the superior status must be assessed with regard to the real authority exercised by the superior. Therefore, their material ability to prevent or punish crimes is what counts, and according to the ICTY, there is no need to “ have any legal authority to prevent or punish acts of his subordinates. ” 55 Therefore, the fact that one is in position to prevent the commission of the crimes is indispensable for the establishment of a superior – subordinate relationship. 56 Besides that, concerning the prevention or punishment of acts of subordinates, what follows from Blaskić is that under some circumstances, “ the obligation of the commander to prevent or punish may be satisfied by reporting the matter to the competent authorities. ” 57 The Trial Chamber therefore indirectly 49 According to the Trial Chamber: “ 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. ” Ibid. 50 GILL, T. D., FLECK, D. The Handbook of the International Law of Military Operations , Oxford, Oxford University Press, 2015, p. 554. 51 This does not mean that there is no subordination. Rather, there is no such clear and formal division of powers and command and control as within the hierarchical structure of the armed forces. 52 It is often argued that PMSCs have “ military-like structure ” and “ the very services PMCs provide require an organization which is more hierarchically structured than would normally be the case with a company. ” LEHNARDT, note 37, p. 1026. 53 Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo & Zejnil Delalić , note 46. 54 Ibid. 55 Prosecutor v Blaškić . Case No IT-95-14-T, ICTY Trial Chamber, 3 March 2000. Summary available at: https:// www.icty.org/x/cases/blaskic/cis/en/cis_blaskic.pdf.. 56 LEHNARDT, note 37, p. 1027. 57 Prosecutor v Blaškić , ibid., check also METTRAUX, note 22, p. 50.

214