CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMMAND RESPONSIBILITY FOR CRIMES COMMITTED BY PRIVATE MILITARY… stated that if a commander or superior takes an action in order to investigate crimes committed by their subordinates, it can be, although not automatically, regarded as the fulfilment of the obligation to prevent or punish these crimes. The effective control criterion, as elaborated by the ICTY, requires a higher degree of authority, whether formally or informally exercised. This in turn, however, can create considerable hurdles in assessing superior responsibility in the case of senior private contractors acting as de facto superiors within a given operation. 58 The next part will analyze the second constituting element of command responsibility – the mental element or mens rea. 3.2 The mental element The mental element is considered to be the second element of command responsibility. The mental element (mens rea) is contained within the Statute of the ICTY 59 and the Statute of ICTR. 60 Moreover, according to the jurisprudence of the ad hoc tribunals, 61 in order for one to be convicted on the basis of command responsibility, it must be demonstrated that a superior knew or had reason to know that criminal acts by their subordinates were or were about to be committed. 62 Therefore, liability may not be entailed by a superior in the absence of proof that the superior knew or had reason to know of crimes committed by their subordinates. 63 Indeed, this also means that there is no absolute duty to know. Subsequently, a superior has a ‘duty to act’ in the case they have obtained information “ as would permit him to conclude that his subordinates had committed or were about to commit a crime. ” 64 The meaning of the term knew concerns the situation, when the superior must have had actual knowledge of the crimes committed by their subordinates. 65 In this case, a superior was aware that their subordinates were committing or were about to commit crimes under international law. 66 The ad hoc Tribunals have also dealt with the question of whether the superior knew . In Blaškić, the ICTY judges expressly declared that “ knowledge cannot be presumed… It may be proved through either direct or circumstantial evidence ” 67 This is quite important, because the court explicitly stated, that if the superior did not possess enough 58 FRULLI, note 16, p. 448. 59 Article 7(3) of the ICTY Statute states “The 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.” Updated Statute of the International Criminal Tribunal for the Former Yugoslavia. Adopted 25 May 1993 by Resolution 827, Amended 7 July 2009 by Resolution 1877. Available at: https://www.icty.org/x/file/Legal%20Library/ Statute/statute_sept09_en.pdf. 60 Article 6(3) of the ICTR Statute states: “ The fact that any of the acts referred to in Article 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she 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. ” International Criminal Tribunal for Rwanda. Available at: https://unictr.irmct.org/sites/unictr.org/files/legal-library/100131_Statute_ en_fr_0.pdf. 61 For the purpose of this article, as ad hoc Tribunals the ICTY and ICTR have to be understood. 62 FRULLI, note 16, p. 448. 63 METTRAUX, note 22, p. 64. 64 Ibid., p. 64. 65 Ibid., p. 64. 66 MELONI, Chantal. Command Responsibility in International Law. 1st Edition, T.M. C. Asser Press., 2010, p. 180. 67 Prosecutor v Blaškić , note 54.

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